Animal and Plant Health Inspection Service
Forest Service
Rural Utilities Service
Industry and Security Bureau
International Trade Administration
National Oceanic and Atmospheric Administration
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Federal Energy Regulatory Commission
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Food and Drug Administration
National Institutes of Health
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Geological Survey
Indian Affairs Bureau
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Antitrust Division
Federal Bureau of Investigation
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Employment and Training Administration
Federal Aviation Administration
Federal Highway Administration
Federal Motor Carrier Safety Administration
National Highway Traffic Safety Administration
Research and Innovative Technology Administration
Surface Transportation Board
Internal Revenue Service
Consult the Reader Aids section at the end of this page for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
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Federal Housing Finance Agency.
Notice of final regulatory review plan.
The Federal Housing Finance Agency (FHFA) is issuing a notice of the final FHFA regulatory review plan for review of existing regulations under Executive Order 13579, “Regulation and Independent Regulatory Agencies,” (July 11, 2011).
The effective date of this document is April 23, 2012.
Alfred M. Pollard, General Counsel,
Executive Order 13579, “Regulation and Independent Regulatory Agencies,” (July 11, 2011), requests that each independent regulatory agency, such as FHFA, analyze its existing regulations and modify, streamline, expand, or repeal them in accordance with the findings of the analysis. Executive Order 13579 also requests each independent regulatory agency to make public a plan under which the agency will periodically review its existing significant regulations to make the agency's regulatory program more effective or less burdensome in achieving regulatory objectives.
The Housing and Economic Recovery Act of 2008 (HERA) established FHFA on July 30, 2008, as an independent regulatory agency to supervise and regulate the Federal National Mortgage Association (Fannie Mae), the Federal Home Loan Mortgage Corporation (Freddie Mac), and the Federal Home Loan Banks (collectively, regulated entities), and the Office of Finance of the Federal Home Loan Bank System. HERA transferred to the new agency the employees, functions, and regulations of the Office of Federal Housing Enterprise Oversight (OFHEO), the Federal Housing Finance Board (FHFB), and the Government-Sponsored Enterprise mission team within the U.S. Department of Housing and Urban Development (HUD).
HERA and, most recently, the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) mandate that FHFA issue new regulations on specific matters in connection with FHFA's supervision and regulation of the regulated entities and the Office of Finance. Currently, in determining whether to revise, adopt without change, or repeal transferred OFHEO, FHFB, and certain HUD regulations, FHFA reviews such regulations to determine the appropriate action and publishes the regulations for comment. Public comments provide additional information to FHFA on how to make the regulations more effective and less burdensome.
FHFA's current review of OFHEO, FHFB, and certain HUD regulations is similar to the review it will conduct of existing regulations under Executive Order 13579. The regulatory review plan is set forth below. FHFA will conduct the review of its existing regulations under Executive Order 13579 at least every five years. In light of the recent establishment of FHFA and ongoing regulatory activities mandated by HERA and the Dodd-Frank Act, the first review will begin no later than August 2013, five years after the establishment of FHFA. FHFA regulations published in Chapter XII of Title 12 of the
FHFA published a notice of its interim regulatory review plan and requested comments on the plan. 76 FR 59066 (September 23, 2011). FHFA received no comments. FHFA is adopting as final the interim regulatory review plan without change. The final regulatory review plan follows.
a.
b.
(1) Legal or regulatory developments, including new laws, executive orders, or judicial decisions that have been adopted since the promulgation of a regulation that make such regulation inefficient, obsolete, contrary to controlling legal precedent, or unduly burdensome;
(2) Application by Fannie Mae, Freddie Mac, or a Federal Home Loan Bank (regulated entity) or the Office of Finance of the Federal Home Loan Bank System for revision of a regulation because of reasonably discernible regulatory burden or inefficiency;
(3) Marketplace developments, technological evolution and related changes that may have rendered an existing regulation, in whole or in part, inefficient, outmoded, or outdated;
(4) Such other occurrences or developments as determined by FHFA to be relevant to a review for inefficiency or unwarranted regulatory burden;
(5) Whether the provisions of the regulation are written in plain language or otherwise need clarification;
(6) Compelling evidence that a consolidation of two or more regulations, elimination of a duplicative regulation, or other revision to regulatory requirements would facilitate compliance by or supervision of a regulated entity or the Office of Finance;
(7) A demonstration of a better alternative method to effect a regulatory
(8) Such other factors as determined by FHFA to be relevant to determining and evaluating the need for and effectiveness of a particular regulation.
c.
(2) A review and report of findings and recommendations will be provided to the FHFA Director on a timely basis. The report of findings and recommendations will be privileged and confidential.
(3) After receiving the report of findings and recommendations, the FHFA Director will determine what steps may be necessary to relieve any unnecessary burden, including amendment to or repeal of existing regulations or issuance of less formal guidance.
d.
Federal Aviation Administration (FAA), DOT.
Final rule.
We are revising an existing airworthiness directive (AD) for transport category airplanes that have one or more lavatories equipped with paper or linen waste receptacles. That AD currently requires installation of placards prohibiting smoking in the lavatory and disposal of cigarettes in the lavatory waste receptacles; establishment of a procedure to announce to airplane occupants that smoking is prohibited in the lavatories; installation of ashtrays at certain locations; and repetitive inspections to ensure that lavatory waste receptacle doors operate correctly. This new AD extends the time an airplane may be operated with certain missing ashtrays. This AD was prompted by the determination that certain compliance times required by the existing AD could be extended and still address fires occurring in lavatories caused by, among other things, the improper disposal of smoking materials in lavatory waste receptacles. We are issuing this AD to correct this unsafe condition on these products.
This AD is effective March 28, 2012.
You may examine the AD docket on the Internet at
Alan Sinclair, Aerospace Engineer, Airframe/Cabin Safety Branch, ANM–115, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, Washington 98057–3356; phone: 425–227–2195; fax: 425–227–1232.
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to revise AD 74–08–09 R2, Amendment 39–9680 (61 FR 32318, June 24, 1996). That AD applies to the specified products. The NPRM published in the
We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM (75 FR 61657, October 6, 2010) proposal and the FAA's response to each comment.
Air Line Pilots Association, International (ALPA), Boeing, and Air Transport Association (ATA) supported the intent of the NPRM (75 FR 61657, October 6, 2010).
MNG Airlines reported that some airplane manufacturers' maintenance planning documents (MPDs) include the requirements of AD 74–08–09 R2, Amendment 39–9680 (61 FR 32318, June 24, 1996), in a task card, which the operators add to their own MPDs for their fleet. The commenter requested that we revise the NPRM (75 FR 61657, October 6, 2010) by indicating that, if a manufacturer's and operator's MPDs cover a task card, the AD requirements are automatically satisfied.
We disagree with the request. Operators determine how to track the implementation and compliance of the AD requirements for their fleet. We do not consider it appropriate to include AD provisions that apply only to certain operators. It is not necessary to change the final rule to include this provision.
ATA recommended that we simplify and clarify the proposed relief provisions for airplanes having multiple lavatory doors. For those airplanes, ATA recommended that we revise the NPRM (75 FR 61657, October 6, 2010) to provide MMEL (Master Minimum Equipment List) relief for up to—and including—50 percent of the ashtrays for 10 days. (The NPRM specified only “up to” 50 percent of the ashtrays.) ATA noted that this recommendation would (1) Remove the proposed requirement to replace half of the missing ashtrays within 3 days; (2) provide a level of safety equal to or exceeding the level proposed for airplanes having only one
We have reviewed the ATA proposal. While we agree that the proposal has merit, we find that it does not account for all possible scenarios. Paragraph (j) of the AD allows 3 days to install any ashtrays if more than 50 percent of the ashtrays are missing. The commenter's proposed change, on the other hand, could ground airplanes: If, for example, 2 of 2 ashtrays are missing, 1 ash tray must be installed before further flight. We have therefore not changed the final rule regarding this issue. But, according to the provisions of paragraph (m) of this AD, we may approve requests to adjust the compliance schedule if the request includes data substantiating that the new schedule would provide an acceptable level of safety.
Thomas Edward Young requested that we clarify paragraph (j) of the NPRM (75 FR 61657, October 6, 2010) to address the case of a single ashtray missing on an airplane with multiple lavatory door ashtrays. Mr. Young provided alternative text to address this situation.
We disagree with the request. Paragraph (j) of this AD adequately covers the scenario described by the commenter. We have not changed the final rule regarding this issue.
ALPA requested clarification of the relief proposed in the NPRM (75 FR 61657, October 6, 2010) for two possible scenarios.
First, ALPA was concerned about possible confusion of the AD requirements for airplanes with an odd number of multiple lavatory doors with missing or inoperative ashtrays. In this case, the 50 percent criteria specified in the AD would result in a fractional number. ALPA therefore suggested that we revise the NPRM (75 FR 61657, October 6, 2010) to ensure that a fractional number of ashtrays be rounded to the next higher whole number.
Second, ALPA noted that, if there are groups of lavatories in multiple locations throughout an airplane, compliance with the proposed requirements aircraft-wide could result in all of the ashtrays in a group being missing or inoperative. To ensure that the required extinguishing capability is retained, ALPA therefore recommended an additional requirement to ensure that at least one lavatory door in each group of lavatories has a serviceable ashtray.
We disagree with the requests, although we considered both recommendations during the drafting of this revision of the AD. We determined that the commenter's first recommendation (to address airplanes with an odd number of missing ashtrays) would have only added to the complexity of the AD. If the calculation of ashtrays needing to be replaced results in a fractional number, operators will need to round up this figure. The only way to replace 2.5 ashtrays, for example, is to replace 3 ashtrays. We find that additional clarification is not necessary.
We determined that the commenter's second recommendation (to address airplanes with all ashtrays missing in a group of lavatories) would have resulted in confusing and overly complicated requirements. The AD's more simplified approach adequately addresses the unsafe condition.
We have not changed the AD regarding these issues.
We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting the AD as proposed.
This action merely extends a certain compliance time and does not add any new additional economic burden on affected operators. The relief provided by this AD allows operators to continue to operate airplanes without the required number of ashtrays for a longer period of time than was previously permitted. This results in reduced costs to affected operators since it reduces the potential interruptions in service to reinstall the ashtrays. The current costs associated with this AD are provided below for the convenience of affected operators. The following table provides the estimated costs for U.S. operators to comply with this AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This airworthiness directive (AD) is effective March 28, 2012.
This AD revises AD 74–08–09 R2, Amendment 39–9680 (61 FR 32318, June 24, 1996).
This AD applies to transport category airplanes, certificated in any category, that have one or more lavatories equipped with paper or linen waste receptacles. These lavatories may be on various airplanes, identified in but not limited to the airplanes of the manufacturers included in table 1 of this AD.
Air Transport Association (ATA) of America Code 25: Equipment/furnishings.
This revision to the AD (AD 74–08–09 R2 (61 FR 32318, June 24, 1996)) was prompted by the determination that certain compliance times required by the existing AD may be extended and still address fires occurring in lavatories caused by, among other things, the improper disposal of smoking materials in lavatory waste receptacles. This revision to the AD would continue to prevent possible fires that could result from smoking materials being dropped into lavatory paper or linen waste receptacles.
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 60 days after August 6, 1974 (the effective date of AD 74–08–09, Amendment 39–1917 (39 FR 28229, August 6, 1974)), or before the accumulation of any time in service on a new production aircraft after delivery, whichever occurs later—except that new production aircraft may be flown in accordance with sections 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to a base where compliance may be accomplished: Accomplish the requirements of paragraphs (g)(1) and (g)(2) of this AD.
(1) Install a placard on each side of each lavatory door over the door knob, or on each side of each lavatory door, or adjacent to each side of each lavatory door. The placards must contain the legible words “No Smoking in Lavatory” or “No Smoking,” or contain “No Smoking” symbology in lieu of words, or contain both wording and symbology, to indicate that smoking is prohibited in the lavatory. The placards must be of sufficient size and contrast and be located so as to be conspicuous to lavatory users. And
(2) Install a placard on or near each lavatory paper or linen waste disposal receptacle door, containing the legible words or symbology indicating “No Cigarette Disposal.”
Within 30 days after August 6, 1974 (the effective date of AD 74–08–09, Amendment 39–1917 (39 FR 28229, August 6, 1974)), establish a procedure that requires that, no later than a time immediately after the “No Smoking” sign is extinguished following takeoff, an announcement be made by a crewmember to inform all aircraft occupants that smoking is prohibited in the aircraft lavatories; except that, if the aircraft is not equipped with a “No Smoking” sign, the required procedure must provide that the announcement be made prior to each takeoff.
Except as provided by paragraph (j) of this AD: Within 180 days after August 6, 1974 (the effective date of AD 74–08–09, Amendment 39–1917 (39 FR 28229, August 6, 1974)), or before the accumulation of any time in service on a new production aircraft, whichever occurs later—except that new production aircraft may be flown in accordance with sections 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to a base where compliance may be accomplished: Install a self-contained, removable ashtray on or near the entry side of each lavatory door. One ashtray may serve more than one lavatory door if the ashtray can be seen readily from the cabin side of each lavatory door served.
An airplane with multiple lavatory doors may be operated with up to 50 percent of the lavatory door ashtrays missing or inoperative, provided 50 percent of the missing or inoperative ashtrays are replaced within 3 days and all remaining missing or inoperative ashtrays are replaced within 10 days. An airplane with only 1 lavatory door may be operated for a period of 10 days with the lavatory door ashtray missing or inoperative.
This AD permits a lavatory door ashtray to be missing, although the FAA-approved Master Minimum Equipment List (MMEL) may not allow such provision. In any case, the provisions of this AD prevail.
Within 30 days after August 6, 1974 (the effective date of AD 74–08–09, Amendment
(1) Inspect all lavatory paper and linen waste receptacle enclosure access doors and disposal doors for proper operation, fit, sealing, and latching for the containment of possible trash fires.
(2) Correct all defects found during the inspections required by paragraph (k)(1) of this AD.
Upon the request of an operator, the FAA Principal Maintenance Inspector (PMI) may adjust the 1,000-hour repetitive inspection interval specified in paragraph (k) of this AD to permit compliance at an established inspection period of the operator if the request contains data to justify the requested change in the inspection interval.
(1) The Manager, Airframe/Cabin Safety Branch, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in the Related Information section of this AD.
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
For more information about this AD, contact Alan Sinclair, Aerospace Engineer, Airframe/Cabin Safety Branch, ANM–115, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, Washington 98057–3356; phone: 425–227–2195; fax: 425–227–1232; email:
None.
Federal Aviation Administration (FAA), DOT.
Final rule.
We are superseding an existing airworthiness directive (AD) for all RR RB211–Trent 800 series turbofan engines. That AD currently requires removal from service of certain critical engine parts based on reduced life limits. This new AD reduces the life limits of additional critical engine parts. This AD was prompted by RR reducing the life limits of additional critical engine parts. We are issuing this AD to prevent the failure of critical rotating parts, which could result in uncontained failure of the engine and damage to the airplane.
This AD is effective March 28, 2012.
For service information identified in this AD, contact Rolls-Royce plc, Corporate Communications, P.O. Box 31, Derby, England, DE248BJ; phone: 011–44–1332–242424; fax: 011–44–1332–245418 or email from
You may examine the AD docket on the Internet at
Alan Strom, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; phone: 781–238–7143; fax: 781–238–7199; email:
We issued a supplemental notice of proposed rulemaking (SNPRM) to amend 14 CFR part 39 to supersede airworthiness directive (AD) 2003–16–18, amendment 39–13271 (68 FR 49344, August 18, 2003). That AD applies to the specified products. That SNPRM published in the
We gave the public the opportunity to participate in developing this AD. We received no comments on the SNPRM (76 FR 68663, November 7, 2011).
We reviewed the relevant data and determined that air safety and the public interest require adopting the AD as proposed.
Based on the service information, we estimate that this AD affects about 16 RB211–Trent 800 series turbofan engines of U.S. registry. The average labor rate is $85 per work-hour, but no labor cost is associated with this AD because discs are replaced at scheduled maintenance intervals. Prorated cost of parts cost about $45,000 per engine. Based on these figures, we estimate the cost of the AD on U.S. operators to be $720,000.
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:
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 March 28, 2012.
This AD supersedes AD 2003–16–18, Amendment 39–13271 (68 FR 49344, August 18, 2003).
This AD applies to Rolls-Royce plc (RR) RB211–Trent 895–17, 892–17, 892B–17, 884–17, 884B–17, 877–17, and 875–17 turbofan engines.
This AD was prompted by RR reporting changes to the lives of certain life-limited rotating parts. We are issuing this AD to prevent the failure of critical rotating parts, which could result in uncontained failure of the engine and damage to the airplane.
Compliance is required within 30 days after the effective date of this AD, unless already done.
(1) After the effective date of this AD, remove from service the parts listed in Table 1 of this AD before exceeding the new life limit indicated:
After the effective date of this AD, do not install any IP turbine rotor discs, P/N FK33083, into any engine.
The Manager, Engine Certification Office, FAA, may approve AMOCs to this AD. Use the procedures found in 14 CFR 39.19 to make your request.
(1) You may find additional information on calculating Standard Duty Cycles and/or using HEAVY Profile Cycles, in RR Time Limits Manual 05–00–01–800–801, Recording and Control of the Lives of Parts.
(2) For more information about this AD, contact Alan Strom, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; phone: 781–238–7143; fax: 781–238–7199; email:
(3) Refer to European Aviation Safety Agency Airworthiness Directive 2007–0003R1, dated January 15, 2009, and RR Alert Service Bulletin No. RB.211–72–AE935, Revision 7, dated January 19, 2009, for related information.
(4) For service information identified in this AD, contact Rolls-Royce plc, Corporate Communications, P.O. Box 31, Derby, DE24 8BJ, United Kingdom; phone: 011–44–1332–242424; fax: 011–44–1332–249936; email from
None.
Bureau of Industry and Security, Commerce.
Final rule.
This rule updates the Code of Federal Regulations (CFR) legal authority citations for the Export Administration Regulations (EAR) to replace citations to the President's Notice of January 13, 2011,
William Arvin, Regulatory Policy Division, Bureau of Industry and Security, telephone: (202) 482–2440.
In Executive Order 12947 of January 13, 1995 (60 FR 5079, 3 CFR, 1995 Comp., p. 356), the President declared a national emergency with respect to the unusual and extraordinary threat to the national security, foreign policy and economy of the United States posed by grave acts of violence committed by terrorists who threaten to disrupt the Middle East process. On August 20, 1998, by Executive Order 13099 (63 FR 45167, 3 CFR, 1998 Comp., p. 208), the President modified the Annex to Executive Order 12947 to identify four additional persons who threaten to disrupt the Middle East peace process. On February 16, 2005, by Executive Order 13372, the President clarified the steps taken in Executive Order 12947. The national emergency declared in Executive Order 12947 has been continued in effect through successive annual presidential notices.
The authority for Parts 730 and 744 of the EAR (15 CFR parts 730 and 744) rests in part on Executive Order 12947, as amended and clarified, and on the successive annual notices continuing the emergency declared in that Executive Order. This rule revises the authority citation paragraphs in those parts of the CFR to add a citation to the notice of January 19, 2012, which is the most recent such annual Presidential notice, and to remove the citation to the notice of January 13, 2011 on the same topic.
On September 23, 2001, by Executive Order 13224, the President declared a national emergency with respect to persons who commit, threaten to commit, or support terrorism, pursuant to the International Emergency Economic Powers Act (50 U.S.C. 1701
The authority for Parts 730 and 744 of the EAR (15 CFR parts 730 and 744) rests in part on Executive Order 13224 and on the successive annual notices continuing the emergency declared in that Executive Order. This rule revises the authority citation paragraphs in those parts of the CFR to cite the notice of September 21, 2011, which is the most recent such annual Presidential notice.
BIS is making the two revisions described in this rule so that Title 15 of the Code of Federal Regulations will cite the current authorities for the parts mentioned above. This rule is purely procedural and makes no changes other than to revise CFR authority citations paragraphs. It does not change the text of any section of the EAR, nor does it alter any right, obligation or prohibition that applies to any person under the EAR.
1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). This rule does not impose any regulatory burden on the public and is consistent with the goals of Executive Order 13563. This rule has been determined not to be a significant rule for purposes of Executive Order 12866.
2. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501
3. This rule does not contain policies with Federalism implications as that term is defined under Executive Order 13132.
4. The Department finds that there is good cause under 5 U.S.C. 553(b)(3)(B) to waive the provisions of the Administrative Procedure Act requiring prior notice and the opportunity for public comment because they are unnecessary. This rule only updates legal authority citations and is nondiscretionary. This rule does not alter any right, obligation or prohibition that applies to any person under the EAR. Because these revisions are not substantive changes, it is unnecessary to provide notice and opportunity for public comment. In addition, the 30-day delay in effectiveness required by 5 U.S.C. 553(d) is not applicable because this rule is not a substantive rule. Because neither the Administrative Procedure Act nor any other law requires that notice of proposed rulemaking and an opportunity for public comment be given for this rule, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601
Administrative practice and procedure, Advisory committees, Exports, Reporting and recordkeeping requirements, Strategic and critical materials.
Exports, Reporting and recordkeeping requirements, Terrorism.
Accordingly, the EAR (15 CFR parts 730–774) is amended as follows:
50 U.S.C. app. 2401
50 U.S.C. app. 2401
Consumer Product Safety Commission.
Acceptance of standard.
The Consumer Product Safety Commission (“CPSC,” Commission,” or “we”) is announcing that we have accepted the revised ASTM F963–11 standard titled,
ASTM F963–11 will become effective on June 12, 2012.
Jonathan Midgett, Ph.D., Office of Hazard Identification and Reduction, U.S. Consumer Product Safety Commission, 4330 East West Highway, Suite 600, Bethesda, MD 20814; telephone (301) 504–7692; email
On February 10, 2009, section 106(a) of the Consumer Product Safety Improvement Act of 2008, (CPSIA), Public Law 110–314, made the provisions of ASTM F963–07,
On December 15, 2011, ASTM officially proposed revisions to the existing standard for Commission consideration, by submitting ASTM F963–11,
The Commission has determined that the proposed revisions in ASTM F963–11 improve the safety of the consumer products covered by the standard. Therefore, although the CPSIA does not require us to issue a notice in the
Securities and Exchange Commission.
Final rule.
The Securities and Exchange Commission (“Commission” or “SEC”) is adopting amendments to the rule under the Investment Advisers Act of 1940 that permits investment advisers to charge performance based compensation to “qualified clients.” The amendments
Daniel K. Chang, Senior Counsel, or C. Hunter Jones, Assistant Director, at 202–551–6792, Office of Regulatory Policy, Division of Investment Management, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–8549.
The Commission is adopting amendments to rule 205–3 [17 CFR 275.205–3] under the Investment Advisers Act of 1940 (“Advisers Act” or “Act”).
Section 205(a)(1) of the Investment Advisers Act generally restricts an investment adviser from entering into, extending, renewing, or performing any investment advisory contract that provides for compensation to the adviser based on a share of capital gains on, or capital appreciation of, the funds of a client.
The Commission adopted rule 205–3 in 1985 to exempt an investment adviser from the restrictions against charging a client performance fees in certain circumstances.
In 1998, the Commission amended rule 205–3 to, among other things, change the dollar amounts of the assets-under-management test and net worth test to adjust for the effects of inflation since 1985.
The Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”)
In May 2011, the Commission published a notice of intent to issue an order revising the dollar amount thresholds of the assets-under-management and the net worth tests of rule 205–3 to account for the effects of inflation.
On July 12, 2011, we issued an order revising the threshold of the assets-under-management test to $1 million,
We are amending rule 205–3 in three ways to carry out the required inflation adjustment of the dollar amount thresholds of the rule. First, we are revising the dollar amount thresholds that currently apply to investment advisers, to codify the order we issued on July 12, 2011. As amended, paragraph (d) of rule 205–3 provides that the assets-under-management threshold is $1 million and that the net worth threshold is $2 million, which are the revised amounts we issued by order.
Second, we are adding to rule 205–3, as proposed, a new paragraph (e) that states that the Commission will issue an order every five years adjusting for inflation the dollar amount thresholds of the assets-under-management and net worth tests of the rule.
Amended rule 205–3(e) also specifies the price index on which future inflation adjustments will be based.
We also are amending the net worth test in the definition of “qualified client” in rule 205–3 to exclude the value of a natural person's primary residence and certain debt secured by the property.
We proposed to exclude the value of a person's primary residence and the debt secured by the residence, up to the fair market value of the residence, from the calculation of a person's net worth.
Many commenters objected to the exclusion of the value of a person's primary residence from the calculation of net worth. Commenters expressed concern that the exclusion would limit the investment options of less wealthy investors and restrict their access to advisory arrangements that include performance fees.
We continue to believe that the value of a person's residence generally has little relevance to the individual's financial experience and ability to bear the risks of performance fee arrangements, and therefore little relevance to the individual's need for the Act's protections from performance fee arrangements.
Our exclusion of the value of a person's primary residence from the net worth calculation under the rule is similar to the approach that the Commission has taken in other rules to determine the financial qualifications of investors. For example, the Commission excluded the value of a person's primary residence and associated liabilities from the determination of whether a person is a “high net worth customer” in Regulation R under the Securities Exchange Act of 1934.
Some commenters voiced particular concern about the exclusion of the residential value at the same time that we adjust the dollar amount thresholds for inflation, and argued that the two changes together could cause too much change at one time.
Some of the commenters who disagreed with the proposal to raise the dollar amount threshold of the net worth standard or to exclude the value of a residence from net worth, also disagreed that a person's net worth should be used as a measure of eligibility for the exemption from the performance fee restrictions.
Our amendment of the net worth standard of rule 205–3 differs from the proposed amendment in one respect. The approach we are adopting today will generally require any increase in the amount of debt secured by the primary residence in the 60 days before the advisory contract is entered into to be included as a liability. As discussed below, this change will prevent debt that is incurred shortly before entry into an advisory contract from being excluded from the calculation of net worth merely because it is secured by the individual's home.
As proposed, the amended rule would have excluded the value of a person's primary residence and the amount of all debt secured by the property that is no greater than the property's current market value.
In the Proposing Release, we requested comment on whether the amendments to the rule should contain a timing provision to prevent investors from inflating their net worth by borrowing against their homes, effectively converting their home equity—which is excluded from the net worth calculation under the amendments adopted today—into cash or other assets that would be included in the net worth calculation.
As in the recently adopted accredited investor rule amendments adjusting the net worth standard,
This approach should significantly reduce the incentive for persons to induce potential clients to take on incremental debt secured against their homes to facilitate a near-term investment. We believe a 60-day look-
Another alternative to address the possibility of parties attempting to circumvent the standard would have been to provide that any debt secured by the primary residence that was incurred after the original purchase date of the primary residence would have been counted as a liability, whether or not the fair market value of the primary residence exceeded the value of the total amount of debt secured by the primary residence. We believe that such a standard would be overly restrictive and not provide for ordinary course changes to debt secured by a primary residence, such as refinancing and drawings on home equity lines. We believe that the approach we are adopting here will protect investors by addressing circumstances in which they may have been induced to incur new debt secured by the primary residence for the purpose of inflating net worth under the rule, while still permitting ordinary course changes to debt secured by the primary residence. This approach is similar to the approach the Commission recently adopted for accredited investor rule amendments adjusting the net worth standard, and it responds to commenters who urged the Commission to promote regulatory consistency in the treatment of primary residences in other similar contexts in order to promote fairness, facilitate enforcement, and provide clarity for both industry and regulators.
We proposed two new transition provisions that would allow an investment adviser and its clients to maintain existing performance fee arrangements that were permissible when the advisory contract was entered into, even if the performance fees would not be permissible under the contract if it were entered into at a later date. We are adopting the two transition rules substantially as proposed, which commenters supported.
Paragraphs (1) and (2) of rule 205–3(c) are designed so that restrictions on performance fees apply only to new contractual arrangements and do not apply to new investments by clients (including equity owners of “private investment companies”) who met the definition of “qualified client” when they entered into the advisory contract, even if they subsequently do not meet the dollar amount thresholds of the rule.
Rule 205–3(c)(1)
Rule 205–3(c)(2) provides that, if a registered investment adviser previously was not required to register with the Commission pursuant to section 203 of the Act and did not register, section 205(a)(1) of the Act will not apply to the contractual arrangements into which the registered adviser entered when it was not registered with the Commission.
Finally, at the suggestion of one commenter, we have revised the third paragraph of rule 205–3(c), to allow for limited transfers of interests from a qualified client to a person that was not a party to the contract and is not a qualified client at the time of the transfer.
The rule amendments we are adopting today will be effective on May 22, 2012. In addition, in order to minimize the disruption of contractual relationships that met applicable requirements at the time the parties entered into them, the Commission will not object if advisers rely or relied upon the amended transition provisions of rule 205–3(c) before that date.
The Commission is sensitive to the costs and benefits imposed by its rules. In the Proposing Release, we analyzed the costs and benefits of the proposed rules and sought comment on all aspects of the cost-benefit analysis, including identification and assessment of any costs and benefits not discussed in the analysis. Only two commenters addressed the cost-benefit analysis.
As stated above, section 205(a)(1) of the Advisers Act generally restricts an investment adviser from entering into an advisory contract that provides for performance-based compensation.
The Commission adopted rule 205–3 to exempt an investment adviser from the restrictions against charging a client performance fees where a client has a specified net worth or amount of assets under management. Section 418 of the Dodd-Frank Act amended section 205(e) to require that the Commission adjust for inflation the dollar amount thresholds in rules promulgated under section 205(e) within one year of enactment of the Dodd-Frank Act and every five years thereafter. Generally an inflation adjustment is designed to help make the dollar amount thresholds in a provision continue to serve the same purposes over time. The amendments to rule 205–3 providing that the Commission will issue orders every five years adjusting for inflation the dollar amount thresholds of the rule will codify the Dodd-Frank Act's amendment of section 205(e) of the Advisers Act that requires the Commission to issue these orders.
As proposed, we are amending rule 205–3 to exclude the value of a natural person's primary residence and certain debt secured by the property from the determination of whether a person has sufficient net worth to be considered a “qualified client.” We are also modifying the transition provisions of the rule to take into account performance fee arrangements that were permissible when they were entered
The exclusion of the value of an individual's primary residence will benefit certain investors. As discussed above, the Act's restrictions on performance fee arrangements are designed to protect advisory clients from arrangements that encourage advisers to take undue risks with client funds to increase advisory fees, while rule 205–3 is designed to permit clients who are financially experienced and able to bear the risks of performance fee arrangements to enter into those arrangements.
As discussed above, the exclusion of the value of an individual's primary residence from the calculation of net worth under the rule is similar to changes that Congress required the Commission to make to rules under the Securities Act, including Regulation D.
The amendments to the rule's transition provisions will allow advisory clients and investment advisers to avoid certain costs resulting from the statutory mandate to adjust for inflation and the Commission's resultant July 2011 Order. The amendments allow an investment adviser and its clients to maintain existing performance fee arrangements that were permissible when the advisory contract was entered into, even if performance fees would not be permissible under the contract if it were entered into at a later date. These transition provisions are designed so that the restrictions on the charging of performance fees apply to new contractual arrangements and do not apply retroactively to existing contractual arrangements, including investments in private investment companies. Otherwise, advisory clients and investment advisers might have to terminate contractual arrangements into which they previously entered and enter into new arrangements, which could be costly to investors and advisers.
The amendments exclude the value of a person's primary residence and generally exclude debt secured by the property (if no greater than the current market value of the residence) from the calculation of a person's net worth.
For purposes of this cost-benefit analysis, Commission staff assumes that 25 percent of the 1.3 million households would have entered into new advisory contracts that contained performance fee arrangements after the compliance date of the amendments, and therefore approximately 325,000 clients will not meet the revised net worth test.
Commission staff estimates that the remaining 39,000 households that would have entered into advisory contracts, if the value of the client's primary residence were not excluded from the calculation of a person's net worth, will not enter into advisory contracts. Some of these households will likely seek other investment opportunities. Other households may forego professional investment management altogether because of the higher value they place on the alignment of advisers' interests with their own interests associated with the use of performance fee arrangements.
We recognize that the exclusion of the value of a person's primary residence from the calculation of a person's net worth will reduce the pool of potential qualified clients for advisers. This, in turn, might result in a reduction in the total fees collected by investment advisers. In order to replace those clients and lost revenue, some advisers may choose to market their services to more potential clients, which may result in increased marketing and administrative costs.
Although some commenters asserted that these amendments would harm small advisers or less wealthy clients, commenters did not provide any quantitative data to support their statements.
One commenter asserted that because liabilities in excess of the value of the primary residence would be included in the net worth calculation the Commission should include in its analysis the cost to clients of obtaining valuations from real estate agents.
Some commenters argued that excluding the value of an investor's primary residence from the net worth test of the rule at the same time as adjusting the rule's dollar amount thresholds for inflation would cause too much change at one time.
The amendments to the rule's transition provisions are not likely to impose any new costs on advisory clients or investment advisers. As discussed above, the amendments allow an investment adviser and its clients to maintain existing performance fee arrangements that were permissible when the advisory contract was entered into, even if performance fees would not be permissible under the contract if it were entered into at a later date. The amendments also allow for the transfer of an ownership interest in a private investment company by gift or bequest, or pursuant to an agreement relating to a legal separation or divorce to a party that is not a qualified client.
We do not expect that adjustment of the dollar amount thresholds in rule 205–3, which codifies the adjustments that the Commission effected in its July 2011 order, will impose new costs on advisory clients or investment advisers. The adjustments will have no effect on existing contractual relationships that met applicable requirements under the rule at the time the parties entered into them, because those relationships may continue under the transition provisions of the rule. Although an investment adviser could be prohibited from charging performance fees to new clients to whom it could have charged performance fees if the advisory contract had been entered into before the adjustment of the dollar thresholds, we attribute this effect to the Dodd-Frank Act rather than to this rulemaking. One commenter stated that rather than addressing the contention that the adjustment to the dollar amount thresholds is unfair to small investors, the Commission “passed the buck” back to Congress.
Section 418 of the Dodd-Frank Act does not specify how the Commission should measure inflation in adjusting the dollar amount thresholds. We proposed, and are adopting, the PCE Index because it is widely used as a broad indicator of inflation in the economy and because the Commission has used the PCE Index in other contexts. It is possible that the use of the PCE Index to measure inflation might result in a larger or smaller dollar amount for the two thresholds than the use of a different index, but the rounding required by the Dodd-Frank Act (to the nearest $100,000) likely negates any difference between indexes.
The amendments to rule 205–3 under the Investment Advisers Act do not contain any “collection of information” requirements as defined by the Paperwork Reduction Act of 1995, as amended (“PRA”).
The Commission certified in the Proposing Release, pursuant to section 605(b) of the Regulatory Flexibility Act of 1980 (“RFA”),
Based on information in filings submitted to the Commission, 617 of the approximately 11,888 investment advisers registered with the Commission are small entities. Only approximately 20 percent of the 617 registered investment advisers that are small entities (about 122 advisers) charge any of their clients performance fees. In addition, 24 of the 122 advisers required at the time of the Proposing Release an initial investment from their clients that would meet the then current assets-under-management threshold ($750,000), which advisory contracts will be grandfathered into the exemption provided by rule 205–3 under the amendments. Therefore, if these advisers in the future raise those minimum investment levels to the revised level that we issued by order ($1 million), those advisers could charge their clients performance fees because the clients would meet the assets-under-management test, even if they would not meet the revised net worth test that excludes the value of the client's primary residence. For these reasons, the Commission believes that the amendments to rule 205–3 will not have a significant economic impact on a substantial number of small entities. The Commission requested written comments regarding the certification. One commenter stated that the Proposing Release includes “suspicious” quantified data to support the claim as to how few advisers will be affected by the required review every five years.
The Commission is adopting amendments to rule 205–3 pursuant to the authority set forth in section 205(e) of the Investment Advisers Act of 1940 [15 U.S.C. 80b–5(e)].
Reporting and recordkeeping requirements, Securities.
15 U.S.C. 80b–2(a)(11)(G), 80b–2(a)(11)(H), 80b–2(a)(17), 80b–3, 80b–4, 80b–4a, 80b–6(4), 80b–6a, 80b–11, unless otherwise noted.
The revisions and addition read as follows:
(c)
(2)
(3)
(d) * * *
(1) * * *
(i) A natural person who, or a company that, immediately after entering into the contract has at least $1,000,000 under the management of the investment adviser;
(ii) A natural person who, or a company that, the investment adviser entering into the contract (and any person acting on his behalf) reasonably believes, immediately prior to entering into the contract, either:
(A) Has a net worth (together, in the case of a natural person, with assets held jointly with a spouse) of more than $2,000,000. For purposes of calculating a natural person's net worth:
(
(
(
(B) Is a qualified purchaser as defined in section 2(a)(51)(A) of the Investment Company Act of 1940 (15 U.S.C. 80a–2(a)(51)(A)) at the time the contract is entered into; or
(e)
(1) Dividing the year-end value of the Personal Consumption Expenditures Chain-Type Price Index (or any successor index thereto), as published by the United States Department of Commerce, for the calendar year preceding the calendar year in which the order is being issued, by the year-end value of such index (or successor) for the calendar year 1997;
(2) For the dollar amount in paragraph (d)(1)(i) of this section, multiplying $750,000 times the quotient obtained in paragraph (e)(1) of this section and rounding the product to the nearest multiple of $100,000; and
(3) For the dollar amount in paragraph (d)(1)(ii)(A) of this section, multiplying $1,500,000 times the quotient obtained in paragraph (e)(1) of this section and rounding the product to the nearest multiple of $100,000.
By the Commission.
U.S. Customs and Border Protection, Department of Homeland Security; Department of the Treasury.
Final rule.
This document adopts as a final rule, without change, the proposed amendments to the U.S. Customs and Border Protection (CBP) regulations to permit an applicant to file the
Robert Dinerstein, Valuation and Special Programs Branch, Regulations and Rulings, Office of International Trade, (202) 325–0132.
On August 19, 2011, U.S. Customs and Border Protection (CBP) published in the
CBP solicited comments from the public on the proposed rulemaking; however, CBP received no comments in response to its solicitation in 76 FR 51914.
In light of the fact that no comments were submitted in response to CBP's solicitation of public comment, CBP has determined to adopt as a final rule the proposed amendments in the Notice of Proposed Rulemaking published in the
The Regulatory Flexibility Act (5 U.S.C. 601
As there are no new collections of information in this document, the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3507) are inapplicable.
This rulemaking is being issued in accordance with 19 CFR 0.1(a)(1), pertaining to the authority of the Secretary of the Treasury (or his/her delegate) to approve regulations related to certain CBP revenue functions.
Customs duties and inspection, Entry, Imports, Preference programs, Reporting and recordkeeping requirements, Trade agreements.
Administrative practice and procedure, Customs duties and inspection, Exports, Imports, Reporting and recordkeeping requirements, Trade agreements.
For the reasons set forth above, parts 10 and 163 of title 19 of the Code of Federal Regulations (19 CFR parts 10 and 163) are amended as set forth below.
19 U.S.C. 66, 1202 (General Note 3(i), Harmonized Tariff Schedule of the United States (HTSUS)), 1321, 1481, 1484, 1498, 1508, 1623, 1624, 3314.
Section 10.121 also issued under 19 U.S.C. 2501.
(b) Articles entered under subheading 9817.00.40, HTSUS, will be released from CBP custody prior to submission of the document required in paragraph (a) of this section only upon the deposit of estimated duties with the port director. Liquidation of an entry which has been released under this procedure will be suspended for a period of 314 days from the date of entry or until the required document is submitted, whichever comes first. In the event that documentation is not submitted before liquidation, the merchandise will be classified and liquidated in the ordinary course, without regard to subheading 9817.00.40, HTSUS.
5 U.S.C. 301; 19 U.S.C. 66, 1484, 1508, 1509, 1510, 1624.
Internal Revenue Service (IRS), Treasury.
Final regulations.
This document contains final regulations relating to the payment of rewards under section 7623(a) of the Internal Revenue Code for detecting underpayments or violations of the internal revenue laws and whistleblower awards under section 7623(b). The guidance is necessary to clarify the definition of proceeds of amounts collected and collected proceeds under section 7623. This regulation provides needed guidance to the general public as well as officers and employees of the IRS who review claims under section 7623.
Kirsten N. Witter, at (202) 927–0900 (not a toll-free number).
Section 7623(a) provides the Secretary with the authority to pay such sums as he deems necessary from proceeds of amounts collected based on information provided to the Secretary when the information relates to the detection of underpayments of tax or the detection and bringing to trial and punishment persons guilty of violating the internal revenue laws or conniving at the same. Section 7623(b) provides the Secretary with the authority to pay awards to individuals if the Secretary proceeds with an administrative or judicial action described in section 7623(a) that results in collected proceeds based on information provided by the individuals. Section 301.7623–1(a) of the regulations on Procedure and Administration currently provides that proceeds of amounts (other than interest) collected by reason of the information provided include both amounts collected because of the information provided and amounts collected prior to receipt of the information if the information leads to the denial of a claim for refund that otherwise would have been paid. 63 FR 44777.
Section 301.7623–1(a) was promulgated prior to amendments of section 7623 as part of the Tax Relief and Health Care Act of 2006, division A, section 406, Public Law 109–432, 120 Stat. 2958. The amendments designated existing section 7623 as section 7623(a). Before the 2006 amendments, section 7623 provided that rewards shall be paid “from the proceeds of amounts (other than interest) collected by reason of the information provided * * *.” The 2006 Act struck the “other than interest” language. The Act also added section 7623(b), which provides that in certain cases individuals shall receive an award of at least 15% but not more than 30% of the collected proceeds resulting from the action with which the Secretary proceeded based on information brought to the attention of the Secretary by the individual. The Act also created the IRS Whistleblower Office, which is responsible for administering a whistleblower program within the IRS.
On January 18, 2011, a notice of proposed rulemaking (REG–131151–10) was published in the
Seventeen written comments responding to the notice of proposed rulemaking were received. A public hearing was held on May 11, 2011. After consideration of the comments and hearing testimony, the regulation is adopted as proposed.
Other issues concerning the whistleblower statute, including terminology, additional definitions, and implementation of the statute, all of which were beyond the scope of these regulations, have been deferred and will be considered and addressed, if appropriate, in future guidance.
Several commenters recommended removal of “overpayment” as a modifier of credit balance. The commenters suggested that the term only applied to individual taxpayers, and would discourage claimants from coming forward with information about corporate taxpayers. Further, the commenters stated that “overpayment” unnecessarily limits the definition of collected proceeds as credit balances may arise in circumstances other than an overpayment.
The use of the term “overpayment credit balance” was intended to include amounts that have been credited to a taxpayer's account and that would have been refunded to the taxpayer under section 6402 but for the information provided by the whistleblower. These amounts represent monies credited to the taxpayer's account that are available to pay any tax liability or certain other liabilities, or to be refunded to the taxpayer. Overpayment credit balances are distinguishable from other types of balances shown on a taxpayer's account, such as a cash deposit under section 6603. Both individual and corporate taxpayers may have overpayment credit balances. Accordingly, the final regulations retain the term “overpayment credit balance” as consistent with the payment and refund provisions of the Code.
A number of commenters recommended that the definition of collected proceeds specifically include net operating losses (NOLs). In contrast to overpayment credit balances, NOLs and similar tax attributes do not represent amounts credited to the taxpayer's account that are directly available to satisfy current or future tax liabilities or that can be refunded. Rather, tax attributes such as NOLs are component elements of a taxpayer's tax liability. If an NOL claimed by a taxpayer is disallowed as a result of information provided by a whistleblower, the IRS will factor that disallowance into the computation of the taxpayer's liability, which may, in turn, result in collected proceeds. For example: A taxpayer reports an NOL of $10 million for 2009 and a whistleblower's information results in a reduction of the NOL to $5 million. If the NOL is unused as of the date the IRS computes the amount of collected proceeds, there are no collected proceeds. If, however, the 2009 NOL was partially carried back to 2008, initially generating a $3 million refund, and the whistleblower's information reduced the carryback amount, resulting in a $1.5 million reduction in the refund for 2008, then the amount of the erroneous refund recovered and collected would be collected proceeds. The final regulation's definition of collected proceeds, therefore, does not refer explicitly to NOLs, tax credits, or any other tax attributes that may factor
Several commenters suggested that collected proceeds should include criminal fines. Under the Victims of Crimes Act of 1984, criminal fines that are imposed on a defendant by a district court are deposited into the Crime Victims Fund (CVF). 42 U.S.C. 10601(b)(1). Criminal fines imposed for Title 26 offenses are not exempt from this requirement. The fines imposed in criminal tax cases that are deposited into the CVF are not available to the Secretary to pay awards under section 7623. As criminal fines deposited in the CVF are not available to pay awards, the final regulations do not include criminal fines in the definition of collected proceeds. However, restitution ordered by a court to the IRS is collected as a tax by the IRS and, therefore, is encompassed in the definition of collected proceeds.
Several commenters suggested that whistleblowers should be rewarded for the prevention of future tax avoidance based on the whistleblower's information. Whether the IRS has the authority to make such an award under section 7623 and, if so, how the amount of the award would be determined and paid, is beyond the scope of this regulation. The final regulations do not address awards relating to the prevention of future tax avoidance.
It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866, as supplemented by Executive Order 13563. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and, because the regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Code, these regulations have been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small businesses.
The principal author of this regulation is Kirsten N. Witter, Office of the Associate Chief Counsel (General Legal Services).
Employment taxes, Estate taxes, Excise taxes, Gift taxes, Income taxes, Penalties, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 301 is amended as follows:
26 U.S.C. 7805 * * *
Section 301.7623–1 also issued under 26 U.S.C. 7623. * * *
(a)
(2)
(g)
Coast Guard, DHS.
Notice of temporary deviation from regulations.
The Commander, Eleventh Coast Guard District, has issued a temporary deviation from the regulation governing the operation of the Tower Drawbridge across the Sacramento River, mile 59.0, at Sacramento, CA. The deviation is necessary to allow the bridge owner to conduct maintenance of the bridge. This deviation allows the bridge to remain in the closed-to-navigation position during the maintenance period.
This deviation is effective from 7 a.m. on March 5, 2012 through 7 p.m. on March 16, 2012.
Documents mentioned in this preamble as being available in the docket are part of docket USCG–2012–0081 and are available online by going to
If you have questions on this rule, call or email David H. Sulouff, Chief, Bridge Section, Eleventh Coast Guard District; telephone 510–437–3516, email
The California Department of Transportation (Caltrans) has requested a temporary change to the operation of the Tower Drawbridge, mile 59.0, Sacramento River, at Sacramento, CA. The Tower Drawbridge navigation span provides a vertical clearance of 30 feet above Mean High Water in the closed-to-navigation position. The draw opens on signal from May 1 through October 31 from 6 a.m. to 10 p.m. and from November 1 through April 30 from 9 a.m. to 5 p.m. At all other times the draw shall open on signal if at least four hours notice is given, as required by 33 CFR 117.189(a). Navigation on the waterway is commercial and recreational.
The drawspan will be secured in the closed-to-navigation position from 7 a.m. on March 5, 2012 through 7 p.m. on March 9, 2012 and from 7 a.m. on March 12, 2012 through 7 p.m. on March 16, 2012 to allow Caltrans to replace the lifting cables on the drawspan. This temporary deviation has been coordinated with waterway users. There are no scheduled river boat cruises or anticipated levee maintenance during this deviation period. No objections to the proposed temporary deviation were raised. Vessels that can transit the bridge, while in the closed-to-navigation position, may continue to do so at any time.
In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Coast Guard, DHS.
Notice of temporary deviation from regulations.
The Commander, Eleventh Coast Guard District, has issued a temporary deviation from the regulation governing the operation of the Tower Drawbridge across the Sacramento River, mile 59.0, at Sacramento, CA. The deviation is necessary to allow the community to participate in the 8th Annual Shamrock Half Marathon. This deviation allows the bridge to remain in the closed-to-navigation position during the event.
This deviation is effective from 7:30 a.m. to 1:05 p.m. on March 11, 2012.
Documents mentioned in this preamble as being available in the docket are part of docket USCG–2012–0049 and are available online by going to
If you have questions on this rule, call or email David H. Sulouff, Chief, Bridge Section, Eleventh Coast Guard District; telephone 510–437–3516, email
The California Department of Transportation has requested a temporary change to the operation of the Tower Drawbridge, mile 59.0, Sacramento River, at Sacramento, CA. The Tower Drawbridge navigation span provides a vertical clearance of 30 feet above Mean High Water in the closed-to-navigation position. The draw opens on signal from May 1 through October 31 from 6 a.m. to 10 p.m. and from November 1 through April 30 from 9 a.m. to 5 p.m. At all other times the draw shall open on signal if at least four hours notice is given, as required by 33 CFR 117.189(a). Navigation on the waterway is commercial and recreational.
The drawspan will be secured in the closed-to-navigation position from 7:30 a.m. to 1:05 p.m. on March 11, 2012 to allow the community to participate in the 8th Annual Shamrock Half Marathon. This temporary deviation has been coordinated with waterway users. There are no scheduled river boat cruises or anticipated levee maintenance during this deviation period. No objections to the proposed temporary deviation were raised. Vessels that can transit the bridge, while in the closed-to-navigation position, may continue to do so at any time. In the event of an emergency the drawspan can be opened with 15 minutes advance notice.
In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Coast Guard, DHS.
Notice of temporary deviation from regulations.
The Commander, First Coast Guard District, has issued a temporary deviation from the regulation governing the operation of the Gut Bridge, mile 0.2, across The Gut at South Bristol, Maine. The deviation is necessary to facilitate subsurface test boring at the bridge. This deviation will allow the bridge to remain in the closed position for two days.
This deviation is effective from 7 a.m. on February 29, 2012 through 7 p.m. on March 1, 2012.
Documents mentioned in this preamble as being available in the docket are part of docket USCG–2012–0086 and are available online at
If you have questions on this rule, call or email Mr. John W. McDonald, Project Officer, First Coast Guard District, telephone (617) 223–8364. If you have questions on viewing the docket, call Renee V. Wright, Program Manager,
The Gut Bridge, across The Gut, mile 0.2, has a vertical clearance in the closed position of 3 feet at mean high water and 12 feet at mean low water. The existing drawbridge operation regulations are listed at 33 CFR 117.5.
The waterway supports recreational vessels of various sizes. There is an alternate route for vessels to use; however, vessels that can pass under the bridge in the closed position may do so at all times.
The owner of the bridge, Maine Department of Transportation, requested a temporary deviation to facilitate subsurface test borings at the bridge.
Under this temporary deviation the Gut Bridge may remain in the closed position from 7 a.m. through 7 p.m. on February 29, 2012 and also on March 1, 2012.
In accordance with 33 CFR 117.35(e), the bridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Environmental Protection Agency (EPA).
Final rule.
The EPA is finalizing technical revisions to the electronics manufacturing source category of the Greenhouse Gas Reporting Rule related to fluorinated heat transfer fluids. More specifically, EPA is finalizing amendments to the definition of fluorinated heat transfer fluids and to the provisions to estimate and report emissions from fluorinated heat transfer fluids. This final rule is narrow in scope and does not address any other changes related to the electronics manufacturing source category.
This rule will be effective on March 23, 2012.
The EPA has established a docket for this action under Docket ID No. EPA–HQ–OAR–2011–0512. All documents in the docket are listed in the
Although listed in the index, some information may not be publicly available, e.g., confidential business information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and is publicly available in hard copy only. Publicly available docket materials are available either electronically through
Carole Cook, Climate Change Division, Office of Atmospheric Programs (MC–6207J), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: (202) 343–9263; fax number: (202) 343–2342; email address:
Table 1 of this preamble is not intended to be exhaustive, but rather provides a guide for readers regarding facilities likely to be affected by this action. Table 1 of this preamble lists the types of facilities of which the EPA is aware could be potentially affected by the reporting requirements. Other types of facilities not listed in the table could also be affected. To determine whether you are affected by this action, you should carefully examine the applicability criteria found in 40 CFR part 98, subpart A and 40 CFR part 98, subpart I. If you have questions regarding the applicability of this action to a particular facility, consult the person listed in the preceding
This preamble consists of four sections. The first section provides a brief history of 40 CFR part 98, subpart I (hereinafter referred to as “subpart I”).
The second section of this preamble summarizes the revisions made to specific requirements for subpart I being incorporated into 40 CFR part 98 (hereinafter referred to as “Part 98”) by this action and the EPA's rationale for those changes. The amendments finalized in this action reflect the changes to subpart I proposed on September 9, 2011 (76 FR 56010), with some additional clarifications. This section also presents a summary of, and EPA's responses to, the major public comments submitted on the proposed rule amendments, and significant changes, if any, made since proposal in response to those comments.
The third section of this preamble provides a discussion regarding the economic impacts of this final rule. Finally, the last section discusses the various statutory and executive order requirements applicable to this rulemaking.
This action finalizes amendments to provisions in 40 CFR part 98, subpart I. The EPA published subpart I: Electronics Manufacturing of the Greenhouse Gas Reporting Program (GHGRP) on December 1, 2010 (75 FR 74774) in the
Following the publication of subpart I in the
The proposal was published on September 9, 2011 (76 FR 56010). The public comment period for the proposed rule amendments initially was scheduled to end on October 11, 2011. The EPA received a request to extend the public comment period and published a notice in the
In this action, the EPA is finalizing amendments to provisions in subpart I that were proposed in the September 9, 2011 action with some additional clarifications. Responses to comments submitted on the proposed amendments can be found in Section II of this preamble. Note that the agency is not requiring reports filed in September 2012 for reporting year 2011 to cover emissions of newly included fluorinated HTFs.
The EPA is promulgating these rule amendments under its existing CAA authority, specifically authorities provided in CAA section 114.
As stated in the preamble to the 2009 final Greenhouse Gas Reporting Rule (74 FR 56260, October 30, 2009), CAA section 114 provides the EPA broad authority to require the information mandated by Part 98 because such data would inform and are relevant to the EPA's obligation to carry out a wide
The EPA finalized several rulemakings in 2011 in response to concerns related to the reporting and publication of information that may be considered CBI.
On May 26, 2011, the EPA promulgated confidentiality determinations for certain data elements required to be reported under Part 98 and finalized amendments to the Special Rules Governing Certain Information Obtained Under the Clean Air Act, which authorizes the EPA to release or withhold as confidential reported data according to the confidentiality determinations for such data without taking further procedural steps (76 FR 30782, hereinafter referred to as the “May 26, 2011 Final CBI Rule”).
On August 25, 2011, the EPA published a final rule that deferred the reporting deadline for data elements that are used by direct emitter reporters, including those under subpart I, as inputs to emission equations under the Mandatory Greenhouse Gas Reporting Rule (76 FR 53057). In that final rule, the EPA deferred the deadline for reporting subpart I inputs to emission equations based on the 2010 final rules for 40 CFR part 98, subpart I (75 FR 74774, December 1, 2010). With respect to the subject of today's rule, emissions of fluorinated HTFs, the EPA deferred the deadline for reporting inputs to the fluorinated HTF mass balance equation (Equation I–16) as required in 40 CFR 98.95(r) until March 31, 2015 and those elements have not changed as a result of today's final rule.
The May 26, 2011 Final CBI Rule only addressed reporting of data elements in 34 subparts that were determined not to be inputs to emission equations and, therefore, were not proposed to have their reporting deadline deferred. Furthermore, that rule also did not make confidentiality determinations for eight subparts, including subpart I, for which reporting requirements were finalized after the publication of the CBI proposals (July 7, 2010 CBI proposal at 75 FR 39094 and July 27, 2010 supplemental proposal at 75 FR 43889).
Instead, on January 10, 2012 (77 FR 1434), the EPA proposed CBI determinations for non-inputs data elements from six of the eight subparts not included in the 2010 rulemakings. CBI determinations for the non-inputs data elements of the two remaining subparts, subpart I and subpart W, are being addressed in separate actions.
As stated above, the EPA intends to propose and finalize CBI determinations for subpart I (both non-inputs and inputs to emissions equations) in separate actions. The agency's goal is to finalize CBI determinations for the non-inputs before the deadline for reporting 2011 data (September 28, 2012).
With respect to the two new subpart I reporting requirements finalized today (40 CFR 98.96(u) and (v)) discussed in detail in Section II.A of this preamble, these are not inputs to emissions equations and EPA is planning to finalize CBI determinations for these two data elements in separate actions prior to the deadline for reporting these data elements to the EPA. For more information generally on the various actions related to treatment of data that may be considered CBI, please see the GHGRP Web site dedicated to CBI at
In this action, the EPA is finalizing amendments to subpart I regarding the calculation and reporting of emissions of fluorinated HTFs. More specifically, the EPA is finalizing the changes to the definition of fluorinated HTFs and to the provisions to estimate and report emissions of fluorinated HTFs that were proposed on September 9, 2011 (76 FR 56010), with the following five refinements.
• In the definition of fluorinated HTFs, the EPA is specifically excluding select applications of fluorinated chemicals. These applications include their uses as lubricants (such as greases and oils), and surfactants.
• Where a fluorinated chemical is used in both HTF and non-HTF applications, the EPA is providing flexibility to allow facilities to estimate either that chemical's emissions from all applications or its emissions from only the applications included in the fluorinated HTF definition.
• To accommodate the change in the definition of fluorinated HTF, the EPA is amending 40 CFR 98.94(h)(3), which requires facilities to ensure that the inventory of fluorinated HTFs at the beginning of the reporting year is identical to the inventory recorded at the end of the previous reporting year. Specifically, EPA is adding an exception to this requirement to allow for differences between the beginning and end-of-year inventories that are solely attributable to the change in the scope of subpart I. In addition, EPA is clarifying that 40 CFR 98.94(h) applies to each fluorinated HTF just as it applies to each fluorinated GHG and nitrous oxide (N
• The EPA is adding two new reporting requirements to reflect flexibilities being added to the rule that are described above.
a. First, related to the flexibility provision discussed in the second bulleted paragraph above, the EPA is requiring facilities to report to the EPA whether they estimated and reported fluorinated HTF emissions from all applications or only from those covered by the definition of fluorinated HTFs (see 40 CFR 98.96(u)).
b. Second, for reporting year 2012 only, the EPA is requiring that facilities report the date on which monitoring of the newly included fluorinated HTFs began (see 40 CFR 98.96(v)). As discussed in the paragraphs below, for 2012, facilities will have the option to begin accounting for the newly included fluorinated HTFs on the first day of the year, January 1, 2012, or on the date that the final rule becomes effective.
The EPA is requiring facilities to estimate emissions of newly included fluorinated HTFs beginning in 2012 and to file reports that cover such emissions beginning in 2013 for the 2012 reporting year. The Agency is not requiring reports filed in September 2012 for reporting year 2011 to cover emissions of newly included fluorinated HTFs. For reporting year 2012 only, the EPA is allowing facilities to determine whether they wish to begin to estimate emissions of newly included fluorinated HTFs on January 1, 2012 or March 23, 2012. In other words, facilities may calculate and report emissions of newly included fluorinated HTFs either for the time-period of January 1, 2012 through December 31, 2012 or for the time period of March 23, 2012 through December 31, 2012. Beginning in 2013, facilities will be required to calculate and report emissions from all fluorinated HTFs for the entirety of the reporting year (i.e., January 1 through December 31).
The EPA does not expect that facilities will have any difficulty beginning to estimate emissions of newly included fluorinated HTFs on either January 1, 2012 or March 23, 2012. In summary, as finalized in the
The EPA received comments from two entities. In general, one commenter supported the EPA's proposed changes to the definition of fluorinated HTFs, and the other commenter, while not objecting in principle to including high global warming potential (GWP) HTFs in subpart I irrespective of their vapor pressure, argued that the proposed definition of fluorinated HTFs is overly broad and suggested changes to narrow it. The second commenter also had a number of comments requesting that the set of fluorinated chemicals and applications included in Part 98 be narrowed. As discussed below, EPA has concluded that these broader comments are outside the scope of this rule. However, it is important to note that the Agency is open to considering any of these broader issues, as appropriate, in future actions.
The Agency further notes that many of the chemicals for which exemptions were requested are likely excluded from Part 98, because they are used in applications that fall outside the definition of fluorinated heat transfer fluid or fluorinated GHG. The 1 millimeter mercury (mm Hg) vapor pressure at 25 °C limit remains in effect for fluorinated chemicals that are used in applications outside of the definition of fluorinated heat transfer fluid. Therefore, the EPA concluded the change to the definition of heat transfer fluid defined in this rule is sufficient to provide the necessary exclusions. All comments are summarized and addressed in more detail below.
Another commenter asserted that the EPA's proposed definition for HTFs is overly broad and argued that it includes applications that do not involve heat transfer, such as cleaning processes. The commenter stated that the proposed language fails to distinguish between
First, the commenter, in response to EPA's request for comment in this issue, strongly supported the exclusion of greases, oils, and lubricants from the definition of HTFs, and suggested the definition be modified to explicitly exclude these applications. The commenter agreed with the EPA's statement that these “applications do not typically occur at temperatures at which lubricants would volatilize,” and further argued that for greases, oils, and lubricants to serve their primary purpose, it is necessary that they not volatilize. In addition, the commenter stated that: (1) These materials are used within systems that must be designed to prevent leaks; (2) greases, oils, and lubricants are essential for equipment functioning; and (3) the loss of a lubricant may result in equipment damage. The commenter concluded that these substances are unlikely to be emitted into the atmosphere in the semiconductor manufacturing process and argued they are used in small quantities.
This commenter also supported explicitly excluding fluorinated surfactants from subpart I HTF consumption and emission reporting requirements. The commenter noted that fluorinated surfactants may be added to lithography chemical formulations and aqueous polishing slurries, among other things. The commenter explained that fluorinated surfactants are added in minimal quantities (concentrations are typically around a fraction of a percent) and that they are designed to remain in solution to be effective. For this reason, the commenter argued, the potential for surfactant emissions is very limited. The commenter also stated that the identity of surfactants may be highly proprietary and in some cases not disclosed on Material Safety Data Sheets (MSDS). The commenter provided several MSDS to support their suggested explicit exclusions of oils, greases, lubricants, and surfactants.
To address the issues mentioned above, the second commenter recommended that the definition of HTFs and fluorinated GHGs be modified. Specifically, the commenter suggested that EPA only include the concept of substances used “solely or primarily to transfer heat by radiation, conduction, convection or a combination of these methods” in the definition of HTFs. The commenter also suggested that the definition of fluorinated GHGs in subpart A explicitly exclude greases, oils, lubricants, polymers, and surfactants whose primary purpose is not heat transfer. The commenter concluded that these changes would clarify the EPA's intent not to encompass other, non-heat transfer fluorinated materials.
The EPA is not explicitly excluding “polymers” because it is not specifically an application. As explained above, in response to the comments, EPA added exclusions to the definition of HTF based on applications. The EPA acknowledges that, in many cases, fluorocarbon polymers are solids at room temperature and will not meet the definition of a fluorinated HTF. Polymers with vapor pressures well
In this final rule, the EPA is finalizing the following definition of fluorinated heat transfer fluids: “
While the EPA agrees that it is appropriate to modify the definition of fluorinated HTFs in subpart I to explicitly exclude, lubricants (such as greases and oils), and surfactants, the EPA does not agree with the commenter's suggestion to modify both the definition of fluorinated HTFs and the definition of fluorinated GHGs in 40 CFR part 98, subpart A. Making changes to the general definition of fluorinated GHGs in 40 CFR part 98, subpart A for purposes of subpart I only is not appropriate, because this definition applies to multiple other subparts. Further, such a modification is outside the scope of this rulemaking because the EPA did not propose any changes to the definition of fluorinated GHGs. However, the Agency notes that many of the chemicals for which exemptions were requested are likely excluded from Part 98 because they are used in applications that fall outside the definition of fluorinated heat transfer fluid. Moreover, the definition of fluorinated GHG retains the 1 mm Hg at 25 °C vapor pressure limit and these chemicals generally have a vapor pressure below that limit.
The EPA also does not agree with the suggestion to remove the clause, “device testing, cleaning substrate surfaces and other parts, and soldering,” from the definition. All of these applications were included in the December 1, 2010 final rule (75 FR 74775). In the proposed rule, the EPA did not intend to modify the set of applications included in the definition of fluorinated HTFs, but rather to clarify the definition to cover all fluorocarbons (except for ozone depleting substances regulated under the EPA's Stratospheric Protection Regulations at 40 CFR part 82) that can enter the atmosphere under the conditions in which fluorinated HTFs are used in the electronics manufacturing industry.
Similarly, the EPA is not revising the definition of fluorinated HTFs to limit it to substances used “solely or primarily to transfer heat by radiation, conduction, convection or a combination of these methods.” This definition would not include all of the applications in electronics manufacturing in which fluorocarbons are used at high temperatures and can therefore enter the atmosphere. The EPA believes that by explicitly excluding certain items from the definition we can address the commenter's primary concerns without restructuring the definition.
The other comments that the commenter provided on burden (i.e., comments not directly related to the definition of fluorinated HTFs or the provisions to calculate and report them) are outside the scope of this rule as the EPA did not propose any changes to those sections.
With respect to the commenter's suggestion to limit the scope of 40 CFR 98.92(a)(6) to materials used in manufacturing processes and not for other purposes, such as the operation and maintenance of the facility and facility infrastructure systems, is also outside the scope of this rule. EPA did not propose to narrow the scope of reporting under subpart I. For this reason, EPA is not taking action at this time regarding the commenter's suggestion. However, in a separate future action, the Agency may consider whether a modification to this reporting requirement is appropriate.
The amendments finalized in this action are intended to clarify the intent of EPA to include all fluorocarbons that can enter the atmosphere under the conditions in which fluorinated HTFs are used in the electronics manufacturing industry. Overall, these revisions are not expected to have a significant effect on the economy and an economic impact analysis is not required.
This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011).
The final amendments to subpart I will carry out the agency's intent to require reporting of emissions of all fluorocarbons used as fluorinated HTFs in the electronics manufacturing industry. This was the intent of the subpart I reporting requirements for fluorinated HTFs finalized on December 1, 2010 (75 FR 74774), and this intent was reflected in the Information
The Office of Management and Budget (OMB) has previously approved the information collection requirements contained in the existing regulations and 40 CFR part 98, subpart I (75 FR 74774, December 1, 2010), under the provisions of the
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
The 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 this rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
After considering the economic impacts of today's final rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. The small entities directly regulated by this final rule are facilities included in NAICS codes for Semiconductor and Related Device Manufacturing (334413) and Other Computer Peripheral Equipment Manufacturing (334119). As shown in Tables 5–13 and 5–14 of the Economic Impact Analysis for the Mandatory Reporting of Greenhouse Gas Emissions Final Rule (74 FR 56260, October 30, 2009) available in docket number EPA–HQ–OAR–2008–0508, the average ratio of annualized reporting program costs to receipts of establishments owned by model small enterprises was less than 1 percent for industries presumed likely to have small businesses covered by the reporting program.
Further, the EPA has clarified its intent and revised specific provisions to reflect what must be reported. While these revisions expand the scope of fluorocarbons that must be reported, EPA's burden estimates were based reporting of all fluorinated HTFs; therefore, the clarification of intent does not impose additional burden on reporters. We have therefore concluded that this action will not impose additional regulatory burden for all affected small entities.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531–1538, requires federal agencies, unless otherwise prohibited by law, to assess the effects of their regulatory actions on state, local, and tribal governments and the private sector. Federal agencies must also develop a plan to provide notice to small governments that might be significantly or uniquely affected by any regulatory requirements. The plan must enable officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant federal intergovernmental mandates and must inform, educate, and advise small governments on compliance with the regulatory requirements.
These final rule amendments do 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. Thus, the proposed rule amendments were not subject to the requirements of section 202 and 205 of the 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 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. Few, if any, state or local government facilities would be affected by the provisions in this final rule. This regulation also does not limit the power of states or localities to collect GHG data and/or regulate GHG emissions. Thus, Executive Order 13132 does not apply to this action.
This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). During the finalization of subpart I, the EPA undertook the necessary steps to determine the impact of those rules on tribal entities and provided supporting documentation demonstrating the results of the agency's analyses. The rule amendments in this action do not impose any significant changes to the current reporting requirements contained 40 CFR part 98, subpart I. Thus, Executive Order 13175 does not apply to this action.
EPA interprets Executive Order 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 Executive Order has the potential to influence the regulation. This action is not subject to Executive Order 13045 because it does not establish an environmental standard intended to mitigate health or safety risks.
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 the 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 the EPA to
This final action does not involve technical standards. Therefore, the 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.
The EPA has determined that this action will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations. This rule does not affect the level of protection provided to human health or the environment because it is a rule addressing information collection and reporting procedures.
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Greenhouse gases, Incorporation by reference, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, title 40, chapter I, of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401–7671q.
(a) * * *
(5) Any electronics manufacturing production process in which fluorinated heat transfer fluids are used to cool process equipment, to control temperature during device testing, to clean substrate surfaces and other parts, and for soldering (e.g., vapor phase reflow).
(a) * * *
(4) * * *
(a) You must report emissions of fluorinated GHGs (as defined in § 98.6), N
(5) Emissions of fluorinated heat transfer fluids.
(h) If you use fluorinated heat transfer fluids, you must report the annual emissions of fluorinated heat transfer fluids using the mass balance approach described in Equation I–16 of this subpart.
(1) If you use a fluorinated chemical both as a fluorinated heat transfer fluid and in other applications, you may calculate and report either emissions from all applications or from only those specified in the definition of
(2) For the 2012 reporting year, you may calculate and report emissions of fluorinated heat transfer fluids whose vapor pressure falls below 1 mm Hg absolute at 25 °C either for the time period January 1, 2012 through December 31, 2012 or for the time period March 23, 2012 through December 31, 2012. The term “reporting year” in Equation I–16 shall be interpreted to be consistent with the time period selected. In addition, for the 2012 reporting year I
(h) You must adhere to the QA/QC procedures of this paragraph (h) when
(3) Ensure that the inventory at the beginning of one reporting year is identical to the inventory reported at the end of the previous reporting year. This requirement does not apply to the end-of-the-year inventory of fluorinated heat transfer fluids in 2011 and the beginning-of-the-year inventory of the same in 2012.
(b) If you use fluorinated heat transfer fluids at your facility and are missing data for one or more of the parameters in Equation I–16 of this subpart, you must estimate fluorinated heat transfer fluid emissions using the arithmetic average of the emission rates for the reporting year immediately preceding the period of missing data and the months immediately following the period of missing data. Alternatively, you may estimate missing information using records from the fluorinated heat transfer fluid supplier. You must document the method used and values used for all missing data values.
(c) * * *
(4) Each fluorinated heat transfer fluid emitted as calculated in Equation 1–16 of this subpart.
(r) For fluorinated heat transfer fluid emissions, inputs to the fluorinated heat transfer fluid mass balance equation, Equation I–16 of this subpart, for each fluorinated heat transfer fluid used.
(s) Where missing data procedures were used to estimate inputs into the fluorinated heat transfer fluid mass balance equation under § 98.95(b), the number of times missing data procedures were followed in the reporting year, the method used to estimate the missing data, and the estimates of those data.
(u) For each fluorinated heat transfer fluid used, whether the emission estimate includes emissions from all applications or from only the applications specified in the definition of fluorinated heat transfer fluids in § 98.98.
(v) For reporting year 2012 only, the date on which you began monitoring emissions of fluorinated heat transfer fluids whose vapor pressure falls below 1 mm Hg absolute at 25 °C. This is either January 1, 2012 or March 23, 2012.
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes tolerances for residues of metaflumizone in or on citrus fruit, tree nuts, almond hulls; and grape. BASF Corporation requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA).
This regulation is effective February 22, 2012. Objections and requests for hearings must be received on or before April 23, 2012, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
EPA has established a docket for this action under docket identification (ID) number EPA–HQ–OPP–2008–0168. All documents in the docket are listed in the docket index available at
Julie Chao, Registration Division (7505P), Office of Pesticide Programs,
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to those engaged in the following activities:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
This listing is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA–HQ–OPP–2008–0168 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before April 23, 2012. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit a copy of your non-CBI objection or hearing request, identified by docket ID number EPA–HQ–OPP–2008–0168, by one of the following methods:
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In the
Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. * * *”
Consistent with section 408(b)(2)(D) of FFDCA, and the factors specified in section 408(b)(2)(D) of FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for metaflumizone including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with metaflumizone follows.
EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.
Hematotoxicity (toxicity of the blood) was the primary toxic effect of concern following subchronic or chronic oral exposures to metaflumizone. Splenic extramedullary hematopoiesis, increased hemosiderin, and anemia were the most common hematotoxic effects reported after repeated oral dosing with metaflumizone. The postulated pesticidal mode of action of metaflumizone involves inhibition of sodium channels in target insect species; however, in mammals (rats), there were only clinical signs of neurotoxicity (i.e., piloerection and body temperature variations) with no neuropathology in the presence of systemic toxicity (e.g., recumbency and poor general state) following acute or repeated exposures. Similarly, several immune system organs seem to be affected following metaflumizone administration via the oral, dermal, and inhalation routes (e.g., the presence of macrophages in the thymus, lymphocyte necrosis in the mesenteric lymph nodes,
Specific information on the studies received and the nature of the adverse effects caused by metaflumizone as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at
Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see
A summary of the toxicological endpoints for metaflumizone used for human risk assessment is provided in this unit:
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Based on the Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS) and Screening Concentration in Ground Water (SCI–GROW) models, the estimated drinking water concentrations (EDWCs) of metaflumizone for acute exposures are estimated to be 1.14 parts per billion (ppb) for surface water and 0.00214 ppb for ground water. The EDWCs of metaflumizone for chronic exposures for non-cancer chronic assessments are estimated to be 0.597 ppb for surface water and 0.00214 ppb for ground water.
Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For acute dietary risk assessment, the water concentration value of 1.14 ppb was used to assess the contribution to drinking water. For chronic dietary risk assessment, the water concentration of value 0.597 ppb was used to assess the contribution to drinking water.
3.
EPA assessed residential exposure using the following assumptions: For the pet spot-on products, residential handler exposure is not expected, because the product is applied directly from a tube to the pet. Pet spot-on applications are expected to result in short- and intermediate-term post-application dermal exposure to all populations, and incident oral exposure (i.e., hand-to-mouth) for children 3 to <6 years of age. For the fire ant bait, applications to home lawns are expected to result in short-term, residential handler exposure to adults. Fire ant bait applications to lawns, landscapes, golf-courses, and other non-cropland areas are expected to result in short-term, post-application dermal exposure to adults, adolescents, and children 3 to <6 years old, and incident oral exposure for children 3 to <6 years old. For the pending fly bait product, residential handler exposure is not expected, because the product is applied by commercial handlers. The pending fly bait product is expected to result in short-term, post-application dermal exposure to adults and children 3 to <6 years old, and incident oral exposure to children 3 to <6 years old.
For residential handlers, dermal and inhalation exposures are combined since the endpoints are similar for these routes. For children (3 to <6 year olds), post-application hand-to-mouth and dermal exposures are combined. Since the levels of concern (LOCs) for the dermal, inhalation and incidental oral routes are not the same (dermal LOC = 100, inhalation LOC = 1,000, and incidental oral LOC = 300), these routes were combined using the aggregate risk index approach. Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at
4.
EPA has not found metaflumizone to share a common mechanism of toxicity with any other substances, and metaflumizone does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that metaflumizone does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at
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i. The toxicity database for metaflumizone is complete.
ii. There is no indication that metaflumizone directly affects the nervous system. Clinical signs consisting of piloerection and body temperature variations were observed only in the absence of neuropathology and in the presence of a poor general state. There is no need for a developmental neurotoxicity study or additional uncertainty factors to account for neurotoxicity.
iii. There is no evidence that metaflumizone results in increased susceptibility in
iv. There are no residual uncertainties identified in the exposure databases. The dietary analyses assumed tolerance-level residues, 100 PCT, and modeled drinking water estimates. Therefore, HED concludes that while the submission of data/information by the petitioner addressing the residue chemistry deficiencies may conceivably result in adjustment of the maximum theoretical residue estimate, actual metaflumizone dietary exposure estimates will not be greater than those generated in the current risk assessment. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to metaflumizone in drinking water. EPA used similarly conservative assumptions to assess postapplication exposure of children as well as incidental oral exposure of toddlers. These assessments will not underestimate the exposure and risks posed by metaflumizone.
v. Dietary exposures (which are more relevant for human exposures) exhibited an approximately 2-fold greater absorption into the systemic circulation and, thus, can potentially lead to toxicity at 2-fold lower levels of exposure. Applying a FQPA safety factor of 3X for all oral exposure scenarios is adequate to protect against any greater toxicity that might occur in dietary exposures (absorption was noted to be 2-fold greater in dietary versus oral gavage studies).
vi. The FQPA safety factor of 10X is being retained for inhalation exposure scenarios for the use of a LOAEL instead of a NOAEL (no NOAEL achieved) for histopathological lesions consisting of lymphocyte necrosis in the mesenteric lymph node. The FQPA safety factor of 10X is adequate due to the severity of lymphocyte necrosis being minimal to slight and not exhibiting a strong dose dependence.
vii. The FQPA safety factor for dermal exposure scenarios is being reduced from 10X to 1X since there is a route-specific study with a clear NOAEL.
EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.
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Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in aggregate risk indices of 3 for the general population, and 2 for children 1–2 years old. Since the LOCs for the dermal, inhalation and incidental oral routes are not the same (dermal LOC = 100, inhalation LOC = 1,000, and incidental oral LOC = 300), these routes were combined using the aggregate risk index approach. Because EPA's LOC for metaflumizone is an aggregate risk index less than 1, the aggregate risks are not of concern. These aggregate risk indices utilize residential exposure estimates from the pet spot-on products, which represent the worst-case exposure scenario. However, it should be noted that all registered pet spot-on products containing metaflumizone are pending voluntary cancellation; therefore, these aggregate risk indices can be considered conservative.
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Adequate enforcement methodology (liquid chromatograph/mass spectrometer/mass spectrometer (LC/MS/MS) Method 531/0) is available to enforce the tolerance expression. The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755–5350; telephone number: (410) 305–2905; email address:
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint U.N. Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.
The Codex has not established a MRL for metaflumizone.
Therefore, tolerances are established for residues of metaflumizone, (E and Z isomers; 2-[2-(4-cyanophenyl)-1-[3-(trifluoromethyl) phenyl]ethylidene]-
This final rule establishes tolerances under section 408(d) of FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled
Since tolerances and exemptions that are established on the basis of a petition under section 408(d) of FFDCA, such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104–113, section 12(d) (15 U.S.C. 272 note).
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
(a)
(b)
(c)
(d)
Environmental Protection Agency (EPA).
Direct final rule.
EPA is taking direct final action to reinstate the maximum observed constituent concentrations for several listed hazardous wastes that were inadvertently removed from the regulations by a November 8, 2000 final rule.
This rule is effective on April 23, 2012 without further notice, unless EPA receives adverse comment by March 23, 2012. If EPA receives adverse comment, we will publish a timely withdrawal in the
Submit your comments, identified by Docket ID No. EPA–HQ–SFUND–2011–0965, by one of the following methods:
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For general information, contact the Superfund, TRI, EPCRA, RMP and Oil Information Center at (800) 424–9346 or TDD (800) 553–7672 (hearing impaired). In the Washington, DC metropolitan area, call (703) 412–9810 or TDD (703) 412–3323. For more detailed information on specific aspects of this direct final rule, contact Lynn Beasley at (202) 564–1965 (
EPA is publishing this rule without a prior proposed rule because we view this as a noncontroversial action and anticipate no adverse comment. This action merely reinstates the maximum observed constituent concentrations for several listed hazardous wastes that were inadvertently removed from regulations by a November 8, 2000 final rule. However, in the “Proposed Rules” section of today's
If EPA receives adverse comment, we will publish a timely withdrawal in the
Do not submit this information to EPA through
When submitting comments, remember to:
• Identify the rulemaking by docket number and other identifying information (subject heading,
• Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
• Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
• Describe any assumptions and provide any technical information and/or data that you used.
• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
• Provide specific examples to illustrate your concerns, and suggest alternatives.
• Explain your views as clearly as possible.
• Make sure to submit your comments by the comment period deadline identified.
This direct final rule reinstates the maximum observed constituent concentrations for listed hazardous wastes K169, K170, K171, and K172 to the table found in 40 CFR 302.6(b)(1)(iii). A November 8, 2000 final rule (Hazardous Waste Management System; Identification and Listing of Hazardous Waste; Chlorinated Aliphatics Production Wastes; Land Disposal Restrictions for Newly Identified Wastes; CERCLA Hazardous Substance Designation and Reportable Quantities; Final Rule) inadvertently removed the maximum observed constituent concentrations for those listed hazardous wastes from the table in that section when it was amended to include the maximum observed constituent concentrations for listed hazardous wastes K174 and K175. (
The inadvertent removal of the maximum observed constituent concentrations for K169, K170, K171, and K172 from § 302.6 was the result of a formatting error. On November 8, 2000, EPA issued a final rule (65 FR 67132) in the
On November 14, 2011, Artisan EHS Consulting, LLC (Artisan EHS) submitted a request for correction of information under the Data Quality Act (also known as the Information Quality Act),
This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011).
This direct final action does not impose any new information collection burden. The amendments in this direct final rule simply reinstates the maximum observed constituent concentrations for several listed hazardous wastes that were inadvertently removed from the regulations when they were amended to include the maximum observed constituent concentrations for other newly listed hazardous wastes in a November 8, 2000 final rule. This direct final rule does not change any reporting requirements in the general provisions. However, the Office of Management and Budget (OMB) has previously approved the information collection requirements contained in the existing subparts of 40 CFR 302 under the provisions of the
The 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 this rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's 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 final rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. The direct final rule simply reinstates the maximum observed constituent concentrations for several listed hazardous wastes that were inadvertently removed from the regulations when they were amended to include the maximum observed constituent concentrations for other newly listed hazardous wastes in a November 8, 2000 final rule. The direct final rule does not itself add any additional subparts or requirements. The direct final rule will not impose any new requirements on small entities.
This action contains no Federal mandates under the provisions of title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531–1538 for State, local, or tribal governments or the private sector. The action imposes no enforceable duty on any State, local or tribal governments or the private sector. Therefore, this action is not subject to the requirements of sections 202 or 205 of the UMRA. This action is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. The amendments in this direct final rule reinstate the maximum observed constituent concentrations for several listed hazardous wastes that were inadvertently removed from the regulations when they were amended to include the maximum observed constituent concentrations for other newly listed hazardous wastes in a November 8, 2000 final rule.
Executive Order (EO) 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications.” “Policies that have Federalism implications” is defined in the EO to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
This direct final rule 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 EO 13132.
This amendment applies directly to responsible parties. They do not apply to governmental entities unless the government entity releases any of the listed hazardous wastes. This regulation also does not limit the power of States or localities to the responsible parties. Thus, EO 13132 does not apply to this direct final rule.
This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). The changes in this direct final rule do not result in any changes to the requirements of 40 CFR 302.6. Thus Executive Order 13175 does not apply to this action.
This direct final rule is not subject to EO 13045 (62 FR 19885, April 23, 1997) because it is not economically significant as defined in EO 12866, and because the Agency does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. The changes in this direct final rule do not result in any changes to the requirements in 40 CFR 302.6.
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. 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.
EPA has determined that the direct final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because the amendments do not affect the level of protection provided to human health or the environment.
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Air pollution control, Chemicals, Hazardous substances, Hazardous waste, Intergovernmental relations, Natural resources, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply.
For the reasons set out, title 40, chapter I of the Code of Federal Regulations is amended as follows:
42 U.S.C. 9602, 9603, and 9604; 33 U.S.C. 1321 and 1361.
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Federal Motor Carrier Safety Administration, DOT.
Final rule; correction.
The Federal Motor Carrier Safety Administration (FMCSA) is correcting a Final Rule that appeared in the
Effective February 22, 2012.
If you have questions on this rule, call or e-mail Angela Ward, Nurse Consultant, Medical Programs Office, Federal Motor Carrier Safety Administration, telephone: 202–366–3109; email:
FMCSA's recent rule harmonizing Schedule I drug requirements included several changes to the Instructions to the Medical Examination Report for Commercial Driver Fitness Determination, form 649–F (6045). Although no changes were to be made to the form itself, due to a printing error, several changes were inadvertently made. The following correction reverses those changes.
In FR Doc. 2012–1905 appearing on page 4483 in the
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National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is prohibiting directed fishing for Pacific cod by catcher vessels less than 60 feet (18.3 meters (m)) length overall (LOA) using hook-and-line or pot gear in the Bering Sea and Aleutian Islands management area (BSAI). This action is necessary to prevent exceeding the 2012 Pacific cod total allowable catch (TAC) specified for catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear in the BSAI.
Effective 1200 hrs, Alaska local time (A.l.t.), February 17, 2012, through 2400 hrs, A.l.t., December 31, 2012.
Josh Keaton, 907–586–7228.
NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The 2012 Pacific cod TAC allocated as a directed fishing allowance to catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear in the BSAI is 4,645 metric tons as established by the final 2011 and 2012 harvest specifications for groundfish in the BSAI (76 FR 11139, March 1, 2011) and inseason adjustment (76 FR 81875, December 29, 2011).
In accordance with § 679.20(d)(1)(iii), the Administrator, Alaska Region, NMFS, has determined that the 2012 Pacific cod TAC allocated as a directed fishing allowance to catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear in the BSAI has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear in the BSAI.
After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of Pacific cod by catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear in the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of February 15, 2012.
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
This action is required by § 679.20 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Nuclear Regulatory Commission.
Public meeting; request for comment.
The U.S. Nuclear Regulatory Commission (NRC or the Commission) plans to conduct a public meeting to discuss possible revisions to the regulatory framework for the management of commercial low-level radioactive waste (LLW). The purpose of this public meeting is to gather information and receive feedback from stakeholders and other interested members of the public concerning specific proposed revisions to the Commission's LLW regulations. Consistent with Commission direction, the NRC staff plans to hold a series of three public meetings in 2012 on the proposed revisions to Commission's LLW regulations. This is the first of those public meetings.
The first public meeting will be held on March 2, 2012, in Phoenix, Arizona. Comments on the issues and questions presented in Section V of the
The public meeting will be held on March 2, 2012, from 8 a.m. to 4 p.m. at the Marriott Renaissance Phoenix Downtown Hotel, 50 East Adams Street, Phoenix, Arizona 85004. The NRC will accept written comments at the public meeting and welcomes active participation from those attending. You may access information and comment submissions related to this document, which the NRC possesses and is publicly-available, by searching on
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For additional direction on accessing information and submitting comments, see “Accessing Information and Submitting Comments” in the
Michael P. Lee, Ph.D., Office of Federal and State Materials and Environmental Management Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001; telephone: (301) 415–6887; email:
Please refer to Docket ID NRC–2011–0012 when contacting the NRC about the availability of information regarding this document. You may access information related to this document, which the NRC possesses and is publicly-available, by the following methods:
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Please include Docket ID NRC–2011–0012 in the subject line of your comment submission, in order to ensure that the NRC is able to make your comment submission available to the public in this docket.
The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed. The NRC posts all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information in their comment submissions that they do not want to be publicly disclosed. Your request should state that the NRC will not edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment submissions into ADAMS.
The Commission's licensing requirements for the disposal of LLW in near-surface [approximately the uppermost 30 meters (100 feet)] facilities reside in Title 10 of the
Development of the 10 CFR Part 61 regulation in the early 1980s was based on several assumptions as to the types of wastes likely to go into a commercial LLW disposal facility. To better understand what the likely inventory of wastes available for disposal might be, the NRC conducted a survey of existing LLW generators. The survey, documented in Chapter 3 of NUREG–0782, Draft 10 CFR Part 61 Environmental Impact Statement (DEIS), “Licensing Requirements for Land Disposal of Radioactive Waste” (ADAMS Accession No. ML052590347)—revealed that there were about 37 distinct commercial waste streams consisting of about 25 radionuclides of potential regulatory interest. The specific waste streams in question were representative of the types of commercial LLW being generated at the time. Waste streams associated with the U.S. Department of Energy's (DOE's) nuclear defense complex were not considered as part of the survey, since disposal of those wastes, at that time, was to be conducted at the DOE-operated sites. Over the last several years there have been a number of developments that have called into question some of the key assumptions made in connection with the earlier 10 CFR Part 61 DEIS, including:
• The emergence of potential LLW streams that were not considered in the original 10 CFR Part 61 rulemaking, including large quantities of depleted uranium (DU), and possibly incidental wastes associated with the commercial reprocessing of spent nuclear fuel;
• The DOE's increasing use of commercial facilities for the disposal of defense-related LLW streams; and
• Extensive international operational experience in the management of LLW and intermediate-level radioactive wastes that did not exist at the time 10 CFR Part 61 was promulgated.
The developments previously described will need to be considered if the staff undertakes a revision of 10 CFR Part 61. Waste from the Nation's defense programs has been managed by DOE and is not subject to regulation under 10 CFR Part 61. Instead, DOE has relied on Order 435.1 to specify the disposal requirements for this waste. The current version of this Order has been in place for about 11 years and applies to management of radioactive waste within the DOE complex. Like 10 CFR Part 61, Order 435.1 places a heavy emphasis on performance assessment as part of its radioactive waste management decision-making. The DOE recently started a comprehensive revision of Order 435.1, which it plans to complete sometime in 2012.
In a March 18, 2009, staff requirements memorandum (SRM) SRM–SECY–08–0147,
More recently, in a SRM, dated January 19, 2012,
• Allowing licensees the flexibility to use ICRP dose methodologies in a site-specific performance assessment for the disposal of all radioactive waste.
• A two tiered approach that establishes a compliance period that covers the reasonably foreseeable future and a longer period of performance that is not
• Flexibility for disposal facilities to establish site-specific waste acceptance criteria based on the results of the site's performance assessment and intruder assessment.
• A compatibility category for the elements of the revised rule that establish the requirements for site-specific performance assessments and the development of the site-specific waste acceptance criteria that ensures alignment between the States and Federal government on safety fundamentals, while providing the States with the flexibility to determine how to implement these safety requirements.
In the January 2012 SRM, the Commission also directed the NRC staff to engage stakeholders and other members of the interested public to discuss and finalize the NRC's approach to address the matters raised by the Commission. The Commission also noted that it would reserve judgment on the regulatory form these elements should take in any final rule following NRC staff evaluation of stakeholder input. Accordingly, the NRC staff plans to hold a series of three public meetings in March, May, and July 2012 on the proposed revisions to 10 CFR Part 61. After completion of the public outreach campaign, the staff will prepare an
The Commission also directed the staff to gather information on the options presented in SECY–10–0165, dated December 27, 2010,
The NRC staff has also conducted other activities related to 10 CFR Part 61. These include revisions to the Commission's
The purpose of this public meeting is to gather information from stakeholders and other interested members of the public concerning the rulemaking proposals identified by the Commission in its January 2012 SRM. This overall approach is consistent with NRC's openness policy and is consistent with the type of public outreach initiative originally used by the NRC staff to develop 10 CFR Part 61. The March 2, 2012, public meeting will be organized into three parts. In the first part, the NRC staff will seek public feedback on the pros and cons of the four technical issues specifically identified by the Commission in its January 2012 SRM. In the second part, the staff will identify other technical issues identified by stakeholders bearing on the 10 CFR Part 61 rule and seek public feedback on the merits of these (additional) changes that have been suggested in connection with other on-going LLW regulatory initiatives. In the third session, the staff will seek public feedback on the options proposed in SECY–10–0165 and accept other proposals for a comprehensive revision of 10 CFR Part 61.
The public meeting will be held on March 2, 2012, from 8 a.m. to 4 p.m. at the Marriott Renaissance Phoenix Downtown Hotel, 50 East Adams Street, Phoenix, Arizona 85004. Pre-registration for this meeting is not necessary. Members of the public choosing to participate in this meeting remotely can do so in one of two ways—online, or via a telephone (audio) connection. Instructions for remote participation in this meeting follow.
Interested members of the public can also participate in this meeting via webinar. The webinar meeting registration link can be found at:
To receive a call back, provide your phone number when you join the meeting, or call the following number and enter the access code:
The agenda for the public meeting will be noticed no fewer than ten (10) days prior to the meeting on the NRC's Public Meeting Schedule Web site at
Comments may be sent to the address listed in the
Questions about participation in the public meetings should be directed to the points of contact listed in the
For the U.S. Nuclear Regulatory Commission.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to supersede an existing airworthiness directive (AD) that applies to certain The Boeing Company Model 767 airplanes. The existing AD currently requires revising the Airworthiness Limitations Section of the maintenance planning data (MPD) document. Since we issued that AD, a re-evaluation of certain doors and flaps was done based on their fatigue-critical nature. This proposed AD would revise the maintenance program to incorporate an additional limitation, and would add airplanes to the applicability. We are proposing this AD to detect and correct fatigue cracking of the principal structural element (PSEs), which could adversely affect the structural integrity of the airplane.
We must receive comments on this proposed AD by April 9, 2012.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
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For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H–65, Seattle, Washington 98124–2207; telephone 206–544–5000, extension 1; fax 206–766–5680; email
You may examine the AD docket on the Internet at
Berhane Alazar, Aerospace Engineer, Airframe Branch, ANM–120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, Washington 98057–3356; phone: 425–917–6577; fax: 425–917–6590; email:
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
On September 4, 2003, we issued AD 2003–18–10, amendment 39–13301 (68 FR 53503, September 11, 2003), for certain The Boeing Company Model 767–200, –300, –300F, and –400ER series airplanes. That AD requires revising Subsection B, Section 9, of Boeing 767 Maintenance Planning Data (MPD) Document D622T001–9, titled “Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs),” to incorporate Revision October 2002; and Appendix B of Boeing 767 MPD Document D622T001, Revision December 2002. That AD resulted from analysis of data that identified specific initial inspection thresholds and repetitive inspection intervals for certain principal structural elements (PSEs) to be added to the airworthiness limitation instructions (ALI). We issued that AD to ensure that fatigue cracking of various PSEs is detected and corrected; such fatigue cracking could adversely affect the structural integrity of these airplanes.
Since we issued AD 2003–18–10 (68 FR 53503, September 11, 2003), a re-evaluation of certain doors and flaps was done based on their fatigue-critical nature. These items were classified as PSEs and have been included in the revised MPD Document.
We reviewed Subsection B, Airworthiness Limitations—Structural Inspections, of Section 9, Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), D622T001–9, Revision July 2011, of the Boeing 767 Maintenance Planning Data (MPD) Document. This service information describes procedures for an additional critical fatigue inspection.
We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This proposed AD would retain certain requirements of AD 2003–18–10 (68 FR 53503, September 11, 2003). This proposed AD would revise the Airworthiness Limitations Section of the Maintenance Planning Data (MPD) Document 767 Airworthiness Limitations Instructions (ALI) which adds a critical fatigue inspection and revises the applicability to include additional airplane line numbers.
This proposed AD would retain certain requirements of AD 2003–18–10 (68 FR 53503, September 11, 2003). Since AD 2003–18–10 was issued, the AD format has been revised, and certain paragraphs have been rearranged. As a result, the corresponding paragraph identifiers have changed in this proposed AD, as listed in the following table:
We estimate that this proposed AD affects 417 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that the proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by removing airworthiness directive (AD) 2003–18–10, Amendment 39–13301 (68 FR 53503, September 11, 2003), and adding the following new AD:
The FAA must receive comments on this AD action by April 9, 2012.
This AD supersedes AD 2003–18–10, Amendment 39–13301 (68 FR 53503, September 11, 2003).
This AD applies to The Boeing Company Model 767–200, –300, –300F, and –400ER series airplanes; certificated in any category; line numbers 1 through 997 inclusive.
This AD requires revisions to certain operator maintenance documents to include new 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 inspections, the operator may not be able to accomplish the inspections described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance according to paragraph (k) of this AD. The request should include a description of changes to the required inspections that will ensure the continued damage tolerance of the affected structure. The FAA has provided guidance for this determination in Advisory Circular (AC) 25.1529–1A.
Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 51, Standard Practices/Structures; 52, Doors; 53, Fuselage structure; 54, Nacelle/Pylons; 55, Stabilizers; 56, Windows; and 57, Wings.
This AD was prompted by a re-evaluation of certain doors and flaps based on their fatigue-critical nature. We are issuing this AD to detect and correct fatigue cracking of the principal structural elements (PSEs), which could adversely affect the structural integrity of the airplane.
Comply with this AD within the compliance times specified, unless already done.
For Model 767–200, –300, –300F, and –400ER series airplanes having line numbers 1 through 895 inclusive: Within 18 months after October 16, 2003 (the effective date AD 2003–18–10, (68 FR 53503, September 11, 2003)), revise Subsection B, Section 9, of Boeing 767 MPD Document D622T001–9, entitled “Airworthiness Limitations and Certification Maintenance Requirements,” to incorporate Revision October 2002; and Appendix B of Boeing 767 MPD Document D622T001, Revision December 2002; or Subsection B, Airworthiness Limitations—Structural Limitations, of Section 9, Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), D622T001–9, Revision July 2011, of the Boeing 767 MPD Document.
Except as provided by paragraphs (i) and (k) of this AD: After the actions required by paragraph (g) of this AD have been accomplished, no alternative inspections or inspection intervals shall be approved for the structural significant items (SSIs) contained in Section 9 of Boeing 767 MPD Document D622T001–9, Revision October 2002.
Within 18 months after the effective date of this AD, revise the maintenance program to incorporate the limitations section in Subsection B, Airworthiness Limitations—Structural Inspections, of Section 9, Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), D622T001–9, Revision July 2011, of the Boeing 767 MPD Document. Doing this revision terminates the requirements of paragraph (g) of this AD.
For the purposes of this AD, the terms principal structural elements (PSEs) as used in this AD, and SSIs as used in Subsection B, Airworthiness Limitations—Structural Inspections, of Section 9, Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), D622T001–9, Revision July 2011, of the Boeing 767 MPD Document, are considered to be interchangeable.
Except as provided by paragraph (k) of this AD: After the actions required by paragraph (i) of this AD have been accomplished, no alternative inspections or inspection intervals shall be approved for the SSIs contained in Subsection B, Airworthiness Limitations—Structural Inspections, of Section 9, Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), D622T001–9, Revision July 2011, of the Boeing 767 MPD Document.
(1) The Manager, Seattle Aircraft Certification Office (ACO), ANM–120S, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle Aircraft Certification Office (ACO) to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane and 14 CFR 25.571, Amendment 45, and the approval must specifically refer to this AD.
(1) For more information about this AD, contact Berhane Alazar, Aerospace Engineer, Airframe Branch, ANM–120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, Washington 98057–3356; phone: 425–917–6577; fax: 425–917–6590; email:
(2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H–65, Seattle, Washington 98124–2207; telephone 206–544–5000, extension 1; fax 206–766–5680; email
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to supersede an existing airworthiness directive (AD) that applies to certain The Boeing Company Model 767–200 and –300 series airplanes. The existing AD requires replacement of the existing deactivation pin, aft cascade pin bushing, and pin insert on each thrust reverser half with new, improved components. Since we issued that AD, we received reports that certain airplanes require installation of a new bushing and deactivation pin with increased load carrying capability and all airplanes powered by Pratt & Whitney JT9D series engines require installation of a new bracket for stowing the deactivation pin. This proposed AD would add a dye penetrant inspection for cracking of the rivet holes of the bushing plate and repair or replacement, if necessary. For certain airplanes, this proposed AD would require replacing the existing bushing with a new bushing and deactivation pin; and installing a new or serviceable stowage bracket for the deactivation pins on all airplanes powered by Pratt & Whitney JT9D series engines. We are proposing this AD to prevent failure of the thrust reverser deactivation pins, which could fail to prevent a deployment of a deactivated thrust reverser in flight and consequent reduced controllability of the airplane.
We must receive comments on this proposed AD by April 9, 2012.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H–65, Seattle, Washington 98124–2207; telephone 206–544–5000, extension 1; fax 206–766–5680; email
You may examine the AD docket on the Internet at
Rebel Nichols, Aerospace Engineer, Propulsion Branch, ANM–140S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, Washington 98057–3356; phone: 425–917–6509; fax: 425–917–6590; email:
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
On September 19, 2002, we issued AD 2002–19–11, Amendment 39–12891 (67 FR 61478, October 1, 2002), for certain Model 767–200 and –300 series airplanes powered by Pratt & Whitney JT9D series engines. The existing AD requires replacement of the existing deactivation pin, aft cascade pin bushing, and pin insert on each thrust reverser half, with new, improved components. The existing AD resulted from reports that the pin insert for the deactivation pin was not able to withstand the load of a powered deployment and could fail on some airplanes. We issued that AD to prevent failure of the thrust reverser deactivation pins, which could fail to
Since we issued AD 2002–19–11, Amendment 39–12891 (67 FR 61478, October 1, 2002), we received reports indicating that certain airplanes require installation of a new bushing and pin with increased load carrying capability, and all airplanes powered by Pratt & Whitney JT9D series engines require installation of a new bracket for stowing the deactivation pin. Specifically, we have been advised that the part number (P/N) 315T3222–3 bushing could not be replaced by the P/N 315T3222–10 bushing due to inadequate edge margin on the early thrust reverser configuration.
AD 2002–19–11, Amendment 39–12891 (67 FR 61478, October 1, 2002), refers to Boeing Alert Service Bulletin 767–78A0089, Revision 1, dated May 30, 2002, as the appropriate source of service information for the required actions. Boeing has since revised this service information. We reviewed Boeing Alert Service Bulletin 767–78A0089, Revision 5, dated June 9, 2009, which identifies additional work that needs to be performed on specifically configured Group 2 airplanes for doing a dye penetrant inspection for cracking of the rivet holes of the bushing plate; repair or replacement of the bushing plate with a new or serviceable bushing plate if necessary; and replacing any existing P/N 315T3222–3 or P/N 315T3222–10 bushing and deactivation pin with a new P/N 315T3221–1 bushing and new P/N 315T1604–6 deactivation pin to provide adequate edge margin. Boeing Alert Service Bulletin 767–78A0089, Revision 5, dated June 9, 2009, also identifies additional work for installing a new or serviceable stowage bracket for the deactivation pins on all airplanes powered by Pratt & Whitney JT9D series engines.
We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of these same type designs.
This proposed AD would retain all requirements of AD 2002–19–11, Amendment 39–12891 (67 FR 61478, October 1, 2002). This proposed AD would also require accomplishing the actions specified in the service information described previously.
Since AD 2002–19–11, Amendment 39–12891 (67 FR 61478, October 1, 2002), was issued, the AD format has been revised, and certain paragraphs have been rearranged. As a result, paragraphs (a) and (b) of AD 2002–19–11 Amendment 39–12891 (67 FR 61478, October 1, 2002), have been re-identified as paragraphs (g) and (h) in this proposed AD.
We estimate that this proposed AD affects 23 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:
We have received no definitive data that would enable us to provide cost estimates for the on-condition actions (repair or replacement of bushing plate) specified in this proposed AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that the proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by removing airworthiness directive (AD) 2002–19–11, Amendment 39–12891 (67 FR 61478, October 1, 2002), and adding the following new AD:
The FAA must receive comments on this AD action by April 9, 2012.
This AD supersedes AD 2002–19–11, Amendment 39–12891 (67 FR 61478, October 1, 2002).
This AD applies to The Boeing Company Model 767–200 and –300 series airplanes, certificated in any category; as identified in Boeing Alert Service Bulletin 767–78A0089, Revision 5, dated June 9, 2009.
Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 7830, Thrust Reverser.
This AD was prompted by reports that certain airplanes require installation of a new bushing and deactivation pin with increased load carrying capability and all airplanes powered by Pratt & Whitney JT9D series engines require installation of a new bracket for stowing the deactivation pin. We are issuing this AD to prevent failure of the thrust reverser deactivation pins, which could fail to prevent a deployment of a deactivated thrust reverser in flight and consequent reduced controllability of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Within 24 months after November 5, 2002 (the effective date of AD 2002–19–11, Amendment 39–12891 (67 FR 61478, October 1, 2002)), replace the existing deactivation pin, pin bushing in the aft cascade mounting ring, and pin insert on each thrust reverser half, with new, improved components, in accordance with Boeing Alert Service Bulletin 767–78A0089, Revision 1, dated May 30, 2002; or Boeing Alert Service Bulletin 767–78A0089, Revision 5, dated June 9, 2009. After the effective date of this AD, only Boeing Alert Service Bulletin 767–78A0089, Revision 5, dated June 9, 2009, may be used.
The new, improved insert flange and pin bushing does not physically preclude use of a deactivation pin having P/N 315T1604–2 or –5. However, use of deactivation pins having P/N 315T1604–2 or –5 may not prevent the thrust reversers from deploying in the event of a full powered deployment. Therefore, thrust reversers modified per AD 2002–19–11, Amendment 39–12891 (67 FR 61478, October 1, 2002), are required to be installed with the new, longer deactivation pins having P/N 315T1604–6, as specified in Boeing Alert Service Bulletin 767–78A0089, Revision 1, dated May 30, 2002, or Boeing Alert Service Bulletin 767–78A0089, Revision 5, dated June 9, 2009. After the effective date of this AD, only Boeing Alert Service Bulletin 767–78A0089, Revision 5, dated June 9, 2009, may be used.
Within 24 months after the effective date of this AD, do the applicable actions specified in paragraphs (h)(1) and (h)(2) of this AD.
(1) For Group 2 airplanes as identified in Boeing Alert Service Bulletin 767–78A0089, Revision 5, dated June 9, 2009, do a dye penetrant inspection for cracking of the rivet holes and replace any P/N 315T3222–3 or P/N 315T3222–10 bushing and deactivation pin with a new or serviceable P/N 315T3221–1 bushing and new P/N 315T1604–6 deactivation pin, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 767–78A0089, Revision 5, dated June 9, 2009. If any crack is found in the rivet holes of the bushing plate, before further flight, repair or replace the bushing plate with a new or serviceable bushing plate, as applicable, using a method approved in accordance with the procedures specified in paragraph (j) of this AD.
(2) For both Group 1 and Group 2 airplanes, as identified in Boeing Alert Service Bulletin 767–78A0089, Revision 5, dated June 9, 2009, install a new or serviceable stowage bracket assembly (P/N 015T0196–4 for the right thrust reverser, P/N 015T0196–5 for the left thrust reverser), in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 767–78A0089, Revision 5, dated June 9, 2009.
Actions accomplished before the effective date of this AD in accordance with Boeing Alert Service Bulletin 767–78A0089, Revision 2, dated March 13, 2003; Boeing Alert Service Bulletin 767–78A0089, Revision 3, dated December 18, 2003; or Boeing Alert Service Bulletin 767–78A0089, Revision 4, dated March 6, 2008; are considered acceptable for compliance with the corresponding requirements of paragraph (g) of this AD.
(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in the Related Information section of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) AMOCs approved for AD 2002–19–11, Amendment 39–12891 (67 FR 61478, October 1, 2002), are approved as AMOCs for the corresponding provisions of paragraph (g) of this AD.
(1) For more information about this AD, contact Rebel Nichols, Aerospace Engineer, Propulsion Branch, ANM–140S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, Washington 98057–3356; phone: 425–917–6509; fax: 425–917–6590; email:
(2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H–65, Seattle, Washington 98124–2207; telephone 206–544–5000, extension 1; fax 206–766–5680; email
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for all Airbus Model A300 series airplanes; Model A310 series airplanes; Model A300 B4–600, B4–600R, and F4–600R series airplanes, and Model C4–605R Variant F airplanes (collectively called Model A300–600 series airplanes). This proposed AD was prompted by reports of cracked fuel pump canister hoods located in fuel tanks. This proposed AD would require replacing any hood halves of fuel pump canisters that are cracked. We are proposing this AD to prevent any detached canister hood fragments/debris from being ingested into the fuel feed system, and the metallic debris inside the fuel tank resulting in a potential source of ignition and consequent fire or explosion.
We must receive comments on this proposed AD by April 9, 2012.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Airbus SAS–EAW (Airworthiness Office), 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email:
You may examine the AD docket on the Internet at
Dan Rodina, Aerospace Engineer, International Branch, ANM–116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, Washington 98057–3356; telephone (425) 227–2125; fax (425) 227–1149.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2011–0124, dated June 30, 2011 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
This [EASA] AD results from findings of cracked fuel pump canister hoods located in fuel tanks.
From the analyses, laboratory testing and examinations made so far, it is presently thought that vibration-induced fatigue can be identified as the root cause for the cracks found on in-service aeroplanes. However, current data does not yet permit to exclude some other potential contributing factors.
This condition, if not detected and corrected, could lead to detached canister hood fragments/debris to be ingested into the fuel feed system. Also, the metallic debris inside the fuel tank could result in a potential source of ignition and consequent fire or explosion.
For the reasons described above, this [EASA] AD requires repetitive [detailed] inspections of all fuel pump canister hood halves and their replacement if any [cracking] damage is found. This [EASA] AD also requires the inspection results to be reported.
This [EASA] AD is considered to be an interim action. The reports that are required by this [EASA] AD will enable the manufacturer to obtain better insight into the nature, cause, and extent of the fuel pump canister hood cracking, and eventually to develop final action to address the unsafe condition. Once final action has been identified, further AD actions could be considered.
Airbus has issued Mandatory Service Bulletins A300–28–0089, A300–28–6106, and A310–28–2173, all including Inspection Findings—Reporting Sheet, all Revision 01, all dated April 15, 2011. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
Based on the service information, we estimate that this proposed AD would affect about 221 products of U.S. registry. We also estimate that it would take up to 12 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 $225,420, or $1,020 per product.
In addition, we estimate that any necessary follow-on actions would take about 1 work-hour. We have no way of determining the number of products that may need these actions.
We have received no definitive data that would enable us to provide cost estimates for certain parts required for the on-condition actions (replacing fuel pump canister hood halves) specified in this proposed AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
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 April 9, 2012.
None.
This AD applies to the airplanes identified in paragraphs (c)(1), (c)(2), and (c)(3) of this AD; certificated in any category; all certificated models; all serial numbers.
(1) Airbus Model A300 B2–1C, B2K–3C, B2–203, B4–2C, B4–103, and B4–203 airplanes.
(2) Airbus Model A310–203, –204, –221, –222, –304, –322, –324, and –325 airplanes.
(3) Airbus Model A300 B4–603, B4–620, and B4–622 airplanes, Model A300 B4–605R and B4–622R airplanes, Model A300 F4–605R and F4–622R airplanes, and Model A300 C4–605R Variant F airplanes.
Air Transport Association (ATA) of America Code 28: Fuel.
This AD was prompted by reports of cracked fuel pump canister hoods located in fuel tanks. We are issuing this AD to prevent any detached canister hood fragments/debris from being ingested into the fuel feed system, and the metallic debris inside the fuel tank resulting in a potential source of ignition and consequent fire or explosion.
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 30 months after the effective date of this AD, do a detailed inspection for cracking of the fuel pump canister hood halves installed on all fuel pump canisters having part numbers (P/N) 2052C11, 2052C12, and C93R51–601, in accordance with the Accomplishment Instructions of the service bulletin specified in paragraphs (g)(1), (g)(2), and (g)(3) of this AD, as applicable. If any crack is found on any fuel pump canister hood half during any inspection, before further flight, replace the fuel pump canister hood half, in accordance with the Accomplishment Instructions of the service bulletin specified in paragraph (g)(1), (g)(2), or (g)(3) of this AD, as applicable.
(1) For Model A300 airplanes: Airbus Mandatory Service Bulletin A300–28–0089, including Inspection Findings—Reporting Sheet, Revision 01, dated April 15, 2011.
(2) For Model A300–600 airplanes: Airbus Mandatory Service Bulletin A300–28–6106, including Inspection Findings—Reporting Sheet, Revision 01, dated April 15, 2011.
(3) For Model A310 airplanes: Airbus Mandatory Service Bulletin A310–28–2173, including Inspection Findings—Reporting Sheet, Revision 01, dated April 15, 2011.
Within 30 months after accomplishing the actions specified in paragraph (g) of this AD, and thereafter at intervals not to exceed 30 months, repeat the detailed inspection specified in paragraph (g) of this AD.
Actions accomplished before the effective date of this AD in accordance with Airbus Mandatory Service Bulletins A300–28–0089, A300–28–6106, and A310–28–2173, all dated January 13, 2011, as applicable, are considered acceptable for compliance with the corresponding action specified in this AD.
Submit reports of the findings (both positive and negative) of the inspections required by paragraphs (g) and (h) of this AD to Airbus at the applicable time specified in paragraph (j)(1) or (j)(2) of this AD, using the form “Inspection Findings—Reporting Sheet” provided in the service bulletin identified in paragraphs (g)(1), (g)(2), and (g)(3) of this AD, as applicable.
(1) If the inspection was done on or after the effective date of this AD: Submit the report within 30 days after the inspection.
(2) If the inspection was done before the effective date of this AD: Submit the report within 30 days after the effective date of this AD.
The following provisions also apply to this AD:
(1)
(2)
(3)
Refer to MCAI European Aviation Safety Agency (EASA) Airworthiness Directive 2011–0124, dated June 30, 2011; and the Airbus mandatory service bulletins identified in paragraphs (g)(1), (g)(2), and (g)(3) of this AD; for related information.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain The Boeing Company Model 777–200 and –300 series airplanes. This proposed AD was prompted by reports of fatigue cracks in the lap joints, which initiated at scribe lines that were made during production when maskant was removed from the affected skin panels. This proposed AD would require repetitive external phased-array ultrasonic inspections to detect cracks of the affected fuselage skin lap splices in Sections 41, 43, and 44, as applicable, and repair if necessary. We are proposing this AD to detect and correct such fatigue cracking, which, if not detected and corrected, could grow large and cause sudden decompression and the inability to sustain limit flight and pressure loads.
We must receive comments on this proposed AD by April 9, 2012.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H–65, Seattle, Washington 98124–2207; telephone 206–544–5000, extension 1; fax 206–766–5680; email
You may examine the AD docket on the Internet at
James Sutherland, Aerospace Engineer, Airframe Branch, ANM–120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, Washington 98057–3356; phone: 425–917–6533; fax: 425–917–6590; email:
We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We received a report indicating that, on the affected airplanes, scribe lines may have been inadvertently made in the overlapped skin in lap joints if a sharp tool was used to remove the maskant from the aluminum skin panels during assembly of the affected lap joints. During fatigue testing of Model 777 airplanes, lap joint cracks were found, and analysis indicated that those cracks initiated at scribe lines that were made during production when maskant was removed from the affected skin panels. Such fatigue cracking, if not detected and corrected, could grow large and cause sudden decompression and the inability to sustain limit flight and pressure loads.
We reviewed Boeing Alert Service Bulletin 777–53A0043, dated November 9, 2011. For information on the procedures and compliance times, see this service information at
We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This proposed AD would require repetitive external phased-array ultrasonic inspections to detect cracks of the affected fuselage skin lap splices in Sections 41, 43, and 44, as applicable, and repair if necessary.
Boeing Alert Service Bulletin 777–53A0043, dated November 9, 2011, specifies that one way to install a repair is to use “other approved methods.” However, this proposed AD requires that the repair be done using a method approved in accordance with the procedures specified in paragraph (i) of this proposed AD.
We estimate that this proposed AD affects 46 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
We have received no definitive data that would enable us to provide cost estimates for the on-condition repair.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD):
We must receive comments by April 9, 2012.
None.
This AD applies to The Boeing Company Model 777–200 and –300 series airplanes, certificated in any category, as identified in Boeing Alert Service Bulletin 777–53A0043, dated November 9, 2011.
Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 53, Fuselage.
This AD was prompted by reports of fatigue cracks in the lap joints, which initiated at scribe lines that were made during production when maskant was removed from the affected skin panels. We are issuing this AD to detect and correct such fatigue cracking, which, if not detected and corrected, could grow large and cause sudden decompression and the inability to sustain limit flight and pressure loads.
Comply with this AD within the compliance times specified, unless already done.
Except as provided by paragraph (h)(1) of this AD, at the applicable time identified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 777–53A0043, dated November 9, 2011: Do external phased-array ultrasonic inspections to detect cracks of the affected fuselage skin lap splices in Sections 41, 43, and 44, as applicable, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 777–53A0043, dated November 9, 2011. If any crack is found, before further flight, repair in accordance with Boeing Alert Service Bulletin 777–53A0043, dated November 9, 2011; except as required by paragraph (h)(2) of this AD. Repeat the inspections of unrepaired areas thereafter at intervals not to exceed 4,200 flight cycles.
(1) Where Boeing Alert Service Bulletin 777–53A0043, dated November 9, 2011, specifies a compliance time “after the original issue date on this service bulletin,” this AD requires compliance within the specified compliance time after the effective date of this AD.
(2) Where Boeing Alert Service Bulletin 777–53A0043, dated November 9, 2011, specifies that “other approved methods” can be used to install a repair, this AD requires that the repair be done using a method approved in accordance with the procedures specified in paragraph (i) of this AD.
(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in the Related Information section of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
(1) For more information about this AD, contact James Sutherland, Aerospace Engineer, Airframe Branch, ANM–120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, Washington 98057–3356; phone: 425–917–6533; fax: 425–917–6590; email:
(2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P. O. Box 3707, MC 2H–65, Seattle, Washington 98124–2207; telephone 206–544–5000, extension 1; fax 206–766–5680; email
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain Bombardier, Inc. Model CL–600–2B16 (CL–601–3A, CL–601–3R, and CL–604 Variants) airplanes. This proposed AD was prompted by reports of deformation at the neck of the pressure regulator body on the oxygen cylinder and regulator assemblies (CRAs), and an electrical wiring harness in the area of the oxygen cylinder had no protective conduit sleeving. This proposed AD would require inspecting to determine if certain oxygen pressure regulators are installed and replacing oxygen CRAs containing pressure regulators that do not meet the required material properties. This proposed AD would also require inspecting for damaged wiring and repairing or replacing wiring if necessary. We are proposing this AD to prevent rupture of the oxygen cylinder, which in the case of cabin depressurization, oxygen would not be available when required; and to detect and correct unprotected wiring that could chafe against the oxygen system components or surrounding structure in the area, which could lead to electrical arcing and an oxygen-fed fire.
We must receive comments on this proposed AD by April 9, 2012.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; telephone 514–855–5000; fax 514–855–7401; email
You may examine the AD docket on the Internet at
Cesar Gomez, Aerospace Engineer, Airframe and Mechanical Systems Branch, ANE–171, FAA, New York Aircraft Certification Office (ACO), 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone (516) 228–7318; fax (516) 794–5531.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
Transport Canada Civil Aviation (TCCA), has issued Canadian Airworthiness Directive CF–2011–11, dated May 25, 2011 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
During a routine inspection, deformation was found at the neck of the pressure regulator body on the oxygen Cylinder and Regulator Assemblies (CRA) of a BD–700–1A11 aeroplane.
An investigation by the vendor, Avox Systems Inc., revealed that the deformation was attributed to two (2) batches of raw material that did not meet the required tensile strength. This may cause elongation of the pressure regulator neck, which could result in rupture of the oxygen cylinder, and in the case of cabin depressurization, oxygen would not be available when required.
Although there have been no reported failures to date on any CL–600–2B16 aeroplanes, oxygen pressure regulators, Part Numbers (P/N) 806370–12, could be part of the affected batches.
It has also been found that the electrical wiring harness in the area of the oxygen cylinder has been installed without protection. Unprotected wiring could chafe against the oxygen system components or surrounding structure in the area, which could lead to electrical arcing and an oxygen fed fire.
This [TCCA] directive mandates [an inspection to determine if a certain oxygen CRA is installed and] the replacement of oxygen CRAs containing pressure regulators that do not meet the required material properties and to [do a general visual inspection of] and protect the affected wiring.
Bombardier, Inc. has issued Service Bulletin 605–24–005, dated January 31, 2011; and Bombardier Service Bulletin 605–35–001, Revision 01, dated February 28, 2011. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
This proposed AD differs from the MCAI and/or service information as follows: The MCAI and service information do not specify corrective actions if damaged wiring is found; this proposed AD requires repairing or replacing any damaged wiring. This proposed AD also includes serial numbers (S/N) 5824 and subsequent in the applicability. Those airplanes are included in paragraph (j) of the proposed AD, which prohibits the installation of certain regulators.
Based on the service information, we estimate that this proposed AD would affect about 72 products of U.S. registry. We also estimate that it would take about 1 work-hour 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 $6,120, or $85 per product.
In addition, we estimate that certain follow-on actions (wiring protection) would take about 2 work-hours and require parts costing $0, for a cost of $170 per product. We have no way of determining the number of products that may need these actions.
We have received no definitive data that would enable us to provide cost estimates for certain other on-condition actions (repairing or replacing damaged wiring) specified in this proposed AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
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 April 9, 2012.
None.
This AD applies to Bombardier, Inc. Model CL–600–2B16 (CL–601–3A, CL–601–3R, & CL–604 Variants) airplanes; certificated in any category; serial numbers 5701 through 5802 inclusive, 5804 through 5808 inclusive, 5810 through 5816 inclusive, 5819, 5822, 5823 and subsequent.
Air Transport Association (ATA) of America Codes 24: Electrical power; and 35: Oxygen.
This AD was prompted by reports of deformation at the neck of the pressure regulator body on the oxygen cylinder and regulator assemblies (CRAs), and an electrical wiring harness in the area of the oxygen cylinder had no protective conduit sleeving. We are issuing this AD to prevent rupture of the oxygen cylinder, which in the case of cabin depressurization, oxygen would not be available when required; and to detect and correct unprotected wiring that could chafe against the oxygen system components or surrounding structure in the area, which could lead to electrical arcing and an oxygen-fed fire.
You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
For airplanes with serial numbers 5701 through 5802 inclusive, 5804 through 5808 inclusive, 5810 through 5816 inclusive, 5819, 5822, and 5823: Within 750 flight hours after the effective date of this AD, but no later than 6 months after the effective date of this AD, inspect the serial number of oxygen pressure regulators having part number (P/N) 806370–12, in accordance with the Accomplishment Instructions, Section 2.B.(3), of Bombardier Service Bulletin 605–35–001, Revision 01, dated February 28, 2011. A review of airplane maintenance records is acceptable in lieu of this inspection if the part number of the oxygen pressure regulator can be conclusively determined from that review.
(1) If any serial number is found that is listed in table 2 of Bombardier Service Bulletin 605–35–001, Revision 01, dated February 28, 2011, before further flight, replace the affected oxygen CRA in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 605–35–001, Revision 01, dated February 28, 2011.
(2) If any serial number is found that is not listed in table 2 of Bombardier Service Bulletin 605–35–001, Revision 01, dated February 28, 2011, no further action is required by this paragraph.
For airplanes with serial numbers 5701 through 5778 inclusive, 5780 through 5796 inclusive, 5798, 5800 through 5802 inclusive, 5804, 5805, 5808, 5811, and 5813: At the compliance times specified in paragraphs (h)(1) and (h)(2) of this AD, do a detailed inspection for damaged wiring (i.e., signs of damaged insulation, abrasion, or chafing) of the electrical wiring harness for the oxygen CRA, and protect the electrical wiring harness, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 605–24–005, dated January 31, 2011. If any damaged wiring is found, before further flight, repair or replace any damaged wiring in accordance with a method approved by the Manager, New York Aircraft Certification Office (ACO), FAA; or Transport Canada Civil Aviation (TCCA) (or its delegated agent).
(1) For airplanes on which the oxygen CRA must be replaced as required by paragraph (g)(1) of this AD: At the time the oxygen CRA is replaced.
(2) For airplanes other than those identified in paragraph (h)(1) of this AD: Within 800 flight hours after the effective date of this AD.
Actions accomplished before the effective date of this AD accordance with Bombardier Service Bulletin 605–35–001, dated January 31, 2011, are considered acceptable for compliance with the corresponding actions specified in this AD.
For all airplanes: As of the effective date of this AD, no person may install an oxygen pressure regulator (P/N 806370–12) having any serial number listed in table 2 of Bombardier Service Bulletin 605–35–001, Revision 01, dated February 28, 2011, on any airplane, unless a suffix “-A” is beside the serial number.
The following provisions also apply to this AD:
(1)
(2)
Refer to MCAI Canadian Airworthiness Directive CF–2011–11, dated May 25, 2011, and the service bulletins identified in paragraphs (l)(1) and (l)(2) of this AD, for related information.
(1) Bombardier Service Bulletin 605–24–005, dated January 31, 2011.
(2) Bombardier Service Bulletin 605–35–001, Revision 01, dated February 28, 2011.
Federal Energy Regulatory Commission, DOE.
Notice of proposed rulemaking.
The Federal Energy Regulatory Commission (Commission) is proposing to amend its regulations at 18 CFR 284.12 to incorporate by reference the latest version (Version 2.0) of business practice standards adopted by the Wholesale Gas Quadrant of the North American Energy Standards Board (NAESB) applicable to natural gas pipelines.
Comments are due March 23, 2012.
Comments, identified by docket number, may be filed in the following ways:
•
•
1. The Federal Energy Regulatory Commission (Commission) proposes to amend its regulations at 18 CFR 284.12 to incorporate by reference the latest version (Version 2.0) of business practice standards adopted by the Wholesale Gas Quadrant (WGQ) of the North American Energy Standards Board (NAESB) applicable to natural gas pipelines. The Commission also proposes to provide guidance on the standards the Commission applies to requests for waivers or extensions of time to comply with NAESB Standards. The Commission's proposal includes incorporation of the minor corrections and errata made by NAESB and reported to the Commission on June 28, 2011, October 11, 2011, and December 22, 2011.
2. Since 1996, the Commission has adopted regulations to standardize the business practices and communication methodologies of interstate natural gas pipelines to create a more integrated and efficient pipeline grid. These regulations have been promulgated in the Order No. 587 series of orders,
3. On March 4, 2011, NAESB filed a report informing the Commission that it had adopted and ratified Version 2.0 of its business practice standards applicable to natural gas pipelines. The Version 2.0 Standards revised the Version 1.9 Standards to include: (1) Standards to support gas-electric interdependency; (2) standards created for Capacity Release redesign due to the elimination of Electronic Data Interchange (EDI) for Capacity Release Upload information; (3) standards to support the Electronic Delivery Mechanism (EDM); (4) standards to support the Customer Security Administration (CSA) Process; (5) standards for pipeline postings of information regarding waste heat; and (6) minor technical maintenance revisions designed to more efficiently process wholesale natural gas transactions.
4. On June 28, 2011, NAESB filed a report informing the Commission that it had made modifications to the NAESB WGQ Version 1.9 and 2.0 Standards to correct various minor errors. The errata corrections make minor revisions to the NAESB WGQ Standards and Data Elements including revisions to the: (1) Datasets for Additional Standards; (2) Nomination Related Datasets; (3) Flowing Gas Related Standards; (4) Invoicing Related Datasets; (5) EDM Related Standards; and (6) Capacity Release Related Standards and Datasets.
5. Further, on October 11, 2011, NAESB filed a report informing the Commission that it had made additional modifications to the NAESB WGQ Version 2.0 Standards to correct various minor errors in the Nominations Related and Capacity Release Related Datasets.
6. Finally, on December 22, 2011, NAESB filed a report informing the Commission that it had made additional modifications to the NAESB WGQ Version 1.9 and 2.0 Standards to correct various minor errors. The errata corrections make minor revisions to the NAESB WGQ Standards and Datasets including revisions to the: (1) Nominations Related Datasets; (2) Capacity Release Related Datasets; and (3) Quadrant Electronic Delivery Mechanism Related Standards.
7. In Order Nos. 698 and 698–A,
8. In the NAESB WGQ Version 2.0 Standards, NAESB modified and developed additional standards to further enhance that coordination. NAESB made modifications to its WGQ Standards 4.3.28, 4.3.29, and 5.3.38 and developed new Standards 5.3.70 and 5.3.71 to enhance the clarity of the content and format of critical, non-critical, and planned service outage notices issued by pipelines. These modifications were made to allow Transportation Service Providers the flexibility to communicate additional clarity beyond the currently defined notice types through the addition of 15 new notice types. The expansion from the current 12 notice types to 27 notice types increases the ability of pipelines to detail the subject matter of the notices.
9. NAESB modified the existing gas-electric coordination WGQ Standards 0.2.1 through 0.2.3, 0.3.11 through 0.3.15; and created a new Standard 0.2.4 to further define the roles and responsibilities of each participant under the Gas/Electric Operational Communication Standards promulgated in Order No. 698. Specifically, NAESB modified the WGQ Standards in order to define the terms Reliability Coordinator and Power Plant Gas Coordinator to replace existing terminology of Regional Transmission Organizations, Independent System Operators, any other appropriate independent transmission operators, and Power Plant Operators respectively. NAESB modified WGQ Standard 0.3.14 to change the parties to whom pipelines are required to provide notification of operational flow orders and other critical notices. Pipelines are now required to provide Balancing Authorities and/or Reliability Coordinators, and Power Plant Gas Coordinators such information.
10. In the NAESB WGQ Version 2.0 Standards, NAESB sought to modify electronic capacity release transaction standards to reflect NAESB's elimination of the largely unused EDI requirements for Capacity Release Upload information. NAESB added two standards related to notices provided by Transmission Service Providers and one standard related to error messages. The NAESB WGQ Version 2.0 Standards also add four new capacity release standard datasets to replace fourteen Version 1.9 Datasets that NAESB deleted in an effort to restructure and simplify capacity release transactional information.
11. In the NAESB WGQ Version 2.0 Standards, NAESB adopted several standards to ensure the consistency of Transportation Service Provider Web site data labels as well as the ability to provide Informational Postings report downloads in a comma-separated-value (CSV) file format. These changes were undertaken to ensure that NAESB's technical standards remain consistent with current technical practices.
12. In the NAESB WGQ Version 2.0 Standards, NAESB adopted Standard 4.3.100 to support the CSA processes. This new standard establishes a timeline for a Transportation Service Provider to respond to a request from a service requester for information, such as user name and security privileges, regarding those parties permitted to access the Transportation Service Provider's “Customer Activities” Web site on the service requester's behalf. The new standard also establishes the number of representatives a service requester can authorize to receive such information and details the related user management responsibilities of the service requester.
13. NAESB sought to facilitate the Commission's FY 2009–2014 Strategic Plan
14. In the NAESB WGQ Version 2.0 Standards, NAESB added several new Standards, 0.3.18 through 0.3.22, and replaced an existing Dataset 5.4.13 with new Datasets 0.4.2 and 0.4.3, to further specify the information on operationally available and unsubscribed capacity that pipelines disseminate. NAESB indicates that these standards are intended to specify the Business Practice Standards and Dataset requirements for reporting operationally available and unsubscribed capacity. NAESB included these new Business Practice Standards in a new section entitled “Operating Capacity and Unsubscribed” in its Business Practice Standards for Additional Standards.
15. In the NAESB WGQ Version 2.0 Standards, NAESB also continued the process of making minor clarifications and corrections to existing standards including: (1) Revising the formatting, appearance, or descriptions; (2) clarifying or correcting code values to tables; and (3) making minor non-substantive changes.
16. In this NOPR, the Commission proposes to incorporate by reference in its regulations Version 2.0 of the NAESB WGQ's consensus business practice standards,
a. It revised Principle 4.1.32; Definitions 0.2.1, 0.2.2, 0.2.3, 5.2.1, 5.2.4, and 5.2.5; Standards 0.3.11 through 0.3.15, 2.3.34, 4.3.16, 4.3.23, 4.3.28, 4.3.29, 4.3.54, 5.3.1 through 5.3.14, 5.3.16, 5.3.19 through 5.3.21, 5.3.24 through 5.3.27, 5.3.31 through 5.3.33, 5.3.38, 5.3.42, 5.3.48, 5.3.50, 5.3.51, 5.3.60, 5.3.62, 5.3.62a, and 5.3.63 through 5.3.69; and Datasets 1.4.1 through 1.4.6, 2.4.1, 2.4.3, 2.4.4, 2.4.6, 2.4.7, 3.4.1, 3.4.4, 5.4.14 through 5.4.17, and 5.4.20 through 5.4.22.
b. It added Definition 0.2.4; Standards 0.3.18 through 0.3.22, 4.3.100 through 4.3.102, 5.3.70 through 5.3.72; and Datasets 0.4.2, 0.4.3, and 5.4.24 through 5.4.27.
c. It deleted Standards 5.3.17, 5.3.30, 5.3.43, and 5.3.61; and Datasets 5.4.1 through 5.4.13, 5.4.18, and 5.4.19.
17. As the Commission found in Order No. 587, adoption of consensus standards is appropriate because the consensus process helps ensure the reasonableness of the standards by requiring that the standards draw support from a broad spectrum of industry participants representing all segments of the industry.
18. The Commission is continuing its past practice and is not proposing to incorporate by reference Standards 4.3.4 and 10.3.2, because they are inconsistent with the Commission's record retention requirement in 18 CFR 284.12(b)(3)(v).
19. NAESB adopted new Standards
20. NAESB WGQ Standard 0.3.19 states:
Operationally Available Capacity (OAC), Operating Capacity (OPC) and Total Scheduled Quantity (TSQ) are associated information and should be reported at the same level. Transportation Service Providers should report OAC, OPC and TSQ at, at least one of, point, segment or zone level.
21. While this standard allows the pipeline to choose whether to post Operationally Available Capacity, Operating Capacity, and Total Scheduled Quantity at either a point, segment or zone level, section 284.13(d)
(d) Capacity and flow information. (1) An interstate pipeline must provide on its Internet web site and in downloadable file formats, in conformity with § 284.12 of this part, equal and timely access to information relevant to the availability of all transportation services whenever capacity is scheduled, including, but not limited to, the availability of capacity at receipt points, on the mainline, at delivery points, and in storage fields, whether the capacity is available directly from the pipeline or through capacity release, the total design capacity of each point or segment on the system, the amount scheduled at each point or segment whenever capacity is scheduled, and all planned and actual service outages or reductions in service capacity.
22. NAESB WGQ Standard 0.3.21 states:
The Total Scheduled Quantity and the Operationally Available Capacity information should be updated by the Transportation Service Provider to reflect scheduling changes and be reported promptly following the scheduling deadline associated with the timely and evening nominations cycles.
While this standard requires the posting of information only at the timely and evening nominations cycles, section 284.13(d) does not limit the posting to only two cycles but requires the posting of capacity availability and scheduled capacity “whenever capacity is scheduled.” This would include postings for the two intra-day cycles during the gas day.
23. We therefore are proposing not to incorporate by reference Standard 0.3.21. While NAESB is considering a revision to Standard 0.3.21, pipelines are expected to continue to adhere to the regulations and post available capacity at the four intra-day nomination opportunities. In addition, we note that some pipelines are providing additional nomination opportunities (such as hourly nominations) under certain rate schedules. The regulation requires posting “whenever capacity is scheduled,” which would include posting for these additional nomination opportunities as well as posting for the standard four nomination periods.
24. The Commission proposes that natural gas pipelines be required to implement the NAESB WGQ Version 2.0 Standards in accordance with the following schedule. We propose to require compliance with the NAESB WGQ Version 2.0 Standards beginning on the first day of the month after the fourth full month following issuance of the final rule. So if the final rule were issued on February 17, 2012, compliance would be required beginning on July 1, 2012. Based on past practice, we are proposing this implementation schedule to give the natural gas pipelines subject to these standards adequate time to implement these changes. In addition, the Commission proposes that pipelines be required to file tariff records to reflect the changed standards at least two months before the implementation date.
25. The Commission also proposes to revise the compliance filing requirements to increase the transparency of the pipelines' incorporation by reference of the NAESB WGQ Standards so that shippers and the Commission will know which tariff provisions implements each standard as well as the status of each standard.
(1) The pipelines should designate a single tariff section under which every NAESB standard is listed.
(2) For each standard, the pipeline would indicate in the tariff section listing all the NAESB standards:
(a) Whether the standard is incorporated by reference;
(b) For those standards not incorporated by reference, the tariff provision that complies with the standard;
(c) An indication as to whether the pipeline has been granted a waiver, extension of time, or other variance with respect to compliance with the standard.
(3) If the pipeline is requesting a continuation of an existing waiver or extension of time, it must include a table in its transmittal letter that indicates the standard for which a waiver or extension of time was granted, and the docket number or order citation to the proceeding in which the waiver or extension was granted.
This approach would give Commission staff and all shippers a common location that identifies the way the pipeline is incorporating all the NAESB WGQ Standards and the standards with which it is required to comply. The Commission will post on its eLibrary Web site (under Docket No. RM96–1–037) a sample tariff format, to provide filers an illustrative example to aid them in preparing their compliance filings.
26. In previous compliance proceedings, there has been a marked increase in the number of requests for waivers or for extensions of time to comply with standards. The Commission's orders on these requests have developed a set of general principles which the Commission intends to follow in reviewing such requests in the future.
(1) All waivers and extensions of time are limited to the individual set of NAESB standards being adopted (in this case NAESB WGQ's Version 2.0 Standards). Pipelines will need to seek renewal of any such waivers or extensions for each version of the standards the Commission adopts.
(2) Waivers or extensions of time will not be granted for standards that merely describe the process by which a pipeline must perform a business function, if it performs that function, where the standard does not require the pipeline to perform the business function.
(3) If a pipeline is seeking a renewal of a waiver or extension of time request, it must provide a current justification for the request and must include a citation to an order or the docket number of the proceeding in which the initial waiver or extension of time was granted.
(4) In cases in which pipelines maintain they should not be required to incur the costs of implementing standards shippers are not interested in utilizing, waivers ordinarily will not be granted. Instead, the approach to these requests will be to grant the pipeline an extension of time for compliance until 60 days after the pipeline receives a request to comply with the standard.
(5) The Commission generally will not entertain waiver or extension of time requests for NAESB WGQ Definitions (x.2.z Standards). The NAESB WGQ Definitions specify and elucidate specific terms of generally applicable business practices and do not require a pipeline to perform any action or incur expense to comply which such Definitions.
27. To provide guidance to pipelines in filing requests for waivers or extensions of time, the Commission also will explain its general policy regarding waivers of the four general categories of NAESB standards: (1) Business practice standards; (2) requirements to conduct business electronically using the Internet (Internet Business Standards); (3) Commission Internet posting requirements (Internet Posting Standards); and (4) requirements to conduct computer-to-computer transactions using EDI. It is important for pipelines to identify clearly in their filings the specific standards from which they are seeking waivers or extensions of time. In particular, pipelines need to be clear as to whether they are requesting waivers of the Internet Requirements or the EDI requirements.
(1)
(2)
(3)
(4)
28. Office of Management and Budget Circular A–119 (section 11) (February 10, 1998) provides that federal agencies should publish a request for comment in a NOPR when the agency is seeking to issue or revise a regulation proposing to adopt a voluntary consensus standard or a government-unique standard. In this NOPR, the Commission is proposing to incorporate by reference voluntary consensus standards developed by the WGQ.
29. The following collections of information contained in this proposed rule are being submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the Paperwork Reduction Act of 1995, 44 U.S.C. 3507(d). The Commission solicits comments on the Commission's need for this information, whether the information will have practical utility, the accuracy of the provided burden estimates, ways to enhance the quality, utility, and clarity of the information to be collected, and any suggested methods for minimizing respondents' burden, including the use of automated information techniques. The following burden estimates include the costs to implement the WGQ's definitions and business practice standards for interstate natural gas pipelines and electronic communication protocols. The burden estimates are primarily related to start-up to implement these standards and regulations and will not result in ongoing costs.
30. OMB regulations
The implementation of these data requirements will provide additional transparency to informational posting Web sites and will improve communication standards, including gas-electric communications. The implementation of these standards and regulations will promote the additional efficiency and reliability of the gas industries' operations thereby helping the Commission to carry out its responsibilities under the Natural Gas Act of promoting the efficiency and reliability of the gas industries' operations. In addition, the Commission's Office of Enforcement will use the data for general industry oversight.
31. Interested persons may obtain information on the reporting requirements by contacting the following: Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426 [Attention: Ellen Brown, Office of the Executive Director, email:
32. Comments concerning the collection of information(s) and the associated burden estimate(s), should be sent to the contact listed above and to the Office of Management and Budget, Office of Information and Regulatory Affairs, Washington, DC 20503 [Attention: Desk Officer for the Federal Energy Regulatory Commission, telephone: (202) 395–4638, fax: (202) 395–4718].
33. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment.
34. The Regulatory Flexibility Act of 1980 (RFA)
35. The regulations proposed here impose requirements only on interstate pipelines, the majority of which are not small businesses. Most companies regulated by the Commission do not fall within the RFA's definition of a small entity. Approximately 161 entities would be potential respondents subject to data collection FERC–545 reporting requirements and also be subject to data collection FERC 549–C reporting requirements. Nearly all of these entities are large entities. For the year 2010 (the most recent year for which information is available), only seven companies not affiliated with larger companies had annual revenues of less than $7 million, which is about three percent of the total universe of potential respondents. Moreover, these requirements are designed to benefit all customers, including small businesses. The Commission estimates that the one-time implementation cost of these standards is $303,968, or $1,888 per company.
36. Accordingly, pursuant to § 605(b) of the RFA, the regulations proposed herein should not have a significant economic impact on a substantial number of small entities.
37. The Commission invites interested persons to submit written comments on the NAESB business practice standards
38. The Commission encourages comments to be filed electronically via the eFiling link on the Commission's Web site at
39. Commenters that are not able to file comments electronically must send an original of their comments to: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street NE., Washington, DC 20426.
40. All comments will be placed in the Commission's public files and may be viewed, printed, or downloaded remotely as described in the Document Availability section below. Commenters on this proposal are not required to serve copies of their comments on other commenters.
41. In addition to publishing the full text of this document in the
42. From the Commission's Home Page on the Internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field.
43. User assistance is available for eLibrary and the Commission's Web site during normal business hours from the Commission's Online Support at (202) 502–6652 (toll free at 1–866–208–3676) or email at
Incorporation by reference, Natural gas, Reporting and recordkeeping requirements.
By the Commission.
In consideration of the foregoing, the Commission proposes to amend 18 CFR part 284, Chapter I, Title 18,
1. The authority citation for part 284 continues to read as follows:
15 U.S.C. 717–717w, 3301–3432; 42 U.S.C. 7101–7352; 43 U.S.C. 1331–1356.
2. Section 284.12 is amended by revising paragraph (a)(1) to read as follows:
(a) * * *
(1) * * *
(i) Additional Standards (General Standards, Creditworthiness Standards, Gas/Electric Operational Communications Standards and Operating Capacity and Unsubscribed Standards) (Version 2.0, November 30, 2010) with the exception of Standards 0.3.19 and 0.3.21;
(ii) Nominations Related Standards (Version 2.0, November 30, 2010, Minor Corrections Applied Through December 2, 2011);
(iii) Flowing Gas Related Standards (Version 2.0, November 30, 2010, Minor Corrections Applied through June 3, 2011);
(iv) Invoicing Related Standards (Version 2.0, November 30, 2010, Minor Corrections Applied Through June 3, 2011);
(v) Quadrant Electronic Delivery Mechanism Related Standards (Version 2.0, November 30, 2010, Minor Corrections Applied Through December 2, 2011) with the exception of Standard 4.3.4;
(vi) Capacity Release Related Standards (Version 2.0, November 30, 2010, Minor Corrections Applied Through January 5, 2012); and
(vii) Internet Electronic Transport Related Standards (Version 2.0, November 30, 2010, Minor Corrections Applied January 2, 2011) with the exception of Standard 10.3.2.
Internal Revenue Service (IRS).
Correction notice.
This document contains corrections to a notice of proposed rulemaking (REG–130302–10), which was published in the
Joseph S. Henderson (202) 622–3880 (not a toll-free number).
The notice of proposed rulemaking that is the subject of these corrections are under section 6038 of the Internal Revenue Code.
As published, the notice of proposed rulemaking (REG–130302–10), contains errors which may prove to be misleading and are in need of clarification.
Accordingly, the publication of the notice of proposed rulemaking (REG–130302–10), which was the subject of FR Doc. 2011–32254, is corrected as follows:
1. On page 78594, column 2 in the preamble, under the caption
2. On page 78596, column 1, in the preamble, under the caption “Explanation of Provisions”, paragraph B. 2., line three, the language “or executor is a bank, financial” is corrected to read “is a bank, financial”.
3. On page 78596, column 1, in the preamble, under the caption “Explanation of Provisions”, paragraph B.2., the fourth line from the bottom of the first full paragraph, the language “under sections 671 through 679 and the” is corrected to read “under sections 671 through 678 and the”.
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to approve a State Implementation Plan (SIP) revision submitted by the State of West Virginia (West Virginia). This revision pertains to amendments of West Virginia's Legislative Rule regarding ambient air quality standards (45CSR8- Ambient Air Quality Standards). These amendments incorporate by reference the National Ambient Air Quality Standards (NAAQS) for sulfur dioxide, particulate matter, carbon monoxide, ozone, nitrogen dioxide, and lead. This action is being taken under the Clean Air Act (CAA).
Written comments must be received on or before March 23, 2012.
Submit your comments, identified by Docket ID Number EPA–R03–OAR–2011–0958 by one of the following methods:
A.
B.
C.
D.
Asrah Khadr, (215) 814–2071, or by email at
Throughout this document, whenever “we,” “us,” or “our” is used, we mean EPA.
On July 8, 2011, the West Virginia Department of Environmental Protection submitted a SIP revision pertaining to amendments of Legislative Rule 45CSR8—
Amendments to 45CSR8 consist of revisions to section 45–8–1—General, subpart 1.6—Former Rules, in which the effective and filed dates were revised to represent the most recent changes to the NAAQS and the addition of subpart 1.5—Incorporation by Reference to section 45–8–1 to incorporate by reference 40 CFR part 50—National Primary and Secondary Ambient Air Quality Standards and 40 CFR part 53—Ambient Air Monitoring Reference and Equivalent Methods, effective June 1, 2010. The previous version of 45CSR8 merely stated EPA standards for the NAAQS and the revised version incorporates by reference the NAAQS and monitoring reference and equivalency methods. Also, other amendments to 45CSR8 include the addition of section 45–8–3—Adoption of Standards and the removal of section 45–8–2—Anti-Degradation Policy, section 45–8–4—Ambient Air Quality Standards, section 45–8–5—Methods of Measurement, and section 45–8–6—Reference Conditions.
EPA is proposing to approve the West Virginia SIP revision regarding the incorporation by reference of the NAAQS for sulfur dioxide, particulate matter, carbon monoxide, ozone, nitrogen dioxide, and lead into 45CSR8—Ambient Air Quality Standards, which was submitted on July 12, 2011. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action.
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 proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely 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, the proposed approval of the West Virginia SIP revision regarding the incorporation by reference of the NAAQS for sulfur dioxide, particulate matter, carbon monoxide, ozone, nitrogen dioxide, and lead into 45CSR8–Ambient Air Quality Standards, does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
Environmental protection, Air pollution control, Carbon monoxide, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
On September 1, 2009, November 16, 2011, and January 26, 2012, the Wisconsin Department of Natural Resources (WDNR) submitted several volatile organic compound (VOC) rules for approval into its State Implementation Plan (SIP). The purpose of these rules is to satisfy the Clean Air Act's (the Act) requirement that states revise their SIPs to include reasonably available control technology (RACT) for sources of VOC emissions in moderate ozone nonattainment areas. Wisconsin's VOC rules provide RACT requirements for the Milwaukee-Racine and Sheboygan 8-hour ozone nonattainment areas. These rules are approvable because they are consistent with the Control Technique Guideline (CTG) documents issued by EPA in 2006 and 2007 and satisfy the RACT requirements of the Act.
Comments must be received on or before March 23, 2012.
Submit your comments, identified by Docket ID No. EPA–R05–OAR–2009–0695, by one of the following methods:
•
•
•
•
•
Steven Rosenthal, Environmental Engineer, Attainment Planning & Maintenance Section, Air Programs Branch (AR–18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886–6052,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This
When submitting comments, remember to:
1. Identify the rulemaking by docket number and other identifying information (subject heading,
2. Follow directions—The EPA may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
3. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
4. Describe any assumptions and provide any technical information and/or data that you used.
5. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
6. Provide specific examples to illustrate your concerns, and suggest alternatives.
7. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
8. Make sure to submit your comments by the comment period deadline identified.
EPA is proposing to approve into the Wisconsin SIP several new and revised VOC rules which set out RACT requirements for categories of VOC sources in two ozone nonattainment areas. These rules correspond to and are consistent with the source categories and control recommendations in the CTGs issued by EPA in 2006 and 2007, as well as EPA RACT guidance for earlier CTGs and source categories not covered by a CTG. Wisconsin adopted new or revised rules for industrial cleaning solvents, flat wood paneling coatings, flexible packaging printing materials, lithographic printing materials, letterpress printing materials, paper, film and foil coatings, metal furniture coatings, large appliance coatings, industrial wastewater collection and treatment operations, and reactor processes and distillation operations in the synthetic organic chemical manufacturing industry (SOCMI).
The primary purpose of these rules is to satisfy the requirement in section 182(b) of the Act that VOC RACT rules be adopted in nonattainment areas for the source categories covered by the CTG documents issued by EPA in 2006 and 2007. These rule revisions also include previously required SOCMI air oxidation, distillation and reactor regulations as well as an industrial wastewater rule that is required because industrial wastewater is a major non-CTG category for which RACT rules are required. The Milwaukee-Racine and Sheboygan 8-hour ozone nonattainment areas are classified as moderate nonattainment for the 8-hour ozone national ambient air quality standard.
Section 182(b)(2) of the Act requires that, for areas classified as moderate or above for ozone nonattainment, states must revise their SIPs to adopt RACT requirements for VOC sources that are covered by CTGs. RACT is defined as the lowest emissions limitation that a particular source is capable of meeting by the application of control technology that is reasonably available considering technological and economic feasibility (44 FR 53762; September 17, 1979). CTGs are documents issued by EPA to provide states with the EPA's recommendation on how to control the emissions of VOC from a specific type of product or source category in an ozone nonattainment area. A CTG provides information on determining RACT for a source category, including recommendations on control options and enforcement provisions for the category.
EPA has reviewed Wisconsin's new and revised VOC rules for the source categories covered by the 2006 and 2007 CTGs, as well as corrections to rules that were required to be submitted to EPA on September 15, 2006, and proposes to find that these rules are consistent with the control measures, definitions, recordkeeping and test methods in these CTGs and applicable EPA RACT guidance at
A reference to digital printing has been added to Wisconsin's printing regulations. This definition of “digital printing” is approvable because it is a necessary update to the definition and accurately describes digital printing.
This new rule applies to sources that have potential VOC emissions greater than or equal to 100 tons per year from industrial wastewater operations and any other non-CTG source category without a final CTG, such as batch operations. The VOC emissions from industrial wastewater collection and treatment processes evaporate from the waste stream when exposed to the ambient air. Consequently, the VOC RACT requirements consist of implementing technologies and work practice standards that combine to substantially suppress the exposure of the VOC-laden waste stream to the ambient air. More specifically, the requirements include:
(1) Oil-water separators must be provided with either a floating cover
(2) Each surface impoundment must: (1) Be equipped with a cover or closed vent system which routs the VOCs to a control device or (2) be equipped with a floating flexible membrane cover;
(3) All process drains must be equipped with (1) a water seal or a tightly fitting cap or plug or (2) a cover, and if the cover is vented, the vapors must be routed to a process or through a closed vent system to a control device; and
(4) All junction boxes must be equipped with a tightly fitting solid cover or vented to a process or to a control device.
Also, several definitions have been added to NR 419.02 to clarify the requirements in NR 419.045. These definitions are approvable because they are necessary for implementation of the wastewater rule and they accurately describe the terms that are being defined.
This rule is based on and is consistent with EPA's 1992 draft CTG “Control of VOC Emissions from Industrial Wastewater” and EPA's 1994 “Industrial Wastewater Act.”
As discussed previously, Wisconsin is required to develop industrial cleaning solvent regulations consistent with EPA's 2006 Industrial Cleaning Solvent CTG. Some of these cleaning solvent requirements are contained within source category specific rules and some are contained within a general cleaning solvent regulation (NR 423.037).
Wisconsin has adopted similar cleaning solvent requirements for synthetic resin manufacturing (NR 421.05) and coatings manufacturing (NR 421.06). These requirements are based on the (California) Bay Area Air Quality Management District's rules, which are referenced in EPA's CTG. These requirements apply to cleaning mixing vats, high dispersion mills, grinding mills, tote tanks and roller mills and consist of four options: (1) The solvent or solvent solution used must either contain less than 1.67 pounds VOC per gallon or have a VOC composite partial vapor pressure of less than or equal to 8 millimeters (mm) of mercury (Hg) and the solvent or solvent solution must be collected and stored in closed containers, or (2) several work practices must be implemented, including storing all VOC-containing cleaning materials in closed containers, or (3) the emissions from equipment cleaning must be collected and vented to an emission control system with an overall control efficiency of 80 percent or more on a mass basis, or (4) no more than 60 gallons of virgin solvent per month may be used. In addition, the owner or operator of a facility engaged in wipe cleaning may not use open containers for the storage of solvent or solvent solution used for cleaning or for the storage or disposal of any material impregnated with solvent or solvent solution used for cleaning. Records of the volume of virgin solvent used per month, VOC content in pounds of VOC per gallon or VOC composite pressure are required, if applicable to the option chosen for achieving compliance.
In addition, accurate definitions of “tote tank” and “wipe cleaning” have been added to properly implement these rules.
These cleaning solvent requirements are therefore approvable because they are consistent with EPA guidance and require adequate recordkeeping.
Wisconsin has also adopted SOCMI air oxidation, distillation and reactor regulations in NR 421.07. NR 421.07(1)(a)(intro) specifies that these SOCMI requirements apply to any facility that is located in the Milwaukee-Racine and Sheboygan areas that operates a SOCMI air oxidation unit, distillation operation, or reactor process, as those activities are defined in NR 440.675(2)(c), 440.686(2)(e) and 440.705(2)(o), respectively, to produce any chemical as a product, coproduct, byproduct or intermediate that is listed in the CTGs for these categories.
Affected facilities must comply with subsections (a), (b), or (c), from NR 440.675(3), NR 440.686(3), and NR 440.705(3) for each vent stream.
(a) Reduce emissions of total organic compounds (TOC) (minus methane and ethane) by 98 weight-percent or to a TOC (minus methane and ethane) concentration of 20 parts per million by volume (ppmv) on a dry basis corrected to 3% oxygen, whichever is less stringent. If a boiler or process heater is used to comply with this paragraph, then the vent stream shall be introduced into the flame zone of the boiler or process heater; or
(b) Combust the emissions in a flare that complies with the flare requirements in EPA's new source performance standards; or
(c) Maintain a total resource effectiveness (TRE) index value greater than 1.0 without use of VOC emission control devices. TRE is a measure of the supplemental total resource requirement (or cost-effectiveness) per unit reduction of TOC associated with an individual vent stream, based on vent stream flow rate, emission rate of TOC, net heating value and corrosion properties, whether or not the vent stream is halogenated.
Wisconsin's SOCMI applicability criteria and control requirements are consistent with EPA's CTGs and are therefore approvable.
Wisconsin has amended its can coating rules to incorporate the industrial solvent cleaning requirements from the industrial solvent cleaning CTG. These requirements apply to any can coating facility with VOC emissions from all industrial cleaning operations which equal or exceed three tons per year on a 12 consecutive month rolling basis.
With the exception of cleaning of heptane-containing end sealant application equipment lines (at 5.8 pounds VOC/gallon) and cleaning of metal can identification ink application equipment (at 7.4 pounds VOC/gallon), cleaning solvent must not exceed a VOC content limit of 0.42 pounds VOC/gallon, as specified in the CTG. Based upon information submitted by the Can Manufacturers Institute, EPA agrees that the higher limits represent RACT. In lieu of complying with these VOC content limits, an alternative limit of 8 mm Hg (and 10 mm Hg for heptane-containing end sealant application equipment lines) is consistent with the CTG.
The CTG also references the solvent cleaning requirements in the South Coast Air Quality Management District's (SCAQMD)—in the Los Angeles area—solvent cleaning rules. These rules are therefore considered to satisfy RACT. Wisconsin has included several cleaning device and method requirements as well as storage, disposal and transport requirements from the SCAQMD's Rule 1171. Wisconsin's rule also has adequate recordkeeping requirements. The additions to Wisconsin's can coating rule are therefore approvable.
Wisconsin has amended its coil coating rules to incorporate the industrial solvent cleaning requirements from the industrial solvent cleaning CTG. These requirements apply to any coil coating facility with VOC emissions from all industrial cleaning operations which equal or exceed three tons per year on a 12 consecutive month rolling basis.
As specified in the CTG, cleaning solvent must not exceed a VOC content limit of 0.42 pounds VOC/gallon. In lieu of complying with this VOC content limit, an alternative limit of 8 mm Hg is also consistent with the CTG.
The CTG also references the solvent cleaning requirements in the SCAQMD solvent cleaning rules. Wisconsin has included several cleaning device and method requirements as well as storage, disposal and transport requirements from the SCAQMD's Rule 1171. Wisconsin's rule also has adequate recordkeeping requirements. The additions to Wisconsin's coil coating rule are therefore approvable.
This section has been added to be consistent with EPA's 2007 CTG for Paper, Film, and Foil Coatings. Wisconsin's VOC content limits are 0.20 pounds VOC/pound of solids applied for pressure sensitive tape and label surface coatings, and 0.40 pounds VOC/pound solids applied for all other paper coatings, which are consistent with the CTG. When compliance is achieved by the use of add-on control, the required overall control efficiency of 90 percent is also consistent with the CTG. Wisconsin's paper coating rule also contains work practices to minimize VOC emissions from mixing operations, storage tanks, and other containers, and handling operations for coatings, thinners, cleaning materials and waste materials. The requirements in this section are approvable because they are consistent with the subject CTG.
Wisconsin has amended its fabric and vinyl coating rules to incorporate the industrial solvent cleaning requirements from the industrial solvent cleaning CTG. These requirements apply to any fabric and vinyl coating facility with VOC emissions from all industrial cleaning operations which equal or exceed three tons per year on a 12 consecutive month rolling basis.
As specified in the CTG, cleaning solvent must not exceed a VOC content limit of 0.42 pounds VOC/gallon. In lieu of complying with this VOC content limit, an alternative limit of 8 mm Hg is also consistent with the CTG.
The CTG also references the solvent cleaning requirements in the SCAQMD solvent cleaning rules. Wisconsin has included several cleaning device and method requirements as well as storage, disposal and transport requirements from the SCAQMD's Rule 1171. Wisconsin's rule also has adequate recordkeeping requirements. The additions to Wisconsin's fabric and vinyl coating rule are therefore approvable.
This section has been amended to include the cleaning material work practices in EPA's 2008 CTG for Miscellaneous Metals and Plastic Parts Coating. These work practices include storing all VOC-containing cleaning materials and shop towels used for cleaning in closed containers and minimizing emissions of VOC during cleaning of coating application, storage, mixing, and conveying equipment by ensuring that cleaning is performed without atomizing any VOC-containing cleaning material and that the used material is captured and contained. These work practices satisfy Wisconsin's requirement to have acceptable cleaning solvent requirements for plastic parts coating operations and are approvable.
This section has been amended to include the cleaning material work practices in EPA's 2008 CTG for Automobile and Light-Duty Truck Assembly Coatings. A subject facility must develop and implement a work practice plan to minimize VOC emissions from cleaning and purging of equipment associated with all coating operations. This plan must specify practices and procedures for vehicle body wiping, coating line purging, flushing of coating systems, cleaning of spray booth grates, walls and equipment as well as external spray booth areas. These work practices satisfy Wisconsin's requirement to have acceptable cleaning solvent requirements for automobile and light-duty truck assembly coatings operations and are approvable.
Wisconsin has amended its automobile refinishing operations rules to incorporate the industrial solvent cleaning requirements from the industrial solvent cleaning CTG. These requirements apply to any automobile refinishing facility with VOC emissions from all industrial cleaning operations which equal or exceed three tons per year on a 12 consecutive month rolling basis.
As specified in the CTG, cleaning solvent must not exceed a VOC content limit of 0.42 pounds VOC/gallon. In lieu of complying with this VOC content limit, an alternative limit of 8 mm Hg is also consistent with the CTG.
The CTG also references the solvent cleaning requirements in the SCAQMD solvent cleaning rules. Wisconsin has included several cleaning device and method requirements as well as storage, disposal and transport requirements from the SCAQMD's Rule 1171. Wisconsin's rule also has adequate recordkeeping requirements. The additions to Wisconsin's automobile refinishing rule are therefore approvable.
This section has been added to be consistent with EPA's 2007 CTG for Metal Furniture Coatings. Wisconsin's VOC content limits,
This section has been added to be consistent with EPA's 2007 CTG for Large Appliance Coatings. Wisconsin's VOC content limits,
Wisconsin's wood furniture coating rule has been amended to include cleaning material work practices that are consistent with EPA's 1996 CTG for the Control of VOC Emissions from Wood Furniture Manufacturing Operations. The 25 tons per year potential applicability cutoff has been revised to include the emissions from any related cleaning activities. These cleaning material work practices include storing VOC containing materials in closed containers, collecting all VOC-containing cleaning material used to clean spray guns and spray gun lines in a container and keeping the container covered except when adding or removing material, controlling emissions of VOC containing material from washoff operations and using strippable spray booth materials containing no more than 0.8 pounds of VOC per pound of solids. These work practices are consistent with the wood furniture CTG and are approvable.
Wisconsin's adhesives rule has been amended to include cleaning material work practices that are consistent with EPA's 2008 CTG for Miscellaneous Industrial Adhesives. These work practices include storing all VOC-containing cleaning materials in closed containers and minimizing emissions of VOC during cleaning of coating application, storage, mixing, and conveying equipment by ensuring that cleaning is performed without atomizing any VOC containing cleaning material and that the used material is captured and contained. An applicability cutoff of three tons on a 12 consecutive month rolling basis has also been added. These work practices are consistent with the miscellaneous industrial adhesives CTG and are approvable.
This section has been added to be consistent with EPA's 2006 CTG for Flat Wood Paneling Coatings. Wisconsin's VOC content limit is 2.1 pounds VOC/gallon, which is consistent with the CTG. When compliance is achieved by the use of add-on control, the required overall control efficiency of 90 percent is also consistent with the CTG. Wisconsin's flat wood paneling rule also contains work practices to minimize VOC emissions from mixing operations, storage tanks, and other containers, and handling operations for coatings, thinners, cleaning materials and waste materials. The requirements in this section are approvable because they are consistent with the subject CTG.
Wisconsin has amended its graphic arts rule to incorporate the industrial solvent cleaning requirements from the industrial solvent cleaning CTG. These requirements apply to any (non-flexible packaging) graphic arts facility with VOC emissions from all industrial cleaning operations which equal or exceed three tons per year on a 12 consecutive month rolling basis.
As specified in the CTG, cleaning solvent must not exceed a VOC content limit of 0.42 pounds VOC/gallon—except for a 0.83 pounds VOC/gallon limit for cleaning of publication rotogravure ink application equipment and a 5.4 pounds VOC/gallon limit for cleaning of ultraviolet ink application equipment. The latter two limits are based on the SCAQMD's Rule 1171, discussed above. In lieu of complying with these VOC content limits, an alternative limit of 8 mm Hg is also consistent with the CTG. Wisconsin has included several cleaning device and method requirements as well as storage, disposal and transport requirements from the SCAQMD's Rule 1171. Wisconsin's rule also has adequate recordkeeping requirements. The additions to Wisconsin's graphic arts rule are therefore approvable.
These regulations have been revised based on and are consistent with EPA's 2006 CTG for Flexible Packaging Printing Materials. Subject printing lines may comply by meeting limits of 0.8 pounds VOC per pound of solids applied or 0.16 pounds VOC per pound of ink and coatings applied. Alternatively, compliance can be achieved by the use of add-on control achieving an overall reduction in VOM emissions ranging from 65 percent to 80 percent, depending upon when the printing line and control device were constructed. Work practices to reduce emissions from the use of VOM containing cleaning materials are also required. These work practices require that solvents used in cleaning operations be stored in covered containers and that VOC-containing cleaning material be conveyed in closed containers or pipes. The requirements in this section are approvable because they are consistent with the subject CTG.
These regulations are based on and are consistent with EPA's 2006 CTG for Lithographic Printing. The control requirements for cleaning materials and fountain solutions apply if the combined emissions of VOC exceed three tons on a 12 consecutive month rolling basis. The add-on control requirements for heatset web offset printing operations apply if the potential emissions of VOC from a lithographic press dryer equal or exceed 25 tons per year. The fountain solution is subject to a percent VOC limit, based upon the temperature and whether or not the fountain solution contains alcohol. The cleaning materials (blanket or roller wash) must not exceed 30 percent by weight (nor equal or exceed 70 percent by weight for ultraviolet ink application equipment) VOC or the VOC composite partial pressure must be less than or equal to 10 mm Hg. An add-on control device on a subject heatset dryer must achieve a 90 percent or 95 percent reduction of VOC emissions, depending on the installation date of the add-on control device, or alternatively can comply by not exceeding an outlet concentration of 20 ppmv, as carbon. Recordkeeping requirements are also specified to establish compliance with the applicable limits. The requirements in this section are approvable because they are consistent with the subject CTG.
These regulations are based on and are consistent with EPA's 2006 CTG for Letterpress Printing. The control requirements for cleaning materials apply if the combined emissions of VOC exceed three tons on a 12 consecutive month rolling basis. The add-on control requirements for heatset web letterpress printing operations apply if the potential emissions of VOC from a lithographic press dryer equal or exceed 25 tons per year. The cleaning materials (blanket or roller wash) must not equal or exceed 70 percent by weight VOC or the VOC composite partial pressure must be less than 10 mm Hg. An add-on control device on a subject heatset dryer must achieve a 90 percent or 95 percent reduction of VOM emissions, depending on the installation date of the add-on control device. Recordkeeping requirements are also specified to establish compliance with the applicable limits. The requirements in this section are approvable because they are consistent with the subject CTG.
Wisconsin has amended its screen printing rules to incorporate the industrial solvent cleaning requirements in the CTG for Industrial Cleaning Solvents. These requirements apply to any screen printing facility with VOC
As specified in the CTG, cleaning solvent must not exceed a VOC content limit of 0.42 pounds VOC/gallon. However, the CTG also references the solvent cleaning requirements in the SCAQMD solvent cleaning rules. As a result of SCAQMD limits that were in place at the time that EPA's CTG was issued, Wisconsin has adopted 4.2 pounds VOC/gallon limits for repair or maintenance cleaning and cleaning of ink application equipment. In lieu of complying with these VOC content limits, an alternative limit of 8 mm Hg is also consistent with the CTG.
Wisconsin has included several cleaning device and method requirements as well as storage and disposal requirements from the SCAQMD's Rule 1171. Wisconsin's rule also has adequate recordkeeping requirements. The additions to Wisconsin's screen printing rule are therefore approvable.
This section has been amended to include the cleaning material work practices in EPA's 2008 CTG for Miscellaneous Metals and Plastic Parts Coating. These work practices include storing all VOC-containing cleaning materials and shop towels used for cleaning in closed containers and minimizing emissions of VOC during cleaning of coating application, storage, mixing, and conveying equipment by ensuring that cleaning is performed without atomizing any VOC-containing cleaning material and that the used material is captured and contained. These work practices satisfy Wisconsin's requirement to have acceptable cleaning solvent requirements for miscellaneous metal parts and products coating operations and are approvable.
This section (a subset of miscellaneous metals) has been amended to include the cleaning material work practices in EPA's 2008 CTG for Miscellaneous Metals and Plastic Parts Coating. These work practices include storing all VOC-containing cleaning materials and shop towels used for cleaning in closed containers and minimizing emissions of VOC during cleaning of coating application, storage, mixing, and conveying equipment by ensuring that cleaning is performed without atomizing any VOC-containing cleaning material and that the used material is captured and contained. These work practices satisfy Wisconsin's requirement to have acceptable cleaning solvent requirements for miscellaneous metal parts and products coating operations and are approvable.
Wisconsin has added definitions of “Flexible magnetic data storage disc” and “Rigid magnetic data storage disc” because these terms are used in its industrial cleaning operations rule. These terms are accurately defined and are therefore approvable.
Wisconsin has added an industrial solvent cleaning rule to incorporate the industrial solvent cleaning requirements, from the industrial solvent cleaning CTG, for those source categories whose rules do not contain such solvent cleaning requirements. These requirements apply to any such facility having actual VOC emissions from industrial cleaning operations which equal or exceed three tons per year on a 12 consecutive month rolling basis.
As specified in the CTG, cleaning solvents must not exceed a VOC content limit of 0.42 pounds VOC/gallon as well as several specialty cleaning limits based on limits in SCAQMD's Rule 1171 that were in place at the time that EPA's CTG was issued. In lieu of complying with these VOC content limits, an alternative limit of 8 mm Hg is also consistent with the CTG.
Wisconsin has included several cleaning device and method requirements as well as storage, disposal and transport requirements from the SCAQMD's Rule 1171. Wisconsin's rule also has adequate recordkeeping requirements. The additions to Wisconsin's graphic arts rule are therefore approvable.
Wisconsin amended its recordkeeping requirements for exempt sources (in NR 439.04(4)) to include the VOC emissions from cleaning operations, when necessary, in addition to the VOC emissions from coating or printing lines. Wisconsin also added a requirement that the maximum theoretical emissions be determined from the dryer of each heatset web lithographic or letterpress printing press. A requirement for detailed records of solvent use in solvent cleaning activities was also added.
Wisconsin added monitoring and recordkeeping requirements (in NR 439.04(6)) for when add-on control equipment is used to comply with solvent cleaning requirements.
The recordkeeping requirements in NR 439.04, as amended, along with the recordkeeping requirements in the coating and printing rules in NR 422 adequately establish the applicability and compliance requirements of the rules and are therefore approvable.
Wisconsin has also updated its Incorporation by Reference Chapter, including CFR appendices, National Technical Information Service, other government organizations, the American Society for Testing and Materials and other private organizations.
Under the Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or
• 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 Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
Environmental protection, Air pollution control, Intergovernmental relations, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve a State Implementation Plan (SIP) revision for the South Coast Air Quality Management District (District) portion of the California SIP. This SIP revision proposes to incorporate Rule 1315—Federal New Source Review Tracking System—into the District's SIP approved New Source Review (NSR) program to establish the procedures for demonstrating equivalency with Federal offset requirements by specifying how the District will track debits and credits in its Offset Accounts for Federal NSR Equivalency for specific Federal nonattainment pollutants and their precursors. The District's SIP approved NSR program contained in Regulation XIII allows the District to exempt certain sources from obtaining offsetting emission reductions on the open market and for the District to provide offsets for designated sources that qualify, such as essential public services. EPA's proposal to approve this SIP revision is based on finding that Rule 1315 provides an adequate system to demonstrate on an on-going basis that an equivalent amount of offsets are being provided pursuant to this rule as would otherwise be required by the Clean Air Act (CAA) and that the emission reductions the District is crediting and debiting in its Offset Accounts meet the requirements of the CAA and can be used to provide the offsets otherwise required for Federal major sources and modifications.
Comments on this Notice of Proposed Rulemaking (NPR) must be submitted no later than March 23, 2012.
Submit comments, identified by docket number EPA–R09–OAR–2012–0140, by one of the following methods:
1.
2.
3.
Laura Yannayon, EPA Region IX, (415) 972–3534,
Throughout this document, “we”, “us”, and “our” refer to EPA.
EPA allows and encourages local authorities to tailor SIP programs, including new source review permitting programs, to account for that community's particular needs provided that the SIP is not less stringent than the Act's requirements. See generally CAA Section 116, 42 U.S.C. 7416;
When EPA approved Regulation XIII, we noted that Rule 1304 exempted certain major sources from obtaining offsets and Rule 1309.1 allowed the
EPA informed the District beginning in 2002 that if it was significantly expanding the sources that were allowed to obtain offsets from the internal NSR tracking system through a new offset budget rule (Rule 1309.2—Offset Budget), the tracking system's transparency should be improved. Proposed SCAQMD NSR Offset Tracking System, Oct. 14, 2005, (2005 Proposed Tracking System) at p.1. In 2004–2005, the District drafted regulatory language, now revised and adopted as Rule 1315, to establish NSR program equivalency with the Federal NSR offset requirements for major sources and demonstrate annually that the District provided sufficient offsets for Federal major sources and modifications that were (1) otherwise exempt from offset requirements under Rule 1304 or (2) allocated offsets pursuant to Rule 1309.1. Proposed Rule 1315(a), Preliminary Draft, Adopted Sept. 8, 2006.
In our discussions during 2002–2003, EPA also noted that the District's use of the negative NSR balances and other pre-1990 era offsets to fund the NSR tracking system would be inconsistent with Federal requirements unless the District had sufficient records for those offsets. Staff Report: Proposed Rule 1315—Federal New Source Review Tracking System, dated January 7, 2011, at pp. 6–7 (2011 Staff Report); 2005 Proposed Tracking System at pp. 1–2. The District concluded that it did not readily have sufficient documentation for many of the offsets it had collected from the negative NSR balances and other pre-1990 era offsets. Proposed SCAMQD NSR Offset Tracking System, Oct. 14, 2005 at p. 2.
The District responded to EPA's request by eliminating any offsets originating before 1990 without documentation on October 14, 2005. 2005 Proposed Tracking System, at pp. 12–13. Unlike many areas, the District requires almost all Federal minor sources to obtain a permit and offset any emission increases up to the sources' permitted emissions level. Rule 1303(b)(2).
The adjustments the District made in October 2005 to the existing NSR tracking system significantly decreased the balance of available offsets for most pollutants. For example, this adjustment reduced the internal NSR tracking system balance for PM
EPA and the District had further discussions about the changes to the NSR tracking system resulting in a revised letter to EPA dated February 23, 2006. SCAQMD's Revised NSR Offset Tracking System, Feb. 23, 2006. The revisions primarily resolved issues EPA raised regarding the District's method of reporting the offset account balances and the remedy if a shortfall was projected. SCAQMD Letter from Dr. Barry Wallerstein to Deborah Jordan, Feb. 24, 2006. EPA responded by letter on April 11, 2006, indicating that the District's proposed NSR Offset Tracking System funded with emission reductions from minor and major orphan shutdowns and other sources (i.e. credits to the system) appeared to be sufficient for EPA to propose approval of Rule 1315. EPA Letter from Deborah Jordan to Dr. Barry Wallerstein, April 11, 2006. Both the October 2005 Proposed SCAQMD NSR Offset Tracking System and February 23, 2006 Revised NSR Offset Tracking System appended tables prepared by the SCAQMD called the “Federal Running Balances.” Revised NSR Offset Tracking System, Feb. 23, 2006, Attachment 1. The Federal Running Balances table contains details concerning the credits added and debits subtracted from the NSR offset tracking system.
The District adopted Rule 1315's regulatory language codifying how it will account for, or “track”, the emission reductions that it adds into its Offset Accounts as credits and those which it subtracts as debits to provide offsets for the construction of certain Federal major sources or modifications exempted from offset requirements pursuant to Rule 1304 or for which the District provided offsets pursuant to Rule 1309.1. SCAQMD Governing Board Resolution for the Re-adoption of Rule 1315—Federal New Source Review Tracking System, dated Feb. 4, 2011. EPA is now proposing to approve Rule 1315 as a SIP revision.
Rule 1315 which the District, through CARB, submitted to EPA consists of the regulatory text the District adopted on February 4, 2011, along with supporting documentation including a Staff Report dated January 7, 2011. EPA received the SIP submittal for Rule 1315 from CARB on March 2, 2011, and a supplemental submittal on February 7, 2012. On March 25, 2011, we found that the submittal of District Rule 1315 met the completeness criteria in 40 CFR part 51, appendix V, which must be met before formal EPA review.
The Rule contains a section describing its purpose and a definitions section. Rule 1315(a) and (b). Rule 1315(c), Offset Accounts for Federal NSR Equivalency, contains provisions for quantifying, crediting and debiting the offset accounts. Rule 1315(c)(1), District Offset Accounts for Federal Nonattainment Air Contaminants, provides that all pre-1990 offsets were removed at the end of 2005 and sets forth the initial District Offset Account Balances in Table A. Rule 1315(c)(2) provides that the District shall debit its Offsets Accounts for emissions increases at Federal new and modified major sources that are not required to provide Emission Reduction Credits (ERCs) based on Rules 1304 (Exemptions) and 1309.1 (Priority Reserve). Rule 1315(c)(3)(A) contains a list of the emission reductions the District can add to its Offset Accounts and 1315(c)(3)(B) establishes how the District will quantify the actual emissions reductions for that list. Rule 1315(c)(4) specifies how the District will discount each Offset Account annually to ensure the reductions will be surplus to all CAA requirements at the time an offset is
The South Coast Air Basin is an extreme nonattainment area for ozone and a serious nonattainment area for PM
As required by CAA § 110(a)(2)(C), SIPs are required to include provisions to comply with CAA Part D for nonattainment pollutants. Among the Part D requirements, § 173(a)(1)(A) requires new and modified major stationary sources to provide offsetting emission reductions. Section 173(c) requires the offsetting emission reductions to be quantifiable, surplus, permanent, and enforceable. See 40 CFR 51.165(a)(3)(ii)(c)(
EPA is proposing to approve Rule 1315 because the rule ensures that the emission reductions in the District's Offset Accounts meet the Federal integrity criteria. See Rule 1315(c). Rule 1315 also demonstrates that the District's offset tracking system provides an equivalent quantity of offsets for those major sources and modifications that are not required to provide such offsets pursuant to District Rules 1304 and 1309.1. EPA's analysis of how the credits and debits tracked in Rule 1315 meet the Federal integrity criteria is summarized below and set forth in more detail in the Technical Support Document (TSD).
EPA is proposing to approve Rule 1315 because the emission reductions that the District credits and debits to its Offset Accounts meet the requirement to be quantifiable emissions reductions. The District meets this requirement by demonstrating that the credits and debits are actual and quantifiable reductions of emissions. To quantify the reductions of emissions from orphan shutdown sources, the District determines the permitted emissions level and then applies an 80% actual emissions factor. Rule 1315(c)(3)(B)(i); Staff Report at p. 17 (“AQMD proposes to use an average discount factor to account for the difference between potential and actual emissions.”). The vast majority of emission reductions credited to the Offset Accounts are from orphan shutdowns, which occur when the owner/operator of a stationary source that has been shut down does not apply for an Emission Reduction Credit (ERC) under Rule 1309 (Emission Reduction Credits and Short Term Credits). Staff Report at p. 17. The information that is available to the District when a source is shut down and the operating permit is inactivated are the source's permitted emissions, which represent its potential to emit rather than its actual emissions. Under Rule 1315, the District makes an adjustment to the permitted (i.e. potential) emissions by applying an 80% actual emissions factor before crediting these emissions to the Offset Accounts. See Rule 1315(c)(3)(B)(i); Staff Report at p. 17.
The District has justified its determination that reducing the permitted (i.e. potential) emissions by 20% and crediting the remaining 80% is an adequate representation of actual emissions based on several considerations. The District has historically implemented an 80% actual emissions factor for estimating actual emission reductions in its Regulation XIII annual reports following concurrence by the California Air Resources Board. Staff Report at 17. The District also provided a Federal Reserve Statistical Release Report examining historical industrial production and capacity utilization. While certain short term cycles may reflect greater or lower utilization, the District's justification for selecting an 80% factor over the long term is supported by this data. Id. The District's method of quantifying actual emission reductions is also supported by the inherent structure of the District's NSR program. Every stationary source that is operated in the District with permitted emissions exceeding 4 tons per year (tpy) of ozone precursors or PM
For exempt and priority reserve sources that obtain their offsets from the District, the District limits the amount of offsets provided by including permit conditions that limit operations to actual operating scenarios. The District has shown that fifty to eighty percent of the very small exempt sources (emitting < 4 tpy of most pollutants) have permits emissions limits that are less than one-half of the exemption threshold (i.e. permitted emissions are less than 2 tpy). Table 5 of Staff Report, p 18. This information supports finding that the District is permitting sources at close to the source's actual emissions and that an 80% actual emissions factor adequately reflects actual reductions from orphan shutdown sources.
For the reasons provided by the District, EPA is proposing to approve Rule 1315 as ensuring that the emission reductions it credits to its Offset Accounts pursuant to Rule 1315(c)(3)(B)(i) meet the requirement to be actual emission reductions based on crediting only 80% of permitted emission levels.
Rule 1315(c)(4) ensures that any offsets debited from the District Offset Accounts are properly adjusted to be surplus at the time they are used as required by the Federal integrity criteria. Specifically, the rule requires that the balance of credits in the Offset Accounts for each pollutant be reduced annually to account for any newly adopted rules that control these pollutants, ensuring that the debits used as offsets are surplus at the time they are used. Rule 1315(c)(4) (providing that the District discount the Offset Account balances annually “based on the percentage reduction in overall
The emission reductions credited to the District's Offset Accounts are all permanent reductions at the time they are credited to the accounts because the permit for the emission source has either been retired or revised to include conditions that limit the emissions to levels lower than they are otherwise required to be limited through the use of federally enforceable permit conditions. The debits are permanent because Rule 1315 requires the District to subtract those offsets from the District's Offset Account balances. Rule 1315(c)(5)(B). The District must provide its Preliminary and Final Determinations of Equivalency annually to ensure there is a positive balance in each Offset Account. Rule 1315 also contains an equivalency backstop provision if any Offset Account has a shortfall. Rule 1315(f). EPA is proposing to find that Rule 1315 assures that the emission reductions in the District's Offset Accounts meet the requirement for permanent reductions.
The emission reductions credited to the District's Offset Accounts for orphan shutdowns or orphan reductions are all enforceable reductions at the time they are credited to the accounts because the permit for the emission source has either been retired, which means the source is no longer allowed to operate/emit those pollutants, or revised to include conditions that limit the emissions to levels lower than they are otherwise required to be limited through the use of federally enforceable permit conditions. This ensures that the emissions will be permanently retired or reduced. Rule 1315(b)(4) & (5) and (c)(3)(A)(i) & (ii). For each of the other types of credits listed in Rule 1315 (c)(3)(A), the credits are based on ERCs that have been generated pursuant to Rule 1309, which also requires that the emission reductions meet each of the Federal integrity criterion, including the requirement to be enforceable emission reductions. Therefore, EPA is proposing to find Rule 1315 meets the Federal integrity criterion for enforceable reductions.
40 CFR 51.165(a)(3)(i)(C) provides:
Emissions reductions achieved by shutting down an existing emission unit or curtailing production or operating hours may be generally credited for offsets if * * *. (ii) [t]he shutdown or curtailment occurred after the last day of the base year for the SIP planning process. For purposes of this paragraph, a reviewing authority may choose to consider a prior shutdown or curtailment to have occurred after the last day of the base year if the projected emissions inventory used to develop the attainment demonstration explicitly includes the emissions from such previously shutdown or curtailed emission units.
Rule 1315 is being submitted by the District to demonstrate equivalency with the Part D requirements for ozone and PM
In accordance with the base year requirements specified in 40 CFR 51.165, the District estimated that 3.1 tons per day (tpd) of pre-2002 base year VOC emission reductions may be needed to satisfy offset demand. 2007 Plan Appendix III. For ozone precursors, the District added 27 and 2 tons per day for VOC and NO
Therefore, even if the District Offset Accounts rely on pre-base year emission reductions as offsets, the District's Plans have adequately added pre-base year emissions explicitly into the appropriate projected planning inventories. For these reasons, EPA is proposing to approve Rule 1315.
Under section 110(l) of the CAA, EPA may not approve any SIP revision that would interfere with attainment, reasonable further progress (RFP) or any other CAA requirement. EPA's incorporation of Rule 1315 into the SIP will not interfere with attainment or RFP because the rule provides a regulatory mechanism setting forth the internal offset accounting system that the District has been relying on. In addition, the District does not rely on the offsets in the District's Offset Accounts for attainment or RFP in the District's most recent attainment demonstrations for ozone or PM
This SIP revision also does not interfere with any other CAA requirement. Rule 1315 provides regulatory language detailing how the District will quantify and add credits and subtract debits from its Offset Accounts. Our proposal to approve Rule l315 is based on finding the rule ensures the credits and debits meet the Federal integrity criteria and that the District system overall is equivalent to the requirements of Section 173.
Because EPA has determined Rule 1315 fulfills all relevant requirements, we are proposing to fully approve it as described in section 110(k)(3) of the Act. We will accept comments from the public on this proposal for the next 30 days. After considering the information and views submitted to us during the comment period, we will take final action on this SIP submittal.
Rule 1315 has been under development at the District and the
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this proposed action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this proposed action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, and legally permissible methods under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this proposed rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
Air pollution control, Environmental protection, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
This action re-proposes confidentiality determinations for the data elements in subpart I, Electronics Manufacturing source category, of the Mandatory Reporting of Greenhouse Gases Rule. On July 7, 2010, the EPA proposed confidentiality determinations for then-proposed subpart I data elements and is now issuing this re-proposal due to significant changes to certain data elements in the final subpart I reporting requirements. In addition, the EPA is proposing amendments to subpart I regarding the calculation and reporting of emissions from facilities that use best available monitoring methods. Proposed amendments would remove the obligation to recalculate and resubmit emission estimates for the period during which the facility used best available monitoring methods after the facility has begun using all applicable monitoring methods of subpart I.
Submit your comments, identified by Docket ID No. EPA–HQ–OAR–2011–0028, by one of the following methods:
•
•
•
•
•
Do not submit information that you consider to be CBI or otherwise protected through
Carole Cook, Climate Change Division, Office of Atmospheric Programs (MC–6207J), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: (202) 343–9263; fax number: (202) 343–2342; email address:
The EPA is re-proposing confidentiality determinations for the data elements in subpart I of 40 CFR part 98 of the Mandatory Reporting of Greenhouse Gases Rule (hereinafter referred to as “Part 98”). Subpart I of Part 98 requires monitoring and reporting of greenhouse gas (GHG) emissions from electronics manufacturing. The electronics manufacturing source category (hereinafter referred to as “subpart I”) includes facilities that have annual emissions equal to or greater than 25,000 mtCO
The proposed confidentiality determinations in this notice cover all of the data elements that are currently in subpart I except for those that are in the “Inputs to Emission Equations” data category. The covered data elements and their proposed data category assignments are listed by data category in the memorandum entitled “Proposed Data Category Assignments for Subpart I” in Docket EPA–HQ–OAR–2011–0028.
This action also proposes amendments to provisions in subpart I regarding the calculation and reporting of emissions from facilities that use best available monitoring methods (BAMM). Following the December 1, 2010 publication finalizing subpart I in the “Mandatory Reporting of Greenhouse Gases: Additional Sources of
In today's notice, the EPA is not taking any action on other issues raised by the petitioners. Although we are not seeking comment on those issues at this time, the EPA reserves the right to further consider those issues at a later time.
This proposal affects entities that are required to submit annual GHG reports under subpart I of Part 98. The Administrator determined that this action is subject to the provisions of Clean Air Act (CAA) section 307(d). See CAA section 307(d)(1)(V) (the provisions of CAA section 307(d) apply to “such other actions as the Administrator may determine”). Part 98 and this action affect owners and operators of electronics manufacturing facilities. Affected categories and entities include those listed in Table 1 of this preamble.
Table 1 of this preamble lists the types of entities that potentially could be affected by the reporting requirements under the subpart covered by this proposal. However, this list is not intended to be exhaustive, but rather provides a guide for readers regarding facilities likely to be affected by this action. Other types of facilities not listed in the table could also be subject to reporting requirements. To determine whether you are affected by this action, you should carefully examine the applicability criteria found in 40 CFR part 98, subpart A as well as 40 CFR part 98, subpart I. If you have questions regarding the applicability of this action to a particular facility, consult the person listed in the
The EPA is proposing rule amendments under its existing CAA authority, specifically authorities provided in CAA section 114. As stated in the preamble to the 2009 final rule (74 FR 56260) and the Response to Comments on the Proposed Rule, Volume 9, Legal Issues, CAA section 114 provides the EPA broad authority to obtain the information in Part 98, including those in subpart I, because such data would inform and are relevant to the EPA's carrying out a wide variety of CAA provisions. As discussed in the preamble to the initial proposed Part 98 (74 FR 16448, April 10, 2009), CAA section 114(a)(1) authorizes the Administrator to require emissions sources, persons subject to the CAA, manufacturers of control or process equipment, or persons whom the Administrator believes may have necessary information to monitor and report emissions and provide such other information the Administrator requests for the purposes of carrying out any provision of the CAA.
Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to the EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information marked as CBI will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.
Do not submit information that you consider to be CBI or otherwise protected through
If you have any questions about CBI or the procedures for claiming CBI, please consult the person identified in the
When submitting comments, remember to:
Identify the rulemaking by docket number and other identifying information (e.g., subject heading,
Follow directions. The EPA may ask you to respond to specific questions or organize comments by referencing a CFR part or section number.
Explain why you agree or disagree, and suggest alternatives and substitute language for your requested changes.
Describe any assumptions and provide any technical information and/or data that you used.
If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow us to reproduce your estimate.
Provide specific examples to illustrate your concerns and suggest alternatives.
Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
Make sure to submit your information and comments by the comment period deadline identified in the preceding section titled
To expedite review of your comments by agency staff, you are encouraged to send a separate copy of your comments, in addition to the copy you submit to the official docket, to Carole Cook, U.S. EPA, Office of Atmospheric Programs, Climate Change Division, Mail Code 6207–J, Washington, DC 20460, telephone (202) 343–9263, email
On October 30, 2009, the EPA published the Mandatory GHG Reporting Rule, 40 CFR part 98, for collecting information regarding GHGs from a broad range of industry sectors (74 FR 56260). Under Part 98 and its subsequent amendments, certain facilities and suppliers above specified thresholds are required to report GHG information to the EPA annually. For facilities, this includes those that directly emit GHGs (“direct emitters”) and those that geologically sequester or otherwise inject carbon dioxide (CO
The EPA proposed confidentiality determinations for Part 98 data elements, including data elements contained in subpart I in the July 7, 2010 proposed CBI determination proposal (75 FR 39094, hereafter referred to as the “July 7, 2010 CBI proposal”). The data reporting requirements for subpart I were finalized on December 1, 2010 (75 FR 74774) as an amendment to Part 98. As explained in more detail in Section II.C of this preamble, many data elements were added or changed following proposal of the subpart I reporting requirements. Further, in a separate action, the EPA is finalizing amendments to subpart I, which revise one data element and add two new data elements. See “Greenhouse Gas Reporting Program: Electronics Manufacturing (Subpart I): Revisions to Heat Transfer Fluid Provisions” (hereinafter referred to as the “Subpart I Heat Transfer Fluid Provisions final rule”). In light of the above, today we are re-proposing for public comment the confidentiality determinations for the data elements in subpart I to reflect the finalized new and revised data elements in this subpart.
On May 26, 2011, the EPA published the final CBI determinations for the data elements in 34 Part 98 subparts, except for those data elements that were assigned to the “Inputs to Emission Equations” data category (76 FR 30782, hereinafter referred to as the “Final CBI Rule”). That final rule did not include CBI determinations for subpart I.
The Final CBI Rule: (1) Created and finalized 22 data categories for Part 98 data elements; (2) assigned data elements in 34 subparts to appropriate data categories; (3) for 16 data categories, issued category-based final CBI determinations for all data elements assigned to the category; and (4) for the other five data categories (excluding the inputs to emission equations category), determined that the data elements assigned to those categories are not “emission data” but made individual final CBI determination for those data elements. The EPA also did not make categorical determinations regarding the CBI status of these five categories. The EPA did not make final confidentiality determinations for the data elements assigned to the “Inputs to Emission Equations” data category.
The EPA finalized subpart I reporting requirements on December 1, 2010 (75 FR 74774). The final subpart I rule substantively revised data reporting elements and added new data reporting elements relative to the July 7, 2010 CBI proposal. In addition, in a separate action, the EPA is finalizing amendments to subpart I, which revises one data reporting element and adds two new data reporting elements. Today's re-proposal addresses the subpart I data elements as finalized, including the amendments discussed above.
In the July 7, 2010 CBI Proposal, the EPA proposed CBI determinations for the data elements in then-proposed subpart I because the EPA initially did not anticipate any significant change to these data elements when finalizing the subpart I reporting requirements. In light of the changes described in section II.A of this preamble to the subpart I data elements since the July 7, 2010 CBI proposal, the EPA is re-proposing the confidentiality determinations for the data elements in subpart I.
Because this is a re-proposal, the agency is not responding to previous comments submitted on the July 7, 2010 CBI proposal relative to the data elements in this subpart. Although we considered those comments when developing this re-proposal, we encourage you to resubmit all relevant comments to ensure full consideration by the EPA in this rulemaking. In resubmitting previous comments, please make any necessary changes to clarify that you are addressing the re-proposal and add details as requested in Section III.E of this preamble.
In a separate action, the EPA is finalizing technical revisions, clarifications, and other amendments to subpart I of Part 98 in the Subpart I Heat Transfer Fluid Provisions final rule.
The Subpart I Heat Transfer Fluid Provisions final rule is revising one and adding two subpart I data elements that are not inputs. Accordingly, we are making data category assignments to these three new and revised elements as finalized in the Subpart I Heat Transfer Fluid Provisions final rule. The revised data element includes a wording change from “each fluorinated GHG used” to “each fluorinated heat transfer fluid used.” The two new data elements require a facility to report (1) the date on which the facility began monitoring emissions of fluorinated heat transfer fluids (HTFs) and (2) whether the emission estimate includes emissions from all applications or only from the applications specified in the definition of fluorinated heat transfer fluids. The re-proposal addresses the data elements we are finalizing in the Subpart I Heat Transfer Fluid Provisions final rule, published as a separate action.
We propose to assign each of the data elements in subpart I, a direct emitter subpart, to one of 11 direct emitter data categories created in the Final CBI Rule. For eight of the 11 direct emitter categories, the EPA has made categorical confidentiality determinations, finalized in the Final CBI rule. For these eight categories, the EPA is proposing to apply the same categorical confidentiality determinations (made in the Final CBI rule) to the subpart I reporting elements assigned to each of these categories.
In the Final CBI Rule, for two of the 11 data categories, the EPA did not make categorical confidentiality determinations, but rather made confidentiality determinations on an element-by-element basis. We are therefore following the same approach in this action for the subpart I reporting elements assigned to these two data categories. For three data elements within these two data categories, the EPA is proposing to make no CBI determination and, instead, make a case-by-case determination for actual data reported in these elements, as described in more detail in Section III.D of this preamble.
Lastly, in the Final CBI Rule, for the final data category, “Inputs to Emission Equations,” the EPA did not make a final confidentiality determination and indicated that this issue would be addressed in a future action. Please note that in the August 25, 2011 Final Deferral, the EPA has already assigned certain subpart I data elements to the inputs data category. We are not proposing to assign any additional data elements to the inputs data category in this action. Please see the following Web site for further information on this topic:
Table 2 of this preamble summarizes the confidentiality determinations that were made in the Final CBI Rule for the following direct emitter data categories created in that notice excluding the “Inputs to Emission Equations” data category as final determinations for that category have not yet been made.
Today's action provides affected businesses subject to Part 98, other stakeholders, and the general public an opportunity to provide comment on several aspects of this proposal. For the CBI component of this rulemaking, we are soliciting comment on the following specific issues.
First, we seek comment on the proposed data category assignment for each of these data elements. If you believe that the EPA has improperly assigned certain data elements in this subpart to one of the data categories, please provide specific comments identifying which data elements may be mis-assigned along with a detailed explanation of why you believe them to be incorrectly assigned and in which data category you believe they would best belong.
Second, we seek comment on our proposal to apply the categorical confidentiality determinations (made in the Final CBI Rule for eight direct emitter data categories) to the data elements in subpart I that are assigned to those categories.
Third, for those data elements assigned to the two direct emitter data categories without categorical CBI determinations, we seek comment on the individual confidentiality determinations we are proposing for these data elements. If you comment on this issue, please provide specific comment along with detailed rationale and supporting information on whether such data element does or does not qualify as CBI.
For subpart I, the EPA proposes to assign each data element to one of 10 non-inputs direct emitter data categories. Please see the memorandum entitled “Proposed Data Category Assignments for Subpart I” in the docket: EPA–HQ–OAR–2011–0028 for a list of the data elements in these subparts and their proposed category assignment. As noted previously, the EPA made categorical confidentiality determinations for eight direct emitter data categories and the EPA proposes to apply those final determinations to the data elements assigned to those categories in this rulemaking. For the data elements in the two direct emitter data categories that do not have categorical confidentiality determinations, we are proposing to make confidentiality determinations on an individual data element basis.
The following two direct emitter data categories do not have category-based CBI determinations: “Unit/Process `Static' Characteristics That are Not Inputs to Emission Equations” and “Unit/Process Operating Characteristics That are Not Inputs to Emission Equations.” In Section III.D of this preamble, the data elements in these two data categories that are part of the annual GHG report submission and part of the subpart I BAMM use extension requests are identified in a table. For all data elements in these two data categories, the EPA states in the table the reasons for proposing to determine
As described in Section III.C of this preamble, the EPA is proposing confidentiality determinations on an element-by-element basis for those that we are proposing to assign to the “Unit/Process `Static' Characteristics That are Not Inputs to Emission Equations” and “Unit/Process Operating Characteristics That are Not Inputs to Emission Equations” data categories. In this section, the EPA presents in Table 3 and Table 4 of this preamble the data elements that we are proposing to assign to those two data categories and the reasons for proposing to determine that each does or does not qualify as CBI under CAA section 114(c), or the reason that we are not making a CBI determination.
The electronics manufacturing industry uses multiple long-lived fluorinated greenhouse gases (fluorinated GHGs), as well as nitrous oxide (N
These electronic manufacturing steps are performed in carefully controlled process chambers containing the silicon wafers and the fluorinated GHGs or N
The EPA is proposing to assign 16 subpart I data elements to the “Unit/Process `Static' Characteristics That are Not Inputs to Emission Equations” data category because they are basic characteristics of abatement devices and tools that do not vary with time or with the operations of the process (and are not inputs to emission equations). These 16 data elements are shown in Table 3 of this preamble along with their proposed confidentiality determination and the associated justification for the determination:
The EPA is proposing to assign 23 subpart I data elements to the “Unit/process Operating Characteristics That Are Not Inputs to Emission Equations” data category because they are characteristics of the abatement systems and other equipment, the facility conditions, and the products manufactured that vary over time with changes in operations and processes (and are not inputs to emission equations). Thirteen of these data elements are part of extension requests for the use of BAMM and generally relate to the reasons for a request and expected dates of compliance. Ten are part of the annual GHG report for 40 CFR part 98, subpart I. These 23 data elements are shown in Table 4 of this preamble along with their proposed confidentiality determination and the associated justification for the determination:
We seek comment on the proposed confidentiality status of data elements in two direct emitter data categories (“Unit/Process `Static' Characteristics That are Not Inputs to Emission Equations” and “Unit/Process Operating Characteristics That are Not Inputs to Emission Equations”). By proposing confidentiality determinations prior to data reporting through this proposal and rulemaking process, we provide potential reporters an opportunity to submit comments identifying data they consider sensitive and the rationales and supporting documentation, same as those they would otherwise submit for case-by-case confidentiality determinations. We will evaluate claims of confidentiality before finalizing the confidentiality determinations. Please note that this will be reporters' only opportunity to substantiate your confidentiality claim. Upon finalization of this rule, the EPA will release or withhold subpart I data in accordance with 40 CFR 2.301, which contains special provisions governing the treatment of 40 CFR part 98 data for which confidentiality determinations have been made through rulemaking.
Please consider the following instructions in submitting comments on the data elements in subpart I.
Please identify each individual data element you do or do not consider to be CBI or emission data in your comments. Please explain specifically how the public release of that particular data element would or would not cause a competitive disadvantage to a facility. Discuss how this data element may be different from or similar to data that are already publicly available. Please submit information identifying any publicly available sources of
If your concern is that competitors could use a particular input to discern sensitive information, specifically describe the pathway by which this could occur and explain how the discerned information would negatively affect your competitive position. Describe any unique process or aspect of your facility that would be revealed if the particular data element you consider sensitive were made publicly available. If the data element you identify would cause harm only when used in combination with other publicly available data, then describe the other data, identify the public source(s) of these data, and explain how the combination of data could be used to cause competitive harm. Describe the measures currently taken to keep the data confidential. Avoid conclusory and unsubstantiated statements, or general assertions regarding potential harm. Please be as specific as possible in your comments and include all information necessary for the EPA to evaluate your comments.
Following the publication of the final subpart I rule in the
As mentioned above in Section II.C of this preamble, the EPA is finalizing technical corrections and revisions regarding the definition of fluorinated HTFs and the provisions to estimate and report emissions of fluorinated HTFs in a separate action.
As finalized in December 2010, subpart I allowed facilities to use BAMM without going through an application process until July 1, 2011. In 2011, the EPA published other amendments to subpart I, including several related to the BAMM provisions. On June 22, 2011, the EPA extended the period in subpart I for using the BAMM provisions without going through an application process to September 30, 2011 (76 FR 36339). Under the September 27, 2011 amendments to subpart I, this initial BAMM period was extended through December 31, 2011. Facilities were given until October 17, 2011 to apply for an extension beyond this initial period. Under subpart I, facilities could apply to use BAMM after December 31, 2011 for any parameter for which it is not reasonably feasible to acquire, install, or operate a required piece of monitoring equipment in a facility, or to procure necessary measurement services (40 CFR 94(a)(1)).
Also on September 27, 2011, the EPA amended the calculation and monitoring provisions for large semiconductor manufacturing facilities that fabricate devices on wafers measuring 300 millimeters or less in diameter (76 FR 59542). The large semiconductor manufacturing facilities are those that have an annual manufacturing capacity of greater than 10,500 square meters of substrate. For reporting years 2011, 2012, and 2013, these amendments allow the large semiconductor facilities the option to calculate emissions using default emission factors already contained in subpart I, instead of using recipe-specific utilization and by-product formation rates for the plasma etching process type.
The EPA is proposing to amend subpart I to remove the requirement that facilities that are granted an extension to use BAMM must recalculate and resubmit the emissions estimate for the BAMM extension period. Currently, subpart I requires facilities, after the end of the period for which they have been granted a BAMM extension, to recalculate and resubmit all emissions after they have begun following all applicable monitoring methods of subpart I. The September 27, 2011 amendments did not alter the BAMM recalculation provisions in subpart I.
Under 40 CFR 98.94(a)(2) and (3), a facility granted an extension “through December 31, 2011”, per the original schedule in the rule, must include recalculated 2011 emissions in its 2012 emission report due in 2013, unless it receives an additional extension. Under 40 CFR 98.94(a)(4), a facility granted an extension beyond December 31, 2011, must include recalculated 2012 emissions in its 2013 emission report due in March 2014. Under 40 CFR 98.94(a)(2) and (a)(4), facilities are not required to verify their 2011 and 2012 BAMM engineering model for apportioning gas consumption in their recalculated report.
The petitioners have noted that in the case of subpart I, the requirement for facilities to recalculate emissions in full compliance with subpart I would require them to implement data collection at a level of detail that is not currently feasible for all facilities using the BAMM provisions.
Industry members that are applying for BAMM extensions have noted that, although they have systems to track data that are pertinent to processing of wafers and determining tool capacities and manufacturing efficiency, those systems are not currently designed to apportion gas usage to any particular recipe or tool, or to produce the apportioning factors required by the rule. They have also noted that they will not have the systems in place (including hardware and software upgrades) to collect the data needed to develop heel factors, and to track abatement system up-time according to subpart I.
The petitioners also noted that the compliance schedule for subpart I does not provide adequate time for facilities using BAMM to implement the data collection needed to recalculate emissions at a later date. The final subpart I was published on December 1, 2010, and became effective on January 1, 2011. On January 1, 2011, a facility would have needed some method in place to track the chemicals, the flow stabilization times, reactor pressure, individual gas flow rates, and applied radio frequency power.
After considering these requests, the EPA is proposing to remove the requirements to recalculate and resubmit all emission estimates for subpart I. The EPA has determined that there may be significant burden imposed by a broad recalculation requirement for subpart I. In addition, the EPA's ongoing consideration of potential further revisions to the calculation and monitoring requirements complicates the recalculation requirement. For example, while the agency may want to evaluate the feasibility of a recalculation requirement for any new methodologies,
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action, which is proposing to (1) assign subpart I data reporting elements into data categories; (2) determine CBI status for the remaining data elements for which determinations have not yet been made; and (3) amend reporting methodologies in subpart I that would reduce the data collection and submittal burden for certain facilities, is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011).
As previously mentioned, this action proposes confidentiality determinations and proposes amended reporting methodologies in subpart I that would reduce the data collection burden for certain facilities. This action does not increase the reporting burden. The Office of Management and Budget (OMB) has previously approved the information collection requirements contained in subpart I, under 40 CFR part 98, under the provisions of the
The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have 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 this re-proposal on small entities, “small entity” is defined as: (1) A small business as defined by the Small Business Administration's 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; or (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
This action proposes confidentiality determinations and proposes amended reporting methodologies in subpart I that would reduce the data collection burden for certain facilities. After considering the economic impacts of today's proposed rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. The small entities directly regulated by this proposed rule are facilities included in NAICS codes for Semiconductor and Related Device Manufacturing (334413) and Other Computer Peripheral Equipment Manufacturing (334119). As shown in Tables 5–13 and 5–14 of the Economic Impact Analysis for the Mandatory Reporting of Greenhouse Gas Emissions Final Rule (74 FR 56260, October 30, 2009) available in docket number EPA–HQ–OAR–2008–0508, the average ratio of annualized reporting program costs to receipts of establishments owned by model small enterprises was less than 1% for industries presumed likely to have small businesses covered by the reporting program.
The EPA took several steps to reduce the impact of Part 98 on small entities. For example, the EPA determined appropriate thresholds that reduced the number of small businesses reporting. For some source categories, the EPA developed tiered methods that are simpler and less burdensome. In addition, the EPA conducted several meetings with industry associations to discuss regulatory options and the corresponding burden on industry, such as recordkeeping and reporting. Finally, the EPA continues to conduct significant outreach on the mandatory GHG reporting rule and maintains an “open door” policy for stakeholders to help inform the EPA's understanding of key issues for the industries.
We continue to be interested in the potential impacts of this action on small entities and welcome comments on issues related to such effects.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531–1538, requires federal agencies, unless otherwise prohibited by law, to assess the effects of their regulatory actions on state, local, and tribal governments and the private sector. Federal agencies must also develop a plan to provide notice to small governments that might be significantly or uniquely affected by any regulatory requirements. The plan must enable officials of affected small governments to have meaningful and timely input in the development of the EPA regulatory proposals with significant federal intergovernmental mandates and must inform, educate, and advise small governments on compliance with the regulatory requirements.
This action, which is proposing confidentiality determinations and amended reporting methodologies in subpart I that would reduce the data collection burden for certain facilities, 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. This action does not increase the reporting burden. Thus, this action is not subject to the requirements of sections 202 or 205 of the UMRA.
In developing Part 98, the EPA consulted with small governments pursuant to a plan established under section 203 of the UMRA to address impacts of regulatory requirements in the rule that might significantly or uniquely affect small governments. For a summary of the EPA's consultations with state and/or local officials or other representatives of state and/or local governments in developing Part 98, see Section VIII.D of the preamble to the final rule (74 FR 56370, October 30, 2009).
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. However, for a
This action, which is proposing confidentiality determinations and amended reporting methodologies in subpart I that would reduce the data collection burden, would only apply to certain electronics manufacturers. No state or local government facilities are known to be engaged in the activities that would be affected by the provisions in this proposed rule. This action also does not limit the power of states or localities to collect GHG data and/or regulate GHG emissions. Thus, Executive Order 13132 does not apply to this action.
In the spirit of Executive Order 13132, and consistent with the EPA policy to promote communications between the EPA and state and local governments, the EPA specifically solicits comment on this proposed action from state and local officials. For a summary of the EPA's consultation with state and local organizations and representatives in developing Part 98, see Section VIII.E of the preamble to the final rule (74 FR 56371, October 30, 2009).
This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). This action, which proposes confidentiality determinations and proposes amended reporting methodologies in subpart I that would reduce the data collection burden for certain facilities, does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). No tribal facilities are known to be engaged in the activities affected by this action. Thus, Executive Order 13175 does not apply to this action. For a summary of the EPA's consultations with tribal governments and representatives, see Section VIII.F of the preamble to the final rule (74 FR 56371, October 30, 2009). The EPA specifically solicits additional comment on this proposed action from tribal officials.
The EPA interprets Executive Order 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 Executive Order has the potential to influence the regulation. This action, which is proposing to (1) assign subpart I data reporting elements into data categories; (2) determine CBI status for the remaining data elements for which determinations have not yet been made; and (3) amend reporting methodologies in subpart I that would reduce the data collection and submittal burden for certain facilities, is not subject to Executive Order 13045 because it does not establish an environmental standard intended to mitigate health or safety risks.
This action, which is proposing to (1) assign subpart I data reporting elements into data categories; (2) determine CBI status for the remaining data elements for which determinations have not yet been made; and (3) amend reporting methodologies in subpart I that would reduce the data collection and submittal burden for certain facilities, is not a “significant energy action” as defined in Executive Order 13211 (66 FR 28355 (May 22, 2001)). It is not likely to have a significant adverse effect on the supply, distribution, or use of energy. This action does not increase the reporting burden. The proposed rule amendments in this action do not impose any significant changes to the current reporting requirements contained in 40 CFR part 98, subpart I; rather, the proposed amendments to the reporting requirements would only affect certain electronics manufacturers. Therefore, this action is not subject to Executive Order 13211.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104–113 (15 U.S.C. 272 note) directs the 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. The NTTAA directs the EPA to provide Congress, through OMB, explanations when the agency decides not to use available and applicable voluntary consensus standards.
This action, which is proposing to (1) assign subpart I data reporting elements into data categories; (2) determine CBI status for the remaining data elements for which determinations have not yet been made; and (3) amend reporting methodologies in subpart I that would reduce the data collection and submittal burden for certain facilities, does not involve technical standards. Therefore, the EPA is not considering 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.
The EPA has determined that this action, which is proposing to (1) assign subpart I data reporting elements into data categories; (2) determine CBI status for the remaining data elements for which determinations have not yet been made; and (3) amend reporting methodologies in subpart I that would reduce the data collection and submittal burden for certain facilities, will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. This action addresses only reporting and recordkeeping procedures.
Environmental protection, Administrative practice and procedure, Greenhouse gases, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, title 40, chapter I, of the Code of Federal Regulations is proposed to be amended as follows:
1. The authority citation for part 98 continues to read as follows:
42 U.S.C. 7401–7671q.
2. Section 98.94 is amended by revising paragraphs (a)(2)(iii), (a)(3)(iii), and (a)(4)(iii) to read as follows:
(a) * * *
(2) * * *
(iii)
(3) * * *
(iii)
(4) * * *
(iii)
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to reinstate the maximum observed constituent concentrations for several listed hazardous wastes that were inadvertently removed from the regulations by a November 8, 2000 final rule. Also, in the “Rules and Regulations” section of this
Written comments must be received by March 23, 2012.
Submit your comments, identified by Docket ID No. EPA–HQ–SFUND–2011–0965, by mail to the Environmental Protection Agency, EPA Docket Center (EPA/DC), Superfund Docket Mailcode: 28221T, 1200 Pennsylvania Ave. NW., Washington, DC 20460. Comments may also be submitted electronically or through hand delivery/courier by following the detailed instructions in the
For general information, contact the Superfund, TRI, EPCRA, RMP and Oil Information Center at (800) 424–9346 or TDD (800) 553–7672 (hearing impaired). In the Washington, DC metropolitan area, call (703) 412–9810 or TDD (703) 412–3323. For more detailed information on specific aspects of this proposed rule, contact Lynn Beasley at (202) 564–1965 (
This document proposes to reinstate the maximum observed constituent concentrations for several listed hazardous wastes that were inadvertently removed from the regulations by a November 8, 2000 final rule. The listed hazardous wastes and the respective reportable quantities are included in the regulations for Hazardous Substances and Reportable Quantities. We have published a direct final rule to reinstate the maximum observed constituent concentrations in the “Rules and Regulations” section of this
If we receive no adverse comment, we will not take further action on this proposed rule. If we receive adverse comment, however, we will withdraw the direct final rule and it will not take effect. We would address all public comments in any subsequent final rule based on this proposed rule. We do not intend to institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information, please see the information provided in the
This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities that EPA is now aware could potentially be regulated by this action. Other types of entities not listed in the table could also be regulated. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding
This proposed rule would reinstate the maximum observed constituent concentrations for listed hazardous wastes K169, K170, K171, and K172 to the table found in 40 CFR
For a complete discussion of all of the administrative requirements applicable to this action, see the direct final rule in the Rules and Regulations section of this
Environmental protection, Air pollution control, Chemicals, Hazardous substances, Hazardous waste, Intergovernmental relations, Natural resources, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply.
For the reasons set out, title 40, chapter I of the Code of Federal Regulations is proposed to be amended as follows:
1. The authority citation for part 302 continues to read as follows:
42 U.S.C. 9602, 9603, and 9604; 33 U.S.C. 1321 and 1361.
2. In § 302.6, paragraph (b)(1)(iii), the table is amended by adding entries K169, K170, K171, and K172 in numerical order to read as follows:
(b) * * *
(1) * * *
(iii) * * *
Environmental Protection Agency (EPA).
Petition, reasons for Agency response.
On November 17, 2011, EPA received a petition from the Center for Biological Diversity, the Loon Lake Loon Association, and Project Gutpile (petitioners). The petitioners cited section 21 of the Toxic Substances Control Act (TSCA) and requested EPA to initiate a rulemaking under section 6(a) of TSCA applicable to fishing tackle containing lead (e.g., fishing weights, sinkers, lures, jigs, and/or other fishing tackle), of various sizes and uses that are ingested by wildlife, resulting in lead exposure. After careful consideration, EPA denied the petition by letter dated
This action is directed to the public in general. This action may, however, be of interest to you if you manufacture, process, import, or distribute in commerce fishing tackle containing lead. Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the technical person listed under
EPA has established a record for this petition response under docket identification (ID) number EPA–HQ–OPPT–2012–0135. All documents in the docket are listed in the docket index available at
Under TSCA section 21 (15 U.S.C. 2620), any person can petition EPA to initiate a rulemaking proceeding for the issuance, amendment, or repeal of a rule under TSCA section 4, 6, or 8 or an order under TSCA section 5(e) or 6(b)(2). A TSCA section 21 petition must set forth the facts that are claimed to establish the necessity for the action requested. EPA is required to grant or deny the petition within 90 days of its filing. If EPA grants the petition, the Agency must promptly commence an appropriate proceeding. If EPA denies the petition, the Agency must publish its reasons for the denial in the
Section 21(b)(1) of TSCA requires that the petition “set forth the facts which it is claimed establish that it is necessary” to issue the rule or order requested. 15 U.S.C. 2620(b)(1). Thus, TSCA section 21 implicitly incorporates the statutory standards that apply to the requested actions. In addition, TSCA section 21 establishes standards a court must use to decide whether to order EPA to initiate rulemaking in the event of a lawsuit filed by the petitioner after denial of a TSCA section 21 petition. 15 U.S.C. 2620(b)(4)(B). Accordingly, EPA has relied on the standards in TSCA section 21 and in the provisions under which actions have been requested to evaluate this petition.
On November 17, 2011, the Center for Biological Diversity, the Loon Lake Loon Association, and Project Gutpile petitioned EPA to “evaluate the unreasonable risk of injury to the environment from fishing tackle containing lead (including fishing weights, sinkers, lures, jigs, and/or other tackle) of various sizes and uses that are ingested by wildlife resulting in lead exposure” and to “initiate a proceeding for the issuance of a rulemaking under section 6(a) of TSCA to adequately protect against such risks” (Ref. 1, p. 27). The petition expressly states that this petition “asks the EPA to initiate a rulemaking for regulations that adequately protect wildlife against the unreasonable risk of injury from lead fishing tackle * * *. This petition does not request a specific regulatory alternative. It is the obligation of the EPA to determine the least burdensome alternative that adequately addresses the unreasonable risk of injury” (Ref. 1, p. 8). As such, the petition does not actually identify a rule to be issued, amended, or repealed.
This is not the first time EPA has been petitioned to take action with respect to fishing tackle containing lead. On August 3, 2010, the Center for Biological Diversity, American Bird Conservancy, Association of Avian Veterinarians, Project Gutpile, and Public Employees for Environmental Responsibility filed a petition under TSCA section 21 requesting that EPA prohibit under TSCA section 6(a) the manufacture, processing, and distribution in commerce of lead fishing gear (Ref. 2). In particular, the 2010 petitioners requested a nationwide, uniform ban on the manufacture, processing, and distribution in commerce of lead for use in all fishing gear, regardless of size, including sinkers, jigs, and other tackle. EPA denied the petition on November 4, 2010 (Ref. 2). The comments that EPA received from states and a state organization about the 2010 petition highlighted the geographic focus of state controls on lead fishing tackle (Ref. 2). Several state fish and game agencies submitted comments, all supporting denial of the petition (Ref. 2).
Additionally, on October 20, 1992, the Environmental Defense Fund, Federation of Fly Fishers, Trumpeter Swan Society, and North American Loon Fund petitioned EPA under section 21 of TSCA and the Administrative Procedure Act to initiate rulemaking procedures under section 6(a) of TSCA to require that the sale of lead fishing sinkers be accompanied by an appropriate label or notice warning that such products are toxic to wildlife (Ref. 3). EPA granted the petition and, ultimately, in 1994, EPA proposed a rule under section 6(a) of TSCA to prohibit the manufacturing, processing, and distribution in commerce in the United States, of certain smaller size fishing sinkers containing lead and zinc, and mixed with other substances, including those made of brass (59 FR 11122, March 9, 1994). EPA received
On February 14, 2012, EPA denied the November 2011 petition. A copy of the Agency's response, which consists of a letter to the petitioners, is available in the docket for this petition. EPA's reasons for denying the petition are provided in Unit IV.B.
In denying the petitioners' request, EPA determined that the petitioners did not demonstrate that Federal action is necessary based, in part, on the fact that the petitioners' supporting data indicate that the issue of wildlife exposure to fishing tackle containing lead has a regional or local geographic context coupled with the fact that the states where risk of injury appears to be greatest (based on documented incidences) are largely the states that have taken action to address the risks posed by lead fishing tackle. While several species of waterfowl are included, the most extensive information provided in the petition pertains to the ingestion by loons of fishing tackle containing lead and indicates that common loons are known to ingest lead objects more frequently than other species of water birds sampled across the United States. For loons, most of the documented cases of lead tackle ingestion cited in the petition are for the time period between 1987 and 2002 and are confined to northern states, all of which are located on or near the northern border of the United States. The U.S. Fish and Wildlife Service report cited in the petition also indicates that loon populations are stable or increasing in all of these northern states where lead tackle ingestion by loons has been documented, with the exception of Washington. While such examples suggest harm to wildlife, and waterfowl in particular, they do not, in and of themselves, demonstrate that Federal rulemaking under section 6(a) of TSCA is necessary.
Indeed, as evidenced by the petition, since 2000, a number of states have established regulations that ban or restrict the use of lead tackle. In addition, a number of other states have created state education and/or fishing tackle exchange programs. In light of the emergence and expansion of these programs and other activities over the past decade coupled with a paucity of data on bird mortality attributable to lead tackle ingestion during this same timeframe, the petition does not suffice to establish that a Federal action under section 6(a) of TSCA as requested by the petitioners is necessary to adequately protect wildlife.
Specifically, since 2000, Maine, Massachusetts, New Hampshire, New York, Vermont, and Washington have banned or limited the use of fishing sinkers. Maine, New York, and Vermont have banned the sale of lead fishing sinkers of less than one-half ounce. Two states, Massachusetts and New Hampshire, have expanded the scope of water bodies covered by use prohibitions over time. In Massachusetts, the use of all lead sinkers was initially prohibited in the Quabbin and Wachusett Reservoirs, the loons' primary habitat in the state. The Massachusetts regulations expanded the use prohibitions, effective in 2012, to include additional tackle—lead weights, and lead fishing jigs of less than one ounce—and to encompass all inland waters. In New Hampshire, initial use prohibitions for fishing sinkers and jigs were expanded from lakes and ponds to all waters of the state in 2006. In 2011, Washington State began to regulate fishing tackle containing lead by approving measures to prohibit the use of fishing tackle containing lead at lakes with nesting common loons. EPA also notes that other states (e.g., Minnesota and Wisconsin) have voluntary education or outreach programs, including efforts to discourage the use of fishing tackle containing lead, to raise awareness of lead poisoning in wildlife, and events to exchange fishing tackle containing lead for lead-free alternatives.
Thus, the trend is that states are being responsive to the harms attributed to fishing tackle containing lead by implementing regulatory and voluntary programs.
For example, EPA notes that among the states where the petition cites documented cases of lead tackle ingestion by loons, five of the states regulate the use or sale of fishing tackle containing lead and have been doing so since at least 2006. Further, EPA notes that two states with voluntary programs are among the same states. In other words, the states where ingestion of fishing tackle containing lead is best linked to loon mortality have responded with regulatory or voluntary programs. In some cases, these programs have expanded over time. The petition does not demonstrate that these state and local efforts are ineffective or have failed to reduce the exposure and risks presented to waterfowl in particular. In light of these state actions, EPA concludes that the petition does not demonstrate that action under TSCA section 6(a) is necessary to adequately protect wildlife.
EPA also notes that when Federal actions have been taken to address the use of lead fishing tackle in federally managed lands and water bodies across the nation, they have been limited to specific, localized National Wildlife Refuges, not the entire National Wildlife Refuge System. For example, use of fishing tackle containing lead is prohibited in several wildlife refuges, including in states with breeding loon populations such as Rachel Carson National Wildlife Refuge in Maine, Seney National Wildlife Refuge in Michigan, and Red Rock Lakes National Wildlife Refuge in Montana.
Moreover, EPA recognizes that state and local natural resource agencies consider geographic context in their resource assessments, and manage these resources based on evaluations of local impacts on fish and wildlife resources and habitats. EPA also is cognizant that these state and local agencies historically have made such evaluations while considering the societal benefits of traditional fishing practices. This perspective is supported by the vast majority of comments received from states and members of the general public on the petition submitted on August 3, 2010 (Ref. 2) and the section 6(a) rule proposed by EPA on March 9, 1994 (59 FR 11122).
In response to the petition submitted on August 3, 2010, EPA received comments from states and a state organization that highlight the geographic focus of state controls on lead fishing tackle. According to the Association of Fish and Wildlife Agencies, “the exposure to certain migratory birds (primarily loons, and to a lesser extent, swans) and related impacts to populations of those birds is localized, and where impacts have been substantiated to be significant, state fish and wildlife agencies have acted to regulate the use of lead sinkers and jigs. In the northeast, five states have enacted restrictions (e.g., ban in certain bodies of water; ban on certain weights and sizes) on the use of lead fishing tackle where studies have identified lead toxicosis as
All state agencies that commented on the 2010 petition supported the denial of the petition and provided several reasons why Federal action is unwarranted (Ref. 2). These comments assert that mortality from ingestion of lead fishing tackle is rare and is primarily limited to some areas of the country, that states are already working closely with the U.S. Fish and Wildlife Service on education and exchange programs, and that where there have been impacts on loons and trumpeter swans, states have already taken action. These states contend that, because policy development is biologically, socially, and economically complex, these impacts are best addressed by geographically targeted actions that the states are undertaking. As noted by these commenters, states in the northern part of the country, where the majority of the impacts on loons in particular have been observed, have taken action to limit or ban the use of lead sinkers or have implemented tackle exchange programs.
In addition, comments received on the 2010 petition from Members of Congress, representing two different states (e.g., Arkansas and Wisconsin), also opposed Federal action on lead fishing tackle (Ref. 2). A Representative from Wisconsin opposed a prohibition on lead fishing tackle in favor of voluntary education and outreach programs (Ref 2).
These comments were consistent with the comments EPA received in response to the 1994 proposal. In their comments on the 1994 proposed rule, numerous state fish and wildlife management agencies from across the U.S. commented that they did not believe that the data as a whole (e.g., exposure information, limited incidents of lead toxicity linked to tackle, number of specific species likely to be affected, geographic nature of the issue), support the need for a nationwide ban on fishing tackle containing lead. Many of these states also strongly expressed their opinion that they, as state fish and wildlife agencies, have the best knowledge of the status of bird populations in their states and are therefore best suited to identify if their wildlife resources are impacted, and to determine what the most appropriate management actions should be, if any. In total, the vast majority of these comments opposed the prohibitions in the 1994 proposed rule.
These comments and the actions taken by states reinforce EPA's conclusion that petitioners have not shown that Federal action under TSCA section 6(a) is necessary to protect wildlife resources at this time.
EPA also recognizes that the market for fishing tackle and equipment continues to change and that the prevalence of non-lead alternatives in the marketplace continues to increase. While fishing tackle containing lead may still constitute the largest percentage of the market, the availability of lead-free alternatives has increased in the last decade (Ref. 2). New non-lead products have entered the market, and the market share of lead sinkers has decreased (Ref. 2). With improvements in technology, changes in consumer preferences, state-level restrictions, and increased market competition, the market for lead fishing sinkers is expected to continue to decrease while the market for substitutes such as limestone, steel, and tungsten fishing sinkers is expected to continue to increase. (Ref. 2). In light of these trends, the petition does not demonstrate that rulemaking is necessary under TSCA section 6(a).
In sum, EPA is not persuaded that the action requested by the petitioners is necessary given the mix of regulatory and education actions states agencies and the Federal Government already are taking to address the impact of lead fishing tackle on local environments. The risk described by the petitioners does appear to be more prevalent in some geographic areas than others, and the trend over the past decade has been for increasing state and localized Federal activity regarding lead in fishing tackle. Therefore, EPA concludes that the petition does not demonstrate that action under TSCA section 6(a) is necessary in light of these state and Federal actions.
Furthermore, for the same reasons stated in this unit, while the petition does provide evidence of exposure and a risk to waterfowl in some areas of the United States, it does not provide a basis for finding that the risk presented is an unreasonable risk. “The finding of unreasonable risk is a judgment under which the decision-maker determines that the risk of health or environmental injury from the chemical substance or mixture outweighs the burden to society of potential regulations” (59 FR 11122, 11138). Again, the risk described by the petitioners appears to be more prevalent in some geographic areas than others, and the trend over the past decade has been for increasing state and localized Federal activity regarding lead in fishing tackle. Given the mix of regulatory and educational actions state agencies and the Federal Government already are taking to address the impact of lead fishing tackle on local environments, and the other considerations described in Unit IV.B., the petition does not demonstrate that exposure from lead fishing tackle presents an unreasonable risk.
Finally, although EPA proposed to make a finding that lead fishing tackle presented an unreasonable risk in 1994, the Agency did not finalize that rule and indicated its intent to withdraw the proposal in 2005 (70 FR 27625). The Agency's view that the proposal should be withdrawn is buttressed by the emergence and continued expansion of state and local programs in the states that appear to be most affected. Likewise, other data and information (e.g., incidents of lead tackle ingestion and mortality in certain species of waterfowl) that supported that proposal are clearly outdated. To the extent that petitioners rely on that proposal, their reliance is unpersuasive.
For these reasons, EPA denied the petitioners' request.
The following is a list of the documents that are specifically referenced in this notice and placed in the docket that was established under docket ID number EPA–HQ–OPPT–2012–0135. For information on accessing the docket, refer to Unit I.B.
Environmental protection, Bird, Lead, Lead fishing sinkers, Lead fishing tackle.
National Institutes of Health, HHS.
Notice of proposed rulemaking.
The National Institutes of Health (NIH) proposes to rescind the current regulations governing two of its eight loan repayment programs and issue in their place a new consolidated set of regulations governing all of the NIH Loan Repayment Programs (LRPs). There are currently eight programs, including three for researchers employed by the NIH (Intramural LRPs) and five for non-NIH scientists (Extramural LRPs). The Intramural LRPs include the Loan Repayment Program for Research with Respect to Acquired Immune Deficiency Syndrome (or AIDS Research LRP); Loan Repayment Program for General Research (or General Research LRP), which includes a program for the Accreditation Council for Graduate Medical Education (ACGME) Fellows; and Loan Repayment Program for Clinical Researchers from Disadvantaged Backgrounds (or Clinical Research LRP for Individuals from Disadvantaged Backgrounds). The Extramural LRPs include the Loan Repayment Program for Contraception and Infertility Research (or Contraception and Infertility Research LRP); Loan Repayment Program for Clinical Researchers from Disadvantaged Backgrounds (or Clinical Research LRP for Individuals from Disadvantaged Backgrounds); Loan Repayment Program for Clinical Research (or Clinical Research LRP); Loan Repayment Program for Pediatric Research (or Pediatric Research LRP); and Loan Repayment Program for Health Disparities Research (or Health Disparities Research LRP). This rule compliments efforts afforded by EO 13563.
Comments must be received on or before April 23, 2012 in order to ensure that NIH will be able to consider the comments in preparing the final rule.
Persons and organizations interested in submitting comments, identified by RIN 0925–AA43 and Docket Number NIH–2008–0003, may do so by any of the following methods:
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Jerry Moore, NIH Regulations Officer, Office of Management Assessment, NIH, 6011 Executive Boulevard, Room 601, MSC 7669, Rockville, MD 20892; by email
On November 4, 1988, Congress enacted the Health Omnibus Programs Extension of 1988, Public Law (Pub. L.) 100–607, Title VI of which amended the Public Health Service (PHS) Act by adding section 487A (42 U.S.C. 288–1) entitled Loan Repayment Program for Research with Respect to Acquired Immune Deficiency Syndrome. Subsequently, in the NIH Revitalization Act of 1993 (Pub. L. 103–43), Congress enacted the Loan Repayment Program for Research with Respect to Contraception and Infertility (section 487B; 42 U.S.C. 288–2); the Loan Repayment Program for Research Generally (section 487C; 42 U.S.C. 288–3); and the Loan Repayment Program for Clinical Researchers from Disadvantaged Backgrounds (section 487E; 42 U.S.C. 288–5). The Children's Health Act of 2000 (Pub. L. 106–310), which was enacted on October 17, 2000, added the Pediatric Research Loan Repayment Program (section 487F;
Sections 487A, 487B, 487C, 487E, and 487F of the PHS Act authorize the Secretary of Health and Human Services, and section 464z–5 authorizes the Director, National Institute on Minority Health and Health Disparities (NIMHD), to enter into contracts with qualified health professionals under which such professionals agree to conduct research in consideration of the Federal Government agreeing to repay, for each year of such service, not more than $35,000 of the principal and
(a) An NIH employee (for Intramural LRPs), or
(b) A health professional engaged in qualifying research supported by a domestic nonprofit foundation, nonprofit professional association, or other nonprofit institution (e.g., university), or a U.S. or other government agency (Federal, State or local).
The purpose of the LRP programs is to recruit and retain highly qualified health professionals as biomedical and behavioral researchers. LRP programs offer educational loan repayment for participants who agree, by written contract, to engage in qualifying domestic nonprofit-supported research at a qualifying non-NIH institution, or as an NIH employee, for a minimum of two years (or three years for the Intramural General Research LRP).
Currently, the Clinical Research LRP for Individuals from Disadvantaged Backgrounds and the Contraception and Infertility Research LRP are governed by their own individual regulations while the other LRPs are without regulations. We propose to consolidate the regulations into a single set of regulations governing all the LRPs.
More specifically, we propose to rescind the current regulations codified at 42 CFR Part 68a, entitled, National Institutes of Health Clinical Research Loan Repayment Program for Individuals from Disadvantaged Backgrounds (CR–LRP), and 42 CFR Part 68c, entitled, National Institute of Child Health and Human Development Contraception and Infertility Research Loan Repayment Program, and issue a new consolidated set of regulations at 42 CFR part 68, entitled, National Institutes of Health Loan Repayment Programs (LRPs), to govern each of the eight individual NIH Loan Repayment Programs, the three that are for researchers employed by the NIH (
The purpose of this Notice of Proposed Rulemaking (NPRM) is to invite public comment on the proposed actions. We provide the following as public information.
We have examined the impacts of this rule as required by Executive Order 12866, Regulatory Planning and Review (September 30, 1993), Executive Order 13563, Improving Regulation and Regulatory Review (January 18, 2011), the Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96–354), section 202 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4), and Executive Order 13132 on Federalism (August 4, 1999).
Executive Order 12866, Regulatory Planning and Review, directs 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 and other advantages, distributive impacts, and equity). A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any one year). Based on our analysis, we believe that the proposed rulemaking does not constitute an economically significant regulatory action.
The Regulatory Flexibility Act requires agencies to analyze regulatory options that would minimize any significant impact of the rule on small entities. For the purpose of this analysis, small entities include small business concerns as defined by the Small Business Administration (SBA), usually businesses with fewer than 500 employees. Applicants who are eligible to apply for the loan repayment awards are individuals, not small entities. The Secretary certifies that this rule will not have a significant impact on a significant number of small entities.
Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires that agencies prepare a written statement that 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 organizations, in the aggregate, or by the private sector, of “$100,000,000 or more (adjusted annually for inflation with base year of 1995) in any one year.” The current inflation-adjusted threshold is approximately $145.5 million. The Secretary certifies that this rule does not mandate any spending by State, local or tribal government in the aggregate or by the private sector. Participation in the NIH loan repayment programs is voluntary and not mandated.
Executive Order 13132,
This proposed rule does not contain any new information collection requirements that are subject to Office of Management and Budget (OMB) approval under the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35). More specifically, § 68.6 is a reporting requirement, but the specifics of the burden are determined in the approved application forms used by the NIH Loan Repayment Programs and have been approved under OMB No. 0925–0361, Expiration Date: June 30, 2014. Additionally, § 68.3(c), § 68.3(e), § 68.11(c), § 68.14(c), § 68.14(d), and § 68.16(a) are reporting requirements and/or recordkeeping requirements, but they are also covered under OMB No. 0925–0361.
The Catalog of Federal Domestic Assistance numbered programs affected by the proposed regulations are:
Health professions, Loan repayment programs—health, Medical research.
For reasons presented in the preamble, it is proposed to amend title 42 of the Code of Federal Regulations by rescinding the current regulations at parts 68a and 68c, and adding Part 68 that encompasses all NIH Loan Repayment Programs, as set forth below.
42 U.S.C. 254o, 42 U.S.C. 288–1, 42 U.S.C. 288–2, 42 U.S.C. 288–3, 42 U.S.C. 288–5, 42 U.S.C. 288–5a, 42 U.S.C. 288–6, 42 U.S.C. 285t–2.
The regulations of this part apply to the award of educational loan payments authorized by sections 487A, 487B, 487C, 487E, 487F,
(a) The
(1) Loan Repayment Program for Research With Respect to Acquired Immune Deficiency Syndrome (or AIDS Research LRP);
(2) Loan Repayment Program for General Research (or General Research LRP), including a program for Accreditation Council for Graduate Medical Education (ACGME) Fellows; and
(3) Loan Repayment Program for Clinical Researchers from Disadvantaged Backgrounds (or Clinical Research LRP for Individuals From Disadvantaged Backgrounds). [This program is also included as a separate program under the Extramural LRPs.]
(b) The
(1) Loan Repayment Program for Contraception and Infertility Research (or Contraception and Infertility Research LRP);
(2) Loan Repayment Program for Clinical Researchers From Disadvantaged Backgrounds (or Clinical Research LRP for Individuals From Disadvantaged Backgrounds);
(3) Loan Repayment Program for Clinical Researchers (or Clinical Research LRP);
(4) Loan Repayment Program for Pediatric Research (or Pediatric Research LRP); and
(5) Loan Repayment Program for Health Disparities Research (or Health Disparities Research LRP).
As used in this part:
(1) Comes from an environment that inhibited the individual from obtaining the knowledge, skill and ability required to enroll in and graduate from a health professions school; or
(2) Comes from a family with an annual income below a level based on low-income thresholds according to family size published by the U.S. Bureau of the Census, adjusted annually for changes in the Consumer Price Index, and adjusted by the Secretary for use in HHS programs. The Secretary periodically publishes these income levels in the
To be eligible for consideration for the NIH LRPs, applicants must meet the following criteria:
(a) Be citizens, nationals, or permanent residents of the United States;
(b) Have the necessary degree from an accredited institution as determined by the NIH to be consistent with the needs of the LRP;
(c)(1)
(2)
(d) Have total qualifying educational loan debt as determined on the program eligibility date;
(e) The NIH or the employing institution must provide an assurance that the applicant will be employed/appointed and provided research support for the applicable term of the LRP contract; and
(f) Recipients of LRP awards must conduct their research in accordance with applicable Federal, State, and local law (
(g)
To be eligible to participate in the NIH LRPs, individuals must:
(a) Meet the eligibility requirements specified in § 68.3;
(b) Not be ineligible for participation as specified in § 68.5;
(c) Engage in qualified research for the contractual period;
(d) Engage in such research for the percentage of time specified for the particular LRP; and
(e) Comply with all other terms and conditions of the applicable Loan Repayment Program.
The following individuals are ineligible for NIH LRP participation:
(a) Persons who do not meet the eligibility requirements as specified under § 68.3;
(b) Any individual who has or had a Federal judgment lien against his/her property arising from Federal debt;
(c) Persons who owe an obligation of health professional service to the Federal Government, a State, or other entity, unless deferrals or extensions are granted for the length of the service of their LRP contract. The following are examples of programs that have a service obligation:
(1) Armed Forces (Army, Navy, or Air Force) Professions Scholarship Program,
(2) Exceptional Financial Need (EFN) Scholarship Program,
(3) Financial Assistance for Disadvantaged Health Professions Students (FADHPS),
(4) Indian Health Service (IHS) Scholarship Program,
(5) National Health Service Corps (NHSC) Scholarship Program,
(6) National Research Service Award (NRSA) Program,
(7) NIH Undergraduate Scholarship Program (UGSP),
(8) Physicians Shortage Area Scholarship Program,
(9) Primary Care Loan (PCL) Program, and
(10) Public Health Service Scholarship (PHS) Program;
(e) Current recipients of NIH intramural training awards, e.g., NIH Intramural Research Training Awards (IRTA) or Cancer Research Training Awards (CRTA);
(f) Individuals conducting research for which funding is precluded by Federal law, regulation, or HHS/NIH policy or that does not comply with applicable Federal, State, and local law regarding the conduct of the research (e.g., applicable human subject protection regulations);
(g) Individuals with only ineligible loans or loans that are not educational; and
(h) Individuals who do not have sufficient qualifying educational debt to meet the debt threshold.
An application for participation in an NIH LRP shall be submitted to the NIH, which is responsible for the Program's administration, in such form and manner as the Secretary prescribes.
The NIH LRP awards are competitive. To be selected for participation in an NIH LRP, applicants must satisfy the following requirements:
(a) Applicants must meet the eligibility requirements specified in § 68.3 and § 68.4.
(b) Applicants must not be ineligible for participation as specified in § 68.5.
(c) Upon receipt, applications for any of the NIH LRPs will be reviewed for eligibility and completeness by the NIH Division of Loan Repayment. Incomplete or ineligible applications will not be processed or reviewed further.
(d)(1)
(2)
(i) Applicant's potential to pursue a career in research as defined by the appropriate LRP:
(A) Appropriateness of the applicant's previous training and experience to prepare for a research career.
(B) Appropriateness of the proposed research activities during the LRP contract to foster a career in research.
(C) Commitment to a research career, as reflected by the personal statement of long-term career goals and plan to achieve those goals.
(D) Strength of the letters of recommendations attesting to the applicant's potential for a successful career in research.
(ii) Quality of the overall environment to prepare the applicant for a research career:
(A) Quality and availability of appropriate scientific mentors and colleagues to help achieve or enhance the applicant's research independence,
(B) Quality and appropriateness of institutional resources and facilities.
(iii) For the Health Disparities Research LRP, at least 50 percent of the contracts are required by statute to be for appropriately qualified health professionals who are members of a health disparity population.
(a) Loan Repayments: For each year of the applicable service period the individual agrees to serve, the NIH may pay up to $35,000 per year of a participant's repayable debt.
(b) Payments are made directly to a participant's lender(s). If there is more than one outstanding qualified educational loan, the NIH will repay the loans in the following order, unless the NIH determines significant savings would result from paying loans in a different order of priority:
(1) Loans guaranteed by the U.S. Department of Health and Human Services;
(2) Loans guaranteed by the U.S. Department of Education;
(3) Loans made or guaranteed by a State;
(4) Loans made by a school; and
(5) Loans made by other entities.
(c) Tax Liability Payments: In addition to the loan repayments, the NIH shall make tax payments in an amount equal to 39 percent of the total annual loan repayment to the Internal Revenue Service on the participant's behalf. The NIH may make additional payments to those participants who show increased Federal, State, and/or local taxes as a result of loan repayments.
(d) Under § 68.8(a), (b), and (c), the NIH will make loan and tax liability payments to the extent appropriated funds are available for these purposes.
The NIH LRPs will repay participants' lenders the principal, interest, and related expenses of qualified U.S. Government and commercial educational loans obtained by participants for the following:
(a) Undergraduate, graduate, and health professional school tuition expenses;
(b) Other reasonable educational expenses required by the school(s) attended, including fees, books, supplies, educational equipment and materials, and laboratory expenses; and
(c) Reasonable living expenses, including the cost of room and board, transportation and commuting costs, and other living expenses, as determined by the NIH.
The following loans are ineligible for repayment under the NIH LRPs:
(a) Loans not obtained from a bank, credit union, savings and loan association, not-for-profit organization, insurance company, school, and other financial or credit institution that is subject to examination and supervision in its capacity as a lending institution by an agency of the United States or of the State in which the lender has its principal place of business;
(b) Loans for which supporting documentation is not available;
(c) Loans that have been consolidated with loans of other individuals, such as spouses or children;
(d) Loans or portions of loans obtained for educational or living expenses that exceed the standard of reasonableness as determined by the participant's standard school budget for the year in which the loan was made and are not determined by the NIH to be reasonable based on additional documentation provided by the individual;
(e) Loans, financial debts, or service obligations incurred under the following programs, or similar programs, which provide loans, scholarships, loan repayments, or other awards in exchange for a future service obligation:
(1) Armed Forces (Army, Navy, or Air Force) Professions Scholarship Program,
(2) Exceptional Financial Need (EFN) Scholarship Program,
(3) Financial Assistance for Disadvantaged Health Professions Students (FADHPS),
(4) Indian Health Service Scholarship Program,
(5) National Health Service Corps Scholarship Program,
(6) National Institutes of Health Undergraduate Scholarship Program (UGSP),
(7) National Research Service Award (NRSA) Program,
(8) Physicians Shortage Area Scholarship Program,
(9) Primary Care Loans (PCL), and
(10) Public Health Service Scholarship Program;
(f) Any loan in default, delinquent, or not in a current payment status;
(g) Any Federal educational loan debt—including debt arising from the conversion of a service obligation to a loan—that has been in default or written off as uncollectible is ineligible for repayment under the Program, even if currently considered to be in good standing;
(h) Loan amounts that participants were due to have been paid prior to the LRP contract start date;
(i) Parents PLUS loans (except the Graduate PLUS loans for students);
(j) Loans for which promissory notes have been signed after the LRP contract start date (with the exception of qualifying student loan consolidations); and
(k) Home equity loans or other noneducational loans.
Individuals must agree to:
(a) Engage in qualified research for the applicable contract service period;
(b)(1)
(c) Keep all loan accounts in good standing, provide timely documentation as needed, including payment verification, service verification, change of research, change of institution, etc. Failure to provide such documentation may result in early termination, and the individual may be subject to statutory financial penalties; and
(d) Satisfy all of the other terms and conditions of the LRP and the LRP Contract (e.g., Obligations of the Participant). Failure to adhere to the terms and conditions of the LRP contract may result in early termination, and the individual may be subject to statutory financial penalties.
An individual may apply for a competitive extension contract for at least a one-year period if the individual is engaged in qualifying research and satisfies the eligibility requirements specified under § 68.3 and § 68.4 for the extension period and has remaining repayable debt as established by the Secretary.
Program participants who breach their Loan Repayment Program Contracts will be subject to the applicable monetary payment provisions set forth at section 338E of the Act (42 U.S.C. 254o). Payment of any amount owed under
(a) Terminations for convenience of the Government will not be considered a breach of contract and monetary damages will not be assessed.
(b) Occasionally, a participant's research assignment or funding may evolve and change to the extent that the individual is no longer engaged in approved research. Similarly, the research needs and priorities of the IC and/or the NIH may change to the extent that a determination is made that a health professional's skills may be better utilized in a nonresearch assignment. Normally, job changes of this nature will not be considered a breach of contract on the part of either the NIH or the participant. Under these circumstances, the following will apply:
(1) Program participation will cease as of the date an individual is no longer engaged in approved research;
(2) Based on the approval of the NIH, the participant will be released from the remainder of his or her service obligation without assessment of damages or monetary penalties. The participant in this case will be permitted to retain all Program benefits made or owed by the NIH on his/her behalf up to the date the individual is no longer engaged in research, less the pro rata portion of any benefits advanced beyond the period of completed service.
(a) Any obligation of a participant for service or payment will be canceled upon the death of the participant.
(b) The NIH may waive or suspend any service or payment obligation incurred by the participant upon request whenever compliance by the participant: (1) Is impossible, (2) would involve extreme hardship to the participant, or (3) if enforcement of the service or payment obligation would be unconscionable. The NIH may approve a request for a suspension of the service or payment obligations for a period of up to one (1) year.
(c) Compliance by a participant with a service or payment obligation will be considered impossible if the NIH determines, on the basis of information and documentation as may be required, that the participant suffers from a permanent physical or mental disability resulting in the inability of the participant to perform the service or other activities that would be necessary to comply with the obligation.
(d) In determining whether to waive or suspend any or all of the service or payment obligations of a participant as imposing an undue hardship and being against good conscience, the NIH, on the basis of such information and documentation as may be required, will consider: (1) The participant's present financial resources and obligations; (2) the participant's estimated future financial resources and obligations; and (3) the extent to which the participant has problems of a personal nature, such as a physical or mental disability or terminal illness in the immediate family, which so intrude on the participant's present and future ability to perform as to raise a presumption that the individual will be unable to perform the obligation incurred.
Any payment obligation incurred under § 68.13 may be discharged in bankruptcy under Title 11 of the United States Code only if such discharge is granted after the expiration of the seven-year period beginning on the first date that payment is required and only if the bankruptcy court finds that a nondischarge of the obligation would be unconscionable.
(a) When a shortage of funds exists, participants may be funded only partially, as determined by the NIH. However, once an NIH LRP contract has been signed by both parties, the NIH will obligate such funds as necessary to ensure that sufficient funds will be available to pay benefits for the duration of the period of obligated service unless, by mutual written agreement, the parties specify otherwise.
(b) Additional conditions may be imposed as deemed necessary.
Several other regulations and statutes apply to this part. These include, but are not necessarily limited to:
Debt Collection Act of 1982 (31 U.S.C. 3701 note);
Fair Credit Reporting Act (15 U.S.C. 1681
Federal Debt Collection Procedures Act of 1990 (28 U.S.C. 176); and Privacy Act of 1974 (5 U.S.C. 552a).
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Proposed rule.
DoD, GSA, and NASA are proposing to amend the Federal Acquisition Regulation (FAR) to implement the requirements of the James Zadroga 9/11 Health and Compensation Act of 2010 regarding the imposition of a 2 percent tax on certain foreign procurements.
Interested parties should submit written comments to the Regulatory Secretariat at one of the addressees shown below on or before April 23, 2012 to be considered in the formation of the final rule.
Submit comments in response to FAR case 2011–011 by any of the following methods:
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Mr. Edward N. Chambers, Procurement Analyst, at (202) 501–3221 for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at (202) 501–4755. Please cite FAR Case 2011–011.
DoD, GSA, and NASA are proposing to revise the FAR to implement a policy that imposes on any foreign person that receives a specified Federal procurement payment a tax equal to 2 percent of the amount of such specified Federal procurement payment. Additionally, the law stipulates that no funds are to be disbursed to any foreign contractor in order to reimburse the tax imposed (26 U.S.C. 5000C Note).
The James Zadroga 9/11 Health and Compensation Act of 2010 (Pub. L. 111–347) was signed into law and effective on January 2, 2011. Section 301 of the law amends the Internal Revenue Code of 1986 by adding a new Section 5000C, Imposition of tax on certain foreign procurements (26 U.S.C. 5000C). This new section imposes on any foreign person that receives a specified Federal procurement payment a tax equal to 2 percent of the amount of such specified Federal procurement payment. Additionally, the law stipulates that no funds are to be disbursed to any foreign contractor in order to reimburse the tax imposed (26 U.S.C. 5000C Note).
To comply with the law, the FAR Council is proposing to amend FAR 31.205–41 to inform the Government and contractors that the costs of the 2 percent tax are not allowable, and at FAR 52.229–3, 52.229–4, 52.229–6 and 52.229–7, to provide that the costs for the 2 percent tax are not included in foreign fixed-price contracts and foreign fixed-price contracts with foreign governments. The law states that it “shall be applied in a manner consistent with international agreements.” The law states that the 2 percent excise tax is applied to foreign persons that receive Federal procurement payments pursuant to a contract with the Government of the United States for the provision of goods, if such goods are manufactured or produced in a covered country, or for the provision of services if those services are provided in a covered country. “Covered country” means a country that is not a country that is party to an international procurement agreement with the United States. “Foreign person” means any person (including any individual, partnership, corporation, or other form of association) other than a United States person. The law applies to contracts entered into on or after January 2, 2011. The procedures for withholding this 2 percent tax are being handled in a separate FAR case.
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 a significant regulatory action and, therefore, was subject to review under Section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
The change may 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,
At this time an estimate of the number of small entities to which this rule will apply is not available. The 2 percent excise tax is only applied to foreign persons that receive Federal procurement payments pursuant to a contract with the Government of the United States for the provision of goods, if such goods are manufactured or produced in a covered country, or for the provision of services if those services are provided in a covered country. “Foreign person” means any person (including any individual, partnership, corporation, or other form of association) other than a United States person. “Covered country” means a country that is not a country that is party to an international procurement agreement with the United States.
The Regulatory Secretariat has submitted a copy of the IRFA to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the IRFA may be obtained from the Regulatory Secretariat. DoD, GSA and NASA invite comments from small business concerns and other interested parties on the expected impact of this rule on small entities.
DoD, GSA, and NASA 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 (FAR Case 2011–011) in 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, DoD, GSA, and NASA propose amending 48 CFR parts 31 and 52 as set forth below:
1. The authority citation for 48 CFR parts 31 and 52 continues to read as follows:
40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c).
2. Amend section 31.205–41 by adding paragraph (b)(8) to read as follows:
(b) * * *
(8) Any tax imposed under 26 U.S.C. 5000C.
3. Amend section 52.229–3 by revising the date of the clause and paragraph (b) to read as follows:
(b)(1) The contract price includes all applicable Federal, State, and local
(2) Taxes imposed under 26 U.S.C. 5000C may not be—
(i) Included in the contract price; nor
(ii) Reimbursed.
4. Amend section 52.229–4 by revising the date of the clause and paragraph (b) to read as follows:
(b)(1) Unless otherwise provided in this contract, the contract price includes all applicable Federal, State, and local taxes and duties, except as provided in subparagraph (b)(2)(i) of this clause.
(2) Taxes imposed under 26 U.S.C. 5000C may not be—
(i) Included in the contract price; nor
(ii) Reimbursed.
5. Amend section 52.229–6 by:
(a) Revising the date of the clause;
(b) Redesignating paragraph (c) as (c)(1); removing from the newly designated paragraph (c)(1) “States.” and adding “States, except as provided in subparagraph (c)(2) of this clause.” in its place;
(c) Adding a new paragraph (c)(2);
(d) Redesignating paragraph (d) as (d)(1); removing from the newly designated paragraph (d)(1) “The contract price shall” and adding “Except as provided in subparagraph (d)(2) of this clause, the contract price shall” in its place; and
(e) Adding a new paragraph (d)(2).
The revised and newly added text reads as follows:
(c)(1) * * *
(2) Taxes imposed under 26 U.S.C. 5000C may not be—
(i) Included in the contract price; nor
(ii) Reimbursed.
(d)(1) * * *
(2) The contract price may not be increased to offset taxes imposed under 26 U.S.C. 5000c.
6. Amend section 52.229–7 by:
a. Revising the date of the clause;
b. Redesignating paragraph (b) as (b)(1); and
c. Adding a new paragraph (b)(2).
The revised and newly added text reads as follows:
(b) * * *
(2) Taxes imposed under 26 U.S.C. 5000c may not be included in the contract price.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
This rule proposes catch limits and associated measures for the Northeast Skate Complex Fishery for the 2012–2013 fishing years. The proposed action was developed by the New England Fishery Management Council pursuant to the provisions of the Northeast Skate Complex Fishery Management Plan. The proposed catch limits are supported by the best available scientific information and reflect recent increases in skate biomass.
Public comments must be received no later than 5 p.m., eastern standard time, on March 23, 2012.
An environmental assessment (EA) was prepared that describes the proposed action and other considered alternatives, and provides a thorough analysis of the impacts of the proposed measures and alternatives. Copies of the EA and the Initial Regulatory Flexibility Analysis (IRFA), are available on request from Paul J. Howard, Executive Director, New England Fishery Management Council, 50 Water Street, Newburyport, MA 01950. These documents are also available online at
You may submit comments, identified by NOAA–NMFS–2012–0015, by any one of the following methods:
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Tobey Curtis, Fishery Policy Analyst, (978) 281–9273; fax: (978) 281–9135.
The New England Fishery Management Council (Council) is responsible for developing management measures for skate fisheries in the northeastern U.S. through the Northeast Skate Complex Fishery Management Plan (Skate FMP). Seven skate species are managed under the Skate FMP: Winter, little, thorny, barndoor, smooth, clearnose, and rosette. The Council's Scientific and Statistical Committee (SSC) reviews the best available information on the status of skate
Amendment 3 to the Skate FMP was implemented in July 2010 (75 FR 34049, June 16, 2010). It instituted an annual catch limit (ACL) and accountability measures (AMs) for the skate fishery, created an annual review and specifications process, and set fishery specifications for the 2010–2011 fishing years (through April 30, 2012). The ACL was set equal to the ABC recommendation of the SSC (41,080 metric tons (mt)). Amendment 3 also implemented an annual catch target (ACT), which is 75 percent of the ACL, and annual total allowable landings (TALs) for the skate wing and bait fisheries (TAL = ACT—dead discards and state landings), three seasonal quotas for the bait fishery, and possession limits in each fishery. Skate wing possession limits were subsequently modified by Framework Adjustment 1 (76 FR 28328, May 17, 2011).
In June 2011, the SSC gave the Council a new recommendation for skate ABC to be used for the 2012–2013 fishing years (50,435 mt). The proposed specifications reflect the best available scientific information on skates. The ABC is calculated by multiplying the median catch/biomass ratio by the most recent 3-year average skate biomass from the NMFS bottom trawl survey. A calibration workshop was conducted in early 2011 to determine the best method to calibrate skate survey biomass between the new survey vessel,
In light of the significant increase in ABC, the Council requested that NMFS implement the revised catch limits through a Secretarial emergency action for the remainder of the 2011 fishing year. NMFS reviewed the Council's request and published a final rule on November 28, 2011, implementing increases in ABC, ACL, ACT, and TALs (76 FR 66856, October 28, 2011). The emergency action provided an otherwise unavailable economic opportunity by allowing the fishery to harvest more skates and have a longer fishing season during the 2011 fishing year. This also helped avoid the detrimental economic impacts that would have been associated with possibly closing the skate fisheries in the absence of the emergency action. These proposed specifications are intended to replace the measures implemented by the 2011 emergency action (which expire April 30, 2012), but are similar to the emergency action measures in most cases.
Based on the June 2011ABC recommendation from the SSC, the Council proposed the following specifications for the skate fishery for the 2012–2013 fishing years:
1. That the skate ABC and ACL be specified at 50,435 mt;
2. That the ACT be specified at 37,826 mt;
3. That the TAL be specified at 23,365 mt (the skate wing fishery would be allocated 66.5 percent of the TAL (15,538 mt) and the skate bait fishery would be allocated 33.5 percent of the TAL (7,827 mt));
4. That the skate bait possession limit be increased from 20,000 lb (9,072 kg) to 25,000 lb (11,340 kg) whole weight per trip for vessels carrying a valid Skate Bait Letter of Authorization; and,
5. That the skate wing possession limits be reduced from 2,600 lb (1,179 kg) to 2,200 lb (998 kg) wing weight per trip for Season I (May 1 through August 31), and decreased from 4,100 lb (1,860 kg) to 3,600 lb (1,633 kg) wing weight per trip for Season II (September 1 through April 30).
As described in the 2011 emergency action, the Council-recommended TAL uses an inappropriately low estimate of state water landings that must be deducted from the ACT (3 percent of total landings). More recent analyses using a more accurate definition of state water landings indicate that the 2007–2009 average state water landings were approximately 6.7 percent of total landings. Therefore, this action proposes to use the same TAL specified in the emergency action (21,561 mt), rather than the slightly higher TAL proposed by the Council and described above. This would effectively keep the skate TALs and associated quotas at status quo levels through the 2013 fishing year (Table 1). This TAL is 56 percent greater than the 2010 and initial 2011 TAL (no action alternative), continuing higher allowable harvest levels for skates.
This rule proposes minor reductions to the skate wing possession limits in an effort to avoid implementation of the incidental skate wing possession limit (i.e., closure of the directed skate wing fishery) before the end of the fishing year. The possession limit analysis used by the Council was based on skate landing rates in 2010 and early 2011 when landing rates were particularly high. However, landing rates have slowed during 2011, and the wing fishery is not currently projected to harvest 100 percent of its 2011 TAL. Therefore, there may not be justification to reduce the skate wing possession limits for the 2012–2013 fishing years. This rule proposes to increase the skate bait possession limit because the bait fishery consistently under-harvested its quotas in 2010 and 2011. NMFS is requesting comment on whether or not these proposed possession limit changes should be implemented.
Based upon the results of the trawl survey vessel calibration, this rule proposes to update stock status determination criteria for skates. These updates include refinement of the survey strata used for determining the stock status of each skate species, as described in the EA for this action (see the
The specifications in this proposed rule also apply previously unaccounted for skate bait transfers at sea against the skate bait fishery quotas. Analysis indicates that bait transfers at sea, on average, represent approximately 18 percent of total skate landings, and need to be considered when monitoring catch. Finally, in order to be consistent with the requirements of Amendment 3, this rule also proposes to remove a reference to Northeast multispecies sectors in the skate wing possession limit regulations found at § 648.322 (b). The skate wing possession limits were not intended to apply to sector vessels, and this reference should have been removed from the Amendment 3 final
The proposed specifications are expected to maintain positive economic impacts for the fishery, such as the increases in skate revenues that resulted from implementation of the emergency rule, while also maintaining the conservation objectives of the Skate FMP. Although the landings of skate wings are expected to remain high under the proposed specifications, overall catch of skates will not likely be significantly affected due to the nature of the skate wing fishery, which is primarily an incidental fishery within the groundfish and monkfish fisheries. Under the no action alternative with lower quotas, once the possession limit trigger is reached, skates that are caught in these primary fisheries above the incidental possession limit of 500 lb (227 kg) would be discarded. This proposed rule would enable fishermen to continue to retain and land for sale those skates that would otherwise have to be discarded.
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has made a preliminary determination that this proposed rule is consistent with the Skate FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.
The Office of Management and Budget has determined that this proposed rule is not significant for the purposes of Executive Order 12866.
The Council prepared an IRFA, as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of this action, why it is being considered, and the legal basis for this action are contained at the beginning of this section of the preamble and in the
The Small Business Administration (SBA) considers commercial fishing entities (NAICS code 114111) to be small entities if they have no more than $4 million in annual sales, while the size standard for charter/party operators (NAICS code 487210) is $7 million in sales. All of the entities (fishing vessels) affected by this action are considered small entities under the SBA size standards for small fishing businesses. Although multiple vessels may be owned by a single owner, available tracking of ownership is not readily available to reliably ascertain affiliated entities. Therefore, for the purposes of this analysis, each permitted vessel is treated as a single small entity and is determined to be a small entity under the RFA. Accordingly, there are no differential impacts between large and small entities under this rule. Information on costs in the fishery is not readily available, and individual vessel profitability cannot be determined directly; therefore, expected changes in gross revenues were used as a proxy for profitability.
This action does not introduce any new reporting, recordkeeping, or other compliance requirements. This proposed rule does not duplicate, overlap, or conflict with other Federal rules.
The proposed increase in the skate ACL and TALs would impact vessels that hold Federal open access commercial skate permits that participate in the skate fishery. According to the Framework 1 final rule and Final Regulatory Flexibility Analysis (76 FR 28328, May 17, 2011), as of December 31, 2010, the maximum number of small fishing entities (as defined by the SBA) that may be affected by this action is 2,607 entities (number of skate permit holders). However, during fishing year 2010, only 601 vessels landed any amount of skate.
The purpose of annual fishery specifications is to ensure that management measures accurately reflect the best available scientific information. The proposed action represents the maximum catch limits that could be implemented under the approved Skate FMP and regulations. Alternatives with higher catch limits, that might provide increased fishing opportunities, were not considered because such alternatives would be inconsistent with the Magnuson-Stevens Act and the Skate FMP. Any other alternatives would provide fewer fishing opportunities than the proposed action; therefore, the IRFA analyzes only the proposed action and the no action alternative.
The purpose of the proposed action is to maintain the increased skate catch and landing limits of the emergency rule, thereby providing economic benefits to the fishery by continuing to extend the duration of the fishing season. This contrasts with the negative economic impacts that would be associated with the lower catch limits and potential fishery closures that would occur under the no action alternative. The proposed action is expected to maximize the short-term profitability for the skate fishery by continuing higher levels of landings for fishing years 2012 and 2013. It is also expected to minimize potential long-term economic impacts by implementing catch levels that are sustainable and that contribute to stock rebuilding. Therefore, the economic impacts resulting from the proposed
The proposed action is almost certain to result in greater revenue from skate landings. Based on recent landing information, the skate fishery is able to land close to the full amount of skates allowable under the quotas. The estimated potential revenue from the sale of skates under the proposed catch limits is approximately $9.8 million per year, compared to $5.8 million if this action were not implemented. However, vessels that participate in the skate fishery derive most (an average of 96 percent) of their revenues from other fisheries (e.g., groundfish, monkfish). In fishing year 2010, the average total revenue (from all species combined) for the 601 vessels that landed skates was $234,389, of which an average of $17,042 was derived from skates. Therefore alterations to catch limits of other species would be expected to result in greater impacts on total fishing revenues than would alterations in skate catch limits. The proportion of revenue derived from skates may change over time, as skate prices have begun increasing in recent years, and more vessels have been deriving a greater proportion of their income from skates.
Fisheries, Fishing, Reporting and recordkeeping.
For the reasons set out in the preamble, 50 CFR part 648 is proposed to be amended as follows:
1. The authority citation for part 648 continues to read as follows:
16 U.S.C. 1801
2. In § 648.322, revise paragraph (b) introductory text, (b)(1) and (c)(4) to read as follows:
(b)
(1) Up to 2,200 lb (998 kg) of skate wings (4,994 lb (2,265 kg) whole weight) per trip from May 1 through August 31, and 3,600 lb (1,633 kg) of skate wings (8,172 lb (3,707 kg) whole weight) per trip from September 1 through April 30, except for a vessel fishing on a declared NE multispecies Category B DAS described under § 648.85(b), which is limited to no more than 220 lb (100 kg) of skate wings (500 lb (227 kg) whole weight) per trip (or any prorated combination of skate wings and whole skates based on the conversion factor for wing weight to whole weight of 2.27—for example, 100 lb (45.4 kg) of skate wings X 2.27 = 227 lb (103.1 kg) of whole skates).
(c) * * *
(4) The vessel owner or operator possesses or lands no more than 25,000 lb (11,340 kg) of only whole skates less than 23 inches (58.42 cm) total length, and does not possess or land any skate wings or whole skates greater than 23 inches (58.42 cm) total length.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS issues this proposed rule for the 2012 Pacific whiting fishery under the authority of the Pacific Coast Groundfish Fishery Management Plan (FMP), the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), and the Pacific Whiting Act of 2006. This proposed rule would establish a tribal allocation of 17.5 percent of the U.S. total allowable catch (TAC) for 2012.
The regulations proposed by this action would also establish a process for reapportionment of unused tribal allocation of Pacific whiting to the non-tribal fisheries.
Comments on this proposed rule must be received no later than 5 p.m., local time on March 23, 2012.
You may submit comments, identified by RIN 0648–BB85 by any of the following methods:
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NMFS will accept anonymous comments (if submitting comments via the Federal Rulemaking portal, enter “N/A” in the relevant required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.
Kevin C. Duffy (Northwest Region, NMFS), phone: 206–526–4743, fax: 206–526–6736 and email:
This proposed rule is accessible via the Internet at the Office of the Federal Register's Web site at
The regulations at 50 CFR 660.50(d) establish the process by which the tribes with treaty fishing rights in the area
Since 1996, NMFS has been allocating a portion of the U.S. TAC (called Optimum Yield (OY) or Annual Catch Limit (ACL) prior to 2012) of Pacific whiting to the tribal fishery following the process established in 50 CFR 660.50(d). The tribal allocation is subtracted from the U.S. Pacific whiting TAC before allocation to the non-tribal sectors.
To date, only the Makah Tribe has prosecuted a tribal fishery for Pacific whiting. The Makah Tribe has annually harvested a whiting allocation every year since 1996 using midwater trawl gear. Since 1999, the tribal allocation has been made in consideration of their participation in the fishery. In 2008 the Quileute Tribe and Quinault Indian Nation expressed an interest in commencing participation in the whiting fishery. Tribal allocations for 2009–2011 were based on discussions with all three tribes regarding their intent for those fishing years. The table below provides a history of U.S. OYs/ACLs and the annual tribal allocation in metric tons (mt).
Prior to publication of the regulations for the 2011–2012 harvest specification biennial cycle, all three tribes mentioned above indicated their intent to participate at some point during this biennium. The Quinault Nation indicated that they were interested in entering the fishery in 2011, and both the Quileute and Makah Tribes indicated they intended to fish in both 2011 and 2012. Only the Makah tribe participated in the fishery in 2011. Based on exchanges with the tribes during November 2011, and again in January 2012, it appears that only the Makah tribe will participate in the Pacific whiting fishery in 2012.
Since 2008, NMFS and the co-managers, including the States of Washington and Oregon, as well as the Treaty tribes, have been involved in a process designed to determine the long-term tribal allocation for Pacific whiting. At the September 2008 Council meeting, NOAA, the states and the Quinault, Quileute, and Makah tribes met and agreed on a process in which NOAA would provide to the tribes and states of Washington and Oregon a summary of the current scientific information regarding whiting, receive comment on the information and possible analyses that might be undertaken, and then prepare analyses of the information to be used by the co-managers (affected tribes, affected states, and NMFS) in developing a tribal allocation for use in 2010 and beyond. The goal was agreement among the co-managers on a long-term tribal allocation for incorporation into the Council's planning process for the 2010 season. An additional purpose was to provide the tribes the time and information to develop an inter-tribal allocation or other necessary management agreement. In 2009, NMFS shared a preliminary report summarizing scientific information available on the migration and distribution of Pacific whiting on the west coast. The co-managers met in 2009 and discussed this preliminary information.
In 2010, NMFS finalized the report summarizing scientific information available on the migration and distribution of Pacific whiting on the west coast. In addition, NMFS responded in writing to requests from the tribes for clarifications on the paper and requests for additional information. NMFS also met with each of the tribes in the fall of 2010 to discuss the report and to discuss a process for negotiation of the long-term tribal allocation of Pacific whiting.
In 2011, NMFS again met individually with the Makah, Quileute, and Quinault tribes to discuss these matters. Due to the detailed nature of the evaluation of the scientific information, and the need to negotiate a long-term tribal allocation following completion of the evaluation, the process is continuing and will not be completed prior to the 2012 Pacific whiting fishery; thus the tribal allocation of whiting for 2012 will not reflect a negotiated long-term tribal allocation. Instead, it is an interim allocation not intended to set precedent for future allocations.
It is necessary to propose a range for the tribal allocation, rather than a specific allocation amount, because the specific allocation depends on the amount of the coastwide TAC (United States plus Canada) and corresponding U.S. TAC for 2012 (73.88% of the coastwide TAC). The Joint Management Committee (JMC), which is established pursuant to the _ Agreement between the Government of the United States of America and the Government of Canada on Pacific Hake/Whiting _ (the Agreement)
In the final Environmental Impact Statement (FEIS) addressing the groundfish fishery for the 2011 and 2012 harvest specifications and management measures, a range of 50 to 150 percent of the 2010 coastwide harvest level was analyzed.
The Council adopted a coastwide Overfishing Limit (OFL) of 973,700 mt for 2011 fisheries using the model-averaged results as recommended by the Council's Scientific and Statistical Committee (SSC). The Council recommended a coastwide harvest level of 393,751 mt for 2011 fisheries. Consistent with the terms of the Agreement, the U.S. allocation of the coastwide harvest level is 73.88 percent, which equated to 290,903 mt for 2011.
In order for the public to have an understanding of the potential tribal whiting allocation in 2012, NMFS is using the range of potential TACs analyzed in the 2011 FEIS to project a range of potential tribal allocations for 2012. Application of this range for 2011
As described above, based on exchanges with the tribes during November 2011, and more recently in January, 2012, it appears that only the Makah tribe will participate in the Pacific whiting fishery in 2012, and they have requested 17.5% of the U.S. TAC. Application of this percentage to the range of U.S. TACs results in a tribal allocation of between 16,970 and 50,908 mt for 2012. NMFS believes that the current scientific information regarding the distribution and abundance of the coastal Pacific whiting stock suggests that 17.5 percent of the U.S. TAC is within the range of the tribal treaty right to Pacific whiting.
As described earlier, NOAA Fisheries proposes this rule as an interim allocation for the 2012 tribal Pacific whiting fishery. As with past allocations, this proposed rule is not intended to establish any precedent for future whiting seasons or for the long-term tribal allocation of whiting.
The proposed rule would be implemented under authority of Section 305(d) of the Magnuson-Stevens Act, which gives the Secretary responsibility to “carry out any fishery management plan or amendment approved or prepared by him, in accordance with the provisions of this Act.” With this proposed rule, NMFS, acting on behalf of the Secretary, would ensure that the FMP is implemented in a manner consistent with treaty rights of four Northwest tribes to fish in their “usual and accustomed grounds and stations” in common with non-tribal citizens.
NMFS proposes to reinstate its regulatory authority to reapportion whiting from the tribal allocation to the non-tribal fishery when the tribes participating in the fishery will not take the entire tribal allocation during the fishing year. From 1997 through 2010, 50 CFR 660.323(c) provided authority to NMFS to undertake such reapportionment. For 2011, the regulatory provisions regarding reapportionment of tribal whiting allocation to the non-tribal fishery were eliminated when regulations implementing Amendment 21 were adopted in support of the trawl rationalization program. Revisions to the groundfish regulations at § 660.55 defined how “off the top” set-asides for all species, including the tribal allocation of Pacific whiting, would be dealt with. The new provisions did not allow flexibility to return the “off the top” set asides, including those for Pacific whiting, to other sectors of the fishery. Following implementation of the catch share program, the Council had additional discussions about reapportionment of the tribal allocation of Pacific whiting. The Council recommended that NMFS reinstate reapportionment provisions in order to promote full utilization of the Pacific whiting resource. NMFS is taking action at this time to reinstate similar reapportionment provisions, recognizing that modifications are needed to fit within the new regulatory structure implemented for the IFQ fishery.
By September 15 of the fishing year, the Regional Administrator will consider, based on discussions with tribal representatives, the tribal harvests to date and catch projections for the remainder of the year relative to the tribal allocation as specified at § 660.50 of Pacific whiting. That portion of the tribal allocation the Regional Administrator determines will not be used by the end of the fishing year may be made available for harvest by the other sectors of the trawl fishery, on September 15 or as soon as practicable thereafter. Based on the same factors described above, the Regional Administrator may reapportion whiting again at a later date to ensure full utilization of the resource. Any reapportionment of Pacific whiting from the tribal to the non-tribal sectors will be distributed in a manner consistent with the initial allocation of Pacific whiting among the non-tribal sectors, with 34 percent to the catcher-processor sector, 24 percent to the mothership sector, and 42 percent to the shorebased sector.
Current regulations at 50 CFR 660.140(d)(3)(ii)(B)(3) require that all Quota Pounds (QP) or Individual Bycatch Quota (IBQ) pounds from a Quota Share (QS) account must be transferred to one or more vessel accounts by September 1 of each year. This effectively closes QS accounts for the year.
If the Regional Administrator makes a decision to reapportion Pacific whiting from the tribal to the non-tribal fishery after September 1 in any year, the following actions will be taken.
NMFS will credit QS accounts with additional Pacific whiting quota pounds proportionally, based on the whiting QS percent for a particular QS permit owner and the amount of the sector reapportionment. The QS account transfer function will be reactivated by NMFS for a period of 30 days to allow permit holders to transfer only Pacific whiting QP to vessel accounts. After 30 days, the transfer function in QS accounts will again be deactivated. If an additional reapportionment of Pacific whiting occurs, the same procedures will be followed.
NMFS has preliminarily determined that the management measures for the 2012 Pacific whiting tribal fishery are consistent with the national standards of the Magnuson-Stevens Act and other applicable laws. NMFS, in making the final determination, will take into account the data, views, and comments received during the comment period.
The Office of Management and Budget has determined that this proposed rule is not significant for purposes of Executive Order 12866.
An IRFA was prepared, as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A summary of the analysis follows. A copy of this analysis is available from NMFS (see
Under the RFA, the term “small entities” includes small businesses, small organizations, and small governmental jurisdictions. The SBA has established size criteria for all different industry sectors in the US, including fish harvesting and fish processing businesses. A business involved in fish harvesting is a small business if it is independently owned and operated and not dominant in its field of operation (including its affiliates) and if it has combined annual receipts less than $4.0 million for all its affiliated operations worldwide. A seafood processor is a small business if it is independently owned and operated, not dominant in its field of operation, and employs 500 or fewer persons at all its affiliated operations worldwide. A business involved in both the harvesting and processing of seafood products is a small business if it meets the $4.0 million criterion for fish harvesting operations. A wholesale business servicing the fishing industry is a small business if it employs 100 or fewer persons at all its affiliated operations worldwide. For marinas and charter/party boats, a small business is a business with annual receipts less than $7.0 million. For nonprofit organizations, the RFA defines a small organization as any nonprofit enterprise that is independently owned and operated and is not dominant in its field. The RFA defines small governmental jurisdictions as governments of cities, counties, towns, townships, villages, school districts, or
Over the past five years (2007 to 2011), the total whiting fishery (tribal and non-tribal) has averaged landings of 197,000 mt annually, worth $36 million in terms of ex-vessel revenues. As the U.S. OY/ACL has been highly variable during this time, so have landings. During this period, landings have ranged from 121,000 mt (2009) to 248,000 mt (2008). Landings for 2011 are estimated to be about 197,000 mt. Ex-vessel revenues have also varied. Annual ex-vessel revenues have ranged from $14 million (2009) to $58 million (2008). Ex-vessel revenues in 2011 were about $46 million. As landings have varied, so have prices. These prices are largely determined by the world market for groundfish as most of the whiting harvested is exported. Ex-vessel prices have ranged from $116 per mt (2009) to $236 per mt (2008). Average ex-vessel price for whiting in 2011 was $232 per mt. Note that the use of ex-vessel values does not take into account the wholesale or export value of the fishery or the costs of harvesting and processing whiting into a finished product. NMFS does not have sufficient information to make a complete assessment of these values.
The Pacific whiting fishery harvests almost exclusively Pacific whiting. While bycatch of other species occurs, the fishery is constrained by bycatch limits on key overfished species. This is a high-volume fishery with low ex-vessel prices per pound. This fishery has seasonal aspects based on the distribution of whiting off the west coast. The whiting fishery has four components. The shorebased fishery delivers their catch to processing facilities on land. Most of these vessels also deliver other groundfish species to shorebased plants. This fishery is managed under an individual fishing quota system. In the mothership sector, catcher vessels deliver to floating processors called motherships. This fishery is managed under a single mothership co-op—the Whiting Mothership Cooperative. The catcher-processor fleet consists of vessels that both catch the fish and process it aboard. This fishery is also managed under a co-op—the Pacific Whiting Conservation Cooperative.
The fourth component of the fishery is the tribal fishery. Since 1996, there has been a tribal allocation of the U.S. whiting TAC. There are three tribes associated with the whiting fishery: Makah, Quileute, and Quinault.
There are two key features of this rule making: establishing the 2012 interim tribal allocation and reinstatement of regulatory authority to reapportion whiting from the tribal to the non-tribal fishery. The alternatives are “No-Action” vs. the “Proposed Action”. The proposed allocation, based on discussions with the tribes is for NMFS to allocate 17.5 percent of the U.S. total allowable catch for 2012. NMFS did not consider a broader range of alternatives to the proposed allocation. The tribal allocation is based primarily on the requests of the tribes. These requests reflect the level of participation in the fishery that will allow them to exercise their treaty right to fish for whiting. Consideration of amounts lower than the tribal requests is not appropriate in this instance. As a matter of policy, NMFS has historically supported the harvest levels requested by the tribes. Based on the information available to NMFS, the tribal request is within their tribal treaty rights, and the participating tribe has historically shown an ability to harvest the amount of whiting requested. A higher allocation would be, arguably, within the scope of the treaty right. However, a higher allocation would unnecessarily limit the non-tribal fishery. A no action alternative was considered, but the regulatory framework provides for a tribal allocation on an annual basis only. Therefore, no action would result in no allocation of Pacific whiting to the tribal sector in 2012, which would be inconsistent with NMFS' responsibility to manage the fishery consistent with the tribes' treaty rights. Given that there is a tribal request for allocation in 2012, this alternative received no further consideration.
There are two alternatives associated with reinstating the authority to reapportion unused Pacific whiting from the tribal fishery to the non-tribal fishery. The “No-Action” alternative is the authority not reinstated. The “Proposed” Alternative would be to reinstate the authority.
NMFS has reviewed analyses of fish ticket data and limited entry permit data, available employment data provided by processors, information on Tribal fleets, and industry responses to a 2010 survey on ownership and has developed the following estimates for the whiting fishery. There are four affected components of this fishery-Shorebased whiting, mothership whiting, catcher-processor, and tribal. In the shorebased whiting fishery, quota shares of whiting were allocated to 138 entities including ten shoreside processing companies. These entities can fish the quota pounds associated with their quota shares, transfer their quota pounds to other to fish, or choose not to fish their quota pounds. Whiting is landed as bycatch in other fisheries or as a target catch in the whiting fishery. To analyze the number of participants primarily affected by this rule making, targeted whiting trips are defined as landings that contained 5,000 pounds or more of whiting. During 2011, 62 vessels landed a total of about 200 million pounds of whiting. Of these vessels, only 26 vessels had landings greater than 5,000 pounds. Thirteen of these 26 vessels are “small” entities. These 26 vessels delivered their catch to 10 processing companies. These 10 processing companies, either through ownership or affiliation, can be organized into to 6 entities. Four of these 6 entities are “small” entities. There are 37 limited entry permits that have mothership whiting catch history assignments. During 2011, these 37 permits pooled their whiting catch history assignments into a single mothership fishery co-op. Approximately half of these vessels are “small” entities. Vessels in the mothership co-op deliver their catch to mothership processors. There are 6 mothership processing companies; three or which are “small” entities. The catcher-processor fleet has ten limited entry permits and 10 vessels, owned by three companies. These three companies are considered “large” companies mainly because of their operations off Alaska. The tribal fleet is comprised of 5 vessels considered to be “small” entities, while the 3 tribal governments, based on population sizes, are considered “small” entities.
The expected effect of the “Proposed” alternative relative to the “No Action” alternative is to allow unharvested tribal allocations of whiting to be fished by the non-tribal fleets, benefitting both large and small entities. With the implementation of Amendments 20 and 21, the ability to reapportion whiting from tribal to the non-tribal fishery was eliminated for 2011. Pending markets, available bycatch, and the ability of tribal fleets to develop the capacity to harvest the tribal allocation there may be uncaught whiting in the tribal fishery because there is no regulatory mechanism to transfer uncaught whiting to the non-tribal fishery. For 2010, the tribes were initially allocated 49,939 mt. As tribal harvests were projected to be about 16,000 mt, in September 2010 and October 2010, NMFS reapportioned a total of 16,000 mt of whiting from the tribal allocation to the non-tribal shorebased, mothership, and catcher processor sectors. Unlike 2010, for 2011, NMFS was not authorized to reapportion unharvested tribal whiting to the non-tribal sectors. Tribal harvests
This proposed rule would directly regulate which entities can harvest whiting. This rule would allocate fish between tribal harvesters (harvest vessels are small entities, tribes are small jurisdictions) to non-tribal harvesters (a mixture of small and large businesses). Tribal fisheries are a mixture of activities that are similar to the activities that non-tribal fisheries undertake. Tribal harvests are delivered to both shoreside plants and motherships for processing. These processing facilities also process fish harvested by non-tribal fisheries.
NMFS believes this proposed rule would not adversely affect small entities and is likely to be beneficial to both small and large entities as it allows unharvested tribal fish to be harvested by non-tribal harvesters. Nonetheless, NMFS has prepared this IRFA and is requesting comments on this conclusion.
There are no reporting, recordkeeping or other compliance requirements in the proposed rule.
No Federal rules have been identified that duplicate, overlap, or conflict with this action.
NMFS issued Biological Opinions under the ESA on August 10, 1990, November 26, 1991, August 28, 1992, September 27, 1993, May 14, 1996, and December 15, 1999 pertaining to the effects of the Pacific Coast groundfish FMP fisheries on Chinook salmon (Puget Sound, Snake River spring/summer, Snake River fall, upper Columbia River spring, lower Columbia River, upper Willamette River, Sacramento River winter, Central Valley spring, California coastal), coho salmon (Central California coastal, southern Oregon/northern California coastal), chum salmon (Hood Canal summer, Columbia River), sockeye salmon (Snake River, Ozette Lake), and steelhead (upper, middle and lower Columbia River, Snake River Basin, upper Willamette River, central California coast, California Central Valley, south/central California, northern California, southern California). These biological opinions have concluded that implementation of the FMP for the Pacific Coast groundfish fishery was not expected to jeopardize the continued existence of any endangered or threatened species under the jurisdiction of NMFS, or result in the destruction or adverse modification of critical habitat.
NMFS issued a Supplemental Biological Opinion on March 11, 2006 concluding that neither the higher observed bycatch of Chinook in the 2005 whiting fishery nor new data regarding salmon bycatch in the groundfish bottom trawl fishery required a reconsideration of its prior “no jeopardy” conclusion. NMFS also reaffirmed its prior determination that implementation of the Groundfish PCGFMP is not likely to jeopardize the continued existence of any of the affected ESUs. Lower Columbia River coho (70 FR 37160, June 28, 2005) and Oregon Coastal coho (73 FR 7816, February 11, 2008) were recently relisted as threatened under the ESA. The 1999 biological opinion concluded that the bycatch of salmonids in the Pacific whiting fishery were almost entirely Chinook salmon, with little or no bycatch of coho, chum, sockeye, and steelhead.
NMFS has reinitiated consultation on the fishery to address newly listed species including Pacific eulachon and green sturgeon, and other non-salmonid listed species (marine mammals, sea birds, and turtles). NMFS will be completing a consultation on listed marine species for the 2012 groundfish fishery by the end of January 2012, and expects that consultation on seabirds will be completed prior to late summer of 2012. Further, NMFS has concluded that take of any marine species that will be covered by the opinion to be issued in early 2012 is very unlikely to occur prior to completion of that opinion, and that take of listed seabirds is unlikely to occur in 2012. Marine Mammal Protection Act (MMPA)
Impacts resulting from fishing activities proposed in this rule are discussed in the FEIS for the 2011–12 groundfish fishery specifications and management measures. As discussed above, NMFS does not anticipate incidental take of ESA-listed marine mammals prior to the completion of the 2012 ESA consultation covering these species. NMFS expects to complete the process leading to any necessary authorization of incidental taking under MMPA section 101(a)(5)(E) concurrent with the 2012 biological opinion.
Pursuant to Executive Order 13175, this proposed rule was developed after meaningful consultation and collaboration with tribal officials from the area covered by the FMP. Consistent with the Magnuson-Stevens Act at 16 U.S.C. 1852(b)(5), one of the voting members of the Pacific Council is a representative of an Indian tribe with federally recognized fishing rights from the area of the Council's jurisdiction. In addition, NMFS has coordinated specifically with the tribes interested in the whiting fishery regarding the issues addressed by this rule.
Fisheries, Fishing, Indian fisheries.
For the reasons set out in the preamble, 50 CFR part 660 is proposed to be amended as follows:
1. The authority citation for part 660 is amended to read as follows:
16 U.S.C. 1801
2. In § 660.50, paragraph (f)(4) is revised to read as follows:
(f) * * *
(4)
3. In § 660.60 paragraphs (d)(1)(iv),and (v) are revised and paragraphs(d)(1)(vi) and(d)(2) are added to read as follows:
(d) * * *
(1) * * *
(iv) Reapportionment of the unused portion of the tribal allocation of Pacific whiting to the IFQ, mothership and catcher processor Pacific whiting fisheries.
(v) Implement the Ocean Salmon Conservation Zone, described at § 660.131(c)(3), when NMFS projects the Pacific whiting fishery may take in excess of 11,000 Chinook within a calendar year.
(vi) Implement Pacific Whiting Bycatch Reduction Areas, described at § 660.131(c)(4) Subpart D, when NMFS projects a sector-specific bycatch limit will be reached before the sector's whiting allocation.
(2) Automatic actions are effective when actual notice is sent by NMFS. Actual notice to fishers and processors
4. In § 660.131 a new paragraph (h) is added to read as follows:
(h) Reapportionment of Pacific Whiting.(1) By September 15 of the fishing year, the Regional Administrator will, based on discussions with representatives of the tribes participating in the Pacific whiting fishery for that fishing year, consider the tribal harvests to date and catch projections for the remainder of the year relative to the tribal allocation as specified at § 660.50 of Pacific whiting. That portion of the tribal allocation that the Regional Administrator determines will not be used by the end of the fishing year may be reapportioned to the other sectors of the trawl fishery in proportion to their initial allocations, on September 15 or as soon as practicable thereafter. Subsequent reapportionments may be made based on subsequent determinations by the Regional Administrator based on the factors described above in order to ensure full utilization of the resource.
(2) The reapportionment of surplus whiting will be made effective immediately by actual notice under the automatic action authority provided at 660.60 (d)(1).
(3) Estimates of the portion of the tribal allocation that will not be used by the end of the fishing year will be based on the best information available to the Regional Administrator.
5. In § 660.140 paragraph (d)(1)(ii) and (d)(3)(ii)(B)(
(d) * * *
(1) * * *
(ii) Annual QP and IBQ pound allocations. QP and IBQ pounds will be deposited into QS accounts annually. QS permit owners will be notified of QP deposits via the IFQ Web site and their QS account. QP and IBQ pounds will be issued to the nearest whole pound using standard rounding rules (
(3) * * *
(ii) * * *
(B) * * *
(
(
(
(
Animal and Plant Health Inspection Service, USDA.
Notice; extension of comment period.
We are extending the comment period for a petition received from Dow AgroScience LLC seeking a determination of nonregulated status of corn designated as DAS–40278–9, which has been genetically engineered for increased resistance to broadleaf herbicides in the phenoxy auxin group (such as the herbicide 2,4-D) and resistance to grass herbicides in the aryloxyphenoxypropionate acetyl coenzyme A carboxylase inhibitor group (such as quizalofop herbicides). This action will allow interested persons additional time to prepare and submit comments on the petition, our plant pest risk assessment, and our draft environmental assessment for the proposed determination of nonregulated status.
We will consider all comments that we receive on or before April 27, 2012.
You may submit comments by either of the following methods:
•
•
Supporting documents and any comments we receive on this docket may be viewed at
The petition, draft environmental assessment, and plant pest risk assessment are also available on the APHIS Web site at
Mr. Evan Chestnut, Policy Analyst, Biotechnology Regulatory Services, APHIS, 4700 River Road Unit 147, Riverdale, MD 20737–1236; (301) 851–3910, email:
On December 27, 2011, we published in the
Comments on the Dow petition, our plant pest risk assessment, and our draft environmental assessment for the proposed determination of nonregulated status were required to be received on or before February 27, 2012. We are extending the comment period on Docket No. APHIS–2010–0103 for an additional 60 days, ending April 27, 2012. This action will allow interested persons additional time to prepare and submit comments on the Dow petition, our plant pest risk assessment, and our draft environmental assessment for the proposed determination of nonregulated status.
7 U.S.C. 7701–7772 and 7781–7786; 31 U.S.C. 9701; 7 CFR 2.22, 2.80, and 371.3.
Forest Service, USDA.
Notice of intent to prepare an environmental impact statement.
Mitsubishi Cement Corporation is submitting to the San Bernardino National Forest and San Bernardino County, for permitting, a Plan of Operations and Reclamation Plan for the South Quarry. The South Quarry will total approximately 153.6 acres consisting of a 128-acre quarry, a 2.7 acre landscape berm, a 22.2-acre haul road 1.8 miles in length, and a temporary construction road of 0.7 acres. The South Quarry and haul road will be located almost entirely (147.0 acres) on 440 acres of unpatented claims owned by Mitsubishi Cement Corporation on the San Bernardino National Forest with approximately 6.6 acres of the haul road located on Mitsubishi Cement Corporation fee land where it enters the existing East Pit.
Comments are being requested to help identify significant issues or concerns related to the proposed action, to determine the scope of the issues (including alternatives) that need to be analyzed and to eliminate from detailed study those issues that are not significant. Supporting documentation should be included with comments recommending that the joint Environmental Impact Statement (EIS) and Environmental Impact Report (EIR) (EIS/EIR), to be prepared by the San Bernardino National Forest and County of San Bernardino, as the lead state agency under the California Environmental Quality Act (CEQA), address specific environmental issues.
Comments concerning the scope of the analysis must be received by March 23, 2012. The draft EIS/EIR is expected fall 2012 and the final EIS/EIR is expected spring 2013.
Send written comments to San Bernardino National Forest, Mitsubishi South Quarry Expansion Project, do Anne Surdzial, ECORP Consulting, Inc. 215 N. 5th Street, Redlands, CA 92374. Comments may also be sent via email to
Comments received in response to this solicitation, including names and addresses of those who comment, will be part of the public record for this proposed action. However, comments submitted anonymously will be accepted and considered.
Thomas Hall, Environmental Coordinator, San Bernardino National Forest at (909) 382–2905 or
Mitsubishi Cement Corporation submitted the Plan of Operations and Reclamation Plan for the proposed South Quarry to the Mountaintop District Ranger, San Bernardino National Forest, on October 22, 2010. The South Quarry is within portions of Sections 14, 15, 22, and 23 Township 3 North, Range 1 East. Elevations at the South Quarry site currently range from 5,555 to 6,675 feet.
The South Quarry would be mined at an average production rate of 1.3 million tons per year of ore and 150,000 tons per year of waste rock for up to 120 years. At this time, Mitsubishi Cement Corporation is requesting a 120-year operations plan excavating approximately 156 million tons of ore. Mitsubishi Cement Corporation's Cushenbury Cement Plant requires a limestone feed of up approximately 2.6 million tons per year, and this would not change as a result of the South Quarry Project. East and West Pits would be reduced to an average of 1.3 million tons per year of ore and 150,000 tons per year of waste rock. Therefore the overall limestone production of 2.6 million tons per year and 300,000 tons per year of waste rock at the mining complex would not change.
Mitsubishi Cement Corporation submitted to San Bernardino National Forest and San Bernardino County a Plan of Operations and Reclamation Plan for the proposed South Quarry. The Forest Service is analyzing the surface use of National Forest System lands in connection with operations authorized by the United States mining laws (30 U.S.C. 21–54), which confer a statutory right to enter upon the public lands to search for minerals, shall be conducted so as to minimize adverse environmental impacts on National Forest System surface resources. The responsibility for managing mineral resources is in the Secretary of the Interior.
Mitsubishi Cement Corporation's Cushenbury Cement Plant requires a limestone feed of approximately 2.6 million tons per year of a specific blend of limestone in order to manufacture cement. In 2004, as the existing East Pit neared its exhaustion of cement grade limestone, the West Pit expansion was approved by the County of San Bernardino on 191 acres to the west of the existing East Pit with approximately 217 million tons of limestone reserves. The amount of high grade limestone to blend with the lower grades of limestone to meet the feed requirement for the cement plant would not be adequate for the life of the mine. The proposed South Quarry site would be able to meet the requirements for blending with its estimated, proven and inferred reserves of over 200 million tons of high to medium grade limestone rock.
The development of the South Quarry would consist of construction of the 1.8 mile long haul road, four phases of excavations, concurrent reclamation, and then final reclamation followed by revegetation monitoring. During the first two years, the 1.8-mile long haul road would be constructed. The planned haul road would access the South Quarry at 5,950 feet amsl and traverse down the north slope to an elevation of 5,050 feet amsl at the southwest corner of the existing East Pit. The road's surface width would be 50 to 60 feet with a grade not to exceed 10% and it would have a surface of crushed limestone. The excavation plan for the South Quarry is divided into four phases based on operational, engineering, and environmental concerns with the development of the main quarry to a maximum depth of 5,365 feet above mean sea level or 1,215 feet below the quarry rim on the south. Phase 1A would be initiated after construction of the haul road and compliance with preconstruction conditions and has ore reserves of approximately 3.5 years. Phase 1B would excavate the southeast 31 acres of the quarry. Reserves are estimated at about 29 million tons of ore. At an ore production rate of 1.3 million tons per year, Phase 1B would have a life of approximately 22 years. Phase 2 would excavate the central 85 acres of the quarry. Reserves are estimated at 19 million tons of ore. At an ore production rate 1.3 million tons per year, Phase 1B would have a life of approximately 14.5 years for a cumulative total of 40 years from the
Minimal amounts of overburden are expected as the limestone is generally exposed across the quarry site. Any topsoil onsite would be in the form of smaller eroded limestone gravel that may contain organic material and seeds. This surface material would be salvaged and stored in separately marked stockpiles for future reclamation efforts along and above the top benches and used for the construction of the landscape berm along the southern rim. Instead of removing the waste rock and depositing it in a separate waste stockpile(s) outside the rim of the quarry, this plan proposes to backfill the waste rock within Phases 1B and 4 as mining progresses with depth.
Mitsubishi Cement Corporation proposes to reclaim the quarry site to meet both Forest Service Minerals Regulations (36 CFR 228, Subpart A) under the jurisdiction of the San Bernardino National Forest and the California Surface Mining and Reclamation Act implemented by San Bernardino County that will minimize impacts to the surrounding environment. Due to planned extraction, the permanent perimeter quarry slopes would be reclaimed from the rim downward as completed per phase to meet designed slopes dependent on the findings of the ongoing slope stability assessments. Reclamation would consist of sloping excavated cuts and benches as necessary to meet the designed 0.55H: 1V overall slope and to round the rims of the final benches. Each bench would be sloped inward toward the vertical wall to capture any precipitation or runoff. The individual benches would be approximately 45 feet vertical and 25 feet wide unless required to be flatter in specific areas, as determined by geological mapping during ongoing quarry operations or where the waste rock stockpiles would be located. Surface material salvaged for revegetation would be limited due to the surficial rock conditions onsite. Available material containing the native seed bank would be placed on the benches and would be augmented with additional growth media and mulch in “islands” to provide future sources of seeds. The revegetation methods include seeding with native perennial species, plantings grown in a nursery whether started from seed, cuttings or whole plant salvage from seeds collected at or near the site, and planting plants salvaged from new mining areas. The Biological Monitoring Plan would be an ongoing effort to assess the results of revegetation on the disturbed areas of the site. The monitoring plan would be followed annually to monitor and assess completed revegetated areas and areas where revegetation is being planned or just beginning.
The Plan of Operations includes avoidance/minimization and environmental protection measures, including:
1. Mitsubishi Cement Corporation will, upon withdrawal, quit-claim specified unpatented mining claims held within San Bernardino National Forest, and convey specified patented lands, which have been verified by the Forest Service to contain occupied endangered species habitat on a 3 to 1 ratio (acres and conservation value) as mitigation for impacts of the expansion on Cushenbury buckwheat (
2. Control of surface drainage, erosion, and sedimentation of the proposed haul road and quarry operations will involve the following primary components currently being implemented for existing operations:
a. Limiting surface disturbance to the minimum area required for active operations.
b. Diverting runoff, where operationally feasible, such that runoff from undisturbed areas does not enter the area of active operations.
c. Using ditches, sediment basins, and localized control and maintenance measures to intercept and control runoff along the haul road.
d. Stabilizing disturbance areas through regrading, revegetation, and other restoration practices.
3. To avoid incidental killing of birds protected under the Migratory Bird Treaty Act, two measures will be implemented: (1) Complete all vegetation removal or initial grading outside the breeding season (i.e., do not remove potential nesting habitat from February 1 through August 31), or (2) confirm prior to beginning vegetation removal but after survey flagging is in place showing the limits of grading, that no birds are nesting in areas to be disturbed.
4. The occurrence of weeds on-site shall be monitored by visual inspection. The goal is to prevent weeds from becoming established and depositing seeds in areas to be revegetated at a later date. No areas will be allowed to have more than 20 percent of the ground cover provided by nonnative plant species. If inspections reveal that weeds are becoming an issue or have established on-site, then removal will be initiated. Inspections shall be made in conjunction with revegetation monitoring.
The San Bernardino National Forest and County of San Bernardino, as the lead state agency under the California Environmental Quality Act (CEQA), will be preparing a joint Environmental Impact Statement (EIS) and Environmental Impact Report (EIR). This EIS/EIR will analyze and disclose the potential effects of the proposed limestone quarry. Each joint lead agency retains its decisionmaking authority over the part of the proposed action over which it has authority and does not acquire any influence over the other's decisionmaking.
The Mojave Desert Air Quality Management District has agreed to participate as a cooperating agency and to provide expertise regarding the proposed actions' relationship to the relevant objectives of regional, State and local land use plans, policies and controls.
The Responsible Official for the Mitsubishi South Quarry Expansion project is the San Bernardino National Forest Supervisor, Jody Noiron.
The Responsible Official will decide whether to approve the Plan of Operation following the environmental analysis. The Forest Service does not have the authority to remove the proponent's ability to mine its claims on National Forest System lands. San Bernardino County will decide whether to approve the Reclamation Plan under SMARA following the analysis under CEQA.
This notice of intent initiates the scoping process, which guides the development of the EIS/EIR. The complete Plan of Operation and Reclamation Plan is available on the San Bernardino National Forest Web site at:
It is important that reviewers provide their comments at such times and in such manner that they are useful to the agency's preparation of the EIS/EIR. Therefore, comments should be provided prior to the close of the comment period and should clearly articulate the reviewer's concerns and contentions.
Rural Utilities Service, USDA.
Notice of Intent To Hold Public Scoping Meetings and Prepare an Environmental Assessment.
The Rural Utilities Service (RUS), an agency of the United States Department of Agriculture, intends to hold public scoping meetings and prepare an Environmental Assessment (EA) to meet its responsibilities under the National Environmental Policy Act (NEPA) and RUS's Environmental Policies and Procedures (7 CFR part 1794) in connection with potential impacts related to a proposed project in Colorado by Tri-State Generation and Transmission Association, Inc. (Tri-State). The proposed Burlington-Wray 230-kilovolt (kV) Transmission Project (Proposal) consists of the following: a proposed new single-circuit 230-kV electric transmission line between the existing Burlington Substation in Kit Carson County and the existing Wray Substation in Yuma County. Tri-State is requesting that RUS provide financial assistance for the Proposal.
RUS will conduct public scoping meetings in an open house format to provide information and solicit comments for the preparation of the EA. The scoping meetings will be held on the following dates: Tuesday, March 6, 2012, from 5–8 p.m. at the Burlington Community Center, 340 South 14th Street, Burlington, Colorado 80807; Wednesday, March 8, 2012, 5–8 p.m. at the Wray Roundhouse, 245 West 4th Street, Wray, Colorado 80758. All written questions and comments must be received on or before March 23, 2012.
An Alternative Evaluation Study (AES) and Macro Corridor Study (MCS) have been prepared for the proposed project. All documents are available for review prior to and at the public scoping meetings. The reports are available at the RUS address provided in this notice and on the agency's Web site:
Tri-State Generation and Transmission Association, Inc., 1100 West 116th Avenue, Westminster, Colorado 80234–2814.
K.C. Electric Association, 281 Main Street, Stratton, Colorado 80836.
Y–W Electric Association, 1016 Grants Way, Wray, Colorado 80758–1915.
Wray Public Library, 301 W. 7th Street, Wray, Colorado 80758.
Burlington Public Library, 321 14th Street, Burlington, CO 80807.
To obtain copies of the EA, to comment on the EA, or for further information, contact Dennis Rankin, Environmental Protection Specialist, USDA Rural Utilities Service, 1400 Independence Avenue SW., Stop 1571, Washington, DC 20250–1571, Telephone: (202) 720–1953, Facsimile: (202) 690–0649, or email
The primary purpose for the Proposal is to alleviate transmission system limitations in eastern Colorado, improve Tri-State's ability to dispatch existing generation resources in eastern Colorado, and improve Tri-State's ability to deliver energy to native load customers. The proposed action also would provide a transmission outlet for renewable energy generation in eastern Colorado.
Tri-State is seeking funding from RUS for the Proposal. Prior to making a financial decision about whether to provide financial assistance for a proposed project, RUS is required to conduct an environmental review under the NEPA in accordance with the RUS Environmental Policies and Procedures codified in 7 CFR part 1794. Government agencies, private organizations, and the public are invited to participate in the planning and analysis of the proposed action. Representatives from the RUS and Tri-State will be available at the scoping meetings to discuss the environmental review process, describe the Proposal, discuss the scope of environmental issues to be considered, answer questions, and accept comments. RUS and Tri-state will use comments and input provided by all interested parties in the preparation of an Environmental Assessment Tri-State will submit the EA to RUS for review. RUS will use the environmental document to determine the significance of the impacts of the Proposal and may adopt the environmental document as its EA for the proposal. RUS's EA will be available for review and comment for 30 days. Announcement of the availability of the EA will be published in the
Should RUS determine that the preparation of an Environmental Impact Statement is not necessary, it will prepare a Finding of No Significant Impact (FONSI). Announcement of the availability of a FONSI will be published in the
Import Administration, International Trade Administration, Department of Commerce.
Raquel Silva, AD/CVD Operations, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230, telephone: (202) 482–6475.
On October 28, 2010, the Department of Commerce (“Department”) initiated the administrative review of the antidumping duty order on certain new pneumatic off-the-road tires (“off-the-road tires”) from the People's Republic of China (“PRC”) for the period, September 1, 2009, through August 31, 2010.
Section 751(a)(3)(A) of the Tariff Act of 1930, as amended (“the Act”), requires the Department to issue the final results in an administrative review within 120 days after the date on which the preliminary results are published. However, if it is not practicable to complete the review within this time period, section 751(a)(3)(A) of the Act allows the Department to extend the time period to a maximum of 180 days.
We determine that it is not practicable to complete the final results of this review within the current deadline because the Department continues to require additional time to analyze issues raised in recent surrogate value submissions, case briefs, and rebuttals. Therefore, in accordance with section 751(a)(3)(A) of the Act, we are extending the time limit for completion of the final results of this administrative review by 14 additional days, until March 3, 2012. However, because March 3, 2012, falls on a weekend, the final results are now due no later than March 5, 2012.
This notice is published pursuant to sections 751(a) and 777(i) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Dennis McClure or Joy Zhang AD/CVD Operations, Office 3, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–5973 or (202) 482–1168, respectively.
On November 1, 2011, the Department of Commerce (the “Department”) published a notice of opportunity to request an administrative review of the antidumping duty order on seamless refined copper pipe and tube from Mexico.
Pursuant to 19 CFR 351.213(d)(1), the Secretary will rescind an administrative review, in whole or in part, if the parties that requested a review withdraw the request within 90 days of the date of publication of the notice of initiation of the requested review. This review was initiated on December 30, 2011.
The Department will instruct CBP to assess antidumping duties on all appropriate entries. For IUSA, antidumping duties shall be assessed at rates equal to the cash deposit of estimated antidumping duties required at the time of entry, or withdrawal from warehouse, for consumption, during the period November 22, 2010, through October 31, 2011, in accordance with 19 CFR 351.212(c)(1)(i). The Department intends to issue appropriate assessment instructions directly to CBP 15 days after publication of this notice.
This notice serves as a reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent increase in the amount of antidumping duties assessed.
This notice serves as a final reminder to parties subject to administrative protective orders (“APOs”) of their responsibility concerning the disposition of proprietary information disclosed under an APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
This notice is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Tariff Act of 1930, as amended, and 19 CFR 351.213(d)(4).
Import Administration, International Trade Administration, Department of Commerce.
On November 1, 2011, the Department of Commerce (“the Department”) initiated the third sunset review of the antidumping duty order on silicon metal from the People's Republic of China (“PRC”) pursuant to section 751(c) of the Tariff Act of 1930, as amended (“the Act”). Based on the notice of intent to participate and adequate substantive response filed by the domestic interested party, and the lack of response from any respondent interested party, the Department conducted an expedited (120-day) sunset review of the antidumping duty order on silicon metal from the PRC, pursuant to section 751(c)(3)(B) of the Act and 19 CFR 351.218(e)(1)(ii)(C)(2). As a result of this sunset review, the Department finds that revocation of the antidumping duty order would be likely to lead to continuation or recurrence of dumping, at the levels indicated in the “Final Results of Sunset Review” section of this notice,
Patrick O'Connor or Howard Smith, AD/CVD Operations, Office 4, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–0989 or (202) 482–5193, respectively.
On June 10, 1991, the Department published the antidumping duty order on silicon metal from the PRC.
Imports covered by this review are shipments of silicon metal containing at least 96.00 but less than 99.99 percent of silicon by weight. Also covered by this review is silicon metal from the PRC containing between 89.00 and 96.00 percent silicon by weight but which contains a higher aluminum content than the silicon metal containing at least 96.00 percent but less than 99.99 percent silicon by weight. Silicon metal is currently provided for under subheadings 2804.69.10 and 2804.69.50 of the Harmonized Tariff Schedule (“HTS”) as a chemical product, but is commonly referred to as a metal. Semiconductor-grade silicon (silicon metal containing by weight not less than 99.99 percent of silicon and provided for in subheading 2804.61.00 of the HTS) is not subject to this review. Although the HTS subheadings are provided for convenience and customs purposes, the written description of the merchandise is dispositive.
A complete discussion of all issues raised in this sunset review is provided in the accompanying Issues and Decision Memorandum, which is hereby adopted by this notice.
The Department determines that revocation of the antidumping duty order on silicon metal from the PRC would be likely to lead to continuation or recurrence of dumping at the following weighted-average margins:
This notice also serves as the only reminder to parties subject to administrative protective order (“APO”) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely notification of the return or destruction of APO materials or conversion to judicial protective orders is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
We are issuing and publishing the results and notice in accordance with sections 751(c), 752(c), and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Commerce.
Gene Calvert, Jun Jack Zhao, or Emily Halle, AD/CVD Operations, Office 6, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–3586, (202) 482–1396 or (202) 482–0176, respectively.
On December 21, 2011, based on a timely request from the petitioner, SolarWorld Industries America, Inc. (Petitioner), the Department of Commerce (the Department) extended the due date for the preliminary determination in the countervailing duty investigation of crystalline silicon photovoltaic cells, whether or not assembled into modules, from the People's Republic of China, to no later than February 13, 2012.
Section 703(b)(1) of the Tariff Act of 1930, as amended (the Act), requires the Department to issue the preliminary determination in a countervailing duty investigation within 65 days after the date on which the Department initiated the investigation. However, if the Department concludes that the parties concerned in the investigation are cooperating and determines that the investigation is extraordinarily complicated, section 703(c)(1)(B) of the Act allows the Department to postpone making the preliminary determination until no later than 130 days after the date on which the administering authority initiated the investigation.
The Department has determined that the parties involved in this proceeding are cooperating, and that the investigation is extraordinarily complicated.
This notice is issued and published pursuant to section 703(c)(2) of the Act and 19 CFR 351.205(f)(1).
Import Administration, International Trade Administration, Department of Commerce.
Gayle Longest, AD/CVD Operations, Office 3, Import Administration, International Trade Administration,
Section 702 of the Trade Agreements Act of 1979 (as amended) (“the Act”) requires the Department of Commerce (“the Department”) to determine, in consultation with the Secretary of Agriculture, whether any foreign government is providing a subsidy with respect to any article of cheese subject to an in-quota rate of duty, as defined in section 702(h) of the Act, and to publish an annual list and quarterly updates to the type and amount of those subsidies. We hereby provide the Department's quarterly update of subsidies on articles of cheese that were imported during the period October 1, 2011, through December 31, 2011.
The Department has developed, in consultation with the Secretary of Agriculture, information on subsidies (as defined in section 702(h) of the Act) being provided either directly or indirectly by foreign governments on articles of cheese subject to an in-quota rate of duty. The appendix to this notice lists the country, the subsidy program or programs, and the gross and net amounts of each subsidy for which information is currently available. The Department will incorporate additional programs which are found to constitute subsidies, and additional information on the subsidy programs listed, as the information is developed.
The Department encourages any person having information on foreign government subsidy programs which benefit articles of cheese subject to an in-quota rate of duty to submit such information in writing to the Assistant Secretary for Import Administration, U.S. Department of Commerce, 14th Street and Constitution Ave., NW., Washington, DC 20230.
This determination and notice are in accordance with section 702(a) of the Act.
NAFTA Secretariat, United States Section, International Trade Administration, Department of Commerce.
Notice.
On February 10, 2012, Maquilacero S.A. de C.V. filed a First Request for Panel Review with the United States Section of the NAFTA Secretariat pursuant to Article 1904 of the North American Free Trade Agreement. Panel Review was requested of the U.S. Department of Commerce's final determination regarding Light-Walled Rectangular Pipe and Tube from Mexico, Final Results of 2009–2010 Antidumping Duty Administrative Review. This determination was published in the
Ellen Bohon, United States Secretary, NAFTA Secretariat, Suite 2061, 14th and Constitution Avenue NW., Washington, DC 20230, (202) 482–5438.
Chapter 19 of the North American Free Trade Agreement (“Agreement”) established a mechanism to replace domestic judicial review of final determinations in antidumping and countervailing duty cases involving imports from a NAFTA country with review by independent binational panels. When a Request for Panel Review is filed, a panel is established to act in place of national courts to review expeditiously the final determination to determine whether it conforms with the antidumping or countervailing duty law of the country that made the determination.
Under Article 1904 of the Agreement, which came into force on January 1, 1994, the Government of the United States, the Government of Canada, and the Government of Mexico established
A first Request for Panel Review was filed with the United States Section of the NAFTA Secretariat, pursuant to Article 1904 of the Agreement, on March 18, 2011, requesting a panel review of the determination and order described above.
The Rules provide that:
(a) A Party or interested person may challenge the final determination in whole or in part by filing a Complaint in accordance with Rule 39 within 30 days after the filing of the first Request for Panel Review (the deadline for filing a Complaint is March 12, 2012);
(b) A Party, investigating authority or interested person that does not file a Complaint but that intends to appear in support of any reviewable portion of the final determination may participate in the panel review by filing a Notice of Appearance in accordance with Rule 40 within 45 days after the filing of the first
(c) the panel review shall be limited to the allegations of error of fact or law, including the jurisdiction of the investigating authority, that are set out in the Complaints filed in panel review and the procedural and substantive defenses raised in the panel review.
National Oceanic and Atmospheric Administration (NOAA).
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before April 23, 2012.
Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Risa Oram, (808) 944–2124 or
The United States (U.S.) Coral Reef Task Force (USCRTF) was established in 1998 by
The Human Dimensions Research Program at NOAA Fisheries Pacific Islands Fisheries Science Center is initiating a survey to support development of these conservation action plans, including management actions in watersheds and in the coral reef ecosystems in the two priority sites. The purpose of this survey is to identify resident users' knowledge, attitudes, and perceptions regarding coral reef and watershed conditions and alternative management strategies to protect resources at the two priority sites.
Information from this survey is needed to inform the conservation action planning process initiated by the State of Hawaii Department of Land and Natural Resources (DLNR), Division of Aquatic Resources (HDAR) and The Nature Conservancy (TNC) at the South Kohala site and to inform conservation and watershed planning being implemented by HDAR, The U.S. Army Corps of Engineers, and other partners at the West Maui site. Managers have indicated a more immediate need for information at the South Kohala site; therefore, we will conduct the survey there first and the survey at West Maui afterwards. The information gained from the survey will provide priority site managers with essential information about the population of resident users who can both threaten reef health and play a key role in stewardship of reef resources. Conservation planners will gain information about the threats and status of coral reefs from the resident users who interact most with those systems, and help managers identify topics for public outreach and education. A representative study of resident users' knowledge, attitudes, and perceptions will supplement broader public input into the conservation planning processes at the sites.
Data will be collected through an intercept survey of adult residents visiting the coastal area included within the boundary of the two priority sites. Sampling will be stratified by season (wet/dry); day of the week (weekend-holiday/weekday) and time of day (morning/afternoon/evening) to account for the expected variation in use levels by residents. The target sample size is 200 respondents at each site. The only wording that would change on the surveys would be interviewer introductions to the survey and specifics about the priority site boundaries.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of letters of authorization.
In accordance with the Marine Mammal Protection Act (MMPA) and implementing regulations, notification is hereby given that NMFS has issued one-year Letters of Authorization (LOA) to take marine mammals incidental to the explosive removal of offshore oil and gas structures (EROS) in the Gulf of Mexico.
These authorizations are effective from February 27, 2012 through February 26, 2013.
The application and LOAs are available for review by writing to P. Michael Payne, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910–3235 or by telephoning the contact listed here (see
Howard Goldstein or Jolie Harrison, Office of Protected Resources, NMFS, 301–427–8401.
Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361
Authorization for incidental taking, in the form of annual LOAs, may be granted by NMFS for periods up to five years if NMFS finds, after notice and opportunity for public comment, that the taking will have a negligible impact on the species or stock(s) of marine mammals, and will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant). In addition, NMFS must prescribe regulations that include permissible methods of taking and other means of effecting the least practicable adverse impact on the species and its habitat (i.e., mitigation), and on the availability of the species for subsistence uses, paying particular attention to rookeries, mating rounds, and areas of similar significance. The regulations also must include requirements pertaining to the monitoring and reporting of such taking.
Regulations governing the taking of marine mammals incidental to EROS were published on June 19, 2008 (73 FR 34875), and remain in effect through July 19, 2013. For detailed information on this action, please refer to that
NMFS Galveston Laboratory's Platform Removal Observer Program (PROP) has provided reports for ERT removal of offshore structures during 2011. Demex has not used their LOA for any operations to date. NMFS PROP observers and non-NMFS observers reported the following during ERT's EROS operations in 2011:
Pursuant to these regulations, NMFS has issued an LOA to ERT and Demex. Issuance of the LOAs is based on a finding made in the preamble to the final rule that the total taking by these activities (with monitoring, mitigation, and reporting measures) will result in no more than a negligible impact on the affected species or stock(s) of marine mammals and will not have an unmitigable adverse impact on subsistence uses. NMFS will review reports to ensure that the applicants are in compliance with meeting the requirements contained in the implementing regulations and LOA, including monitoring, mitigation, and reporting requirements.
Proposed collection; comment request.
The United States Patent and Trademark Office (USPTO), as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on the continuing information collection, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)).
Written comments must be submitted on or before April 23, 2012.
You may submit comments by any of the following methods:
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Requests for additional information should be directed to the attention of Catherine Cain, Attorney Advisor, Office of the Commissioner for Trademarks, United States Patent and Trademark Office, P.O. Box 1451, Alexandria, VA 22313–1451, by telephone at 571–272–8946, or by email to
The United States Patent and Trademark Office (USPTO) administers the Trademark Act, 15 U.S.C. 1051
A letter of protest is an informal procedure whereby third parties who object to the registration of a mark in a pending application may bring to the attention of the USPTO evidence bearing on the registrability of a mark. A letter of protest must identify the application being protested and the proposed grounds for refusing registration and include relevant evidence to support the protest.
A request to make special may be submitted where an applicant's prior registration was cancelled due to the inadvertent failure to file a post registration maintenance document and should include an explanation of why special action is appropriate.
A response to a petition inquiry letter is submitted by a petitioner who is responding to a notice of deficiency that the USPTO issued after receiving an incomplete Petition to the Director. A petition may be considered incomplete if, for example, it does not include the fee required by 37 CFR 2.6 or if it includes an unverified assertion that is not supported by evidence.
The USPTO generally examines applications in the order in which they are received. A petition to make special is a request by the applicant to advance the initial examination of an application out of its regular order.
A request to restore a filing date is submitted by an applicant who previously filed an application that was denied a filing date. The request must include evidence showing that the applicant is entitled to the earlier filing date.
If an applicant has proof that an application was inadvertently abandoned due to a USPTO error, an applicant may file a request to reinstate the application instead of a formal petition to revive. To support such a request, the applicant must include clear evidence of the USPTO error.
The information in this collection can be submitted in paper format or electronically through the Trademark Electronic Application System (TEAS). The USPTO has developed a TEAS Global Form format that permits the agency to collect information electronically for which a TEAS form with dedicated data fields is not yet available. With the introduction of the TEAS Global Forms, the information in this collection can be collected in paper format or electronically using the TEAS Global Forms.
As part of this renewal the USPTO proposes to add four TEAS Global Forms—for responses to petition inquiry letter, petitions to make special, requests to restore filing date, and requests for reinstatement—into the collection. The paper equivalents for the response to petition inquiry letter, petition to make special, request to restore filing date, and request for reinstatement will be added as well.
Although this collection does have electronic forms, there are no official
Electronically, if applicants submit the information using the new TEAS Global Forms. By mail, facsimile, or hand delivery if applicants choose to submit the information in paper form.
The public may submit the non-electronic information in this collection to the USPTO by mail through the United States Postal Service. The USPTO estimates that the majority of submissions for these paper forms are made via first-class mail at a cost of 45 cents per submission. The total estimated postage cost for this collection is $550 (1,223 paper submissions × $0.45).
The only item in this information collection with a filing fee is the Petition to Make Special, with a filing fee of $100. The total estimated filing fee cost for this collection is $15,000.
Therefore, the total estimated (non-hour) respondent cost burden in postage costs and filing fees for this information collection is $15,550.
Comments submitted in response to this notice will be summarized or included in the request for OMB approval of this information collection; they also will become a matter of public record.
Office of the Under Secretary of Defense (Personnel and Readiness), Department of Defense (DoD).
Notice.
In compliance with Section 3506(c)(2)(A) of the
Consideration will be given to all comments received by April 23, 2012.
You may submit comments, identified by docket number and title, by any of the following methods:
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To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Office of the Under Secretary of Defense (Personnel and Readiness) (MPP) (Compensation), ATTN: Mr. Gary McGee, 4000 Defense Pentagon, Washington, DC 20301–4000 or call (703) 693–1059.
A former spouse who has been awarded coverage under the Survivor Benefit Plan, either by court order or written agreement, may, within one year of such court order or written agreement submit a request to have an election for such coverage deemed on behalf of the member. Such request will be made by submitting the proposed form and a copy of the court order, regular on its face, which requires such election or incorporates, ratifies, or approves the written agreement of such person; or a statement from the clerk of the court (or other appropriate official) that such agreement has been filed with the court in accordance with applicable state law.
A former spouse is not required to submit a request for a deemed election. However, if a request for deemed election is not submitted within the one year period described in the previous paragraph and the member fails to elect former spouse SBP coverage, no former spouse coverage will be provided.
The DD Form 2656–10, “Survivor Benefit Plan (SBP)/Reserve Component (RC) SBP Request for Deemed Election,” is currently the prescribed form required for submitting such request.
Department of Education.
Comment request.
The Acting Director, Information Collection Clearance Division, Privacy, Information and Records Management Services, Office of Management, invites comments on the submission for OMB review as required by the Paperwork Reduction Act of 1995 (Pub. L. 104–13).
Interested persons are invited to submit comments on or before March 23, 2012.
Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Education Desk Officer, Office of Management and Budget, 725 17th Street NW., Room 10222, New Executive Office Building, Washington, DC 20503, be faxed to (202) 395–5806 or emailed to
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. The OMB is particularly interested in comments which: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
The respondents to this collection are former participating state education agencies (SEAs). This performance report is the only vehicle by which Federal program officials may annually monitor, evaluate and ensure the compliance and enforcement of the program statute and regulations by state education agencies, that were shared with the SEAs at the time the scholarships were granted.
Copies of the information collection submission for OMB review may be accessed from the RegInfo.gov Web site at
Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339.
Department of Energy.
Notice of Open Meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Idaho National Laboratory. The Federal Advisory Committee Act (Pub. L. 92–463, 86 Stat. 770) requires that public notice of this meeting be announced in the
Wednesday, March 14, 2012, 8 a.m.–5 p.m.
Opportunities for public participation will be from 11:45 a.m. to 12 p.m. and from 2:15 p.m. to 2:30 p.m.
These times are subject to change; please contact the Federal Coordinator (below) for confirmation of times prior to the meeting.
Hilton Garden Inn, 700 Lindsay Boulevard, Idaho Falls, Idaho 83402.
Robert L. Pence, Federal Coordinator, Department of Energy, Idaho Operations Office, 1955 Fremont Avenue, MS–1203, Idaho Falls, Idaho 83415. Phone (208) 526–6518; Fax (208) 526–8789 or email:
• Recent Public Involvement and Outreach
• Progress to Cleanup Status
• Idaho Cleanup Project (ICP) Workforce Reductions
• Advanced Mixed Waste Cleanup Project (AMWTP) Workforce/Project Status
• Idaho-EM Budget Update
• Update on Sodium Flash Event
• Integrated Waste Treatment Unit Startup Status
• EM/National Nuclear Security Administration Integration
• Ecological Surveys
• Ground Water
• Waste Area Group—Future Work Plan
Office of Fossil Energy, Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Unconventional Resources Technology Advisory Committee. The Federal Advisory Committee Act (Pub. L. 92–463, 86 Stat. 770) requires that public notice of this meeting be announced in the
Thursday, March 8, 2012, 11 a.m.–12:45 p.m. (EST).
U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585.
Elena Melchert, U.S. Department of Energy, Office of Oil and Natural Gas, Washington, DC 20585. Phone: (202) 586–5600.
Office of Electricity Delivery and Energy Reliability, Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Electricity Advisory Committee (EAC). The Federal Advisory Committee Act (Pub. L. 92– 463, 86 Stat. 770) requires that public notice of these meetings be announced in the
Ronald Reagan International Building, Horizon Room, 1300 Pennsylvania Avenue NW., Washington, DC 20229.
Matthew Rosenbaum, Office of Electricity Delivery and Energy Reliability, U.S. Department of Energy, Forrestal Building, Room 8G–017, 1000 Independence Avenue SW., Washington, DC 20585; Telephone: (202) 586–1060 or Email:
You may submit comments, identified by “
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DOE is responsible for the final determination concerning disclosure or nondisclosure of the information and for treating it in accordance with the DOE's Freedom of Information regulations (10 CFR 1004.11).
The EAC will also hold meetings in Washington, DC on June 11–12, 2012 and October 15–16, 2012. The venue and agenda will be provided in future notices.
Delivery of the U.S. Postal Service mail to DOE may be delayed by several weeks due to security screening. The Department, therefore, encourages those wishing to comment to submit comments electronically by email. If comments are submitted by regular mail, the Department requests that they be accompanied by a CD or diskette containing electronic files of the submission.
Office of Fossil Energy, Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Ultra-Deepwater Advisory Committee. The Federal Advisory Committee Act (Pub. L. 92–463, 86 Stat. 770) requires that public notice of this meeting be announced in the
Thursday, March 8, 2012, 1 p.m.–3 p.m. (EST).
U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585.
Elena Melchert, U.S. Department of Energy, Office of Oil and Natural Gas, Washington, DC 20585. Phone: (202) 586–5600.
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
Any person desiring to protest in any of the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5 p.m. Eastern time on the specified comment date.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, and service can be found at:
Take notice that on February 14, 2012, pursuant to section 206 of the Federal Power Act and Rule 206 of the Rules of Practice and Procedure of the Federal Energy Regulatory Commission (Commission), Xcel Energy Services Inc. (XES) and Northern States Power Company (NSPW) collectively filed a formal complaint against American Transmission Company, LLC (ATC) regarding the construction and ownership of a proposed 145 mile, 345 kV electric transmission line connecting NSPW's facilities near La Crosse, Wisconsin, with ATC's facilities near Madison, Wisconsin. XES and NSPW request that the Commission (1) find that ATC has not compiled with express terms and conditions of the Transmission Owners Agreement and the Midwest ISO Tariff and (2) direct ATC to enter into negotiations with XES and NSPW to develop final terms and conditions for the shared ownership and construction of the La Cross–Madison Line.
XES and NSPW certify that copies of the complaint were served on the contacts for ATC as listed on the Commission's list of Corporate Officials.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. The Respondent's answer and all interventions or protests must be filed on or before the comment date. The Respondent's answer, motions to intervene, and protests must be served on the Complainants.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
In accordance with the National Environmental Policy Act of 1969, as amended, and Federal Energy Regulatory Commission (Commission or FERC) regulations, 18 CFR part 380 (Order No. 486, 52 FR 47879), the Commission has reviewed a request to replace the spillway at the Upper Dam development, which is part of the Upper and Middle Dam Storage Project (FERC No. 11834). The purpose of the action is to satisfy the Commission's Division of Dam Safety and Inspections required remediation under 18 CFR Part 12. The licensee seeks Commission approval to conduct the spillway replacement. This environmental assessment (EA) analyzes the environmental impacts of the proposed spillway repairs and concludes that approval of the request, with appropriate environmental measures, would not constitute a major federal action significantly affecting the quality of the human environment. The project is located on the outlet from Mooselookmeguntic Lake in Oxford and Franklin Counties, Maine.
The EA was written by staff in the Commission's Office of Energy Projects. A copy of the EA is on file with the Commission and is available for public inspection. The EA may also be viewed on the Commission's Web site at
Take notice that on February 14, 2012, SourceGas Distribution LLC submitted a revised baseline filing of their Statement of Operating Conditions to comply with an unpublished Delegated letter order issued on January 31, 2012.
Any person desiring to participate in this rate filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the date as indicated below. Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on February 13, 2012, Arcadia Gas Storage, LLC filed a revised Statement of Operating Conditions to further define the priority of service of its proposed Enhanced Authorized Overrun Service.
Any person desiring to participate in this rate filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the date as indicated below. Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
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All documents may be filed electronically via the Internet. See, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site at
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person whose name appears on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
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j. City of Aspen filed its request to use the Traditional Licensing Process on December 12, 2011. The city provided public notice of its request on December 19, 2011. In a letter dated February 2, 2012, the Director of the Office of Energy Projects approved the City of Aspen's request to use the Traditional Licensing Process.
k. With this notice, we are initiating informal consultation with: (a) The U.S. Fish and Wildlife Service under section 7 of the Endangered Species Act and the joint agency regulations thereunder at 50 CFR Part 402; and (b) the Colorado State Historic Preservation Officer, as required by section 106, National Historical Preservation Act, and the implementing regulations of the Advisory Council on Historic Preservation at 36 CFR 800.2.
l. With this notice, we are designating the City of Aspen as the Commission's non-federal representative for carrying out informal consultation, pursuant to section 7 of the Endangered Species Act, section 305 of the Magnuson-Stevens Fishery Conservation and Management Act, and section 106 of the National Historic Preservation Act.
m. City of Aspen filed a Pre-Application Document (PAD; including a proposed process plan and schedule) with the Commission, pursuant to 18 CFR 5.6 of the Commission's regulations.
n. A copy of the PAD is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site (
1. On March 17, 2011, the Commission issued a Notice of Inquiry
2. As discussed below, after reviewing the comments received, the Commission has decided to retain its existing policies regarding the analysis of horizontal market power when reviewing transactions under section 203 of the FPA and in its electric market-based rate program. Accordingly, we will terminate the proceeding in Docket No. RM11–14–000.
3. Under section 203 of the FPA, Commission authorization is required for public utility mergers and consolidations and for public utility acquisitions of jurisdictional facilities. Section 203(a) provides that the Commission shall approve such transactions if they are consistent with the public interest. The Commission has stated that it will consider three factors when analyzing a proposed merger: the effect on competition, the effect on rates, and the effect on regulation.
4. The Commission adopted the five-step framework set out in the Antitrust Agencies' 1992 Horizontal Merger Guidelines (1992 Guidelines)
5. The Commission stated that the Competitive Analysis Screen is intended to identify mergers that clearly do not raise competitive concerns early in the process and that it believes that the screen produces a reliable, generally conservative analysis of the competitive effects of a proposed merger.
6. The Commission allows sales of electric energy, capacity, and ancillary services at market-based rates if the applicant and its affiliates do not have, or have adequately mitigated, horizontal and vertical market power.
7. A seller that fails either indicative screen has several procedural options. It has the right to present alternative evidence to rebut the presumption of horizontal market power, including a DPT.
8. The NOI highlighted some features of the 2010 Guidelines and how those guidelines differ from the Commission's process for reviewing mergers under section 203 of the FPA. In particular, the Commission noted that the 2010 Guidelines modify the thresholds used to classify the relative concentration of a market and to assess the competitive significance of a post-merger change in HHI, as summarized in the table below.
9. In addition, the Commission explained that the 2010 Guidelines deemphasize market definition as a starting point for the Antitrust Agencies' analysis and depart from the sequential analysis of the 1992 Guidelines. Instead, the 2010 Guidelines state that the Antitrust Agencies will engage in a fact-specific inquiry using a variety of analytical tools, including direct evidence of competition between the parties and economic models that are designed to quantify the extent to which the merged firm can raise prices as a result of the merger.
10. The NOI sought comment on whether the Commission should revise its approach for examining horizontal market power when analyzing proposed mergers or other transactions under section 203 of the FPA and when analyzing market-based rate filings under section 205 of the FPA to reflect the 2010 Guidelines. The Commission asked whether the Commission should, like the 2010 Guidelines, place less emphasis on market definition as the first step in its analysis and move away from the use of a sequential analysis for analyzing horizontal market power under section 203 of the FPA. Additionally, the Commission asked what elements of the 2010 Guidelines the Commission should adopt and sought comments on whether the Commission should adopt the HHI thresholds contained in the 2010 Guidelines. Finally, the Commission sought comment on what impact, if any, the 2010 Guidelines should have on the Commission's analysis of horizontal market power in its electric market-based rate program.
11. As further discussed below, after careful consideration of the comments submitted in response to the NOI, the Commission has decided to retain its existing approaches to analyzing horizontal market power under section 203 of the FPA and in its analysis of electric market-based rates under section 205 of the FPA.
12. A number of commenters argue that the Commission should continue to emphasize market definition and the calculation of market shares and market concentration as the first step in its analysis. EEI, EPSA, and Dr. Morris, a consultant with Economists Incorporated, state that the Competitive Analysis Screen provides certainty to applicants and, as a result, produces better filings and assists applicants in determining whether their proposals raise competitive concerns and require remedies.
13. Additionally, several commenters maintain that the analysis embodied in the 2010 Guidelines is incompatible with the realities of the Commission's process of reviewing mergers and other transactions under section 203 of the FPA. In particular, these commenters note that, unlike the procedures used by the Antitrust Agencies, proceedings under section 203 are required to be on-the-record and the Commission's decision must be presented in a published order, subject to the requirements of reasoned decision making and the possibility of judicial review.
14. Moreover, commenters explain that the Commission need not resort to the open-ended process embraced in the 2010 Guidelines to protect the public interest and that the Commission has the experience necessary to determine what methodologies are appropriate for assessing market power in electricity markets.
15. A number of commenters argue that the Commission's current analytical framework already permits the consideration of the evidence identified in the 2010 Guidelines when appropriate. Mr. Cavicchi, Senior Vice President at Compass Lexecon, notes that the Commission has already acknowledged that the Commission should consider additional evidence of competitive effects where an applicant fails the Competitive Analysis Screen. Mr. Cavicchi asserts, however, that it would be appropriate in such circumstances to collaborate with the Antitrust Agencies to reduce the burden on the applicant.
16. A number of commenters argue that the Commission should retain its existing HHI thresholds. TAPS, TDU Systems, ELCON, and NASUCA caution the Commission against selectively incorporating particular aspects of the 2010 Guidelines, especially the HHI thresholds.
17. Commenters also claim that the more relaxed HHI thresholds embodied in the 2010 Guidelines are inappropriate in electricity markets. The New York Commission, ELCON, NASUCA, APPA, NRECA and Monitoring Analytics state that the Commission's current thresholds remain appropriate because electricity markets are more susceptible to the exercise of market power—due to the large capital investments associated with entry, the lack of substitutable products, the lack of storage, and the relative inelasticity of demand—than many of the industries that the Antitrust Agencies review.
18. Berkeley argues that the Commission should not make any decision to change its HHI thresholds without first directing Commission staff to study consummated electric mergers in order to determine whether the current thresholds have been effective, and compare the results to alternative predictions of competitive impacts.
19. While, as noted below, EPSA supports the adoption of the HHI thresholds contained in the 2010 Guidelines, EPSA contends that the Commission should refrain from adopting other aspects of the 2010 Guidelines. In particular, EPSA states that the Commission should not adopt the 2010 Guidelines' approach to partial acquisitions and minority ownership and that the Commission's analysis should continue to focus on control. EPSA notes that the provisions of the federal antitrust statutes that the Antitrust Agencies are charged with enforcing apply to transactions involving one firm's partial acquisition of a competitor and the minority position that may result, whereas the Commission has made clear that transactions that do not transfer control of a public utility do not fall within the meaning of the “or otherwise dispose” language of section 203(a)(1)(A) and that the requirement to obtain the Commission's approval under the “merge or consolidate” clause in section 203(a)(1)(B) depends upon whether the transaction directly or indirectly would result in a change of control over the facilities.
20. Several commenters argue that the Commission should adopt the 2010 Guidelines because the Competitive Analysis Screen may not accurately identify competitive concerns in all circumstances. FTC Staff and the PPL Companies state that over-reliance on measures of HHI, particularly in electricity markets, can yield conclusions that are too lenient or too restrictive in an assessment of market power.
21. AAI argues that the Commission should supplement its analysis of market concentration by considering additional evidence of competitive effects. AAI maintains that the differences between the Commission's review process and those of the Antitrust Agencies do not pose an impediment to adopting the 2010 Guidelines because all of the agencies tend to focus on competitive concerns and much of the information necessary to assess competitive effects, such as
22. Similarly, while acknowledging that many aspects of the 2010 Guidelines are inapplicable to electricity markets, Monitoring Analytics recommends that the Commission consider some of the additional evidence identified in the 2010 Guidelines, such as the actual effects observed in wholesale electricity markets, the competitiveness of isolated wholesale electricity markets with varying market concentration, and whether, absent the merger, the merging firms would have become substantial head-to-head competitors.
23. The Brattle Group maintains that the Competitive Analysis Screen may not always yield conservative results because the DPT, by examining a merger's effect on one market at a time, ignores whether suppliers may have a better opportunity to sell in markets where they may obtain higher prices. Thus, the Brattle Group maintains that the Commission should look beyond HHI, focus on whether a merger will change incentives such that there will be an increase in market price, and not wait for a merger to fail the screen to implement a case-specific theory of competitive harm. The Brattle Group encourages the Commission not to abandon the use of market concentration statistics, but to set out guiding principles in assessing merger effects based on a theory of competitive harm tailored to the realities of the market at issue at an early stage of the review.
24. Several commenters ask the Commission to refine its approach to defining the relevant geographic market. Mr. Cavicchi argues that the Commission should pay close attention to market definition. While Mr. Cavicchi states that the Commission's current approach to defining markets is suitable in many instances, it could be enhanced by drawing on additional electric system data that is often readily available. For example, he states that an analysis of market pricing data for the purposes of delineating geographic markets can be extremely informative in some situations.
25. Monitoring Analytics states that the Commission should refine its approach to assessing market definition in organized markets by using actual information about market participants and operations instead of using approximations of seasonal geographic markets that assume the model of individual utility territories to define the market. Monitoring Analytics further states that it recommends that the Commission use market definitions based on actual operational substitutability and residual supplier analysis to examine the relative importance of the merging firms based on pre- and post-merger positions in every relevant market.
26. Dr. Morris recommends that the Commission review its position on destination markets because the Commission has issued some inconsistent rulings on submarkets and because facts change over time. According to Dr. Morris, the Commission has acted inconsistently by accepting a study of a submarket where only one of the merging parties had assets in some cases, but not in others.
27. A number of commenters argue that the Commission should adopt the 2010 Guidelines' HHI thresholds. In particular, Dr. Morris, Mr. Cavicchi, Entergy, the PPL Companies, EPSA, and EEI claim that the Commission should adopt these thresholds because they reflect the substantial experience of the Antitrust Agencies, which indicates that a merger will not enhance market power below these levels. They also argue that ongoing oversight of the electric markets by the Commission and market monitors provide protections against any perceived danger arising from adopting these thresholds.
28. The PPL Companies also propose the following modifications to the Commission's analysis: (1) Focus exclusively on available economic capacity because only those firms with available economic capacity could defeat any attempts by the merged firm to increase prices or reduce output;
29. As an initial matter, AAI asks that the Commission more formally coordinate with the Antitrust Agencies, in a manner similar to the current relationship between the Federal Communications Commission and the Antitrust Agencies, to ensure greater consistency in remedies, analysis, and findings. AAI also reviewed analyses filed with the Commission between 1997 and 2004, which revealed a high degree of variation in concentration results for the same market, even when these analyses were performed by the same experts.
30. While APPA and NRECA state that the Commission should continue to emphasize market definition and the calculation of market shares and market concentration as the first step in its analysis, they state that the Commission should adopt additional tools, such as diversion ratios and critical loss analysis, to help it in its analysis, to the extent possible. However, they emphasize that these tools should not be a substitute for the Commission's existing analysis, including the Competitive Analysis Screen.
31. Several commenters argue that the Commission should adopt the 2010 Guidelines' approach to analyzing monopsony power (buyer market power). Noting that the Commission has previously acknowledged that an evaluation of buyer market power may be appropriate in some instances, AAI suggests that the Commission should take the following approaches when evaluating such issues: (1) The Commission should avoid relying on market power mitigation measures in organized markets to address buyer market power issues raised in merger cases; (2) the Commission's standard, as in the 2010 Guidelines, should be whether the merged firm will be able to impose worse terms on its trading partners; and (3) the Commission should distinguish between mergers that are likely to create or enhance monopsony power and those mergers where the presence of seller market power in an upstream market may serve as an opposing force to buyer market power in a downstream market, which may be procompetitive in some circumstances.
32. AAI, FTC Staff, APPA, and NRECA urge the Commission to analyze partial acquisitions in a manner consistent with the 2010 Guidelines. In particular, AAI contends that, in light of the 2010 Guidelines' discussion of partial acquisitions, the Commission should revise its analysis to ensure that the Commission fully considers the potential adverse effects of partial ownership by avoiding bright-line tests, evaluating any evidence that would help establish a competitive concern surrounding the transaction, and, if evidence points to a potential competitive concern, determining the degree to which the private investor at issue will have control, participation, or other influence over decisions that affect competitive strategy.
33. FTC Staff also argues that the Commission should consider embracing aspects of the 2010 Guidelines addressing the competitive effects of entry and efficiencies. FTC Staff explains that the 2010 Guidelines recognize that easy, rapid, and substantial entry into the relevant market could discipline market power and that efficiencies generated by a merger could enhance competition by spurring innovation, reducing costs, or improving quality. FTC Staff notes, however, that it expects that, given the characteristics of the energy industry, reliance on entry to address adverse competitive effects will be rare and that efficiencies of a merger should only carry weight to the extent that they would not be achieved absent the merger.
34. After carefully considering the comments that were submitted, the Commission has decided to retain its existing approach for analyzing horizontal market power under section 203 of the FPA. More specifically, and as further discussed below, the Commission will retain the five-step framework for assessing the competitive effects of a proposed transaction, with the first step consisting of the Competitive Analysis Screen, because we find that the approach remains useful in determining whether a merger will have an adverse impact on competition.
35. As the Commission has previously stated, the Competitive Analysis Screen is intended to provide a standard, generally conservative check to allow the Commission, applicants, and intervenors to quickly identify mergers that are unlikely to present competitive problems.
36. While several commenters argue that the Commission is overly rigid in its application of the Competitive Analysis Screen, we believe that the current approach is flexible enough to incorporate theories set forth in the 2010 Guidelines, while still retaining the certainty that the current approach provides. The Commission has previously made clear that it will consider other evidence of anticompetitive effects beyond HHI. As noted above, in the Merger Policy Statement the Commission stated that questions about whether the screen has accurately captured market power arising from a merger may be raised through interventions and by Commission staff.
37. Not only has the Commission stated that it will look beyond the HHI screens, the Commission has done so in practice. For example, in
38. Given this flexibility and the benefits of the Competitive Analysis Screen, we decline to adopt the 2010 Guidelines as the framework for the Commission's analysis of horizontal market power. We reiterate, however, that the Commission may consider arguments that a proposed transaction raises competitive concerns that have not been captured by the Competitive Analysis Screen. Likewise, while applicants must continue to provide a Competitive Analysis Screen, we will also consider any alternative methods or factors, if adequately supported. Further, we note that the Commission has various procedural methods to obtain additional information where appropriate.
39. In addition, the Commission declines to adopt the HHI thresholds contained in the 2010 Guidelines. As the Commission has previously stated, the Competitive Analysis Screen is intended to be “conservative enough so that parties and the Commission can be confident that an application that clears the screen would have no adverse effect on competition.”
40. With respect to the PPL Companies' request that we clarify the calculation of SILs, we note that the Commission recently issued an order providing further direction and clarification on the performance and reporting of such studies in connection with market-based rate filings.
41. With regard to the 2010 Guidelines' analysis of partial acquisitions and minority ownership we note that the Commission's existing approach to control is not contrary to the approach set out in the 2010 Guidelines. For instance, the Commission has found that a minority
42. Turning to the suggestion that the Commission should incorporate the 2010 Guidelines' discussion of monopsony power, we note that in the Merger Policy Statement the Commission stated that “an analysis of monopsony power should be developed if appropriate” and that “[l]ong-term purchases and sales data for interconnected entities * * * could be used to assess buyer concentration in the same way that seller concentration is calculated.”
43. We note that, while Dr. Morris asks the Commission to clarify that it will consider alternative relevant markets that are created by regional and local constraints, the Commission has previously done so when provided with evidence in support of the existence of such a market. The Commission will remain flexible in its approach and will reevaluate whether a previously recognized submarket continues to exist if the evidence shows that the persistent transmission constraints that led to the recognition of that submarket are no longer present. We clarify that we will not require applicants to submit a DPT for an identified submarket if the applicants do not have overlapping generation within the submarket and lack firm transmission rights to import capacity into that market.
44. With respect to commenters' suggestions that the Commission use actual operational data in defining markets or that the Commission should consider opportunity costs in market definition, we are not persuaded to require section 203 applicants to provide that information on a generic basis. While we recognize that the Commission's current methodology may not precisely capture market conditions in all circumstances, we continue to believe that the DPT provides an appropriate method for determining suppliers in a market and is a well-established test for the electric industry. Further, we are concerned that information about actual market information may not be equally available to all applicants and, therefore, will not require all applicants to craft their analyses using such data. Nevertheless, the Commission will consider adequately supported alternative analyses based on such data.
45. Regarding AAI's request that the Commission formally coordinate with the Antitrust Agencies, we note that Commission staff has had discussions with staff from the Antitrust Agencies regarding several mergers.
46. Additionally, we will decline to adopt the PPL Companies' suggestion to modify our analysis to focus exclusively on available economic capacity. We believe that both the economic capacity and available economic capacity measures remain useful. While we have acknowledged that one measure may be more relevant in certain circumstances, we continue to believe that requiring applicants to provide analyses using both economic capacity and available economic capacity will ensure that the Commission has a more complete record on which to make its determination of whether the proposed transaction will have an adverse effect on competition.
47. TAPS, TDU Systems, APPA, and NRECA support retaining the Commission's current analysis because the Commission's analysis of HHI is already consistent with the 2010 Guidelines and the Commission does not yet have sufficient experience with the existing standards to warrant changing its analysis.
48. Additionally, Monitoring Analytics, ELCON, and NASUCA state that the thresholds for the market share, pivotal supplier, and market concentration analyses remain appropriate because the electricity markets are still characterized by significant barriers to entry, limited substitutes, lack of storage, and inelastic demand.
49. AAI maintains that the Commission should consider bringing its market-based rate analysis in line with the 2010 Guidelines for the same reasons that it argues the Commission should conform its analysis under section 203 to the 2010 Guidelines. AAI argues that there are a number of problems with the indicative screens that challenge the goal of consistent and transparent competition policy. Specifically, AAI states that both the pivotal supplier and market share screens address unilateral effects scenarios, which ignore the complex dynamics among firms in oligopoly markets that determine price and output levels, and are bright-line tests that determine whether an applicant is presumed to have market power as opposed to whether the firm has the ability and incentive to exercise it.
50. FTC Staff states that the same types of information that are discussed in the 2010 Guidelines are useful in the determination of whether a supplier already has market power, although the inquiry may be somewhat different than in the merger context. FTC Staff states that market definition in a non-merger matter seeks to identify customer alternatives at the competitive price. According to FTC Staff, a failure to ensure that customer alternatives are analyzed at the competitive price can result in a serious error, such as defining the market too broadly if customers are searching more widely for alternatives in response to an already supracompetitive price. FTC Staff claims that the proper application of the 2010 Guidelines in the context of market-based rate reviews will help avoid such errors.
51. Dr. Morris contends that the wholesale market share screen is flawed, as approximately 75 percent of traditionally vertically-integrated utilities outside of an RTO fail the screen in their own balancing authority area regardless of the competitive conditions in that area. Accordingly, he recommends replacing the wholesale market share screen for utilities outside of RTOs or, in the alternative, allowing applicants that fail the wholesale market share screen to conduct a screen comparing the wholesale load to be served during the next three years in a market to the number of available suppliers in the area. He states that the Commission would need to specify the number of suppliers that are necessary to obtain workably competitive prices and would grant market-based rate authority if there are a sufficient number of suppliers. He notes that his own research has indicated that three suppliers are sufficient to drive competitive rates down to the level achieved by cost-based regulation.
52. EPSA argues that the Antitrust Agencies' decision to increase the HHI thresholds contained in the 2010 Guidelines warrants a corresponding increase in the threshold used for the wholesale market share indicative screen from 20 percent to 30 percent, or, at the very least, to 25 percent. EPSA claims that the Antitrust Agencies' decision to increase the HHI threshold from 1,800 to 2,500 has eliminated the basis for the Commission's objections to the use of a market share threshold higher than 20 percent. EPSA states that any further proposed changes to the Commission's market-based rate analysis should be explored in depth in a separate proceeding or supplemental NOI.
53. The PPL Companies state that the Commission should not modify the indicative screens, but state that there are some aspects of the reforms adopted in the 2010 Guidelines that would merit consideration where there has been an initial screen failure, such as a fact-specific analysis of relevant markets, a focus on available economic capacity, and any reforms the Commission adopts for the determination of SILs in the section 203 context.
54. Mr. Reutter argues that, if the Commission modifies its market-based rate analysis to reflect the HHI thresholds contained in the 2010 Guidelines, the Commission should adopt the same criteria for gas storage facilities that request market-based rate authority.
55. The Commission will not modify the current market power analysis utilized for electric market-based rate applications to reflect the 2010 Guidelines.
56. With respect to the use of the indicative screens, we will retain the current thresholds. While EPSA argues that the Antitrust Agencies' decision to raise the threshold for a highly concentrated market undercuts the Commission's reasoning in retaining the existing threshold for the market share screen, we disagree. In Order No. 697, the Commission found that a conservative approach at the indicative screen stage of the Commission's analysis is appropriate because a seller is presumed not to possess horizontal market power if the seller passes both of the screens.
57. The Commission disagrees with AAI's assertion that the indicative screens are flawed because they focus only on unilateral effects. While the pivotal supplier screen focuses on the ability of a seller to exercise market power unilaterally, as the Commission observed in Order No. 697, the market share screen focuses on both “unilateral market power and the ability of a seller to effect coordinated interaction with other sellers.”
58. Further, with respect to Dr. Morris's argument that the Commission should modify the market share screen because traditional vertically-integrated utilities outside of an RTO typically fail the screen, we note that Dr. Morris does not provide evidentiary support for this claim. Moreover, the Commission addressed and rejected a similar claim in the Order No. 697 proceeding.
59. As far as the suggestion that the Commission should consider fact-specific evidence of competitive harm or that the Commission should consider additional evidence when determining the relevant geographic market, we believe that the Commission's current analysis provides adequate flexibility to consider such arguments when raised by an applicant or an intervenor. The Commission has stated that an applicant that fails one of the indicative screens may submit alternative evidence, including a DPT or actual historical sales data, to rebut the presumption of market power. Thus, to the extent that an applicant has additional evidence regarding the competitive situation in a market, it is free to present that to the Commission and the Commission will consider that evidence on a case-by-case basis.
The proceeding in Docket No. RM11–14–000 is hereby terminated.
By the Commission.
Take notice that on February 8, 2012, Northeast Utilities Service Company (NUSCO), on behalf of the Connecticut Light and Power Company, Public Service Company of New Hampshire, and Western Massachusetts Electric Company (collectively, NU Companies), filed a Petition for Declaratory Order, requesting that the Federal Energy Regulatory Commission (Commission) confirm that the use of at-cost pricing for the provision of certain non-power goods and services among the NU Companies through NUSCO as an accounting intermediary is appropriate, or in the alternative, waiver of the
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on February 13, 2012, MATL LLP (MATL) and Montana Alberta Tie Ltd (Montana Alberta Tie) (collectively, Applicants), filed a Petition for Declaratory Order, requesting that the Federal Energy Regulatory Commission (Commission) confirm that MATL will continue to have negotiated rate authority following the completion of a transaction under which Enbridge Inc. (Enbridge) has become the new ultimate owner of Applicants.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
As indicated in the February 2, 2012 Supplement Notice, Supplemental Notice For Staff Technical Conference, in the above-captioned proceeding,
On December 1, 2011, the Grand Coulee Project Hydroelectric Authority filed an application for a preliminary permit, pursuant to section 4(f) of the Federal Power Act (FPA), proposing to study the feasibility of the Banks Lake Pumped Storage Project (Banks Lake Project or project) to be located on Banks Lake and Franklin D. Roosevelt Lake (Roosevelt Lake), near the town of Grand Coulee, Douglas and Grant Counties, Washington. The project would be located on federal lands administered by the U.S. Bureau of Reclamation (Reclamation) and the U.S. Bureau of Land Management (BLM). The sole purpose of a preliminary permit, if issued, is to grant the permit holder priority to file a license application during the permit term. A preliminary permit does not authorize the permit holder to perform any land-disturbing activities or otherwise enter
The proposed project has two alternatives:
The proposed project would use Reclamation's existing Banks Lake as the upper reservoir and Roosevelt Lake as the lower reservoir. The proposed project would consist of the following new facilities: (1) An upper reservoir inlet/outlet structure equipped with trash racks; (2) a 1.5-mile-long penstock consisting of a vertical shaft, power tunnel segments, and a tailrace section, extending between the upper reservoir inlet/outlet and the reversible turbine/generator units in the powerhouse; (3) an underground powerhouse containing four reversible turbine/generator units rated for 250 megawatts (MW) each, for a total installed generation of 1,000 MW, or a powerhouse located on the shore of Roosevelt Lake, also containing four 250–MW reversible turbine/generator units; (4) a 2-mile-long, 500-kilovolt (kV) transmission line extending from the project powerhouse to an existing 500-kV substation; and (5) appurtenant facilities. The estimated annual generation of Alternative 1 for the Banks Lake Project would be 2,263 gigawatt-hours (GWh).
The proposed project would use Reclamation's existing Banks Lake as the lower reservoir. The proposed project would consist of the following new facilities: (1) A new 312-acre upper reservoir constructed approximately 3,000 feet west of the existing Banks Lake, impounded by three earth and rockfill embankments, each with a crest elevation of 2,300 feet above mean sea level; (2) an upper reservoir inlet/outlet structure equipped with trash racks; (2) a 620-foot-long, 43-foot-diameter vertical shaft connecting the upper reservoir inlet/outlet structure to the power tunnels; (3) four 1,700-foot-long, 17-foot-diameter power tunnels leading from the vertical shaft to the powerhouse; (4) an underground powerhouse containing four reversible turbine/generator units rated for 260 MW each, for a total installed generation of 1,040 MW; (5) a 25-foot-diameter tailrace tunnel between the powerhouse and the existing Banks Lake; (6) a 2.4-mile-long, 500-kV transmission line extending from the project powerhouse to a new 500-kV substation; and (7) appurtenant facilities. The estimated annual generation of Alternative 2 for the Banks Lake Project would be 2,978 GWh.
Deadline for filing comments, motions to intervene, competing applications (without notices of intent), or notices of intent to file competing applications: 60 days from the issuance of this notice. Competing applications and notices of intent must meet the requirements of 18 CFR 4.36. Comments, motions to intervene, notices of intent, and competing applications may be filed electronically via the Internet. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site
More information about this project, including a copy of the application, can be viewed or printed on the “eLibrary” link of Commission's Web site at
On June 27, 2011, Fall River Valley Community Service District, California, filed an application for a preliminary permit, pursuant to section 4(f) of the Federal Power Act (FPA), proposing to study the feasibility of the Fall River Community Hydro Project to be located on Fall River, near the town of Fall River Mills, Shasta County, California. The project affects federal lands administered by the Bureau of Land Management. The sole purpose of a preliminary permit, if issued, is to grant the permit holder priority to file a license application during the permit term. A preliminary permit does not authorize the permit holder to perform any land-disturbing activities or otherwise enter upon lands or waters owned by others without the owners' express permission.
The proposed project would consist of the following facilities: (1) An open conduit that would deliver water from the Pit 1 diversion to a penstock; (2) an existing penstock connecting the conduit to the powerhouse; (3) two pump-turbines totaling 900 kilowatts (kW) (1 × 300 kW unit and 1 × 600 kW unit) of generating capacity; and (4) an existing 3-phase power line on site. The project's annual energy output would range from 4 to 6 gigawatt hours.
Deadline for filing comments, motions to intervene, competing applications (without notices of intent), or notices of intent to file competing applications: 60 days from the issuance of this notice. Competing applications and notices of intent must meet the requirements of 18 CFR 4.36. Comments, motions to intervene, notices of intent, and competing applications may be filed electronically via the Internet. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site
More information about this project, including a copy of the application, can be viewed or printed on the “eLibrary” link of Commission's Web site at
On February 13, 2012, Alaska Village Electric Cooperative (AVEC) filed an application for a preliminary permit, pursuant to section 4(f) of the Federal Power Act (FPA), proposing to study the feasibility of the Old Harbor Hydroelectric Project (Old Harbor Project or project) to be located on the East Fork of Mountain Creek (a Lagoon Creek tributary), near the town of Old Harbor, Kodiak Island Borough, Alaska. The project crosses federal lands of the Kodiak National Wildlife Refuge. The sole purpose of a preliminary permit, if issued, is to grant the permit holder priority to file a license application during the permit term. A preliminary permit does not authorize the permit holder to perform any land-disturbing activities or otherwise enter upon lands or waters owned by others without the owners' express permission.
The proposed run-of-river project would consist of an intake, penstock, powerhouse, tailrace and constructed channel, access road and trail, and transmission line. Power from this project would be used by the residents of the city of Old Harbor.
The intake would consist of a diversion/cut off weir with a height ranging from about 4 feet at the spillway to 6 feet elsewhere and having an overall length of approximately 100 feet. The creek bottom is close to bedrock so the base of the diversion wall would be a shallow grouted or concrete footing dug into the stream bed. The weir would not create any significant impoundment of water and would only be high enough to have an intake that pulls water from the midpoint of the water column. This would allow floatable objects and bottom moving sediments to remain in the creek. A water filtering system consisting of a trash rack, diversion gates, and secondary screens would be incorporated into the weir structure as a separate desanding box that would be partially exposed above grade. The project diversion and intake works would consist of concrete, or other suitable material, with an integral spillway. A below grade transition with an above ground air relief inlet pipe would convey water to a buried High Density Polyethylene Pipe (HDPE) pipeline.
A 10,100-foot-long penstock consisting of an 18-inch-diameter HDPE pipe, a 20-inch-diameter HDPE pipe, and a 16-inch-diameter steel pipe would be installed. A total of 7,250 feet of HDPE would be installed from the intake and 2,850 feet of steel pipe would be installed near the powerhouse. The pipe would be buried 1 to 3 feet underground and follow the natural terrain as much as possible. The pipeline would be located such that bends would be gradual while minimizing the amount of excavation and fill needed.
The powerhouse would consist of a 30-foot by 35-foot (approximate) by 16-foot- high metal building or similar structure. The building would house the turbines and associated equipment, switchgear, controls, and tools and would be placed on a fill pad. The power generation equipment would consist of two Pelton 262 kilowatt (kW) units with a 480-volt, 3-phase synchronous generator and switchgear for each unit. Each unit would have a hydraulic capacity of 5.9 cubic feet per second (cfs) for a total project peak flow rate of 11.8 cfs capable of producing 525 kW of power. A bypass flow system for maintaining environmental flows is not proposed at this time, since the source creek runs dry during certain times of the year.
A tailrace structure and constructed channel would convey the project flows approximately 700 feet from the powerhouse to the nearby lake, known in the city of Old Harbor as the Swimming Pond. A culvert would contain some of the tailrace near the powerhouse to allow for vehicle travel over the tailrace. The constructed channel would convey project flows 1,100 feet from the Swimming Pond to the headwaters of the Lagoon Creek tributary.
An approximately 11, 200-foot-long intake access trail would run between the intake and the powerhouse following the penstock route. The 12-foot-wide trail would be made of 1 to 2 feet of rock fill placed over a geo-textile filter fabric. Two gates would be placed along on the access trail to block the public from accessing the Kodiak National Wildlife Refuge on all terrain vehicles. One gate would be located at the powerhouse. Another gate would be placed where an existing trail connects to the new trail at about 7,000 feet northwest of the powerhouse. A new 6,800-foot-long by 24-foot-wide powerhouse access road would extend from powerhouse to the existing community drinking water tank access road. The road would be open to the public.
A 6,800-foot-long (1.5-mile), 7.2-kV, 3-phase overhead power line would be installed from the powerhouse to the existing power distribution system in Old Harbor. The transmission line would follow the powerhouse access road and drinking water tank road alignment.
The estimated dependable capacity of the project is 140 kW. The peak installed capacity will primarily depend on economics and the projected increase in demand. AVEC has chosen to permit the project with a peak capacity of 525 kW.
Deadline for filing comments, motions to intervene, competing applications (without notices of intent), or notices of intent to file competing applications: 60 days from the issuance of this notice. Competing applications and notices of intent must meet the requirements of 18 CFR 4.36. Comments, motions to intervene, notices of intent, and competing applications may be filed electronically via the Internet. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site
More information about this project, including a copy of the application, can be viewed or printed on the “eLibrary” link of Commission's Web site at
The Federal Energy Regulatory Commission (Commission) hereby gives notice that members of the Commission and Commission staff may attend upcoming PJM Interconnection, L.L.C. (PJM) Members Committee meetings, as well as other PJM committee, subcommittee or task force meetings.
The discussions at each of the meetings described above may address matters at issue in pending proceedings before the Commission, including the following currently pending proceedings:
For additional meeting information, see:
The meetings are open to stakeholders. For more information, contact Valerie Martin, Office of Energy Market Regulation, Federal Energy Regulatory Commission at (202) 502–6139 or
1. On February 17, 2011, the Commission issued a Notice of Inquiry (NOI) concerning the regulatory treatment of locational exchanges of wholesale electric power. The Commission sought guidance as to the circumstances under which locational exchanges of wholesale electric power should be permitted generically and circumstances under which the Commission should consider locational exchanges of wholesale electric power on a case-by-case basis. The Commission received 17 comments from interested parties addressing various issues presented in the NOI. The Commission has determined that there is no basis for continuing this proceeding through the initiation of a rulemaking process and, instead, addresses related issues in an order issued contemporaneously with this order.
The Notice of Inquiry issued by the Commission in this proceeding is hereby terminated.
By direction of the Commission.
Environmental Protection Agency (EPA).
Notice.
EPA has authorized its contractor, Syracuse Research Corporation (SRC), Inc., of North Syracuse, NY, and its identified subcontractor BeakerTree Corporation to access information which has been submitted to EPA under sections 4, 5, 6, and 8 of the Toxic Substances Control Act (TSCA). Some of the information may be claimed or determined to be Confidential Business Information (CBI).
Access to the confidential data will occur no sooner than February 29, 2012.
This action is directed to the public in general. This action may, however, be of interest to all who manufacture, process, or distribute industrial chemicals. Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the technical person listed under
EPA has established a docket for this action under docket identification (ID) number EPA–HQ–OPPT–2003–0004. All documents in the docket are listed in the docket index available at
Under EPA contract number EP–W–12–003, contractor SRC, Inc., of 4225 Running Ridge Road, North Syracuse, NY; and BeakerTree Corporation of 13402 Birch Bark Court, Fairfax, VA, will assist the Office of Pollution Prevention and Toxics (OPPT) by performing chemistry evaluation of new and existing chemicals including the chemistry aspects of their manufacture, processing, use, potential new uses, and pollution prevention. They will also assist in examining documents for information on chemical structures, manufacture, physical/chemical properties, production volume and other pertinent data used in the assessment of the potential effects of chemicals. In accordance with 40 CFR 2.306(j), EPA has determined that under EPA contract number EP–W–12–003, SRC and BeakerTree will require access to CBI submitted to EPA under sections 4, 5, 6, and 8 of TSCA to perform successfully the duties specified under the contract. SRC and BeakerTree personnel will be given access to information submitted to EPA under sections 4, 5, 6, and 8 of TSCA. Some of the information may be claimed or determined to be CBI.
EPA is issuing this notice to inform all submitters of information under sections 4, 5, 6, and 8 of TSCA that EPA
Access to TSCA data, including CBI, will continue until January 12, 2017. If the contract is extended, this access will also continue for the duration of the extended contract without further notice.
SRC and BeakerTree personnel will be required to sign nondisclosure agreements and will be briefed on appropriate security procedures before they are permitted access to TSCA CBI.
Environmental protection, Confidential business information.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Additional comments may be submitted on or before March 23, 2012.
Submit your comments, referencing docket ID number EPA–HQ–OECA–2011–0234, to: (1) EPA online using
Learia Williams, Office of Compliance Assessment and Media Programs Division (Mail Code 2227A), Office of Compliance, Environmental Protection Agency, 1200 Pennsylvania Avenue NW., Washington, DC 20460; telephone number: (202) 564–4113; email address:
EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On May 9, 2011 (76 FR 26900), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received no comments. Any additional comments on this ICR should be submitted to EPA and OMB within 30 days of this notice.
EPA has established a public docket for this ICR under docket ID number EPA–HQ–OECA–2011–0234, which is available for public viewing online at
Use EPA's electronic docket and comment system at
In general, all NESHAP standards require initial notifications, performance tests, and periodic reports. Owners or operators are also required to maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring system is inoperative. These notifications, reports, and records are essential in determining compliance, and are required of all sources subject to NESHAP. In addition,
Any owner or operator subject to the provisions of this part shall maintain a file of these measurements, and retain the file for at least five years following the date of such measurements, maintenance reports, and records. All reports are sent to the delegated state or local authority. In the event that there is no such delegated authority, the reports are sent directly to the EPA regional office. This information is being collected to assure compliance with 40 CFR part 63, subpart CC, as authorized in section 112 and 114(a) of the Clean Air Act. The required information consists of emissions data and other information that have been determined to be private.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB Control Number. The OMB Control Numbers for the EPA regulations are listed in 40 CFR part 9 and 48 CFR chapter 15, and are identified on the form and/or instrument, if applicable.
There is also an increase in burden hours and costs to the Agency. Similarly, this is due to a program change, as well as the most updated labor rates.
The combining of the previous ICR with EPA ICR number 2334.02, has attributed also to the increase in burden hours and costs.
Environmental Protection Agency.
Notice.
In compliance with the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Comments must be submitted on or before March 23, 2012.
Submit your comments, referencing Docket ID No. EPA–HQ–OARM–2011–0803 to, (1) EPA online using
Staci Ramrakha, Policy Training and Oversight Division, Office of Acquisition Management (3802R), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: (202) 564–2017; email address:
EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On October 31, 2011, 76 FR 67182, EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received two comments, which are addressed in the ICR. Any additional comments on this ICR should be submitted to EPA and OMB within 30 days of this notice.
EPA has established a public docket for this ICR under Docket ID No. EPA–HQ–OARM–2011–0803, which is available for online viewing at
Use EPA's electronic docket and comment system at
Environmental Protection Agency.
Notice.
In compliance with the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Comments must be submitted on or before March 23, 2012.
Submit your comments, referencing Docket ID No. EPA–HQ–OARM–2011–0804 to, (1) EPA online using
Staci Ramrakha, Policy Training and Oversight Division, Office of Acquisition Management (3802R), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: (202) 564–2017; email address:
EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On October 31, 2011, 76 FR 67182, EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received no comments. Any additional comments on this ICR should be submitted to EPA and OMB within 30 days of this notice.
EPA has established a public docket for this ICR under Docket ID No. EPA–HQ–OARM–2011–0804, which is available for online viewing at
Use EPA's electronic docket and comment system at
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (PRA)(44 U.S.C. 3501
Additional comments may be submitted on or before March 23, 2012.
Submit your comments, referencing Docket ID No. EPA–HQ–RCRA–2011–0751, to (1) EPA, either online using
Peggy Vyas, (mail code 5303P), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: 703–308–5477; fax number: 703–308–8433; email address:
EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On September 21, 2011 (76 FR 58492), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received no comments. Any additional comments on this ICR should be submitted to EPA and OMB within 30 days of this notice.
EPA has established a public docket for this ICR under Docket ID No. EPA–HQ–RCRA–2011–0751, which is available for online viewing at
Use EPA's electronic docket and comment system at
A State with an approved program may voluntarily transfer program responsibilities to EPA by notifying EPA of the proposed transfer, as required by section 271.23. Further, EPA may withdraw a State's authorized program under section 271.23.
State program revision may be necessary when the controlling Federal or State statutory or regulatory authority is modified or supplemented. In the event that the State is revising its program by adopting new Federal requirements, the State shall prepare and submit modified revisions of the program description, Attorney General's statement, Memorandum of Agreement, or such other documents as EPA determines to be necessary. The State shall inform EPA of any proposed modifications to its basic statutory or regulatory authority in accordance with section 271.21. If a State is proposing to transfer all or any part of any program from the approved State agency to any other agency, it must notify EPA in accordance with section 271.21 and submit revised organizational charts as required under section 271.6, in accordance with section 271.21. These paperwork requirements are mandatory under § 3006(a). EPA will use the information submitted by the State in order to determine whether the State's program meets the statutory and regulatory requirements for authorization.
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 which have subsequently changed; 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.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Additional comments may be submitted on or before March 23, 2012.
Submit your comments, referencing Docket ID No. EPA–HQ–RCRA–2011–0750, to (1) EPA online using
Bryan Groce, Office of Resource
EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On September 21, 2011 (76 FR 58493), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received no comments during the comment period. Any additional comments on this ICR should be submitted to EPA and OMB within 30 days of this notice.
EPA has established a public docket for this ICR under Docket ID No. EPA–HQ–RCRA–2011–0750, which is available for online viewing at
Use EPA's electronic docket and comment system at
Environmental Protection Agency (EPA).
Notice.
Section 5 of the Toxic Substances Control Act (TSCA) requires any person who intends to manufacture
Comments identified by the specific PMN number or TME number, must be received on or before March 23, 2012.
Submit your comments, identified by docket identification (ID) number EPA–HQ–OPPT–2012–0052, and the specific PMN number or TME number for the chemical related to your comment, by one of the following methods:
•
•
•
This action is directed to the public in general. As such, the Agency has not attempted to describe the specific entities that this action may apply to. Although others may be affected, this action applies directly to the submitter of the PMNs addressed in this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
1.
2.
i. Identify the document by docket ID number and other identifying information (subject heading,
ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information and/or data that you used.
v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
vi. Provide specific examples to illustrate your concerns and suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
viii. Make sure to submit your comments by the comment period deadline identified.
EPA classifies a chemical substance as either an “existing” chemical or a “new” chemical. Any chemical substance that is not on EPA's TSCA Inventory is classified as a “new chemical,” while those that are on the TSCA Inventory are classified as an “existing chemical.” For more information about the TSCA Inventory go to:
Under TSCA sections 5(d)(2) and 5(d)(3), EPA is required to publish in the
In Table I of this unit, EPA provides the following information (to the extent that such information is not claimed as CBI) on the PMNs received by EPA during this period: The EPA case number assigned to the PMN, the date the PMN was received by EPA, the projected end date for EPA's review of the PMN, the submitting manufacturer/importer, the potential uses identified by the manufacturer/importer in the PMN, and the chemical identity.
In Table II of this unit, EPA provides the following information (to the extent that such information is not claimed as CBI) on the NOCs received by EPA during this period: The EPA case number assigned to the NOC, the date the NOC was received by EPA, the projected end date for EPA's review of the NOC, and chemical identity.
If you are interested in information that is not included in these tables, you may contact EPA as described in Unit II. to access additional non-CBI information that may be available.
Environmental protection, Chemicals, Hazardous substances, Imports, Notice of commencement, Premanufacturer, Reporting and recordkeeping requirements, Test marketing exemptions.
Environmental Protection Agency (EPA).
Notice.
This notice announces Agency approval of an application submitted by HeiQ Materials AG, to conditionally register the pesticide product HeiQ AGS–20 containing a new
Jed Costanza, Antimicrobials Division (7510P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; telephone number: (703) 347–0204; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:
• Pesticide manufacturing (NAICS code 32532).
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
EPA has established a docket for this action under docket identification (ID) number EPA–HQ–OPP–2009–1012. Publicly available docket materials are available either in the electronic docket at
In accordance with section 3(c)(2) of FIFRA, a copy of the approved label, the list of data references, the data and other scientific information used to support registration, except for material specifically protected by section 10 of FIFRA, are also available for public inspection. Requests for data must be made in accordance with the provisions of the Freedom of Information Act and must be addressed to the Freedom of Information Office (A–101), 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001. Such requests should: Identify the product name and registration number and specify the data or information desired.
A conditional registration may be granted under section 3(c)(7)(C) of FIFRA for a new active ingredient where certain data are lacking, on condition that such data are received by the end of the conditional registration period and do not meet or exceed the risk criteria set forth in 40 CFR 154.7; that use of the pesticide during the conditional registration period will not cause unreasonable adverse effects; and that use of the pesticide is in the public interest. The Agency has considered the available data on the risks associated with the proposed use of silver, which includes particles in the size range between 10 and 100 nm, and information on social, economic, and environmental benefits to be derived from such use. Specifically, the Agency has considered the nature and its pattern of use, application methods and rates, and level and extent of potential exposure. Based on these reviews, the Agency was able to make basic health and safety determinations which show that use of HeiQ AGS–20 during the period of conditional registration will not cause any unreasonable adverse effect on the environment, and that use of the pesticide is, in the public interest.
Consistent with section 3(c)(7)(C) of FIFRA, the Agency has determined that these conditional registrations are in the public interest. Use of the pesticides are of significance to the user community, and appropriate labeling, use directions, and other measures have been taken to ensure that use of the pesticides will not result in unreasonable adverse effects to man and the environment. The conditions of this registration can be reviewed in the docket (EPA–HQ–OPP–2009–1012) at
EPA issued a notice, published in the
Listed below is the application conditionally approved on December 1, 2012 for silver:
HeiQ AGS–20, the end use product, (EPA Registration Number 85249–1), an antimicrobial and preservative additive used to treat fibers.
Environmental protection, Chemicals, Pests and pesticides.
Environmental Protection Agency (EPA).
Notice.
In accordance with section 6(f)(1) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), as amended, EPA is issuing a notice of receipt of requests by registrants to voluntarily cancel certain pesticide registrations. EPA intends to grant these requests at the close of the comment period for this announcement unless the Agency receives substantive comments within the comment period that would merit its further review of the requests, or unless the registrants withdraw their requests. If these requests are granted, any sale, distribution, or use of products listed in this notice will be permitted after the registration has been cancelled only if such sale, distribution, or use is consistent with the terms as described in the final order.
Comments must be received on or before March 23, 2012.
Submit your comments, identified by docket identification (ID) number EPA–HQ–OPP–2009–1017, by one of the following methods:
•
•
Submit written withdrawal request by mail to: Pesticide Re-evaluation Division (7508P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001. ATTN: Jolene Trujillo.
•
Jolene Trujillo, Pesticide Re-evaluation Division (7508P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; telephone number: (703) 347–0103; email address:
This action is directed to the public in general, and may be of interest to a wide range of stakeholders including environmental, human health, and agricultural advocates; the chemical industry; pesticide users; and members of the public interested in the sale, distribution, or use of pesticides. If you have any questions regarding the information in this notice, consult the person listed under
1.
2.
i. Identify the document by docket ID number and other identifying information (subject heading,
ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information and/or data that you used.
v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
vi. Provide specific examples to illustrate your concerns and suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
viii. Make sure to submit your comments by the comment period deadline identified.
This notice announces receipt by the Agency of requests from registrants to cancel 40 pesticide products registered under FIFRA section 3 or 24(c). These registrations are listed in sequence by registration number (or company number and 24(c) number) in Tables 1, 2, and 3 of this unit.
Unless the Agency determines that there are substantive comments that warrant further review of the requests or the registrants withdraw their requests, EPA intends to issue orders in the
Table 4 of this unit includes the names and addresses of record for all registrants of the products in Tables 1, 2, and 3 of this unit, in sequence by EPA company number. This number corresponds to the first part of the EPA registration numbers of the products listed in this unit.
Section 6(f)(1) of FIFRA provides that a registrant of a pesticide product may at any time request that any of its pesticide registrations be cancelled. FIFRA further provides that, before acting on the request, EPA must publish a notice of receipt of any such request in the
Section 6(f)(1)(B) of FIFRA requires that before acting on a request for voluntary cancellation, EPA must provide a 30-day public comment period on the request for voluntary cancellation or use termination. In addition, FIFRA section 6(f)(1)(C) requires that EPA provide a 180-day comment period on a request for voluntary cancellation or termination of any minor agricultural use before granting the request, unless:
1. The registrants request a waiver of the comment period, or
2. The EPA Administrator determines that continued use of the pesticide would pose an unreasonable adverse effect on the environment.
The registrants in Table 4 of Unit II. have requested that EPA waive the 180-day comment period. Accordingly, EPA will provide a 30-day comment period on the proposed requests.
Registrants who choose to withdraw a request for cancellation should submit such withdrawal in writing to the person listed under
Existing stocks are those stocks of registered pesticide products that are currently in the United States and that were packaged, labeled, and released for shipment prior to the effective date of the cancellation action. Because the Agency has identified no significant potential risk concerns associated with these pesticide products, upon cancellation of the products identified in Tables 1, 2, and 3 of Unit II., EPA will allow existing stocks provisions as follows:
The Agency anticipates allowing registrants to sell and distribute existing stocks of these products for 1 year after publication of the Cancellation Order in the
The effective date of cancellation of these products is July 31, 2013. The registrants will be allowed to sell and distribute existing stocks of products containing Fenarimol until July 31, 2013. Thereafter, registrants will be prohibited from selling or distributing these pesticide products, except for export consistent with FIFRA section 17 or for proper disposal.
Persons other than the registrant will be allowed to sell and distribute existing stocks through July 31, 2015. After this date, remaining existing stocks of products containing Fenarimol labeled for all uses, already in the hands of users may be used until exhausted, provided that such use complies with the EPA-approved label and labeling of the product.
The registrant will be allowed to sell and distribute existing stocks until December 31, 2013. Thereafter, registrants will be prohibited from selling or distributing these pesticide products, except for export consistent with FIFRA section 17 or for proper disposal.
Persons other than registrants will generally be allowed to sell, distribute, or use existing stocks until such stocks are exhausted, provided that such sale, distribution, or use is consistent with the terms of the previously approved labeling on, or that accompanied, the cancelled products.
The effective date of cancellation of this product is December 31, 2013. The registrant may continue to sell or distribute existing stocks of chloroneb for one year from the date of the cancellation. Thereafter, registrants will be prohibited from selling or distributing this pesticide product, except for export consistent with FIFRA section 17 or for proper disposal. Persons other than registrants will generally be allowed to sell, distribute, or use existing stocks until such stocks are exhausted, provided that such sale, distribution, or use is consistent with the terms of the previously approved labeling on, or that accompanied, the cancelled products.
Environmental protection, Pesticides and pests.
Environmental Protection Agency (EPA).
Notice.
Pursuant to section 6(f)(2) of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), EPA is printing this Notice of Intent to Suspend Drexel Basic Copper Sulfate Technical. This notice is issued by EPA pursuant to section 3(c)(2)(B) of FIFRA. The Notice of Intent to Suspend was issued following the Agency's issuance of a Data Call-In Notice (DCI), which required the registrant of the affected pesticide product containing the pesticide active ingredient, Copper Compounds, to take appropriate steps to secure certain data, and following the registrant's failure to submit these data or to take other appropriate steps to secure the required data. The subject data were determined to be required to maintain in effect the existing registration of the affected product. Failure to comply with the data requirements of a DCI is a basis for suspension of the affected registration under section 3(c)(2)(B) of FIFRA.
The Notice of Intent To Suspend included in this
Veronica Dutch, Pesticide Re-evaluation Division (7508P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; telephone number: (703) 308–8585; email address:
This action is directed to the public in general, and may be of interest to a wide range of stakeholders including environmental, human health, farm worker and agricultural advocates; the chemical industry; pesticide users; and members of the public interested in the sale, distribution, or use of pesticides. Since others also may be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
EPA has established a docket for this action under docket identification (ID) number EPA–HQ–OPP–2010–0848. Publicly available docket materials are available either in the electronic docket at
The Notice of Intent to Suspend was sent via the U.S. Postal Service (USPS), return receipt requested, to the registrant for the product listed in Table 1 of this unit.
The registrant failed to submit the required data or information or to take other appropriate steps to secure the required data listed in Table 2 of this unit.
1. You may avoid suspension under this notice if you or another person adversely affected by this notice properly request a hearing within 30 days of your receipt of the Notice of Intent To Suspend by mail or, if you did not receive the notice that was sent to you via USPS first class mail return receipt requested, then within 30 days from the date of publication of this notice in the
• Include specific objections which pertain to the allowable issues which may be heard at the hearing.
• Identify the registrations for which a hearing is requested.
• Set forth all necessary supporting facts pertaining to any of the objections which you have identified in your request for a hearing.
If a hearing is requested by any person other than the registrant, that person must also state specifically why he/she asserts that he/she would be adversely affected by the suspension action described in this notice. Three copies of the request must be submitted to: Hearing Clerk, 1900, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460–0001. An additional copy should be sent to the person who signed this notice. The request must be received by the Hearing Clerk by the applicable 30th day deadline as measured from your receipt of the Notice of Intent to
2. You may also avoid suspension if, within the applicable 30-day deadline period as measured from your receipt of the Notice of Intent to Suspend by mail or publication of this notice in the
Your product will remain suspended until the Agency determines you are in compliance with the requirements which are the bases of this notice and so informs you in writing.
After the suspension becomes final and effective, the registrant subject to this notice, including all supplemental registrants of the product listed in Table 1 of Unit II., may not legally distribute, sell, use, offer for sale, hold for sale, ship, deliver for shipment, or receive and (having so received) deliver or offer to deliver, to any person, the product listed in Table 1 of Unit II. Persons other than the registrant subject to this Notice, as defined in the preceding sentence, may continue to distribute, sell, use, offer for sale, hold for sale, ship, deliver for shipment, or receive and (having so received) deliver or offer to deliver, to any person, the product listed in Table 1 of Unit II.
Nothing in this Notice authorizes any person to distribute, sell, use, offer for sale, hold for sale, ship, deliver for shipment, or receive and (having so received) deliver or offer to deliver, to any person, the product listed in Table 1 of Unit II. in any manner which would have been unlawful prior to the suspension.
If the registration for your product listed in Table 1 of Unit II is currently suspended as a result of failure to comply with another FIFRA section 3(c)(2)(B) Data Call-In Notice or section 4 Data Requirements notice, this notice, when it becomes a final and effective order of suspension, will be in addition to any existing suspension, i.e., all requirements which are the bases of the suspension must be satisfied before the registration will be reinstated.
It is the responsibility of the basic registrant to notify all supplementary registered distributors of a basic registered product that this suspension action also applies to their supplementary registered products. The basic registrant may be held liable for violations committed by their distributors.
Any questions about the requirements and procedures set forth in this notice or in the subject FIFRA section 3(c)(2)(B) Data Call-In Notice, should be addressed to the person listed under
The Agency's authority for taking this action is contained in sections 3(c)(2)(B) and 6(f)(2) of FIFRA, 7 U.S.C. 136
Environmental protection, Pesticides and pests.
Federal Communications Commission.
Notice and request for comments.
The Federal Communications Commission (FCC), as part of its continuing effort to reduce paperwork burdens, invites the general public and other Federal agencies to take this opportunity to comment on the following information collection, as required by the Paperwork Reduction Act (PRA) of 1995. Comments are requested concerning (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Written PRA comments should be submitted on or before April 23, 2012. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Cathy Williams, FCC, via email
For additional information about the information collection, contact Cathy Williams at (202) 418–2918.
In addition, the Commission seeks to extend proposed information collection requirements. Specifically, on July 21, 2005, the Commission released
Federal Communications Commission.
Federal Communications Commission.
Notice and request for comments.
The Federal Communications Commission (FCC), as part of its continuing effort to reduce paperwork burdens, invites the general public and other Federal agencies to take this opportunity to comment on the following information collection, as required by the Paperwork Reduction Act (PRA) of 1995. An agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid control number. Comments are requested concerning (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and (e) ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Written comments should be submitted on or before March 23, 2012. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contacts below as soon as possible.
Direct all PRA comments to Nicholas A. Fraser, OMB, via fax 202–395–5167, or via email
For additional information or copies of the information collection, contact Cathy Williams at (202) 418–2918. To view a copy of this information collection request (ICR) submitted to OMB: (1) Go to the Web page
(a) Provides a consistent format for reporting by all licensees, and
(b) Facilitates efforts by the public and the FCC to monitor compliance with the Children's Television Act.
These commercial television broadcast station licensees and the Class A television broadcast station licensees both use FCC Form 398:
(a) To identify the individual station, and
(b) To identify the children's educational and informational programs, which the station broadcasts on both the regularly scheduled and preempted core programming, to meet the station's obligation under the Children's Television Act of 1990 (CTA).
Each quarter, the licensee is required to place in its public inspection file a “Children's Television Programming Report” and to file the FCC Form 398 each quarter with the Commission. The licensee must also complete a “Preemption Report” for each preempted core program during the quarter. This “Preemption Report” requests information on the date of each preemption, if the program was rescheduled, the date and time the program was aired, and the reason for the preemption.
Federal Communications Commission.
Notice and request for comments.
The Federal Communications Commission (FCC), as part of its continuing effort to reduce paperwork burdens, invites the general public and other Federal agencies to take this opportunity to comment on the following information collection, as required by the Paperwork Reduction Act (PRA) of 1995. Comments are requested concerning (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and (e) ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Written PRA comments should be submitted on or before April 23, 2012. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to the Federal Communications Commission via email to
For additional information about the information collection, contact Cathy Williams at (202) 418–2918.
This collection also includes the third party disclosure requirement of 47 CFR 73.3580 (OMB approval was received for Section 73.3580 under OMB Control Number 3060–0031). 47 CFR 73.3580 requires local public notice in a newspaper of general circulation in the community in which the station is located or providing notice over the air of the filing of all applications for assignment of license/permit. This notice must be completed within 30 days of the tendering of the application. A copy of the newspaper notice or a record of the broadcast notice and the application must be placed in the public inspection file.
Board of Governors of the Federal Reserve System.
On June 15, 1984, the Office of Management and Budget (OMB) delegated to the Board of Governors of the Federal Reserve System (Board) its approval authority under the Paperwork Reduction Act (PRA), pursuant to 5 CFR 1320.16, to approve of and assign OMB control numbers to collection of information requests and requirements conducted or sponsored by the Board under conditions set forth in 5 CFR part 1320 Appendix A.1. Board-approved collections of information are incorporated into the official OMB inventory of currently approved collections of information. Copies of the Paperwork Reduction Act Submission, supporting statements and approved collection of information instruments are placed into OMB's public docket files. The Federal Reserve may not conduct or sponsor, and the respondent is not required to respond to, an information collection that has been extended, revised, or implemented on or after October 1, 1995, unless it displays a currently valid OMB control number.
Comments must be submitted on or before April 23, 2012.
You may submit comments, identified by
•
•
•
•
•
All public comments are available from the Board's Web site at
Additionally, commenters may send a copy of their comments to the OMB Desk Officer—Shagufta Ahmed—Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10235 725 17th Street NW., Washington, DC 20503 or by fax to 202–395–6974.
A copy of the PRA OMB submission, including the proposed reporting form and instructions, supporting statement, and other documentation will be placed into OMB's public docket files, once approved. These documents will also be made available on the Federal Reserve Board's public Web site at:
Federal Reserve Board Clearance Officer—Cynthia Ayouch—Division of Research and Statistics, Board of Governors of the Federal Reserve System, Washington, DC 20551 (202–452–3829).
Telecommunications Device for the Deaf (TDD) users may contact (202–263–4869), Board of Governors of the Federal Reserve System, Washington, DC 20551.
The following information collection, which is being handled under this delegated authority, has received initial Board approval and is hereby published for comment. At the end of the comment period, the proposed information collection, along with an analysis of comments and recommendations received, will be submitted to the Board for final approval under OMB delegated authority. Comments are invited on the following:
a. Whether the proposed collection of information is necessary for the proper
b. The accuracy of the Federal Reserve's estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used;
c. Ways to enhance the quality, utility, and clarity of the information to be collected;
d. Ways to minimize the burden of information collection on respondents, including through the use of automated collection techniques or other forms of information technology; and
e. Estimates of capital or start up costs and costs of operation, maintenance, and purchase of services to provide information.
As these data are collected as part of the supervisory process, such information may be afforded confidential treatment under exemption 8 of the Freedom of Information Act (5 U.S.C. 552(b)(8)). In addition, commercial and financial information contained in these information collections may be exempt disclosure under exemption 4 (5 U.S.C. 552(b)(4)). Such exemptions would be made on a case-by-case basis.
The FR Y–14A collects annually BHCs' quantitative projections of balance sheet, income, losses, and capital across a range of macroeconomic scenarios and qualitative information on methodologies used to develop internal projections of capital across scenarios. At least one of the scenarios may include a market shock that the BHCs include in their trading and counterparty loss projections. The FR Y–14Q collects granular data on BHCs' various asset classes and PPNR for the reporting period, which are used to support supervisory stress test models and for continuous monitoring efforts, on a quarterly basis. These data are used to assess the capital adequacy of large BHCs using forward-looking projections of revenue and losses.
Under section 165 of the Dodd-Frank Act, the Federal Reserve is required to issue regulations relating to stress testing (DFAST) for certain BHCs and nonbank financial companies supervised by the Board. On January 5, 2012, the Board published rulemakings (77 FR 594) which would include new reporting requirements found in 12 CFR 252.134(a), 252.146(a), and 252.146(b) related to stress testing. The Federal Reserve anticipates that these new reporting requirements and the PRA burden associated with these requirements would be addressed in detail in a future FR Y–14 proposal.
• Implementing a new monthly schedule, the FR Y–14M, which would collect data previously collected on several quarterly Retail Risk portfolio-level worksheets (into two loan-level only collections and one loan- and portfolio-level collection), and collecting detailed address matching data for the two loan-level collections;
• Revising the quarterly Wholesale Risk schedule (corporate loan data collection) by adding data items that would allow the Federal Reserve to derive an independent probability of default, expanding the scope of loans included in the collection by moving loans from the Commercial Real Estate (CRE) data collection to the corporate loan data collection, clarifying definitions of existing data items, and requesting additional detail about collateral securing a facility; Revising the quarterly Wholesale Risk schedule (CRE collection) by moving loans to the corporate loan data collection, adding a non-accrual data item, and modifying the loan status data item to include the number of days past due;
• Implementing a new quarterly Operational Risk schedule to gather data that would support supervisory stress test models to forecast the BHCs' operational loss levels under various macroeconomic conditions; and
• Expanding the respondent panel (for the FR Y–14 A/Q/M) to include large banking organizations that meet an asset threshold of $50 billion or more in total consolidated assets (large BHCs), as defined by the Capital Plan rule (12 CFR 225.8).
Draft files illustrating the proposed new schedules and instructions, and the proposed revisions to the current reporting schedules and instructions are available on the Federal Reserve Board's public Web site at:
The Federal Reserve proposes increasing the frequency of reporting for three retail portfolios from quarterly to monthly (the proposed FR Y–14M). The current quarterly Retail Risk schedule collects data on several portfolio-level worksheets, including: one domestic closed-end first lien residential mortgage worksheet, two domestic home equity worksheets (domestic closed-end home equity loans and domestic home equity lines of credit), and two domestic credit card worksheets (domestic charge card and domestic small and medium size enterprise (SME) corporate cards). The portfolio-level data collected was highly segmented and provided substantial insight into BHCs' home equity, first lien residential, and credit card portfolios. However, given the micro- and macro-prudential importance of the portfolios and the benefit of more granular information to supervisory model development and risk assessment, the Federal Reserve proposes replacing these quarterly portfolio-level worksheets with the following new monthly collections:
• One loan-level collection for
• One loan-level collection for
• One account- and portfolio-level collection for
For these new retail portfolio collections, the Federal Reserve proposes collecting month-end data on a monthly frequency. Currently, all of the retail risk worksheets collect monthly data on a quarterly frequency, even though the Capital Plan rule allows for the collection of data as frequently as needed. The proposed monthly data collection would improve the Federal Reserve's ability to perform its continuous risk monitoring function by providing more timely data. In a time of crisis or market downturn where risk characteristics could change in an unpredictable manner, monthly data collection would be especially valuable for these retail portfolios with relatively short credit cycles. (For example, a credit card account could go from current to charged-off within one quarter.) Collecting data on a quarterly frequency could hinder the ability of the Federal Reserve to respond to issues of immediate supervisory concern or to requests from policy makers. Furthermore, BHCs generally produce data and internal risk management reports for these portfolios monthly, and often provide similar data for supervisory purposes on a monthly basis. The Federal Reserve, at this time, does not propose requiring monthly reporting for the other retail portfolios with longer credit cycles, as the burden of reporting at the increased frequency currently outweighs the value of the additional data.
These collections would gather one record per loan. Due to the volume of data that would be collected, these data would not be gathered in Excel worksheets as in the previous quarterly data collection; rather file specifications would be provided to respondents in order to transmit the data, as appropriate.
The proposed
• All loans in the active inventory as-of the last day of the month;
• All loans in the inventory that were transferred to another servicer during the month; and
• All loans in the inventory that were liquidated during the month.
The reported data items would include: Loan number, property information, loan amount, documentation information, loan-to-value and debt-to-income ratios, borrower information, bankruptcy or foreclosure status, and other detailed loan information.
The proposed
• All loans in the active inventory as-of the last day of the month;
• All loans in the inventory that were transferred to another servicer during the month; and
• All loans in the inventory that were liquidated during the month.
The reported data items would include: loan number; property information; loan, line, and appraisal amounts; loan documentation information; loan-to-value and debt-to-income ratios; borrower information; bankruptcy or foreclosure status; and other detailed loan information.
In order to match senior and junior lien residential mortgages on the same collateral, the Federal Reserve also proposes gathering additional information (loan number, property and mailing address information, liquidation status, original lien position, and census tract) on the residential mortgage loans reported in the
The proposed
The current corporate loan collection gathers loan-level data that focuses on data stored in BHCs' systems of records, particularly their loan accounting systems. While the granular loan-level data provides additional insights into certain credit risk characteristics, the data items in the initial FR Y–14Q collection were not sufficient to evaluate all aspects of credit risk or produce an independent probability of default (PD). In order to better understand the credit risk associated with BHCs' corporate loan exposures, the Federal Reserve proposes adding approximately 35 data items to the collection. These data items would allow the Federal Reserve to derive an independent PD for both public and private firms and better track underwriting standards and emerging risks in BHCs' loan portfolios. To reduce the burden of reporting the additional data items, the Federal Reserve also proposes allowing BHCs to exclude from reporting (or make optional the reporting of) obligor financial data (data items 51–79) for loans extended to an obligor (1) Domiciled outside of the U.S.; (2) that is a natural person, a non-profit Federal, state or local governmental agency; or (3) that has a NAICS industry code
In addition, the Federal Reserve proposes amending the scope of loans in the corporate loan collection to include owner-occupied non-farm, non-residential (NFNR) CRE loans (reported on the FR Y–9C, Schedule HC–C 1.e(1)). These loans, currently reported in the CRE collection, would be moved to the corporate loan collection so overall this does not represent an expansion of the wholesale collection. The data items gathered in the corporate loan collection better capture the elements indicative of risk in owner-occupied NFNR CRE loans than those in the CRE collection. The Federal Reserve proposes revisions to the corporate loan data collection to clarify definitions of existing data items and request additional detail about collateral securing a facility.
The Federal Reserve also proposes revising the CRE data collection to add a non-accrual data item and to modify the loan status data item to include the number of days past due. These revisions to the CRE data collection would allow the Federal Reserve to better model the credit risk of CRE loans and these data would be readily available in BHCs' loan servicing systems.
Although no changes are being proposed to the reference in the instructions for the wholesale data collections regarding the use of the International Organization for Standardization country code list, the Federal Reserve solicits feedback regarding whether this reference should be changed to direct respondents to use U.S. Department of Treasury (Treasury) country code list instead. At present, the Treasury list is referenced in the instructions for the Quarterly Report of Assets and Liabilities of Large Foreign Offices of U.S. Banks (FR 2502q; OMB No. 7100–0079) and is used by institutions that submit data on the Treasury International Capital reporting forms and data on certain Federal Financial Institutions Examination Council (FFIEC) reporting forms.
The current FR Y–14A
During the drafting of the September 2011 proposal implementing the FR Y–14A/Q, the Federal Reserve was aware of the need to also collect actual operational loss data on a quarterly basis; however, more time was needed in order to conduct a comprehensive analysis before determining the appropriate data items that would be collected. As part of that analysis, the Federal Reserve reviewed the reporting requirements in Schedule S (Operational Risk) of the interagency Advanced Capital Adequacy Framework Regulatory Reporting Requirements (FFIEC 101; OMB No. 7100–0319) to determine the data items collected and the level of granularity to which they are collected. The data collected on Schedule S is summary or aggregate-level information, while the proposed FR Y–14Q schedule requests data on an individual loss event level. Based on the analysis conducted, the Federal Reserve proposes a new quarterly operational loss data collection. The data collected would include the type of loss event, when it occurred, the loss amount, the business line in which it occurred, and other relevant information. Obtaining these data on an individual loss event level would help achieve key objectives that could otherwise not be effectively realized with summary level data only and would enhance the Federal Reserve's ability to (1) assess the BHCs' operational loss exposures in relation to the risks faced by the BHCs and (2) ensure safety and soundness. These data would also be used to develop and calibrate supervisory stress test models, evaluate the projections that BHCs submit as part of the FR Y–14A, and support continuous monitoring and analysis of BHCs operational loss activity and trends. These data are not currently available on a standardized basis.
Although no changes are being proposed to the submission due dates for the FR Y–14Q data, the Federal Reserve is soliciting feedback as to whether the quarterly submission schedule, which mirrors the FR Y–9 submission schedule, is problematic for institutions. The Federal Reserve specifically requests feedback as to whether additional time would be helpful, and if so, how many days.
As mentioned above, the Capital Plan rule, which contains the authority for these reporting requirements, applies to large BHCs. As of September 30, 2011, there were approximately 34 large BHCs; however, at this time, only 30 are required to report. The asset threshold of $50 billion is consistent with the threshold established by section 165 of the Dodd-Frank Act relating to enhanced supervision and prudential standards for certain BHCs. Therefore, the Federal Reserve proposes to expand the scope of the respondent panel required to complete the reporting schedules and worksheets to include all BHCs subject to the Capital Plan rule, except for SR 01–01 firms.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than March 19, 2012.
A. Federal Reserve Bank of Dallas (E. Ann Worthy, Vice President) 2200 North Pearl Street, Dallas, Texas 75201–2272:
1.
9 a.m. (Eastern Time) February 27, 2012.
2nd Floor Training Room, 1250 H Street NW., Washington, DC 20005.
Parts will be open to the public and parts will be closed to the public.
1. Approval of the Minutes of the January 23, 2012 Board Member Meeting
2. Thrift Savings Plan Activity Report by the Executive Director
a. Monthly Participant Activity Report
b. Investment Performance Report
c. Legislative Report
3. Review of Audit Recommendations
4. Audit Reports
5. Department of Labor Audit Presentation
6. Review and Evaluation of Investment Fund Indexes
7. Status of Current Investment Management Contract
8. Board Meeting Calendar Review
9. FRTIB Move Update
10. Roth Contribution Feature Update
11. Procurement
12. Predecisional Matters
Thomas J. Trabucco, Director, Office of External Affairs, (202) 942–1640.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice of request for public comments regarding an extension to an existing OMB clearance.
Under the provisions of the Paperwork Reduction Act, the Regulatory Secretariat will be submitting to the Office of Management and Budget (OMB) a request to review and approve an extension of a previously approved information collection requirement concerning delivery schedules.
Public comments are particularly invited on: Whether this collection of information is necessary for the proper performance of functions of the Federal Acquisition Regulation (FAR), and whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through
Submit comments on or before April 23, 2012.
Submit comments identified by Information Collection 9000–0043, Delivery Schedules by any of the following methods:
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•
•
Mr. Anthony Robinson, Procurement Analyst, Federal Acquisition Policy Division, GSA (202) 501–2568 or via email at
The time of delivery or performance is an essential contract element and must be clearly stated in solicitations and contracts. The contracting officer may set forth a required delivery schedule or may allow an offeror to propose an alternate delivery schedule, for other than those for construction and architect-engineering, by inserting in solicitations and contracts a clause substantially the same as either FAR 52.211–8, Time of Delivery, or FAR 52.211–9, Desired and Required Time of Delivery. The information is needed to assure supplies or services are obtained in a timely manner.
Office of the Secretary, HHS.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of the Secretary (OS), Department of Health and Human Services, is publishing the following summary of a proposed collection for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, email your request, including your address, phone number, OMB number, and OS document identifier, to
Electronic health information exchange promises an array of potential benefits for individuals and the U.S. health care system through improved health care quality, safety, and efficiency. At the same time, this environment also poses new challenges and opportunities for protecting health information, including methods for individuals to engage with their health care providers and affect how their health information may be exchanged.
Six grantees are funded to identify local barriers to permanent placement and implement innovative strategies that mitigate or eliminate those barriers and reduce the likelihood that children will remain in foster care for three years or longer. The first year of the initiative focused on clarifying grantees' target populations and intervention programs. In addition, evaluation plans were developed to support rigorous site-specific and cross-site studies to document the implementation and effectiveness of the grantees' projects and the initiative overall.
Data collection for the PII evaluation includes a number of components being launched at different points in time. The purpose of the current document is to request approval of data collection efforts needed for a first phase of data collection and to request a waiver for subsequent 60 day notices for later components of the evaluation. The first phase includes data collection for a cross-site implementation evaluation and site-specific evaluations of two PII grantees (Washoe County, Nevada, and the State of Kansas) that will begin implementing interventions during the second year of the PII grant period. The second phase includes a cost evaluation and site-specific evaluations of four PII grantees expected to implement interventions in the third year of the PII grant period.
Data for the evaluations will be collected through: (1) Direct assessment of caregivers; (2) service providers' clinical assessments of children and families; (3) interviews and focus groups with grantee staff during site visits and through telephone interviews; (4) web-based data collection from service providers and key informants; and (5) retrieval and submission of data from grantee data systems.
In compliance with the requirements of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Planning, Research and Evaluation, 370 L'Enfant Promenade SW., Washington, DC 20447, Attn: OPRE Reports Clearance Officer. Email address:
The Department specifically requests comments on (a) whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted within 60 days of this publication.
An application is required by Federal statute (the Help America Vote Act (HAVA) of 2002, Public Law 107–252, Section 291, Payments for Protection and Advocacy Systems, 42 U.S.C. 15461). Each State Protection & Advocacy (P&A) System must prepare an application in accordance with the program announcement. There is no application kit; the P&As application may be in the format of its choice. It must, however, be signed by the P&As Executive Director or the designated representative, and contain the assurances as outlined under Part I. C. Use of Funds. The P&As designated representatives may signify their agreement with the conditions/assurances by signing and returning the assurance document Attachment B, found in Part IV of this Instruction. The assurance document signed by the Executive Director of the P&A, or other designated person, should be submitted with the application to the Administration on Developmental Disabilities.
An annual report is required by Federal statute (the Help America Vote Act (HAVA) of 2002, Public Law 107–252, Section 291, Payments for Protection and Advocacy Systems, 42 U.S.C. 15461). Each State Protection & Advocacy (P&A) System must prepare and submit an annual report at the end of every fiscal year. The report addresses the activities conducted with the funds provided during the year. The information from the annual report will be aggregated into an annual profile of how HAVA funds have been spent. The report will also provide an overview of the P&A goals and accomplishments and permit the Administration on Developmental Disabilities to track progress to monitor grant activities.
In compliance with the requirements of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Planning, Research and Evaluation, 370 L'Enfant Promenade, SW., Washington, DC 20447, Attn: OPRE Reports Clearance Officer. Email address:
The Department specifically requests comments on (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted within 60 days of this publication.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is issuing an order under the Federal Food, Drug, and Cosmetic Act (the FD&C Act) permanently debarring Stephen L. Marks from providing services in any capacity to a person that has an approved or pending drug product application. We base this order on a finding that Mr. Marks was convicted of felonies under Federal law for conduct relating to the regulation of a drug product under the FD&C Act. Mr. Marks was given notice of the proposed permanent debarment and an opportunity to request a hearing within the timeframe prescribed by regulation. Mr. Marks failed to respond. Mr. Marks' failure to respond constitutes a waiver of his right to a hearing concerning this action.
This order is effective February 22, 2012.
Submit applications for special termination of debarment to the Division of Dockets Management (HFA–305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.
Kenny Shade, Office of Regulatory Affairs, Food and Drug Administration, 12420 Parklawn Dr., Element Bldg., rm. 4144, Rockville, MD 20857, 301–796–4640.
Section 306(a)(2)(B) of the FD&C Act (21 U.S.C. 335a(a)(2)(B)) requires debarment of an individual if FDA finds that the individual has been convicted of a felony under Federal law for conduct relating to the regulation of any drug product under the FD&C Act.
On June 23, 2011, the U.S. District Court for the Middle District of Pennsylvania entered judgment against Mr. Marks for: Conspiracy to distribute misbranded controlled substances in violation of 21 U.S.C. 846; causing the misbranding of a drug product by dispensing a prescription drug product without a valid prescription in violation of 21 U.S.C. 331(k); and aiding and abetting in a monetary transaction in criminally derived property of a value greater than $10,000 in violation of 18 U.S.C. 1957 and 2.
FDA's finding that debarment is appropriate is based on the felony convictions referenced herein for conduct relating to the regulation of a drug product. The factual basis for this conviction is as follows: Mr. Marks was a pharmacist licensed to practice as a pharmacist in Pennsylvania. Mr. Marks managed and operated Pharmacy Services, Inc. (PSI, Inc.), a pharmacy registered with the Drug Enforcement Administration. This registration permitted Mr. Marks to fill prescriptions for and dispense certain controlled substances. From on or about June 2004, through January 2006, Mr. Marks and other employees of PSI, Inc. dispensed and distributed controlled substances for businesses that used telemarketers and Web sites to market, sell, and distribute controlled substances, including pain medications and stimulants, to individuals throughout the United States. From on or about June 2004, through on or about January 2006, in the Middle District of Pennsylvania, with intent to defraud and mislead, Mr. Marks did an act that caused drugs to be misbranded after they moved in interstate commerce and while they were held for sale, in that he dispensed the prescription drugs hydrocodone and Didrex, both of which are Schedule III controlled substances, without a valid prescription of a practitioner licensed by law to administer such drugs.
As a result of his convictions, on September 30, 2011, FDA sent Mr. Marks a notice by certified mail proposing to permanently debar him from providing services in any capacity to a person that has an approved or pending drug product application. The proposal was based on a finding, under section 306(a)(2)(B) of the FD&C Act, that Mr. Marks was convicted of felonies under Federal law for conduct relating to the regulation of a drug product under the FD&C Act. The proposal also offered Mr. Marks an opportunity to request a hearing, providing him 30 days from the date of receipt of the letter in which to file the request, and advised him that failure to request a hearing constituted a waiver of the opportunity for a hearing and of any contentions concerning this action. The proposal was received on October 6, 2011. Mr. Marks failed to respond within the timeframe prescribed by regulation and has, therefore, waived his opportunity for a hearing and has waived any contentions concerning his debarment (21 CFR part 12).
Therefore, the Director, Office of Enforcement, Office of Regulatory Affairs, under section 306(a)(2)(B) of the FD&C Act, under authority delegated to the Director (Staff Manual Guide 1410.35), finds that Stephen L. Marks has been convicted of felonies under Federal law for conduct relating to the regulation of a drug product under the FD&C Act.
As a result of the foregoing finding, Mr. Marks is permanently debarred from providing services in any capacity to a person with an approved or pending drug product application under sections 505, 512, or 802 of the FD&C Act (21 U.S.C. 355, 360b, or 382), or under section 351 of the Public Health Service Act (42 U.S.C. 262), effective (see
Any application by Mr. Marks for special termination of debarment under section 306(d)(4) of the FD&C Act (21 U.S.C. 335a(d)(4)) should be identified with Docket No. FDA–2011–N–0585 and sent to the Division of Dockets Management (see
Publicly available submissions may be seen in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of final product-specific bioequivalence (BE) recommendations. The recommendations provide product-specific guidance on the design of BE studies to support abbreviated new drug applications (ANDAs). In the
Submit written or electronic comments on Agency guidances at any time.
Submit written requests for single copies of the individual BE guidances to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, rm. 2201, Silver Spring, MD 20993–0002. Send one self-addressed adhesive label to assist that office in processing your requests. See the
Submit electronic comments to
Doan T. Nguyen, Center for Drug Evaluation and Research (HFD–600), Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855, 240–276–8608.
In the
For a complete history of previous
These guidances are being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The guidances represent the Agency's current thinking on product-specific design of BE studies to support ANDAs. They do not create or confer any rights for or on any person and do not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statutes and regulations.
FDA is announcing final product-specific BE recommendations for drug products containing the following active ingredients:
Interested persons may submit to the Division of Dockets Management (see
Please note that on January 15, 2008, the FDA Division of Dockets Management Web site transitioned to the Federal Dockets Management System (FDMS). FDMS is a Government-wide, electronic docket management system. Electronic comments or submissions will be accepted by FDA through FDMS only at
Persons with access to the Internet may obtain the document at either
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of additional draft and revised draft product-specific bioequivalence (BE) recommendations. The recommendations provide product-specific guidance on the design of BE studies to support abbreviated new drug applications (ANDAs). In the
Although you can comment on any guidance at any time (see 21 CFR 10.115(g)(5)), to ensure that the Agency considers your comments on these draft and revised draft guidances before it begins work on the final versions of the guidances, submit either electronic or written comments on the draft and revised draft product-specific BE recommendations listed in this notice by April 23, 2012.
Submit written requests for single copies of the individual BE guidances to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 2201, Silver Spring, MD 20993–0002. Send one self-addressed adhesive label to assist that office in processing your requests. See the
Submit electronic comments on the draft product-specific BE recommendations to
Doan T. Nguyen, Center for Drug Evaluation and Research (HFD–600), Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855, 240–276–8608.
In the
For a complete history of previously published
These draft and revised draft guidances are being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The guidances represent the Agency's current thinking on product-specific design of BE studies to support ANDAs. They do not create or confer any rights for or on any person and do not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statutes and regulations.
FDA is announcing new draft product-specific BE recommendations for drug products containing the following active ingredients:
FDA is announcing revised draft product-specific BE recommendations for drug products containing the following active ingredients:
FDA is announcing the withdrawal of the product-specific BE recommendations for drug products containing the following ingredients: Acetaminophen; Propoxyphene Napsylate. FDA has requested that products containing propoxyphene be withdrawn from sale for reasons of safety or efficacy. The product-specific BE recommendations for Acetaminophen; Propoxyphene Napsylate that previously were published on the “Bioequivalence Recommendations for Specific Products” Web page have been deleted.
Interested persons may submit to the Division of Dockets Management (see
Persons with access to the Internet may obtain the document at either
Food and Drug Administration, HHS.
Notice of public conference.
The Food and Drug Administration (FDA) Cincinnati District, in cosponsorship with Xavier University, is announcing a public conference entitled “FDA/Xavier University Global Medical Device Conference.” This 3-day public conference includes presentations from key FDA officials and industry experts, and has two separate tracks of interest. The conference is intended for companies of all sizes and employees at all levels.
To register online for the public conference, please visit the “Registration” link on the conference Web site at
To register by mail, please send your name, title, firm name, address, telephone and fax numbers, email, and payment information for the fee to Xavier University, Attention: Sue Bensman, 3800 Victory Pkwy., Cincinnati, OH 45207. An email will be sent confirming your registration.
Attendees are responsible for their own accommodations. The conference headquarters hotel is the Downtown Cincinnati Hilton Netherlands Plaza, 35 West 5th St., Cincinnati, OH, 45202, 513–421–9100. Special conference block rates are available through April 11, 2012. To make reservations online, please visit the “Venue & Logistics” link at
If you need special accommodations due to a disability, please contact Marla Phillips (see
The public conference helps fulfill the Department of Health and Human Services' and FDA's important mission to protect the public health. The conference will provide those engaged in FDA-regulated medical devices (for humans) with information on the following topics:
• CDRH Medical Device Innovation Initiative Keynote Address;
• 510(k)—Office of Device Evaluation Perspective;
• The Purchasing Control Subsystem—Requirements and Implementation;
• Draft 510(k) Guidance—Deciding When to Submit a 510(k) for a Change or Modification;
• Challenges of Design Controls;
• FDA 483s and Regulatory Action—Response Workshop;
• Recalls—Globally;
• GHTF Document on CAPA—Workshop;
• 510(k)—An Industry Perspective;
• Interdependency of Postmarket Surveillance, Risk, and CAPA;
• Promotional Practices—Global;
• Office of Compliance Initiatives;
• U.S. Senate HELP Committee Keynote Dinner;
• Risk Management Across the Quality Systems—FDA Expectations and Implementation;
• Global Regulatory Strategy; and
• FDA Inspectional Approach—Panel With Current FDA Investigators.
FDA has made education of the drug and device manufacturing community a high priority to help ensure the quality of FDA-regulated drugs and devices. The conference helps to achieve objectives set forth in section 406 of the Food and Drug Administration Modernization Act of 1997 (Pub. L. 105–115) (21 U.S.C. 393), which includes working closely with stakeholders and maximizing the availability and clarity of information to stakeholders and the public. The conference also is consistent with the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121) by providing outreach activities by Government Agencies to small businesses.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration's (FDA) Center for Drug Evaluation and Research (CDER) is announcing the continuation of the Regulatory Project Management Site Tours and Regulatory Interaction Program (the Site Tours Program). The purpose of this document is to invite pharmaceutical companies interested in participating in this program to contact CDER.
Pharmaceutical companies may submit proposed agendas to the Agency by April 23, 2012.
Dan Brum, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 22, rm. 4160, Silver Spring, MD 20993–0002, 301–796–0578, email:
An important part of CDER's commitment to make safe and effective drugs available to all Americans is optimizing the efficiency and quality of the drug review process. To support this primary goal, CDER has initiated various training and development programs to promote high performance in its regulatory project management staff. CDER seeks to significantly enhance review efficiency and review quality by providing the staff with a better understanding of the pharmaceutical industry and its operations. To this end, CDER is continuing its training program to give regulatory project managers the opportunity to tour pharmaceutical facilities. The goals are to provide the following: (1) Firsthand exposure to industry's drug development processes and (2) a venue for sharing information about project management procedures (but not drug-specific information) with industry representatives.
In this program, over a 2- to 3-day period, small groups (five or less) of regulatory project managers, including a senior level regulatory project manager, can observe operations of pharmaceutical manufacturing and/or packaging facilities, pathology/toxicology laboratories, and regulatory affairs operations. Neither this tour nor any part of the program is intended as a mechanism to inspect, assess, judge, or perform a regulatory function, but is meant rather to improve mutual understanding and to provide an avenue for open dialogue. During the Site Tours Program, regulatory project managers will also participate in daily workshops with their industry counterparts, focusing on selective regulatory issues important to both CDER staff and industry. The primary objective of the daily workshops is to learn about the team approach to drug development, including drug discovery, preclinical evaluation, tracking mechanisms, and regulatory submission operations. The overall benefit to regulatory project managers will be exposure to project management, team techniques, and processes employed by the pharmaceutical industry. By participating in this program, the regulatory project manager will grow professionally by gaining a better understanding of industry processes and procedures.
All travel expenses associated with the site tours will be the responsibility of CDER; therefore, selection will be based on the availability of funds and resources for each fiscal year. Selection will also be based on firms having a favorable facility status as determined by FDA's Office of Regulatory Affairs District Offices in the firms' respective regions. Firms interested in offering a site tour or learning more about this training opportunity should respond by submitting a proposed agenda to Dan Brum (see
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Coast Guard, DHS.
Notice and request for comments.
The National Preparedness for Response Exercise Program (PREP) is designed to facilitate the periodic testing of oil spill response plans of certain vessels and facilities. The Coast Guard, Environmental Protection Agency (EPA), Department of Transportation's Pipeline and Hazardous Materials Safety Administration (PHMSA), and Department of the Interior's Bureau of Safety and Environmental Enforcement (BSEE) are working to revise the PREP Guidelines to reflect changes to regulations, agency reorganizations, and lessons learned from past preparedness activities and recent response activities. The PREP Guidelines were last revised in 2002. This notice solicits comments and suggestions for updating the PREP Guidelines.
Comments and related material must either be submitted to our online docket via
You may submit comments identified by docket number USCG–2011–1178 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 notice, call or email LTJG Nicole Tourot, Office of Incident Management and Preparedness, Oil and Hazardous Substances Division (CG–5332), U.S. Coast Guard Headquarters; telephone 202–372–2230, email
We encourage you to participate in the revision of the PREP Guidelines by submitting comments and related materials. All comments received will be posted without change to
To submit your comment online, go to
The Oil Pollution Act of 1990 (OPA 90) requires, among other things, that periodic exercises take place to test oil spill removal capabilities in certain areas designated in the statute.
The four Federal agencies referenced above published the PREP Guidelines in 1994 and revised them in 2002. The 2002 edition is available in the docket as described in the
This notice is part of a two-stage public comment process. The comments received from the public on what, if any, suggested changes would be appropriate to the current version of the PREP Guidelines will be used to inform the revision process. After considering all of the comments, we anticipate making a revised draft of the PREP Guidelines available for public review and comment in the future.
This notice is issued under authority of 33 U.S.C. 1321(j), 5 U.S.C. 552(a), and 33 CFR 1.05–1.
Office of Sustainable Housing and Communities, HUD.
Announcement of funding awards.
In accordance with Section 102(a)(4)(C) of the Department of Housing and Urban Development Reform Act of 1989, this announcement notifies the public of funding decisions made by the Department in a competition for funding under the Fiscal Year 2011 (FY 2011) Notice of Funding Availability (NOFA) for the Community Challenge Planning Grant Program (Challenge Grants). This announcement contains the consolidated names and addresses of this year's award recipients.
Dwayne S. Marsh, Office of Sustainable Housing and Communities, U.S. Department of Housing and Urban Development, 451 Seventh Street SW., Washington, DC 20410–4500, telephone (202) 402–6316. Hearing or speech-impaired individuals may access this number via TTY by calling the toll-free Federal Information Service at (800) 877–8339.
The Capacity Building for Sustainable Communities Program identifies intermediary organizations that can provide capacity building support for communities engaged in planning efforts that support community involvement and integrate housing, land use, land cleanup and preparation for reuse, economic and workforce development, transportation, and infrastructure investments.
The first purpose of the Program is to assemble a collection of capacity building service providers to work directly with the FY2010 and FY2011 HUD Sustainable Communities Regional Planning and Community Challenge grant recipients, HUD Preferred Sustainability Status Communities, and EPA Sustainable Community Technical Assistance recipients and Brownfield Area Wide Planning grant recipients (collectively—Sustainable Communities Grantees‖), and enable them to fulfill their anticipated outcomes. HUD and other Partnership agencies will work regularly with all selected intermediary service providers to maintain a coordinated and leveraged delivery approach that ensures the maximum benefit to local governments, regions, and planning entities and partners engaged in the prescribed activities.
The second purpose of the Program is to build a national coalition and leadership network of the Sustainable Communities Grantees. The purpose of the network is to facilitate the exchange of successful strategies, lessons learned, emerging tools and public engagement strategies, and approaches for avoiding or minimizing pitfalls. HUD will work with the selected intermediaries to develop a robust evaluation component for the network.
The FY 2011 awards announced in this Notice were selected for funding in a competition posted on Grants.gov and HUD's Web site on June 7, 2011. Applications were scored and selected for funding based on the selection criteria in that NOFA. This notice announces the allocation total of $5.65 million for Capacity Building for Sustainable Communities grants, of which $650,000 was provided by the U.S. Environmental Protection Agency.
In accordance with Section 102 (a)(4)(C) of the Department of Housing and Urban Development Reform Act of 1989 (103 Stat.1987, 42 U.S.C. 3545), the Department is publishing the names, addresses, and amounts of the 10 awards made under the competition in Appendix A to this document.
Office of the Secretary, Interior.
Notice of renewal.
Under the Federal Advisory Committee Act (FACA), following consultation with the General Services Administration, the Secretary of the
The charter will be filed with the Senate and House of Representatives and the Library of Congress on March 8, 2012.
Joshua Winchell, Council Coordinator, U.S. Fish and Wildlife Service, (703) 358–2639.
The Council will conduct its operations in accordance with the provisions of the FACA. It will report to the Secretary of the Interior and the Secretary of Agriculture through the Fish and Wildlife Service. The Council will function solely as an advisory body. The Council's duties will consist of, but are not limited to, providing recommendations for:
(a) Implementing the
(b) Increasing public awareness of and support for the Wildlife Restoration Program;
(c) Fostering wildlife and habitat conservation and ethics in hunting and shooting sports recreation;
(d) Stimulating sportsmen and women's participation in conservation and management of wildlife and habitat resources through outreach and education;
(e) Fostering communication and coordination among State, tribal, and Federal governments; industry; sportsmen and women who hunt and shoot; wildlife and habitat conservation and management organizations; and the public;
(f) Providing appropriate access to Federal lands for recreational shooting and hunting;
(g) Providing recommendations to improve implementation of Federal conservation programs that benefit wildlife, hunting, and outdoor recreation on private lands; and
(h) When requested by the Designated Federal Officer in consultation with the Council Chairman, performing a variety of assessments or reviews of policies, programs, and efforts through the Council's designated subcommittees or workgroups.
The Council will consist of no more than 18 discretionary and 7 ex officio members. The Secretary of the Interior and the Secretary of Agriculture will appoint discretionary members for 3-year terms.
(a) Ex officio members:
(1) Director, Fish and Wildlife Service, or designated representative;
(2) Director, Bureau of Land Management, or designated representative;
(3) Director, National Park Service, or designated representative;
(4) Chief, U.S. Forest Service, or designated representative;
(5) Chief, Natural Resources Conservation Service, or designated representative;
(6) Administrator, Farm Service Agency, or designated representative; and
(7) Executive Director, Association of Fish and Wildlife Agencies.
(b) The remaining (discretionary) members will be selected from among the national interest groups listed below. These members must be senior-level representatives of their organizations and/or have the ability to represent their designated constituency.
(1) State fish and wildlife resource management agencies;
(2) Wildlife and habitat conservation/management organizations;
(3) Game bird hunting organizations;
(4) Waterfowl hunting organizations;
(5) Big game hunting organizations;
(6) Sportsmen and women community at large;
(7) Archery, hunting, and/or shooting sports industry;
(8) Hunting and shooting sports outreach and education organizations;
(9) Tourism, outfitter, and/or guide industries related to hunting and/or shooting sports;
(10) Tribal resource management organizations.
The Council will function solely as an advisory body and in compliance with provisions of the FACA (5 U.S.C. Appendix 2). This notice is published in accordance with section 9a(2) of the FACA. The certification of renewal is published below.
U.S. Geological Survey (USGS), Interior.
Notice of a revision of a currently approved information collection (1028–0053).
To comply with the Paperwork Reduction Act of 1995 (PRA), we are notifying the public that we have submitted to the Office of Management and Budget (OMB) an information collection request (ICR) for the revision of the currently approved paperwork requirements for the
Please submit your comments on or before March 23, 2012.
Please submit written comments on this ICR to the OMB Office of Regulatory Affairs, Attention: Desk Officer for the Department of the Interior via email to
To request additional information about this ICR, contact Carleen Kostick at 703–648–7940 (telephone);
Respondents use these forms to supply the USGS with domestic production and consumption data of nonferrous and related nonfuel mineral commodities, some of which are considered strategic and critical. This information will be published as chapters in Minerals Yearbook, monthly Mineral Industry Surveys, annual Mineral Commodity Summaries, and special publications, for use by Government agencies, industry, education programs, and the general public.
On August 23, 2011, we published a
We again invite comments concerning this ICR on: (a) Whether the proposed collection of information is necessary for the agency to perform its duties, including whether the information is useful; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) how to enhance the quality, usefulness, and clarity of the information to be collected; and (d) how to minimize the burden on the respondents, including the use of automated collection techniques or other forms of information technology.
Please note that the comments submitted in response to this notice are a matter of public record. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment, including your personal identifying information, may be made publicly available at anytime. Although you can ask OMB in your comment to withhold your personal identifying information from public review, we cannot guarantee that it will be done.
Bureau of Indian Affairs, Interior.
Notice.
This notice publishes the Coushatta Tribe of Louisiana Alcoholic Beverage Control Ordinance. The Ordinance regulates and controls the possession, sale and consumption of liquor within the Coushatta Tribe's Indian country. This Ordinance will increase the ability of the tribal government to control the distribution and possession of liquor within its reservation and at the same time will provide an important source of revenue and strengthening of the tribal government and the delivery of tribal services.
Chanda M. Joseph, Tribal Relations Specialist, Eastern Regional Office, Bureau of Indian Affairs, 545 Marriott Drive, Suite 700, Nashville, TN 37214; Telephone (615) 564–6750; Fax (615) 564–6701; or De Springer, Office of Indian Services, 1849 C Street NW., MS/4513/MIB, Washington, DC 20240; Telephone (202) 513–7626; Fax (202) 208–5113.
Pursuant to the Act of August 15, 1953; Public Law 83–277, 67 Stat. 586, 18 U.S.C. 1161, as interpreted by the Supreme Court in
This notice is published in accordance with the authority delegated by the Secretary of the Interior to the Assistant Secretary—Indian Affairs. I certify that the Tribal Council duly adopted the Coushatta Tribe of Louisiana Alcoholic Beverage Control Ordinance on March 30, 2011.
The Coushatta Tribe of Louisiana Alcoholic Beverage Control Ordinance reads as follows:
This Ordinance shall be known as the Coushatta Tribe of Louisiana Alcoholic Beverage Control Ordinance.
The purpose of this Ordinance is to authorize, regulate and control the possession, transportation, purchase, sale and serving of alcoholic beverages within the Indian Country of the Coushatta Tribe of Louisiana in accordance with federal law, the laws of the State of Louisiana and the laws of the Coushatta Tribe of Louisiana.
As used in this Ordinance, the following words shall have the following meanings unless the context clearly requires otherwise:
(a) “Alcoholic beverage” means any fluid or any solid capable of being converted into fluid, suitable for human consumption, and containing more than one-half of one percent alcohol by volume, including malt, vinous, spirituous, alcoholic or intoxicating liquors, beer, porter, ale, stout fruit juices, cider, or wine.
(b) “Gaming Enterprise” includes all businesses whose employees are subject to licensing by the Coushatta Gaming Commission.
(c) “Indian Country” means the Coushatta Tribe of Louisiana's Indian country as that term is defined in 18 U.S.C. § 1151.
(d) “Liquors” means all distilled or rectified alcoholic spirits, brandy, whiskey, rum, gin, and all similar distilled alcoholic beverages, including all dilutions and mixtures of one or more of the foregoing, such as liquors, cordials, and similar compounds.
(e) “Malt” means beverages obtained by alcoholic fermentation of an infusion or by a brewing process or concoction of barley or other grain, malt, sugars, and hops in water, including among other things, ale, beer, stout, porter, and the like. Malt beverages are exclusive of all “liquors” whether they be defined as intoxicating or spirituous liquors, or as alcoholic, vinous, or malt liquors, or however otherwise defined as liquors, which are produced by distillation.
(f) “Sale” and “sell” means:
(i) Any exchange, barter, and traffic of alcoholic beverages; or
(ii) The selling of or supplying or distributing, by any means whatsoever, of alcoholic beverages; or
(iii) The serving, giving or distributing of alcoholic beverages, whether or not money is requested or paid in connection with such service, giving, or distribution, except that any of the above actions taken by a wholesaler of alcoholic beverages that is duly licensed by the State of Louisiana is not a “sale” and is not subject to licensure under this Ordinance.
(g) “Tribe” shall mean the Coushatta Tribe of Louisiana.
(h) “Tribal Council” shall mean the duly elected governing body of the Coushatta Tribe of Louisiana.
(i) “Wine” shall mean all beverages made from the fermentation of fruits, berries, or grapes, with or without added spirits, and shall include all sparkling wine, which means champagne and any other effervescent wine charged with carbon dioxide, whether artificially or as the result of secondary fermentation of the wine within the container; and still wine, which means any non-effervescent wine, including any fortified wine, vermouth, any artificial imitation wine, any compound sold as “still wine,” and any fruit juice.
The possession, transportation, purchase, and sale of alcoholic beverages shall be lawful within Indian Country, provided that such possession, transportation, purchase and sale are in conformity with the provisions of this Ordinance and the laws of the State of Louisiana.
(a) No person shall sell any alcoholic beverage within Indian Country unless duly licensed to do so by the Tribe in accordance with the terms of this Ordinance and the laws of the State of Louisiana. Notwithstanding the foregoing, no license is required for the possession or service of alcoholic beverages at a private residence within Indian Country under this Ordinance provided that no money is requested or paid in connection with such service or possession. Such service or possession must in any event comply with the laws of the State of Louisiana.
(b) Notwithstanding subsection (a), if (1) the Tribe or its gaming enterprise seeks to sell alcoholic beverages within Indian Country and (2) the Tribe or its gaming enterprise, as the case may be, is or will be duly licensed by the State of Louisiana to sell alcoholic beverages, then the Tribe and/or its gaming enterprise may sell such beverages without applying for or obtaining a Tribal Alcoholic Beverage License.
No tribal license shall issue under this Ordinance except upon a sworn application filed with the Tribal Council containing a full and complete showing of the following:
(a) Satisfactory proof that the applicant is or will be duly licensed by the State of Louisiana;
(b) Satisfactory proof that the applicant is of good character and reputation and that the applicant is financially responsible;
(c) The description of the premises in which the alcoholic beverages are to be sold, and proof that the applicant is the owner of such premises, or lessee of such premises, or is otherwise entitled by law to use such premises, for at least the term of the license;
(d) Agreement by the applicant to accept and abide by all conditions of the tribal license;
(e) Payment of a fee as prescribed by the Tribal Council;
(f) Satisfactory proof that neither the applicant nor the applicant's spouse has ever been convicted of a felony; and
(g) Satisfactory proof that notice of the application has been posted in a prominent, noticeable place on the premises where alcoholic beverages are to be sold for at least 30 days prior to consideration by the Tribal Council and that such notice has been published at least twice in such local newspaper serving the community that may be affected by the license as the Tribal Chairman or Secretary may authorize. The notice shall provide contact information for purposes of written comment by the public on the application and indicate the last date by which such written comments will be accepted by the Tribal Council. Contact information and a final comment date shall be provided to each applicant upon request. The Tribal Council will consider all such comments prior to holding a hearing on the application pursuant to this Ordinance.
(a) All applications for a tribal alcoholic beverage license shall be considered by the Tribal Council in a session at which the applicant shall have the right to be present. The Tribal Council may also summon to the hearing any person(s) supporting or opposing the application who submitted written comments by the comment deadline. All applicants and any person summoned by the Tribal Council to attend the hearing shall have the right to be present, and to offer sworn oral or documentary evidence relevant to the application.
(b) Prior to conducting the hearing the Tribal Council may order a background investigation of the applicant or any of the individuals listed on the applicant's license application.
(c) After the hearing, the Tribal Council, by secret ballot, shall determine whether to grant or deny the application, based on:
(i) Whether the requirements of Section 6 of this Ordinance have been met; and
(ii) Whether the Tribal Council, in its discretion, determines that granting the license is in the best interests of the Tribe.
(d) In the event that the applicant is a member of the Tribal Council, or a member of the immediate family of a Council member, such member shall not vote on the application or participate in the hearings as a Council member.
(a) The Tribal Council or its designee may grant a temporary license for the sale of alcoholic beverages for a period not to exceed three (3) days to any person applying for the same in connection with a Tribal or community activity, provided that the application shall be made as provided by Sections 6 and 7 of this Ordinance, and that the conditions prescribed in Sections 9(b) through 9(j) of this Ordinance, as well as any other reasonable conditions as the Tribal Council may establish, shall be observed by the temporary licensee.
(b) Each temporary license issued shall specify the types of alcoholic beverages to be sold, as well as the specific place, dates and times when the permit is valid.
(c) A fee, established by the Tribal Council, will be assessed on applications for temporary licenses.
Any tribal license issued under this Ordinance shall be subject to such reasonable conditions as the Tribal Council shall establish, including, but not limited to the following:
(a) A regular license shall be valid for a term of one year. A temporary license shall be valid for a period of not to exceed three days.
(b) The licensee shall at all times maintain an orderly, clean, and neat establishment, both inside and outside the licensed premises.
(c) The licensed premises shall be subject to patrol by the tribal Police Department, and such other law enforcement officials as may be authorized under tribal or federal law.
(d) The licensed premises shall be open to inspection by duly authorized tribal officials at all times during regular business hours.
(e) All sales of alcoholic beverages shall be for the personal use and consumption of the purchaser, and no resale of any alcoholic beverage is permitted, except that a licensed retailer of alcoholic beverages may purchase alcoholic beverages for resale within Indian Country.
(f) No person under the age permitted under the law of the State of Louisiana shall be sold, served, delivered, given or allowed to consume alcoholic beverages in the licensed premises.
(g) No alcoholic beverages shall be sold, served, disposed of, delivered, or given to any person, or consumed on the licensed premises, except in conformity with any applicable Tribal and/or Louisiana State rules limiting the hours and days on which alcoholic beverages may be sold, served, disposed of, delivered or given to any person. In no event shall the licensed premises operate or open earlier or operate or close later than is permitted by the laws of the State of Louisiana.
(h) No alcoholic beverage shall be sold within 200 feet of a polling place on tribal election days, or when a referendum is held of the people of the Tribe, or on any special days of observance as designated by the Tribal Council.
(i) The license shall at all times be posted in a prominent, noticeable place on the premises where alcoholic beverages are to be sold.
(j) All acts and transactions executed under authority of the tribal alcoholic beverage license shall be in conformity with this Ordinance, the terms of the Tribal license, and the laws of the State of Louisiana.
Notwithstanding any other provision of this Ordinance, a tribal alcoholic beverage license is a mere permit for a fixed duration of time. A tribal alcoholic beverage license shall not be deemed a property right or vested right of any kind, nor shall the granting of a tribal alcoholic beverage license give rise to a presumption of legal entitlement to the granting of such license for a subsequent time period.
No tribal license issued under this Ordinance shall be assigned or transferred without the written approval of the Tribal Council expressed by formal resolution.
Any license issued hereunder may be suspended or revoked by the Tribal Council for the breach of any of the provisions of this Ordinance or of the tribal license upon hearing before the Tribal Council after 10 days' notice to the licensee. The decision of the Tribal Council shall be final.
The Tribal Council may, at its discretion, assign part or all of its hearing and licensing authority under this Ordinance by formal resolution.
If a court of competent jurisdiction invalidates any part of this Ordinance, all valid parts that are severable from the invalid part shall remain in effect. If a part of this Ordinance is invalid in one or more of its applications, that part shall remain in effect in all valid applications that are severable from the invalid applications.
Nothing contained in this Ordinance is intended to nor does in any way limit, alter, restrict, or waive the Tribe's sovereign immunity.
This Ordinance shall be effective on the date that the Secretary of the Interior certifies this Ordinance and it is published in the
Bureau of Indian Affairs, Interior.
Notice.
This notice publishes the amendment to the Kickapoo Traditional Tribe of Texas' Beer and Liquor Tax Ordinance. The Ordinance regulates and controls the possession, sale and consumption of liquor within the Kickapoo Traditional Tribe of Texas' Reservation. The land is trust land and this Ordinance allows for the possession and sale of alcoholic beverages within the Kickapoo Traditional Tribe of Texas' Reservation. This Ordinance will increase the ability of the tribal government to control the distribution and possession of liquor within their reservation, and at the same time will provide an important source of revenue, the strengthening of the tribal government and the delivery of tribal services.
Suzanne Chaney, Community Services Officer, Southern Plains Regional Office, Bureau of Indian Affairs, P.O. Box 368, Anadarko, OK 73005, Phone: (405) 247–1537; Fax: (404) 247–9240: or De Springer, Office of Indian Services, Bureau of Indian Affairs, 1849 C Street NW., MS–4513–MIB, Washington, DC 20240; Telephone (202) 513–7640.
Pursuant to the Act of August 15, 1953, Public Law 83–277, 67 Stat. 586, 18 U.S.C. 1161, as interpreted by the Supreme Court in
This notice is published in accordance with the authority delegated by the Secretary of the Interior to the Assistant Secretary—Indian Affairs. I certify that the Kickapoo Traditional Tribal Council duly adopted this amendment to the Kickapoo Traditional Tribe of Texas' Beer and Liquor Tax
The First Amended Kickapoo Traditional Tribe of Texas' Beer and Liquor Tax Ordinance reads as follows:
This Ordinance is enacted pursuant to Article VII Sections g, h, j, k and r of the constitution of the Kickapoo Traditional Tribe of Texas. Be it enacted by the Council of the Kickapoo Traditional Tribe of Texas (“KTTT”), the following Beer and Liquor Tax Ordinance.
This Chapter shall be known as the Kickapoo Traditional Tribe of Texas Beer and Liquor Tax Ordinance. These laws are enacted to regulate the sale and distribution of liquor and beer products on all properties under the jurisdiction of the KTTT and to create the Kickapoo Tax Commission, which will be in charge of taxing beer and liquor sales to generate revenues so as to fund needed tribal programs and services.
Unless otherwise required by the context, the following words and phrases shall have the designated meanings:
(1) “Tribe and/or Tribal and/or KTTT” shall mean the Kickapoo Traditional Tribe of Texas.
(2) “Tribal Council” shall mean the Kickapoo Traditional Tribe of Texas Tribal Council as constituted by Section 1 Articles III and V, respectively of the Constitution of the Kickapoo Traditional Tribe of Texas.
(3) “Commission” shall mean the Kickapoo Tax Commission.
(4) “Tribal Lands” shall mean Indian Country as defined by 18 U.S.C. Section 1151 subject to the jurisdiction of the KTTT, including without limitation:
(a) Tribal Trust Land. Any lands and waters held in trust by the Federal Government within the jurisdiction of the KTTT;
(b) Tribal Properties in Trust Statutes Process. Lands and water in process to achieve trust status under the Federal Government within the jurisdiction of the KTTT; and
(c) Other Properties. All other lands and waters however acquired and not currently in process to achieve trust status under the Federal Government within the jurisdiction of the KTTT.
(5) “Sales” shall mean the transfer, exchange or barter, by any means whatsoever, for a consideration by any person, association, partnership, or corporation, of liquor and beer products.
(6) “Alcohol” means and includes hydrated oxide of ethyl, ethyl alcohols, ethanol, spirits, or wine, and beer in concentration of more than one half of one percent of alcohol by volume, from whatever source or by whatever source or whatever process produced including all dilutions and mixtures of the substance.
(7) “Beer” means any malt beverage containing one half of one percent or more alcohol by volume and not more than four percent alcohol by weight and obtained by the alcoholic fermentation of an infusion or decoction of pure hops, or pure extract of hops, barley, or other grain, malt or similar products. “Beer” includes among other things, beer, ale, stout, lager beer, porter and other malt or brewed liquors.
(8) “Liquor” or “Alcoholic Beverage” means any alcoholic beverage including alcohol, spirits, wine, whiskey, brandy, gin, rum, ale, malt liquor, tequila, mescal, habanero and/or barreteago and beer in excess of 4% alcohol concentration and all fermented, spirituous, vinous or malt liquor or any other intoxicating liquid, solid, semi-solid or other substance, patented or not, containing alcohol, spirits, wine or beer and intended for oral consumption.
(9) “Licensed Premises” means the location within the KTTT at which a person licensed to sell alcoholic beverages under this ordinance carries on such business, and includes all related and associated facilities under the control of the Licensee whether they are called a licensed premises, outlet or liquor outlet. Moreover, where a Licensee's business is carried on as part of the operation of an entertainment or recreational facility, the “licensed premises” shall be deemed to include the entire entertainment or recreational facility and associated areas.
(10) “Operator” shall mean any person twenty-one (21) years of age or older, properly licensed by the Commission to operate a liquor and/or beer outlet.
(11) “License” shall mean the privilege granted pursuant to this ordinance to any person to sell or distribute liquor or beer within the KTTT Jurisdiction.
(12) “Chairman”, as used in this Ordinance, shall mean the chairman of the Tax Commission. The Tribal Council will name the Chairman of the Tax Commission. The Chairman will have the authority to call and preside over meetings, recommend policies and other action to be taken, and represent the commission with third parties.
The sale, introduction for sale, purchase, or other dealing in beer, liquor and/or alcoholic beverages, except as is specifically authorized by this title, is prohibited within Tribal Lands.
Enactment: The Kickapoo Traditional Tribe of Texas' Tax Commission is hereby created. The Commission shall consist of seven (7) Commissioners to be appointed by the Tribal Council. The initial Commission shall serve for staggered terms, three of the initial members will serve for two years. The remaining four initial members will serve for four years. Thereafter the Tribal Council will appoint or reappoint, as determined by the Tribal Council to be in the best interest of the Commission, Commissioners to four year terms. Five of the Commission shall be Tribal members. All decisions, actions and/or orders shall be by majority vote. A minimum of four members of the commission will constitute a quorum. No action will be taken, order or decision made unless there is a quorum present at the meeting where said action, order and/or decision is being voted upon. The Commission shall operate by policies and procedures approved by the Tribal Council. The minimum qualifications a person must have to serve as a Commissioner shall be as follows:
(1) Must be over the age of eighteen (18); and
(2) Must have no felony convictions.
The Commission shall be empowered to:
(1) Administer this law by exercising general control, management, and supervision of all liquor and beer sales, places of sale and sales outlets as well as exercising all powers necessary to accomplish the purpose of this law.
(2) Subject to Tribal Council approval, adopt rules and regulations in furtherance of the purpose of this law and in the performance of its administrative functions.
(3) Enforce the rules and regulations in furtherance of the purpose of this law and in the performance of its administrative functions.
(1) Application. Any person twenty one (21) years of age or older, may apply to the Commission for a liquor and/or beer outlet license.
(2) Licensing Requirements. The person applying for such license must
(a) That applicant is a person of good moral character;
(b) That applicant has never been convicted of violating any of the laws regarding the regulation of any spirituous, vinous, fermented or malt liquors, or of the gambling laws of the KTTT, the state of Texas, or any other tribe of the state of Texas or of the United States, or any foreign country, within three (3) years immediately preceding the date of the application;
(3) Processing of Application. The Commission Chairperson or Authorized Representative shall receive and process applications and be the official representative of the Commission regarding receipt of applications and related Kickapoo Traditional Tribe of Texas matters. If the Commission or its authorized representative is satisfied that the applicant meets the criteria in Section 105(2)(a) and (b) above, the Commission or its authorized representative may issue a license for the sale of liquor and/or beer products.
(4) Application Fee. Each Beer and/or Liquor License application shall be accompanied by a non-refundable application fee to be set by regulation of the Commission, with the concurrence of the Tribal Council.
(5) Discretionary Licensing. Nothing herein shall be deemed to create a duty or requirement to issue a license. Issuance of licenses is discretionary upon the Commission's determination of the best interest of the KTTT and the licensing grants a privilege, but not a property right, to sell liquor and/or beer within the jurisdiction of the KTTT at the licensed outlet(s).
Upon approval of an application, the Commission shall issue the applicant a liquor and/or beer license, valid for one year from the date of issuance, which shall entitle the operator to establish and maintain only the type of outlet being permitted. This license shall not be transferable. The licensee must properly and publicly display the license in the place of business. It shall be renewable at the discretion of the Commission, by the submission by the Licensee of a subsequent application form and the payment of the application fee as provided in Section 105.
(1) Right of Commission to Scrutinize Suppliers. The Operator of any licensed outlet shall keep the Commission informed, in writing, of the identity of suppliers and/or wholesalers who supply or are expected to supply liquor or beer stocks to the outlet(s). The Commission may, at its discretion, limit or prohibit the purchase of said stock from a supplier or wholesaler for the following reasons: Nonpayment of tribal taxes; bad business practices, or sale of unhealthy supplies. A ten (10) day notice to stop supplier's purchases will be given by the Commission. However a stop purchase order may take effect immediately if there is a health emergency.
(2) Freedom of Information from Suppliers. Operators shall, in their purchase of stock and in their business relations with suppliers, cooperate with and assist the free flow of information and data to the Commission from suppliers relating to sales and business arrangements between the suppliers, retailers and operators. The Commission may, at its' discretion, require the receipts from the suppliers of all invoices, bills of lading, billings or other documentary receipts of sales to the Operators.
(3) Businesses shall comply with applicable Tribal Laws, for domestication or entry of foreign corporations.
(1) Commission Procedures. The Commission shall adopt procedures which shall implement these laws and facilitate their enforcement. These procedures shall include prohibitions on sales to minors, provide for the locations where liquor may be consumed, identify persons prohibited from purchasing alcoholic beverages, designating hours and days when outlets may be open for business, regulate any other appropriate matters and institute controls of same.
(2) Sales to Minors. No person shall give, sell, or otherwise supply liquor or beer to any person less than twenty-one (21) years of age, either for his or her own use or for the use of his parents or for use of any other person.
(3) Consumption of Beer or Liquor upon Licensed Premises shall be prohibited unless otherwise allowed by regulation.
(4) Conduct on Licensed Premises.
(a) No Operator shall be disorderly, boisterous, or intoxicated on the licensed premises or any public premises adjacent thereto which are under his or her control, nor shall he or she permit any disorderly, boisterous, or intoxicated person to be thereon; nor shall he or she use or allow the use of profane or vulgar language thereon.
(b) No Operator shall permit suggestive, lewd, or obscene conduct or acts on his or her premises. For the purpose of this section, suggestive, lewd or obscene acts of conduct shall be those acts or conduct identified as such by the laws of the KTTT or that may be considered as such by a reasonable person.
(5) Employment of Minors. No person under the age of twenty-one (21) years shall be employed in any service in connection with the sale or handling of liquor and/or beer, either on a paid or voluntary basis.
(6) Operator's Premises Open to Inspector. The premises of all Operators including vehicles used in connection with beer and/or liquor sales, shall be open at all times to inspection by the Commission or its designated representative.
(7) Operator's Record. The originals or copies of all sales slips, invoices, and other memoranda, covering all purchases of beer and/or liquor by the Operator shall be kept on file on the retail premises of the Operator purchasing the same, for at least three (3) years after each purchase and shall be filed separately and kept apart from all other records and as nearly as possible shall be filed in consecutive order with each month's records kept separate so as to render the same readily available for inspection. All canceled checks, bank statements and books of accounting covering or involving the purchase of beer and/or liquor, and all memoranda showing payment for beer and/or liquor other than by check shall be likewise preserved for availability for inspection.
(8) Conformity with State Law. Operators shall comply with the State of Texas Alcoholic Beverage Code to the extent required by 18 U.S.C. 1161. However, the KTTT shall have the fullest jurisdiction allowed under federal law over liquor and beer and related products or activities, within the boundaries of all the Tribal Lands as defined herein.
(1) Tribal Excise Taxes. The Tribe shall have authority to assess and collect tax on sales of liquor and beer products to the consumer or purchaser. The tax shall be collected and paid to the Commission upon Liquor and Beer products sold within the jurisdiction of the Tribe. The Tribe may establish differing tax rates for any given class of merchandise, which shall be paid prior to the time of retail sales and delivery thereof.
(2) Added to Retail Price. An excise tax, to be set by the Tribal Council of the KTTT, on wholesale prices shall be added to the retail selling price of liquor and beer products sold to the consumer. Said excise tax will be presumed to be direct taxes on the retail consumer, pre-collected for the purpose of convenience and facility only.
(3) Within 72 hours after receipt of any beer or alcoholic beverage by any wholesaler or retailer subject to this Ordinance, a tribal tax stamp shall be securely affixed to each package, denoting the collection of the tribal tax. Retailers or sellers of beer or alcoholic beverages within KTTT jurisdiction may buy and sell or have in their possession only beer or alcoholic beverages which have the Tribal stamp affixed to each package.
The KTTT and/or the Commission shall have no legal responsibility for any unpaid bills owed by a liquor or beer outlet to a wholesaler supplier or any other person or entity.
An Operator may conduct another business simultaneously with managing a liquor or beer outlet.
(1) No liability. Unless explicitly authorized by Tribal statute, Operators are forbidden to represent or give the impression to any person or entity that he or she is an official representative of either the KTTT or the Commission, authorized to pledge tribal credit or financial responsibility for any of the expenses of his or her business operation. The Operator shall hold the KTTT harmless from all claims and liability of whatever nature. The Commission shall revoke Operator's licensees) if said outlet(s) is not operated in a businesslike manner, if it does not remain financially solvent, or does not pay its operating expenses and bills before they become delinquent.
(2) Insurance. The Operator shall maintain at his or her expense adequate Insurance covering liability, fire, theft, vandalism and other insurance risks. The Commission may establish as a condition of any license, the required insurance limits and additional coverage deemed advisable, proof of which shall be filed with the Commission.
(1) All of the books and other business records of the licensed premises shall be available for inspection and audit by the Commission or its authorized representative at any reasonable time.
(2) Bond for Excise Tax. The excise tax together with reports on forms to be approved by the Commission shall be remitted to the Commission's office on a monthly basis, unless the Commission specifies otherwise in writing. The Operator shall furnish a bond in an amount satisfactory to the Commission, guaranteeing his payment of excise taxes.
(1) Failure of an Operator to abide by the requirements of this Ordinance and any additional regulations or requirements imposed by the Commission will constitute grounds for revocation of the Operator's License as well as enforcement of the penalties provided in Section 115 of this Act.
(2) Upon determining that any person licensed by the Commission to sell beer or alcoholic beverage is for any reason no longer qualified to hold such license or reasonably appears to have violated any terms of the Tribal and/or state license or regulations. The Chairman shall immediately serve written notice upon licensee directing that he show cause within ten (10) days why his or her Operator's license should not be revoked or restricted. The notice shall state the grounds relied upon for the proposed revocation or restriction. Violations may include failure to pay taxes when due and owing, or having been found by any forum of competent jurisdiction, including the Commission, to have violated the terms of a Tribal or state license or of any provision of this title.
(3) If the Licensee fails to respond to the notice within the ten (10) days of service, the Chairman may issue an order, effective immediately, revoking the license or placing such restriction on the Licensee as the Chairman deems appropriate. The Licensee may, within the 10 day period, file with the Office of the Chairman a written response and request for hearing before the Commission.
(4) At the hearing, the Licensee may present evidence and arguments regarding why his license should not be revoked.
(5) The Commission after considering all of the evidence and arguments shall issue a written decision either upholding the license, revoking the license or imposing some lesser penalty (such as temporary suspension or a fine). Such decision shall be final and conclusive.
(6) Within thirty days of the Commission's final decision, such decision may be appealed to the KTTT Court, by posting a bond with the Court, sufficient to cover the Commission's final assessment or ruling. Any finding of fact or omission are conclusive upon the Court unless clearly contrary to law. The purpose of Court review is not to substitute the Court's findings of facts or opinion for those of the Commission's but to guarantee due process of law. If the Court should rule for the appealing party, the Court may remand for a new hearing giving such guidance for the conduct of such as it deems necessary. No damages or monies may be awarded against the Commission, its members, nor the KTTT and its agents and employees in such action.
Any person who violates these laws or elicits, encourages, directs or causes someone else to violate these laws shall be guilty of an offense and subject to a fine. Failure to have a current, valid or proper license shall not constitute a defense to an alleged violation of the licensing laws or regulations. The Kickapoo Tribal Court shall have jurisdiction over the proceeding.
(1) Any person convicted of committing any violation of this Ordinance shall be subject to punishment of up to one year imprisonment and/or a fine not to exceed Five Thousand Dollars ($5,000.00).
(2) Additionally, any person upon committing any violation of any provision of this Ordinance may be subject to a civil action for trespass and upon having been determined by the Court to have committed the violation, shall be assessed such damages as the Court deems appropriate under the circumstances.
(3) Any person suspected of having violated any provision shall, in addition to any other penalty imposed hereunder, be required to surrender any beer or alcoholic beverages in such person's possession to the officer making the arrest or complaint. The surrendered beverages, if previously unopened, shall only be returned to said person upon a finding by the Court after a trial on the Kickapoo Traditional Tribe of Texas merits that the individual
(4) Any Operator who violates the provisions set forth herein shall forfeit all of the remaining stock on the licensed premises(s). The Commission shall be empowered to seize products.
(5) Any stock, goods or other items subject to this Ordinance that have not been registered, licensed, or taxes paid shall be contraband and subject to immediate confiscation by the Commission or its employees or agents, provided, within 15 days of the seizure the Commission shall cause to be filed a forfeiture action against such property. The action shall allege the reason for the seizure or confiscation. Upon sufficient proof, the Court shall order the property forfeited and title vested in the KTTT.
(6) Physical seizure of items shall be in accordance with the provisions contained in the KTTT law enforcement policies.
Possession of beer or alcoholic beverages for the personal use by persons over the age of 21 years shall, unless otherwise prohibited by Federal or Tribal law or regulation, be lawful within the Tribal Lands.
Nothing herein shall pertain to the otherwise lawful transportation of beer or alcoholic beverages through the Tribal Lands by persons remaining upon public highways where such beverages are not delivered, or sold or offered for sale to anyone with the Tribal Lands.
If any provision of these laws is held invalid, the remainder of the laws and their application to other persons or circumstances is not affected.
All prior statutes, ordinances, and resolutions enacted by the KTTT regulating, authorizing, prohibiting or in any way relating to the sale of beer or alcoholic beverages within the Tribal Lands are hereby repealed and have no further force or effect.
Nothing in this Ordinance shall be construed as a waiver or limitation of the sovereign Immunity of the KTTT or its agencies nor their officers or employees.
Pursuant to Article VII—Powers of the Traditional Council of the Tribes Constitution, the Traditional Council shall have the authority to amend the provisions of the foregoing Beer and Liquor Tax Ordinance.
This Ordinance shall be effective upon certification by the United States Secretary of the Interior and its publication in the
READ, PASSED APPROVED AND ENACTED at a duly called Tribal Council meeting on the 30th day of March 2011.
Bureau of Indian Affairs, Interior.
Notice.
This notice publishes the amendments to the Confederated Tribes of the Umatilla Liquor Code. The Code regulates and controls the possession, sale and consumption of liquor within the Confederated Tribes of the Umatilla Reservation. The land is located on trust land and this Code allows for the possession and sale of alcoholic beverages within the Confederated Tribes of the Umatilla's Reservation. This Code will increase the ability of the tribal government to control the distribution and possession of liquor within their reservation, and at the same time will provide an important source of revenue, the strengthening of the tribal government and the delivery of tribal services.
Betty Scissons, Tribal Government Specialist, Northwest Regional Office, Bureau of Indian Affairs, 911 NE 11th Avenue, Portland, OR 97232, Phone: (503) 231–6723; Fax: (503) 231–6731: or De Springer, Office of Indian Services, Bureau of Indian Affairs, 1849 C Street NW., MS–4513–MIB, Washington, DC 20240; Telephone (202) 513–7626.
Pursuant to the Act of August 15, 1953, Public Law 83–277, 67 Stat. 586, 18 U.S.C. 1161, as interpreted by the Supreme Court in
This notice is published in accordance with the authority delegated by the Secretary of the Interior to the Assistant Secretary—Indian Affairs. I certify that the Board of Trustees of the Confederated Tribes of the Umatilla Indian Reservation duly adopted Resolution No. 10–056 to amend the Confederated Tribes of the Umatilla Indian Reservation Liquor Code on
July 12, 2010.
The amendment to the Confederated Tribes of the Umatilla Indian Reservation Liquor Code reads as follows:
This Code shall be the Liquor Code of the Confederated Tribes of the Umatilla Indian Reservation (Confederated Tribes) and shall be referenced as the Liquor Code.
To the extent permitted by applicable law, the Confederated Tribes asserts jurisdiction to determine whether liquor sales and service are permitted within the boundaries of the Umatilla Indian Reservation. As provided in section 1.06 of this Code, liquor sales and service is only permitted at the Wildhorse Resort & Casino facilities and in the Coyote Business Park under this Code. Nothing in this Code is intended nor shall be construed to limit the jurisdiction of the Confederated Tribes to all lands within the boundaries of the Umatilla Indian Reservation.
All prior codes, ordinances, resolutions and motions of the Confederated Tribes regulating, authorizing, prohibiting, or in any way dealing with the sale or service of liquor are hereby repealed and are of no further force or effect to the extent they are inconsistent or conflict with the provisions of this Code. Specifically, amendments to the Criminal Code to make it consistent with this Liquor Code have been approved by Resolution 05–095 (October 3, 2005). No Tribal business licensing law or other Tribal law shall be applied in a manner inconsistent with the provisions of this Code.
Any person or entity possessing, selling, serving, bartering, or manufacturing liquor products in violation of any part of this Code shall be subject to a civil fine of not more than $500 for each violation involving possession, but up to $5,000 for each violation involving selling, bartering, or manufacturing liquor products in violation of this Code, and violators may be subject to exclusion from the Umatilla Indian Reservation. In addition, persons or entities subject to the criminal jurisdiction of the Confederated Tribes who violate this Code shall be subject to criminal punishment as provided in the Criminal Code. All contraband liquor shall be confiscated by the Umatilla Tribal Police Department (UTPD). The Umatilla Tribal Court shall have exclusive jurisdiction to enforce this Code and the civil fines, criminal punishment and exclusion authorized by this section.
Nothing in this Code is intended or shall be construed as a waiver of the sovereign immunity of the Confederated Tribes. No manager or employee of the Confederated Tribes or the Wildhorse Resort & Casino shall be authorized, nor shall they attempt, to waive the sovereign immunity of the Confederated Tribes pursuant to this Code.
If any provision or provisions in this Code are held invalid by a court of competent jurisdiction, this Code shall continue in effect as if the invalid provision(s) were not a part hereof.
This Code shall be effective following approval by the Board of Trustees and approval by the Secretary of the Interior or his/her designee and publication in the
Bureau of Indian Affairs, Interior.
Notice
This notice publishes the amendments to the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians' Liquor Control Ordinance. The Ordinance regulates and controls the possession, sale and consumption of liquor within the Match-E-Be-Nash-She-Wish Band of Pottawatomi tribal lands. The lands are located in Indian Country and this Ordinance allows for the possession and sale of alcoholic beverages within their boundaries. This Ordinance will increase the ability of the tribal government to control the distribution and possession of liquor within their reservation, and at the same time will provide an important source of revenue, the strengthening of the tribal government and the delivery of tribal services.
David Christensen, Tribal Operations Officer, Midwest Regional Office, Bureau of Indian Affairs, Norman Pointe II, 5600 American Boulevard West, Suite 500, Bloomington, Minnesota 55437, Phone: (612) 735–4554; Fax: (612) 713–4401: or De Springer, Office
Pursuant to the Act of August 15, 1953, Public Law 83–277, 67 Stat. 586, 18 U.S.C. 1161, as interpreted by the Supreme Court in
This notice is published in accordance with the authority delegated by the Secretary of the Interior to the Assistant Secretary—Indian Affairs. I certify that the Tribal Council duly adopted this amendment to the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians' Liquor Control Ordinance on January 6, 2011.
The amendments to Chapter 3, Subsection 5(h) and Chapter 4, Section 1 of the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians' Liquor Control Ordinance read as follows:
Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians Liquor Control Ordinance
Section 5. Any Tribal Liquor License shall be subject to such conditions as the Tribal Council shall impose, including, but not limited to the following:
(h) Alcoholic Beverages may only be provided on a complimentary basis, given away, or furnished without charge in any facility licensed under this Ordinance if such action is consistent with the provisions of the Tribe-State Compact, the Tribal Liquor License, or other laws or regulations of the Tribe.
Section 1. In accordance with 18 U.S.C. 1161, the Tribe hereby adopts and applies as tribal law those Michigan laws, as now or hereafter amended, relating to the sale and regulation of Alcoholic Beverages encompassing the following areas: sale to a Minor; sale to a visibly intoxicated individual; sale of adulterated or misbranded liquor; and hours of operation.
The following laws from the Michigan Liquor Control Code of 1998 are hereby adopted and applied as Tribal law:
436.1233 Uniform prices for sale of alcoholic liquor; gross profit; discount for certain sales of alcoholic liquor.
436.1701 Selling or furnishing alcoholic liquor to person less than 21 years of age; failure to make diligent inquiry; misdemeanor; signs; consumption of alcoholic liquor as cause of death or injury; felony; enforcement against licensee; defense in action for violation; report; definitions.
436.1703 Purchase, consumption, or possession of alcoholic liquor by minor; attempt; violation; fines; sanctions; furnishing fraudulent identification to minor; screening and assessment; chemical breath analysis; construction of section; exceptions; “any bodily alcohol content” defined.
436.1707 Selling, serving, or furnishing alcohol; prohibitions.
436.1801 Granting or renewing license; selling, furnishing or giving alcoholic liquor to minor or person visibly intoxicated; right of action for damage or personal injury; actual damages; institution of action; notice; survival of action; separate actions by parents; commencement of action against retail licensee; indemnification; defenses available to licensee; rebuttable presumption; prohibited causes of action; section as exclusive remedy for money damages against licensee; civil action subject to revised judicature act.
436.1815 Adherence to responsible business practices as defense; compensation of employee on commission basis.
436.1901 Compliance required, prohibited acts.
436.1905 Selling or furnishing alcoholic liquor to minor; enforcement actions prohibited; conditions; exception.
436.2005 Adulterated, misbranded, or refilled liquor.
The laws referenced in this section shall apply in the same manner and to the same extent as such laws apply elsewhere in Michigan, unless otherwise agreed by the Tribe and State.
Bureau of Land Management, Interior.
60–Day notice and request for comments.
In compliance with the Paperwork Reduction Act of 1995, the Bureau of Land Management (BLM) invites public comments on, and plans to request approval to continue, the collection of information from applicants for a desert land entry for agricultural purposes. The Office of Management and Budget (OMB) has assigned control number 1004–0004 to this information collection.
Submit comments on the proposed renewal by April 23, 2012.
Comments may be submitted by mail, fax, or electronic mail. Mail: U.S. Department of the Interior, Bureau of Land Management, 1849 C Street NW., Room 2134LM, Attention: Jean Sonneman, Washington, DC 20240.
Fax: to Jean Sonneman at 202–245–0050.
Electronic mail:
Please indicate “Attn: 1004–0004” regardless of the form of your comments.
Jeff Holdren at 202–912–7335. Persons who use a telecommunication device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339, to leave a message for Mr. Holdren.
OMB regulations at 5 CFR 1320, which implement provisions of the Paperwork Reduction Act, 44 U.S.C. 3501–3521, require that interested members of the public and affected agencies be given an opportunity to comment on information collection and recordkeeping activities (see 5 CFR 1320.8(d) and 1320.12(a)). This notice identifies an information collection that the BLM will be submitting to OMB for approval. The Paperwork Reduction Act provides that an agency may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. Until OMB approves a collection of information, you are not obligated to respond.
The BLM will request a 3-year term of approval for this information collection
The following information is provided for the information collection:
Bureau of Land Management, Interior.
Notice.
The plats of survey of the following described lands are scheduled to be officially filed in the Bureau of Land Management Oregon/Washington State Office, Portland, Oregon, 30 days from the date of this publication.
A copy of the plats may be obtained from the Land Office at the Bureau of Land Management, Oregon/Washington State Office, 333 SW. 1st Avenue, Portland, Oregon 97204, upon required payment. A person or party who wishes to protest against a survey must file a notice that they wish to protest (at the above address) with the Oregon/Washington State Director, Bureau of Land Management, Portland, Oregon.
Kyle Hensley, (503) 808–6124, Branch of Geographic Sciences, Bureau of Land Management, 333 SW. 1st Avenue, Portland, Oregon 97204. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339 to contact the above individual during normal business hours. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Bureau of Land Management, Interior.
Notice of public meetings.
In accordance with the Federal Land Policy and Management Act (FLPMA) and the Federal Advisory Committee Act of 1972 (FACA), the U.S. Department of the Interior, Bureau of Land Management (BLM) Mojave-Southern Great Basin Resource Advisory Council (RAC) will meet in Ely and Las Vegas, Nevada. The meetings are open to the public.
March 16, 2012, at the BLM Southern Nevada District Office, 4701 N. Torrey Pines Drive, Las Vegas, Nevada; July 19–20, 2012, at the BLM Ely District Office, 702 North Industrial Way, Ely, Nevada; and September 21, 2012, at the BLM Southern Nevada District Office, 4701 N. Torrey Pines Drive, Las Vegas, Nevada. Meeting times will be made public prior to each meeting. Each meeting will include a general public comment period that will be listed in the final meeting agenda. An agenda will be available two weeks prior to each meeting.
Hillerie Patton, (702) 515–5046, Email:
The 15-member Council advises the Secretary of the Interior, through the BLM, on a variety of planning and management issues associated with public land management in Nevada. Topics for discussion will include, but are not limited to: Renewable energy development and transmission, the greater sage-grouse, BLM Battle Mountain District and Southern Nevada District resource management plans, subgroup reports, and other topics that may be raised by RAC members.
The final agendas with any additions/corrections to agenda topics, locations,
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has received a complaint entitled
James R. Holbein, Secretary to the Commission, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205–2000. The public version of the complaint can be accessed on the Commission's electronic docket (EDIS) at
General information concerning the Commission may also be obtained by accessing its Internet server (
The Commission has received a complaint and a submission pursuant to section 210.8(b) of the Commission's Rules of Practice and Procedure filed on behalf of Peregrine Semiconductor Corporation on February 15, 2012. The complaint alleges violations of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain radio frequency integrated circuits and devices containing same. The complaint names as respondents RF Micro Devices Inc. of NC; and Motorola Mobility Inc. of IL.
Proposed respondents, other interested parties, and members of the public are invited to file comments, not to exceed five (5) pages in length, inclusive of attachments, on any public interest issues raised by the complaint or section 210.8(b) filing. Comments should address whether issuance of the relief specifically requested by the complainant in this investigation would affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers.
In particular, the Commission is interested in comments that:
(i) Explain how the articles potentially subject to the requested remedial orders are used in the United States;
(ii) Identify any public health, safety, or welfare concerns in the United States relating to the requested remedial orders;
(iii) Identify like or directly competitive articles that complainant, its licensees, or third parties make in the United States which could replace the subject articles if they were to be excluded;
(iv) Indicate whether complainant, complainant's licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to the requested exclusion order and/or a cease and desist order within a commercially reasonable time; and
(v) Explain how the requested remedial orders would impact United States consumers.
Written submissions must be filed no later than by close of business, eight calendar days after the date of publication of this notice in the
Persons filing written submissions must file the original document electronically on or before the deadlines stated above and submit 8 true paper copies to the Office of the Secretary by noon the next day pursuant to section 210.4(f) of the Commission's Rules of Practice and Procedure (19 CFR 210.4(f)). Submissions should refer to the docket number (“Docket No. 2877”) in a prominent place on the cover page and/or the first page. (
Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and of sections 201.10 and 210.8(c) of the Commission's Rules of Practice and Procedure (19 CFR 201.10, 210.8(c)).
By order of the Commission.
60-Day notice of information collection under review.
The Department of Justice (DOJ), Executive Office for Immigration Review (EOIR) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for sixty days until April 23, 2012. This process is conducted in accordance with 5 CFR 1320.10.
If you have comments, especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Robin M. Stutman, General Counsel, Executive Office for Immigration Review, U.S. Department of Justice, Suite 2600, 5107 Leesburg Pike, Falls Church, Virginia 22041; telephone: (703) 305–0470.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
Overview of this information collection:
(1)
(2)
(3)
(4)
(5)
(6)
If additional information is required, contact: Jerri Murray, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., Room 2E–508, Washington, DC 20530.
60-Day notice of information collection under review.
The Department of Justice (DOJ), Executive Office for Immigration Review (EOIR) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for sixty days until April 23, 2012. This process is conducted in accordance with 5 CFR 1320.10.
If you have comments, especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Robin M. Stutman, General Counsel, Executive Office for Immigration Review, U.S. Department of Justice, Suite 2600, 5107 Leesburg Pike, Falls Church, Virginia 22041; telephone: (703) 305–0470.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
(3)
(4)
(5)
(6)
If additional information is required, contact: Jerri Murray, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., Room 2E–508, Washington, DC 20530.
60-Day notice of information collection under review.
The Department of Justice (DOJ), Executive Office for Immigration Review (EOIR) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for “sixty days” until April 23, 2012. This process is conducted in accordance with 5 CFR 1320.10.
If you have comments, especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Robin M. Stutman, General Counsel, Executive Office for Immigration Review, U.S. Department of Justice, Suite 2600, 5107 Leesburg Pike, Falls Church, Virginia 22041; telephone: (703) 305–0470.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
(3)
(4)
(5)
(6)
If additional information is required contact: Jerri Murray, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., Room 2E–508, Washington, DC 20530.
60-Day notice of information collection under review.
The Department of Justice (DOJ), Executive Office for Immigration Review (EOIR) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for “sixty days” until April 23, 2012. This process is conducted in accordance with 5 CFR 1320.10.
If you have comments, especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Robin M. Stutman, General Counsel, Executive Office for Immigration Review, U.S. Department of Justice, Suite 2600, 5107 Leesburg Pike, Falls Church, Virginia, 22041; telephone: (703) 305–0470.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
Overview of this information collection:
(1)
(2)
(3)
(4)
(5)
(6)
60-Day notice of information collection.
The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for “sixty days” until April 23, 2012. This process is conducted in accordance with 5 CFR 1320.10.
If you have comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Nicholas O'Leary, Acting Chief, Firearms Industry Programs Branch, 99 New York Ave. NE., Washington, DC 20226, or
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
—Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
—Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
—Enhance the quality, utility, and clarity of the information to be collected; and
—Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
(1)
(2)
(3)
(4)
The requested information will be used to ensure that applicants for a federal firearms license are in compliance with the requirements pertaining to the availability of secure gun storage or safety devices.
(5)
(6)
If additional information is required contact: Jerri Murray, Department Clearance Officer, Policy and Planning Staff, Justice Management Division, Department of Justice, Two Constitution Square, Room 2E–508, 145 N Street NE., Washington, DC 20530.
60-Day notice of information collection.
The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for “sixty days” until April 23, 2012. This process is conducted in accordance with 5 CFR 1320.10.
If you have comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact James Yurgealitis,
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
(3)
(4)
The information requested on this form is necessary to process requests from prospective students to attend the ATF National Firearms Examiner Academy and to acquire firearms and toolmark examiner training. The information collection is used to determine the eligibility of the applicant.
(5)
(6)
Notice is hereby given pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C. § 16(b)–(h), that a proposed Final Judgment, Asset Preservation Stipulation and Order, and Competitive Impact Statement have been filed with the United States District Court for the District of Columbia in
A Competitive Impact Statement filed by the United States describes the Complaint, the proposed Final Judgment, the industry, and the remedies available to private litigants who may have been injured by the alleged violation.
Copies of the Complaint, proposed Final Judgment, and Competitive Impact Statement are available for inspection at the Department of Justice, Antitrust Division, Antitrust Documents Group, 450 Fifth Street NW., Suite 1010, Washington, DC 20530 (telephone: 202–514–2481), on the Department of Justice's Web site at
Public comment is invited within 60 days of the date of this notice. Such comments, and responses thereto, will be published in the
The United States of America, acting under the direction of the Attorney General of the United States, brings this civil action to enjoin International Paper Company (“International Paper”) from acquiring Temple-Inland Inc. (“Temple-Inland”). Plaintiff alleges as follows:
1. On September 6, 2011, International Paper agreed to acquire Temple-Inland in a transaction valued at $4.3 billion. International Paper and Temple-Inland are, respectively, the largest and third-largest producers of containerboard in the United States and Canada (which the paper industry and this Complaint refer to collectively as “North America”). Containerboard is the paper that is used to make corrugated boxes.
2. The proposed merger would increase International Paper's share of the containerboard capacity in North America from approximately 26 to 37 percent. After the merger, the combined firm would likely reduce containerboard output, raising containerboard prices throughout North America. International Paper would also likely accommodate its large rivals' efforts to raise containerboard prices by reducing their own output, making such price increases more likely. These higher containerboard prices would, in turn, raise the prices of corrugated boxes.
3. Because International Paper's proposed merger with Temple-Inland is likely to substantially lessen competition in violation of Section 7 of the Clayton Act, 15 U.S.C. 18, the Court should permanently enjoin this merger.
4. The United States brings this action under Section 15 of the Clayton Act, 15 U.S.C. 25, seeking injunctive and other equitable relief from the defendants' violation of Section 7 of the Clayton Act, 15 U.S.C. 18.
5. International Paper and Temple-Inland sell containerboard, corrugated boxes, and other industrial products throughout the United States. They engage in interstate commerce and in activities substantially affecting interstate commerce.
6. The Court has subject-matter jurisdiction over this action under Section 15 of the Clayton Act, 15 U.S.C. 25; and 28 U.S.C. 1331, 1337(a), and 1345.
7. Defendants have consented to personal jurisdiction in this District. The Court also has personal jurisdiction over the defendants under Section 12 of the Clayton Act, 15 U.S.C. 22.
8. Defendants have consented to venue in this District. Venue is also proper in this District under Section 12 of the Clayton Act, 15 U.S.C. 22, and 28 U.S.C. 1391.
9. International Paper is a corporation organized and existing under the laws of the State of New York, with its headquarters in Memphis, Tennessee. International Paper owns and operates 12 containerboard mills and 133 plants that convert containerboard into corrugated boxes (“box plants”) in the United States. In 2010, International Paper's annual revenues were approximately $25.2 billion, with its North American Industrial Packaging Group, which produces containerboard and corrugated products, accounting for $8.4 billion.
10. Temple-Inland is a corporation organized and existing under the laws of the State of Delaware, with its headquarters in Austin, Texas. Temple-Inland owns and operates seven containerboard mills and 53 box plants in the United States. In 2010, Temple-Inland's annual revenues were approximately $3.8 billion, with its corrugated-packaging business accounting for $3.2 billion.
11. The relevant product market for analyzing the likely effects of the proposed merger is containerboard. There are two types of containerboard: (1) Linerboard, the paper that forms the inner and outer facings of a corrugated sheet; and (2) medium, the paper that is inserted between the inner and outer linerboards in a wavy, fluted pattern. Linerboard is made from virgin wood fiber, recycled fiber (usually “old corrugated containers,” or “OCC”), or a combination of both virgin and recycled fibers. Medium is typically made from recycled fiber, but can also be made from virgin fibers or a combination of recycled and virgin fibers.
12. Linerboard and medium are relatively undifferentiated products. The linerboard made by one North American producer is substantially the same as the linerboard made by other producers. The medium made by the various producers is also substantially the same.
13. Although linerboard and medium are typically produced on different machines and have different performance characteristics, it is appropriate to view them as a single relevant product market because (1) containerboard producers and their customers generally regard competition in terms of a single containerboard market, not separate markets for linerboard and medium, and (2) analyzing them as separate products would not significantly alter the market shares or the analysis of the proposed merger's competitive effects.
14. Producers manufacture containerboard at mills and then ship it to box plants. At box plants, a large machine called a corrugator combines the linerboard and medium into rigid corrugated sheets. Box plants then convert the sheets into corrugated packaging, including corrugated boxes and displays. The work performed at box plants is sometimes divided between separate facilities called sheet feeders (which combine linerboard and medium into corrugated sheets) and sheet plants (which convert the sheets into corrugated boxes). Containerboard typically is the largest cost component of a corrugated box, accounting for a majority of the price.
15. For box manufacturers, there is no reasonable substitute for containerboard: Boxes made from other types of paper lack the required performance characteristics, such as the necessary strength, basis weight, and thickness. Furthermore, for box customers, there is no reasonable substitute for corrugated boxes: Other products used to carry and transport goods, such as returnable plastic containers, are typically too expensive or lack the required performance characteristics to serve as a commercially viable alternative.
16. Consequently, a small but significant increase in the price of containerboard in North America is unlikely to cause a sufficient number of containerboard or corrugated box customers to switch to other types of products such that the price increase would be unprofitable. Therefore, containerboard is a relevant product market and a “line of commerce” within the meaning of Section 7 of the Clayton Act.
17. The relevant geographic market for analyzing the likely effects of the proposed merger on the production and sale of containerboard is North America.
18. Containerboard produced outside of North America is not a commercially viable substitute for containerboard produced in North America due to
19. Consequently, a small but significant increase in the price of containerboard in North America is unlikely to cause a sufficient number of customers of containerboard or corrugated boxes to switch to containerboard produced outside of North America to make the price increase unprofitable. Therefore, North America is a relevant geographic market and a “section of the country” within the meaning of Section 7 of the Clayton Act for the production and sale of containerboard.
20. The proposed merger would likely substantially lessen competition in the production and sale of containerboard in North America. International Paper controls approximately 26 percent of North American containerboard capacity, and Temple-Inland controls approximately 11 percent. Thus, as alleged in paragraph 2, the proposed merger would give International Paper control over approximately 37 percent of North American containerboard capacity. Post-merger, the four largest producers would control approximately 74 percent of that capacity. A number of smaller producers, none with a share higher than three percent, account for the remainder of the market.
21. Using a standard concentration measure called the Herfindahl–Hirschman Index (or “HHI,” defined and explained in Appendix A), the proposed merger would significantly raise market concentration and result in a moderately concentrated market, producing an HHI increase of approximately 605 and a post-merger HHI of approximately 2,025. The defendants' combined market share (approximately 37 percent), coupled with the significant increase in market concentration (605), exceed the levels that courts have found to create a presumption that a proposed merger likely would substantially lessen competition.
22. The proposed merger is likely to cause International Paper to engage in unilateral conduct that would raise the market price of containerboard. In the containerboard industry, there is a close relationship between the market price and industry output. All else equal, when industry output grows, the market price of containerboard falls, and as industry output shrinks, the market price of containerboard rises. Because of this close relationship, a containerboard producer can raise the market price of containerboard by strategically reducing output, for example, by idling containerboard machines or closing mills. When a producer significantly reduces output, it loses profits on the output that it removed, but it gains profits (from the resulting higher price) on the output that remains.
23. A producer's willingness to raise the market price by reducing output depends on its size: As a producer grows larger, it is more likely to profit from strategically reducing output because it will have more sales at the higher price to offset the lost sales on the reduced output. In contrast, a small producer is unlikely to profit from reducing output because it will not have sufficient remaining sales at the higher price, making the reduction unprofitable.
24. By combining the containerboard capacity of International Paper and Temple-Inland, the proposed merger would significantly expand the volume of containerboard over which International Paper would benefit from a price increase. With that additional volume, International Paper would likely find it profitable to strategically reduce containerboard output, for example, by idling containerboard machines or closing mills. As described generally in paragraphs 22–23, although International Paper would lose profits on the output that it removed, it would gain even greater profits on the output that remains.
25. The proposed merger would also likely cause International Paper to engage in parallel accommodating conduct. Due to its additional containerboard volume obtained as a result of the merger, International Paper would benefit more from a price increase after the proposed merger. Thus, if a large rival attempted to raise the market price by reducing output, International Paper would likely accommodate its rival's actions by reducing or not increasing its own output. The rival would thus be likely to increase the market price by reducing output after International Paper and Temple-Inland complete the proposed merger.
26. Supply responses from competitors or potential competitors will not prevent the likely anticompetitive effects of the proposed merger. Virtually all existing North American containerboard producers are capacity-constrained and have other operational limitations that would prevent them from significantly expanding output using their existing machines in response to a post-merger increase in the price of containerboard. North American producers are also unlikely to respond to a domestic price increase by diverting a significant amount of their containerboard exports to the North American market.
27. Entry and expansion in the containerboard market through the construction of new containerboard mills or machines also are unlikely to occur in a timely manner or on a scale sufficient to undo the competitive harm that the proposed merger would produce. New entry typically requires investing hundreds of millions of dollars in equipment and facilities, obtaining extensive environmental permits, and establishing a reliable distribution system. Competitors are unlikely to build new containerboard mills or install new containerboard machines in response to a small but significant price increase, or do so quickly enough to defeat one.
28. Defendants cannot demonstrate cognizable, merger-specific efficiencies that are sufficient to reverse the proposed merger's anticompetitive effects.
29. The United States hereby incorporates paragraphs 1 through 28.
30. International Paper's proposed merger with Temple-Inland would likely substantially lessen competition in the market for containerboard, in violation of Section 7 of the Clayton Act, 15 U.S.C. 18.
31. Unless enjoined, the proposed merger would likely have the following effects, among others:
a. Competition between International Paper and Temple-Inland for the sale of containerboard would be eliminated;
b. Competition generally in the sale of containerboard in North America would likely be substantially lessened; and
c. Prices for containerboard in North America would likely increase to levels above those that would prevail absent the proposed merger.
32. Plaintiff requests that this Court:
a. Adjudge and decree that the proposed merger violates Section 7 of the Clayton Act, 15 U.S.C. 18;
b. Preliminarily and permanently enjoin the defendants from carrying out the proposed merger or from entering into or carrying out any other agreement, understanding, or plan, the effect of which would be to bring the containerboard business of International
c. Award plaintiff its costs in this action; and
d. Award plaintiff such other relief as may be just and proper.
The term “HHI” means the Herfindahl-Hirschman Index, a commonly accepted measure of market concentration. The HHI is calculated by squaring the market share of each firm competing in the market and then summing the resulting numbers. For example, for a market consisting of four firms with shares of 30, 30, 20, and 20 percent, the HHI is 2,600 (30
Markets in which the HHI is between 1,500 and 2,500 points are considered to be moderately concentrated, and markets in which the HHI is in excess of 2,500 points are considered to be highly concentrated. See U.S. Department of Justice & FTC,
Plaintiff United States of America (“United States”), pursuant to Section 2(b) of the Antitrust Procedures and Penalties Act (“APPA” or “Tunney Act”), 15 U.S.C. 16(b)–(h), files this Competitive Impact Statement relating to the proposed Final Judgment submitted for entry in this civil antitrust proceeding.
The United States filed a civil antitrust lawsuit on February 10, 2012, seeking to enjoin Defendant International Paper Company (“International Paper”) from acquiring Defendant Temple-Inland Inc. (“Temple-Inland”), and alleging that the merger would likely substantially lessen competition in the market for containerboard in North America in violation of Section 7 of the Clayton Act, 15 U.S.C. 18. The loss of competition would likely result in higher containerboard prices and lower containerboard output in the United States.
At the same time the Complaint was filed, the United States filed an Asset Preservation Stipulation and Order and a proposed Final Judgment, which are designed to preserve competition for the production and sale of containerboard in North America. Under the proposed Final Judgment, which is explained more fully below, Defendants are required to divest one International Paper mill and two Temple-Inland mills that manufacture containerboard. Pursuant to the Asset Preservation Stipulation and Order, International Paper and Temple-Inland must ensure that the assets being divested continue to be operated as ongoing, economically viable, and competitive assets until the divestitures required by the proposed Final Judgment have been accomplished.
The United States and Defendants have stipulated that the proposed Final Judgment may be entered after compliance with the APPA. Entry of the proposed Final Judgment would terminate this action, except that the Court would retain jurisdiction to construe, modify, or enforce the provisions of the proposed Final Judgment and to punish violations thereof.
On September 6, 2011, International Paper agreed to acquire Temple-Inland for $4.3 billion. International Paper and Temple-Inland are, respectively, the largest and third-largest producers of containerboard in the United States and Canada (which the containerboard industry and the Complaint refer to collectively as “North America”). Containerboard is the type of paper that is used to make corrugated boxes.
International Paper, a New York corporation headquartered in Memphis, Tennessee, owns and operates 12 containerboard mills and 133 plants that convert containerboard into corrugated boxes (“box plants”) in the United States. International Paper controls approximately 26 percent of North American containerboard capacity. In 2010, International Paper's revenues were approximately $25.2 billion, with its North American Industrial Packaging Group, which produces containerboard and corrugated products, accounting for $8.4 billion.
Temple-Inland, a Delaware corporation headquartered in Austin, Texas, owns and operates seven containerboard mills and 53 box plants in the United States. Temple-Inland controls approximately 11 percent of North American containerboard capacity. In 2010, Temple-Inland's annual revenues were approximately $3.8 billion, with its corrugated-packaging business accounting for $3.2 billion. The proposed merger would have created a single firm in control of approximately 37 percent of North American containerboard capacity.
The Complaint alleges that containerboard is a relevant product market within the meaning of Section 7 of the Clayton Act. There are two types of containerboard: (1) Linerboard, the paper that forms the inner and outer facings of a corrugated sheet; and (2) medium, the paper that is inserted between the inner and outer linerboards in a wavy, fluted pattern. Linerboard is made from virgin wood fiber, recycled fiber (usually “old corrugated containers,” or “OCC”), or a combination of both virgin and recycled fibers. Medium is typically made from recycled fiber, but can also be made from virgin fibers or a combination of recycled and virgin fibers.
Linerboard and medium are relatively undifferentiated products. The linerboard made by one North American producer is substantially the same as the linerboard made by other producers. The medium made by the various producers is also substantially the same.
Although linerboard and medium are typically produced on different machines and have different performance characteristics, it is appropriate to view them as a single relevant product market because (1) containerboard producers and their customers generally regard competition in terms of a single containerboard market, not separate markets for linerboard and medium, and (2) analyzing them as separate products would not significantly alter the market shares or the analysis of the proposed merger's competitive effects.
Producers manufacture containerboard at mills and then ship it to box plants. At box plants, a large machine called a corrugator combines the linerboard and medium into rigid corrugated sheets. Box plants then convert the sheets into corrugated packaging, including corrugated boxes and displays. The work performed at box plants is sometimes divided between separate facilities called sheet feeders (which combine linerboard and medium into corrugated sheets) and sheet plants (which convert the sheets into corrugated boxes). Containerboard typically is the largest cost component of a corrugated box, accounting for a majority of the price.
For box manufacturers, there is no reasonable substitute for containerboard: boxes made from other types of paper lack the required performance characteristics, such as the necessary strength, basis weight, and thickness. Furthermore, for box customers, there is no reasonable substitute for corrugated boxes: other products used to carry and transport goods, such as returnable plastic containers, are typically too expensive or lack the required performance characteristics to serve as a commercially viable alternative.
Therefore, a small but significant increase in the price of containerboard in North America is unlikely to cause a sufficient number of containerboard or corrugated box customers to switch to other types of products such that the price increase would be unprofitable. Accordingly, containerboard is a relevant product market and a “line of commerce” within the meaning of Section 7 of the Clayton Act.
The Complaint alleges that North America is a relevant geographic market for the production and sale of containerboard within the meaning of Section 7 of the Clayton Act. Containerboard produced outside of North America is not a commercially viable substitute for containerboard produced in North America due to higher transportation costs, unfavorable currency exchange rates, lower-quality fiber, and other disadvantages to producers of containerboard outside of North America seeking to import containerboard into North America. Therefore, a small but significant increase in the price of containerboard produced in North America is unlikely to cause a sufficient number of customers of containerboard or corrugated boxes to switch to containerboard produced outside of North America to make such a price increase unprofitable. Accordingly, North America is a relevant geographic market for the production and sale of containerboard and a “section of the country” within the meaning of Section 7 of the Clayton Act.
The Complaint alleges that the proposed merger would likely substantially lessen competition in the production and sale of containerboard in North America. International Paper controls approximately 26 percent of North American containerboard capacity, and Temple-Inland controls approximately 11 percent. Therefore, the proposed merger would give International Paper control over approximately 37 percent of North American containerboard capacity. Post-merger, the four largest producers would control approximately 74 percent of that capacity. A number of smaller producers, none with a share higher than three percent, account for the remainder of the market.
Using a standard measure of concentration called the Herfindahl–Herschman Index (“HHI”), the proposed merger would significantly raise market concentration and result in a moderately concentrated market, producing an HHI increase of approximately 605 and a post-merger HHI of approximately 2,025. The defendants' combined market share (approximately 37 percent), coupled with the significant increase in market concentration (605), exceed the levels that courts have found to create a presumption that a proposed merger likely would substantially lessen competition.
The proposed merger is likely to cause International Paper to engage in unilateral conduct that would raise the market price of containerboard. The competitive effects analysis described in Section 6.3 of the 2010 Horizontal Merger Guidelines (“Merger Guidelines”) is applicable to analyzing the unilateral competitive effects of this transaction. U.S. Dept. of Justice & FTC,
In the containerboard industry, there is a close relationship between the market price and industry output. All else equal, when industry output grows, the market price of containerboard falls, and as industry output shrinks, the market price of containerboard rises. Because of this close relationship, a containerboard producer can raise the market price of containerboard by strategically reducing output, for example, by idling containerboard machines or closing mills. When a producer significantly reduces output, it loses profits on the output that it removed, but it gains profits (from the resulting higher price) on the output that remains.
A producer's willingness to raise the market price by reducing output depends on its size: As a producer grows larger, it is more likely to profit from strategically reducing output because it will have more sales at the higher price to offset the lost sales on
As alleged in the Complaint, by combining the containerboard capacity of International Paper and Temple-Inland, the proposed merger would significantly expand the volume of containerboard over which International Paper would benefit from a price increase. With that additional volume, International Paper would likely find it profitable to strategically reduce containerboard output, for example, by idling containerboard machines or closing mills. Although International Paper would lose profits on the output that it removed, it would gain even greater profits on the output that remains.
The proposed merger would also likely cause International Paper to engage in parallel accommodating conduct. As described in Section 7 of the Merger Guidelines, “[p]arallel accommodating conduct [involves] situations in which each rival's response to competitive moves made by others is individually rational, and not motivated by retaliation or deterrence nor intended to sustain an agreed-upon market outcome, but nevertheless emboldens price increases and weakens competitive incentives to reduce prices or offer customers better terms.”
Due to its additional containerboard volume obtained as a result of the merger, International Paper would benefit more from a price increase after the proposed merger. Thus, if a large rival attempted to raise the market price by reducing output, International Paper would likely accommodate its rival's actions by reducing or not increasing its own output. The rival would thus be likely to increase the market price by reducing output after International Paper and Temple-Inland complete the proposed merger.
The Complaint alleges that supply responses from competitors or potential competitors will not prevent the likely anticompetitive effects of the proposed merger. Virtually all existing North American containerboard producers are capacity-constrained and have other operational limitations that would prevent them from significantly expanding output using their existing machines in response to a post-merger increase in the price of containerboard. Further, North American producers are also unlikely to respond to a domestic price increase by diverting a significant amount of their containerboard exports to the North American market.
Entry and expansion in the containerboard market through the construction of new containerboard mills or machines also are unlikely to occur in a timely manner or on a scale sufficient to undo the competitive harm that the proposed merger would produce. New entry typically requires investing hundreds of millions of dollars in equipment and facilities, obtaining extensive environmental permits, and establishing a reliable distribution system. Competitors are unlikely to build new containerboard mills or install new containerboard machines in response to a small but significant price increase, or do so quickly enough to defeat one. Moreover, Defendants cannot demonstrate cognizable, merger-specific efficiencies that are sufficient to reverse the proposed merger's anticompetitive effects.
The proposed Final Judgment requires Defendants to divest two of Temple-Inland's containerboard mills and all associated mill assets and one of International Paper's containerboard mills and all associated mill assets. Defendants must divest (1) both the Temple-Inland mill in Waverly, Tennessee (the “New Johnsonville Mill”), with an annual containerboard production capacity of approximately 372,900 tons, and the Temple-Inland mill in Ontario, California (the “Ontario Mill”), with an annual containerboard production capacity of approximately 360,200 tons; and (2) either the International Paper mill in Oxnard, California (the “Port Hueneme Mill”), with an annual containerboard production capacity of approximately 210,300 tons, or the International Paper mill in Henderson, Kentucky (the “Henderson Mill”), with an annual containerboard production capacity of approximately 222,400 tons, but not both of those mills. The New Johnsonville Mill, the Ontario Mill, the Port Hueneme Mill, and the Henderson Mill are referred to collectively as the “Divestiture Mills.” It will be in Defendants' discretion to decide whether to divest either the Port Hueneme Mill or the Henderson Mill unless a divestiture trustee is appointed pursuant to Section V of the proposed Final Judgment.
Defendants' divestiture of the Divestiture Mills would result in the sale of approximately 943,400 to 955,400 tons of containerboard production capacity to a competitor or competitors of Defendants. Under the proposed Final Judgment, the Divestiture Mills may be sold to one or more buyers, with the approval of the United States in its sole discretion. In addition, Defendants are required to satisfy the United States in its sole discretion that the divested assets will be operated as viable ongoing businesses that will compete effectively in the North American containerboard market.
In evaluating the likely competitive effects of the proposed merger, the United States considered market shares; costs of production; current and historical industry capacity, utilization rates, margins, and market pricing; historical and projected market demand for containerboard; and the likelihood of supply responses to increased containerboard prices. The United States concluded that allowing the merger as proposed would give the merged firm control of a sufficiently large amount of industry capacity that the firm would likely (a) strategically reduce its containerboard output, raising containerboard prices throughout North America, and (b) likely accommodate its large rivals' efforts to raise containerboard prices by reducing their own output, making such price increases more likely. The divestitures required by the proposed Final Judgment will decrease this incentive by reducing the merged firm's capacity and output and transferring that capacity to a competitor or competitors. As a result, the divestitures will reduce the incentive of the merged firm to raise price by reducing output and capacity.
At the option of the Acquirer(s), the proposed Final Judgment requires Defendants to enter into an agreement pursuant to which Defendants shall purchase containerboard produced by the Divestiture Mills that are sold to the Acquirer(s). Under the agreement, the Acquirer(s) shall have the right to require Defendants to purchase up to 100 percent of the volume of containerboard supplied by the particular Divestiture Mill in 2011 to Defendants' box plants or other facilities in the first year of the contract, up to 75 percent of this volume during the second year, and up to 50 percent during the third year. Any such agreement shall have a term of no longer than three years. Similarly, at the option of the Acquirer(s), and upon the approval of the United States, the proposed Final Judgment requires Defendants to provide certain transition
Section IV of the proposed Final Judgment requires Defendants to complete the divestiture within 120 days after the filing of the Complaint in this matter with one or more 30-day extensions not to exceed 60 calendar days in total, which extensions shall be granted at the sole discretion of the United States. If Defendants do not accomplish the divestiture within the period prescribed in the proposed Final Judgment, the proposed Final Judgment provides for the Court to appoint a trustee, upon application of the United States, to accomplish the divestitures. If a trustee is appointed, the proposed Final Judgment provides that Defendants will pay all of the costs and expenses of the trustee. The trustee's commission will be structured so as to provide an incentive for the trustee based on the price obtained and the speed with which the divestiture is accomplished. After his or her appointment becomes effective, the trustee will file monthly reports with the Court and the United States setting forth his or her efforts to accomplish the divestiture. If any of the requisite divestitures has not been accomplished at the end of the trustee's term, the trustee and the United States will make recommendations to the Court, which may enter such orders as appropriate to carry out the purpose of the trust, including extending the trust or the term of the trustee's appointment.
The proposed Final Judgment also provides that the United States may appoint a monitoring trustee, subject to the approval of the Court, to ensure that Defendants expeditiously comply with all of their obligations and perform all of their responsibilities under the Final Judgment and the Asset Preservation Stipulation and Order. The monitoring trustee shall serve at the cost and expense of Defendants, on customary and reasonable terms and conditions agreed to by the monitoring trustee and the United States.
Pursuant to the Asset Preservation Stipulation and Order, until the divestitures under the proposed Final Judgment have been accomplished, Defendants are required to preserve, maintain, and operate all four Divestiture Mills as ongoing businesses, and are prohibited from taking any action that would jeopardize the divestitures required by the proposed Final Judgment.
Section 4 of the Clayton Act, 15 U.S.C. 15, provides that any person who has been injured as a result of conduct prohibited by the antitrust laws may bring suit in federal court to recover three times the damages the person has suffered, as well as costs and reasonable attorneys' fees. Entry of the proposed Final Judgment will neither impair nor assist the bringing of any private antitrust damage action. Under the provisions of Section 5(a) of the Clayton Act, 15 U.S.C. 16(a), the proposed Final Judgment has no prima facie effect in any subsequent private lawsuit that may be brought against Defendants.
The United States and Defendants have stipulated that the proposed Final Judgment may be entered by the Court after compliance with the provisions of the APPA, provided that the United States has not withdrawn its consent. The APPA conditions entry upon the Court's determination that the proposed Final Judgment is in the public interest.
The APPA provides a period of at least 60 days preceding the effective date of the proposed Final Judgment within which any person may submit to the United States written comments regarding the proposed Final Judgment. Any person who wishes to comment should do so within 60 days of the date of publication of this Competitive Impact Statement in the
The proposed Final Judgment provides that the Court retains jurisdiction over this action, and the parties may apply to the Court for any order necessary or appropriate for the modification, interpretation, or enforcement of the Final Judgment.
The United States considered, as an alternative to the proposed Final Judgment, a full trial on the merits against Defendants. The United States could have initiated a civil action in federal district court seeking a judicial order enjoining International Paper's acquisition of Temple-Inland. The United States is satisfied, however, that the divestiture of the assets described in the proposed Final Judgment will preserve competition in the production and sale of containerboard in North America.
The Clayton Act, as amended by the APPA, requires that proposed consent judgments in antitrust cases brought by the United States be subject to a 60-day comment period, after which the court shall determine whether entry of the proposed Final Judgment “is in the public interest.” 15 U.S.C. 16(e)(1). In making that determination, the court, in accordance with the statute as amended in 2004, is required to consider:
(A) The competitive impact of such judgment, including termination of alleged violations, provisions for enforcement and modification, duration of relief sought, anticipated effects of alternative remedies actually considered, whether its terms are ambiguous, and any other competitive considerations bearing upon the adequacy of such judgment that the court deems necessary to a determination of whether the consent judgment is in the public interest; and
(B) The impact of entry of such judgment upon competition in the relevant market or markets, upon the public generally and individuals alleging specific injury from the violations set forth in the complaint including consideration of the public benefit, if any, to be derived from a determination of the issues at trial.
In considering these statutory factors, the court's inquiry is necessarily a limited one as the government is entitled to “broad discretion to settle with the defendant within the reaches of the public interest.”
A court considers under the APPA, among other things, the relationship between the remedy secured and the specific allegations set forth in the United States' complaint, whether the decree is sufficiently clear, whether enforcement mechanisms are sufficient, and whether the decree may positively harm third parties.
Courts have greater flexibility in approving proposed consent decrees than in crafting their own decrees following a finding of liability in a litigated matter. “[A] proposed decree must be approved even if it falls short of the remedy the court would impose on its own, as long as it falls within the range of acceptability or is `within the reaches of public interest.' ”
Moreover, the court's role under the APPA is limited to reviewing the remedy in relation to the violations that the United States has alleged in its complaint, and the APPA does not authorize the court to “construct [its] own hypothetical case and then evaluate the decree against that case.”
In its 2004 amendments to the Tunney Act, Congress made clear its intent to preserve the practical benefits of utilizing consent decrees in antitrust enforcement, adding the unambiguous instruction that “[n]othing in this section shall be construed to require the court to conduct an evidentiary hearing or to require the court to permit anyone to intervene.” 15 U.S.C. 16(e)(2). This language effectuates what Congress intended when it enacted the Tunney Act in 1974. As Senator Tunney explained, “[t]he court is nowhere compelled to go to trial or to engage in extended proceedings which might have the effect of vitiating the benefits of prompt and less costly settlement through the consent decree process.” 119 Cong. Rec. 24,598 (1973) (statement of Senator Tunney). Rather, the procedure for the public interest determination is left to the discretion of the court, with the recognition that the court's “scope of review remains sharply proscribed by precedent and the nature of Tunney Act proceedings.”
There are no determinative materials or documents within the meaning of the APPA that were considered by the United States in formulating the proposed Final Judgment.
This Court has jurisdiction over the subject matter of, and each of the parties to, this action. The Complaint states a claim upon which relief may be granted against Defendants under Section 7 of the Clayton Act, as amended, 15 U.S.C. 18.
As used in this Final Judgment:
A. “Acquirer” or “Acquirers” means the person, persons, entity, or entities to whom Defendants divest some or all of the Divestiture Assets.
B. “Containerboard” means linerboard and medium, the paper that is used to make corrugated boxes.
C. “Divestiture Assets” means the Divestiture Mills and all assets relating to the Divestiture Mills, including:
(1) All tangible assets necessary to operate, used in or for, or devoted to a Divestiture Mill, including, but not limited to, assets relating to research and development activities; all manufacturing equipment, tooling and fixed assets, real property (leased or owned), personal property, inventory, containerboard reserves, information technology systems, office furniture, materials, supplies, docking facilities, warehouses and storage facilities, and other tangible property and all assets used exclusively in connection with the Divestiture Mills; all licenses, permits, and authorizations issued by any governmental organization relating to the Divestiture Mills; all contracts, teaming arrangements, agreements, leases (including renewal rights), commitments, certifications, and understandings, relating to the Divestiture Mills, including supply or purchase agreements; all customer lists, contracts, accounts, and credit records; all interests in, and contracts relating to, power generation; and all repair and performance records and all other records relating to the Divestiture Mills; and
(2) All intangible assets necessary to operate, used in or for, or devoted to a Divestiture Mill, including, but not limited to, all contractual rights, patents, licenses and sublicenses, intellectual property, copyrights, technical information, computer software and related documentation, know-how, trade secrets, drawings, blueprints, designs, design protocols, specifications for materials, specifications for parts and devices, safety procedures for the handling of materials and substances, quality assurance and control procedures, environmental studies and assessments, design tools and simulation capability, all manuals and technical information Defendants provide to their employees, customers, suppliers, agents or licensees, and all research data concerning historic and current research and development efforts relating to the Divestiture Mills, including, but not limited to, designs of experiments, and the results of successful and unsuccessful designs and experiments.
D. “Divestiture Mills” means the Defendants' containerboard mills in the following locations:
(1) Temple-Inland's containerboard mill located at 2877 Scepter Road, Waverly, Tennessee 37185 (the “New Johnsonville Mill”);
(2) Temple-Inland's containerboard mill located at 5110 East Jurupa Street, Ontario, California 91761 (the “Ontario Mill”); and
(3) Either International Paper's containerboard mill located at 5936 Perkins Road, Oxnard, California 93033 (the “Port Hueneme Mill”) or International Paper's containerboard mill located at 1500 Commonwealth Drive, Henderson, Kentucky 42420 (the “Henderson Mill”).
E. “Divestiture Trustee” means the trustee selected by the United States and appointed by the Court pursuant to Section V of this Final Judgment.
F. “International Paper” means Defendant International Paper Company, a New York corporation with its headquarters in Memphis, Tennessee, its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships and joint ventures, and their directors, officers, managers, agents, and employees.
G. “Monitoring Trustee” means the monitor selected by the United States pursuant to Section IX of this Final Judgment.
H. “Temple-Inland” means Defendant Temple-Inland, Inc., a Delaware corporation with its headquarters in Austin, Texas, its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships and joint ventures, and their directors, officers, managers, agents, and employees.
A. This Final Judgment applies to each Defendant and all persons in active concert or participation with any Defendant who receives actual notice of this Final Judgment by personal service or otherwise.
B. If, prior to complying with Section IV or V of this Final Judgment, Defendants sell or otherwise dispose of all or substantially all of their assets or of lesser business units that include the Divestiture Assets, Defendants shall require the purchaser(s) to be bound by the provisions of this Final Judgment. Defendants need not obtain such an agreement from the Acquirer(s) of the assets divested pursuant to this Final Judgment.
A. Defendants are ordered and directed, within 120 calendar days after the filing of the Complaint in this matter
B. In accomplishing the divestiture ordered by this Final Judgment, Defendants promptly shall make known, by usual and customary means, the availability of the Divestiture Assets. Defendants shall inform any person who inquires about a possible purchase of the Divestiture Assets that they are being divested pursuant to this Final Judgment and provide that person with a copy of this Final Judgment. Defendants shall offer to furnish to all prospective Acquirers, subject to customary confidentiality assurances, all information and documents relating to the Divestiture Assets customarily provided in a due diligence process except such information or documents subject to the attorney-client privilege or work-product doctrine. Defendants shall make available such information to the United States at the same time that such information is made available to any prospective Acquirer.
C. Defendants shall provide prospective Acquirers and the United States with information relating to the personnel involved in the management, production, operation, and sales activities relating to the Divestiture Assets to enable the Acquirer(s) to make offers of employment. Defendants will not interfere with any negotiations by the Acquirer(s) to employ or contract with any Defendant employee whose primary responsibility is production, operations, or sales at the Divestiture Mills. Nor shall Defendants interfere with any negotiations by the Acquirer(s) to employ or contract with any of the Defendants' sales force whose responsibilities include sales of containerboard produced by the Divestiture Mills to third-party customers.
D. Defendants shall waive all non-compete agreements for any current or former employee whom the Acquirer(s) employ(s) with relation to the Divestiture Assets.
E. Defendants shall permit prospective Acquirers of the Divestiture Assets to (1) have reasonable access to personnel; (2) make inspections of the physical facilities; (3) have access to any and all environmental, zoning, and other permit documents and information; and (4) have access to any and all financial, operational, or other documents and information customarily provided as part of a due diligence process.
F. Defendants shall warrant to the Acquirer(s) that the Divestiture Assets will be operational on the date of sale, that there are no material defects in the environmental, zoning, or other permits pertaining to the operation of each asset, and that following the sale of the Divestiture Assets, Defendants will not undertake, directly or indirectly, any challenges to the environmental, zoning, or other permits relating to the operation of the Divestiture Assets.
G. Defendants shall not take any action that will impede in any way the permitting, operation, or divestiture of the Divestiture Assets.
H. At the option of the Acquirer(s) and upon approval by the United States, in its sole discretion, Defendants shall enter into a transition services agreement based upon commercially reasonable terms and conditions. Such an agreement may not exceed 12 months from the date of divestiture. Transition services may include information technology support, information technology licensing, computer operations, data processing, logistics support, and such other services as reasonably necessary to operate the Divestiture Assets. Defendants shall designate employees, other than Defendants' senior managers, to implement any such transition services agreement and shall establish, implement and maintain procedures and take such other steps that are reasonably necessary to prevent such employees from disclosing any confidential, proprietary, or business sensitive information of the Acquirer(s) to any other employee of Defendants, and to prevent such employees from using such information except as necessary to implement the transition services agreement.
I. Unless the United States otherwise consents in writing, any divestiture of a mill pursuant to Section IV, or by the Divestiture Trustee appointed pursuant to Section V of this Final Judgment, shall include the mill and all assets relating to it, as defined in Section II.C, and shall be accomplished in such a way as to satisfy the United States, in its sole discretion, that the divestiture will achieve the purposes of this Final Judgment and that the Divestiture Assets can and will be used by the Acquirer(s) as part of a viable, ongoing business engaged in the production and sale of containerboard. The divestitures, whether pursuant to Section IV or Section V of this Final Judgment,
(1) Shall be made to an Acquirer or Acquirers that, in the United States' sole judgment, has or have the intent and capability (including the necessary managerial, operational, technical, and financial capability) of competing effectively in the production and sale of containerboard; and
(2) Shall be accomplished so as to satisfy the United States, in its sole discretion, that none of the terms of any agreement between an Acquirer and Defendants give Defendants the ability to unreasonably raise the Acquirer's costs, to lower the Acquirer's efficiency, or otherwise to interfere with the ability of an Acquirer to compete effectively.
J. As part of a divestiture, and at the option of the Acquirer(s), Defendants shall negotiate a transitional agreement or transitional agreements to purchase containerboard on commercially reasonable terms and conditions from the Divestiture Mills that are sold to the Acquirer(s). Such agreement(s) shall have a term of no longer than three (3) years. The Acquirer of a Divestiture Mill shall have the right to require Defendants to purchase up to 100 percent of the volume of containerboard supplied by the particular Divestiture Mill in 2011 to Defendants in the first year of the contract, up to 75 percent of this volume during the second year, and up to 50 percent during the third year. Defendants may agree to purchase more containerboard produced by the Divestiture Mill(s) than the amounts specified. The foregoing limitations and requirements do not affect Defendants' ability to (1) maintain or enter into current or future ordinary-course containerboard trade agreements with the Acquirer(s) or (2) enter into ordinary-course containerboard supply agreements with the Acquirer(s) after the end of the three-year term of the purchase agreement(s) described in this sub-paragraph.
A. If Defendants have not divested some or all of the Divestiture Assets ordered by Section IV(A) of this Final Judgment within the time period
(1) If Defendants have not divested the New Johnsonville Mill and/or the Ontario Mill, the Divestiture Trustee will divest the mill(s).
(2) If Defendants have not divested the Port Hueneme Mill and have not divested the Henderson Mill, the Divestiture Trustee must divest one of these mills, but not both mills. The Divestiture Trustee shall have the discretion to decide whether to divest the Port Hueneme Mill or the Henderson Mill. The Divestiture Trustee shall make this determination based on the price and terms of the divestiture and the speed with which it can be accomplished, but timeliness is paramount.
B. After the appointment of a Divestiture Trustee becomes effective, only the Divestiture Trustee shall have the right to sell the remaining Divestiture Assets. The Divestiture Trustee shall have the power and authority to accomplish the divestiture to Acquirer(s) acceptable to the United States at such price and on such terms as are then obtainable upon reasonable effort by the Divestiture Trustee, subject to the provisions of Sections IV, V, and VI of this Final Judgment, and shall have such other powers as this Court deems appropriate. Subject to Section V(D) of this Final Judgment, the Divestiture Trustee may hire at the cost and expense of Defendants any investment bankers, attorneys, or other agents, who shall be solely accountable to the Divestiture Trustee, reasonably necessary in the Divestiture Trustee's judgment to assist in the divestiture.
C. Defendants shall not object to a sale by the Divestiture Trustee on any ground other than the Divestiture Trustee's malfeasance. Any such objections by Defendants must be conveyed in writing to the United States and the Divestiture Trustee within 10 calendar days after the Divestiture Trustee has provided the notice required under Section VI.
D. The Divestiture Trustee shall serve at the cost and expense of Defendants, on such terms and conditions as the United States approves, and shall account for all monies derived from the sale of assets sold by the Divestiture Trustee and all costs and expenses so incurred. After approval by the Court of the Divestiture Trustee's accounting, including fees for its services and those of any professionals and agents retained by the Divestiture Trustee, all remaining money shall be paid to Defendants and the trust shall then be terminated. The compensation of the Divestiture Trustee and any professionals and agents retained by the Divestiture Trustee shall be reasonable in light of the value of the remaining Divestiture Assets and based on a fee arrangement providing the Divestiture Trustee with an incentive based on the price and terms of the divestiture and the speed with which it is accomplished, but timeliness is paramount.
E. Defendants shall use their best efforts to assist the Divestiture Trustee in accomplishing the required divestiture. The Divestiture Trustee and any consultants, accountants, attorneys, and other persons retained by the Divestiture Trustee shall have full and complete access to the personnel, books, records, and facilities of remaining Divestiture Assets, and Defendants shall develop financial and other information relevant to the remaining Divestiture Assets as the Divestiture Trustee may reasonably request, subject to reasonable protection for trade secrets or other confidential research, development, or commercial information. Defendants shall take no action to interfere with or to impede the Divestiture Trustee's accomplishment of the divestiture.
F. After its appointment, the Divestiture Trustee shall file monthly reports with the United States and the Court setting forth the Divestiture Trustee's efforts to accomplish the divestiture ordered under this Final Judgment. To the extent such reports contain information that the Divestiture Trustee deems confidential, such reports shall not be filed in the public docket of the Court. Such reports shall include the name, address, and telephone number of each person who, during the preceding month, made an offer to acquire, expressed an interest in acquiring, entered into negotiations to acquire, or was contacted or made an inquiry about acquiring any interest in the remaining Divestiture Assets, and shall describe in detail each contact with any such person. The Divestiture Trustee shall maintain full records of all efforts made to divest the remaining Divestiture Assets.
G. If the Divestiture Trustee has not accomplished the divestiture ordered under this Final Judgment within six months after its appointment, the Divestiture Trustee shall promptly file with the Court a report setting forth: (1) The Divestiture Trustee's efforts to accomplish the required divestiture; (2) the reasons, in the Divestiture Trustee's judgment, why the required divestiture has not been accomplished; and (3) the Divestiture Trustee's recommendations. To the extent the report contains information that the Divestiture Trustee deems confidential, the report shall not be filed in the public docket of the Court. The Divestiture Trustee shall at the same time furnish such report to the United States, which shall have the right to make additional recommendations consistent with the purpose of the trust. The Court thereafter shall enter such orders as it shall deem appropriate to carry out the purpose of this Final Judgment, which may, if necessary, include extending the trust and the term of the Divestiture Trustee's appointment by a period requested by the United States.
A. Within two business days following execution of a definitive divestiture agreement, Defendants or the Divestiture Trustee, whichever is then responsible for effecting the divestitures required herein, shall notify the United States of any proposed divestiture required by Section IV or V of this Final Judgment. If the Divestiture Trustee is responsible, it shall similarly notify Defendants. The notice shall set forth the details of the proposed divestiture and list the name, address, and telephone number of each person not previously identified who offered or expressed an interest in or desire to acquire any ownership interest in the Divestiture Assets, together with full details of the same.
B. Within 15 calendar days of receipt by the United States of such notice, the United States may request from Defendants, the proposed Acquirer(s), any other third party, or the Divestiture Trustee, if applicable, additional information concerning the proposed divestiture, the proposed Acquirer(s), and any other potential Acquirer(s). Defendants and the Divestiture Trustee shall furnish to the United States any additional information requested within 15 calendar days of the receipt of the request, unless the parties shall otherwise agree.
C. Within 30 calendar days after receipt of the notice, or within 20 calendar days after the United States has been provided the additional information requested from Defendants, the proposed Acquirer(s), any third party, and the Divestiture Trustee, whichever is later, the United States shall provide written notice to Defendants and the Divestiture Trustee, if there is one, stating whether or not it approves or objects to the proposed
Defendants shall not finance all or any part of any purchase made pursuant to Section IV or V of this Final Judgment.
Until the divestitures required by this Final Judgment have been accomplished, Defendants shall take all steps necessary to comply with the Asset Preservation Stipulation and Order entered by this Court. Defendants shall take no action that would jeopardize the divestitures ordered by this Court.
A. Upon the filing of this Final Judgment, the United States may, in its sole discretion, appoint a Monitoring Trustee, subject to approval by the Court.
B. The Monitoring Trustee shall have the power and authority to monitor Defendants' compliance with the terms of this Final Judgment and the Asset Preservation Stipulation and Order entered by this Court and shall have such powers as this Court deems appropriate. Subject to Section IX(D) of this Final Judgment, the Monitoring Trustee may hire any consultants, accountants, attorneys, or other persons reasonably necessary in the Monitoring Trustee's judgment. These individuals shall be solely accountable to the Monitoring Trustee.
C. Defendants shall not object to actions taken by the Monitoring Trustee in fulfillment of the Monitoring Trustee's responsibilities under any Order of this Court on any ground other than the Monitoring Trustee's malfeasance. Any such objections by Defendants must be conveyed in writing to the United States and the Monitoring Trustee within 10 calendar days after the action taken by the Monitoring Trustee giving rise to the Defendants' objection.
D. The Monitoring Trustee and any consultants, accountants, attorneys, and other persons retained by the Monitoring Trustee shall serve, without bond or other security, at the cost and expense of Defendants, on such terms and conditions as the United States approves. The compensation of the Monitoring Trustee and any consultants, accountants, attorneys, and other persons retained by the Monitoring Trustee shall be on reasonable and customary terms commensurate with the individuals' experience and responsibilities.
E. The Monitoring Trustee shall have no responsibility or obligation for the operation of Defendants' businesses.
F. Defendants shall assist the Monitoring Trustee in monitoring Defendants' compliance with their individual obligations under this Final Judgment and under the Asset Preservation Stipulation and Order. The Monitoring Trustee and any consultants, accountants, attorneys, and other persons retained by the Monitoring Trustee shall have full and complete access to the personnel, books, records, and facilities relating to the Divestiture Assets, subject to reasonable protection for trade secret or other confidential research, development, or commercial information or any applicable privileges. Defendants shall take no action to interfere with or to impede the Monitoring Trustee's accomplishment of its responsibilities.
G. After its appointment, the Monitoring Trustee shall file monthly reports with the United States and the Court setting forth the Defendants' efforts to comply with their individual obligations under this Final Judgment and under the Asset Preservation Stipulation and Order. To the extent such reports contain information that the Monitoring Trustee deems confidential, such reports shall not be filed in the public docket of the Court.
H. The Monitoring Trustee shall serve until the divestiture of all of the Divestiture Assets is finalized pursuant to either Section IV or Section V of this Final Judgment and any transitional or purchase agreements described in Sections IV(H) and (J) of this Final Judgment have expired.
I. If the United States determines that the Monitoring Trustee has ceased to act or failed to act diligently, the United States may appoint a substitute Monitoring Trustee in the same manner as provided in this Section.
J. The Monitoring Trustee appointed pursuant to this Final Judgment may be the same person or entity appointed as a Divestiture Trustee pursuant to Section V of this Final Judgment.
A. Within 20 calendar days of the filing of the Complaint in this matter, and every 30 calendar days thereafter until the divestiture has been completed under Section IV or V, Defendants shall deliver to the United States an affidavit as to the fact and manner of their compliance with Section IV or V of this Final Judgment. Each such affidavit shall include the name, address, and telephone number of each person who, during the preceding 30 calendar days, made an offer to acquire, expressed an interest in acquiring, entered into negotiations to acquire, or was contacted or made an inquiry about acquiring, any interest in the Divestiture Assets, and shall describe in detail each contact with any such person during that period. Each such affidavit shall also include a description of the efforts Defendants have taken to solicit buyers for the Divestiture Assets and to provide required information to prospective Acquirers, including the limitations, if any, on such information. Provided that the information set forth in the affidavit is true and complete, any objection by the United States to information provided by Defendants, including limitations on the information, shall be made within 14 calendar days of receipt of such affidavit.
B. Within 20 calendar days of the filing of the Complaint in this matter, Defendants shall deliver to the United States an affidavit that describes in reasonable detail all actions Defendants have taken and all steps Defendants have implemented on an ongoing basis to comply with Section VIII of this Final Judgment. Defendants shall deliver to the United States an affidavit describing any changes to the efforts and actions outlined in Defendants' earlier affidavits filed pursuant to this section within 15 calendar days after the change is implemented.
C. Defendants shall keep all records of all efforts made to preserve and divest the Divestiture Assets until one year after such divestiture has been completed.
A. For the purposes of determining or securing compliance with this Final Judgment, or of determining whether the Final Judgment should be modified or vacated, and subject to any legally recognized privilege, from time to time authorized representatives of the United States, including consultants and other persons retained by the United States, shall, upon written request of an authorized representative of the Assistant Attorney General in charge of
(1) Access during Defendants' office hours to inspect and copy or, at the option of the United States, to require Defendants to provide hard copy or electronic copies of all books, ledgers, accounts, records, data, and documents in the possession, custody, or control of Defendants, relating to any matters contained in this Final Judgment; and
(2) to interview, either informally or on the record, Defendants' officers, employees, or agents, who may have their individual counsel present, regarding such matters. The interviews shall be subject to the reasonable convenience of the interviewee and without restraint or interference by Defendants.
B. Upon the written request of an authorized representative of the Assistant Attorney General in charge of the Antitrust Division, Defendants shall submit written reports or responses to written interrogatories, under oath if requested, relating to any of the matters contained in this Final Judgment as may be requested, including, but not limited to, any transitional service, supply, or purchase agreements entered into between the Acquirer(s) and the Defendants pursuant to Section IV(H) or (J) of this Final Judgment.
C. No information or documents obtained by the means provided in this Section shall be divulged by the United States to any person other than an authorized representative of the executive branch of the United States, except in the course of legal proceedings to which the United States is a party (including grand jury proceedings), or for the purpose of securing compliance with this Final Judgment, or as otherwise required by law.
D. If, at the time information or documents are furnished by Defendants to the United States, Defendants represent and identify in writing the material in any such information or documents to which a claim of protection may be asserted under Rule 26(c)(1)(G) of the Federal Rules of Civil Procedure, and Defendants mark each pertinent page of such material, “Subject to claim of protection under Rule 26(c)(1)(G) of the Federal Rules of Civil Procedure,” then the United States shall give Defendants 10 calendar days' notice prior to divulging such material in any legal proceeding (other than a grand jury proceeding).
Defendants may not reacquire any part of the Divestiture Assets during the term of this Final Judgment.
This Court retains jurisdiction to enable any party to this Final Judgment to apply to this Court at any time for further orders and directions as may be necessary or appropriate to carry out or construe this Final Judgment, to modify any of its provisions, to enforce compliance, and to punish violations of its provisions.
Unless this Court grants an extension, this Final Judgment shall expire 10 years from the date of its entry.
The parties have complied with the requirements of the Antitrust Procedures and Penalties Act, 15 U.S.C. 16, including making copies available to the public of this Final Judgment, the Competitive Impact Statement, and any comments thereon and the United States' responses to those comments. Based upon the record before the Court, which includes the Competitive Impact Statement and any comments and responses to comments filed with the Court, entry of this Final Judgment is in the public interest.
Court approval subject to procedures of the Antitrust Procedures and Penalties Act, 15 U.S.C. § 16.
30-Day Notice of Information Collection Under Review.
The Department of Justice (DOJ) FBI Criminal Justice Information Services (CJIS) Division's National Instant Criminal Background Check System (NICS) Section will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
The purpose of this notice is to allow for an additional 30 days for public comment until March 23, 2012. This process is conducted in accordance with Title 5, Code of Federal Regulations (CFR), § 1320.10.
Written comments and/or suggestions regarding the items contained in this notice, especially the estimated public burden and associated response time, should be directed to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention: Department of Justice Desk Officer, Washington, DC, 20503. Additionally, comments may be submitted to OMB via facsimile to (202) 395–7285.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency/component, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's/component's estimate of the burden of the proposed collection of the information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
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Office of Justice Programs (OJP), Justice.
Notice of meeting.
This is an announcement of a meeting of DOJ's National Motor Vehicle Title Information System (NMVTIS) Federal Advisory Committee to discuss various issues relating to the operation and implementation of NMVTIS.
The meeting will take place on Wednesday, March 28, 2012, from 8:30 a.m. to 4:30 p.m. ET.
The meeting will take place at the Office of Justice Programs (OJP), 810 7th Street NW., Washington, DC 20531.
Todd Brighton, Designated Federal Employee (DFE), Bureau of Justice Assistance, Office of Justice Programs, 810 7th Street NW., Washington, DC 20531; Phone: (202) 616–3879 [
This meeting is open to the public. Members of the public who wish to attend this meeting must register with Mr. Brighton at the above address at least seven (7) days in advance of the meeting. Registrations will be accepted on a space available basis. Access to the meeting will not be allowed without registration. Please bring photo identification and allow extra time prior to the meeting. Interested persons whose registrations have been accepted may be permitted to participate in the discussions at the discretion of the meeting chairman and with approval of the DFE.
Anyone requiring special accommodations should notify Mr. Brighton at least seven (7) days in advance of the meeting.
The NMVTIS Federal Advisory Committee will provide input and recommendations to the Office of Justice Programs (OJP) regarding the operations and administration of NMVTIS. The primary duties of the NMVTIS Federal Advisory Committee will be to advise the Bureau of Justice Assistance (BJA) Director on NMVTIS-related issues, including but not limited to: Implementation of a system that is self-sustainable with user fees; options for alternative revenue-generating opportunities; determining ways to enhance the technological capabilities of the system to increase its flexibility; and options for reducing the economic burden on current and future reporting entities and users of the system.
Employment and Training Administration, Labor.
Notice of Solicitation for Grant Applications.
Through this notice, the Department of Labor's Employment and Training Administration (ETA) announces the availability of approximately $12.1 million from funds made available through the Fiscal Year (FY) 2011 DOL appropriation for Training and Employment Services for grants to State Workforce Agencies (SWA) to develop the Workforce Data Quality Initiative (WDQI). ETA expects to award approximately twelve grants of up to $1 million each for a 36 month period of performance. This performance period includes all necessary implementation and start-up activities. Eligible applicants for this solicitation are those SWAs within the 50 states, the District of Columbia, Puerto Rico and the U.S. Virgin Islands that were not recipients of a round one WDQI grant (as a result of solicitation SGA/DFA PY 09–10). Grants awarded will provide SWAs the opportunity to develop and use State workforce longitudinal administrative data systems. These State longitudinal data systems will, at a minimum, include information on programs that provide training, employment services, and unemployment insurance. These systems must also be linked longitudinally at the individual level to allow for analysis which will lead to
The complete SGA and any subsequent SGA amendments, in connection with this solicitation are described in further detail on ETA's Web site at
The closing date for receipt of applications is April 19, 2012.
L. Gerald Tate, 200 Constitution Avenue NW., Room N–4716, Washington, DC 20210; Telephone: 202–693–3703. The Grant Officer for this SGA is Latifa Jeter.
The Legal Services Corporation's Operations & Regulations Committee will meet February 29, 2012. The meeting will commence at 3:30 p.m., Eastern Standard Time, and will continue until the conclusion of the Committee's agenda.
F. William McCalpin Conference Center, Legal Services Corporation Headquarters Building, 3333 K Street NW., Washington, DC 20007.
Members of the public who are unable to attend but wish to listen to the public proceeding may do so by following the telephone call-in directions provided below but are asked to keep their telephones muted to eliminate background noises. From time to time, the presiding Chair may solicit comments from the public.
• Call toll-free number: 1–866–451–4981;
• When prompted, enter the following numeric pass code: 5907707348;
• When connected to the call, please immediately “Mute” your telephone.
Open.
1. Approval of Agenda.
2. Approval of minutes of the Committee's meeting of January 19, 2012.
3. Consider and act on Committee members' self-evaluations for 2011, the Committee's goals for 2012 and possible amendment to the Committee's Charter.
4. Consider and act on notice and comment, publication requirement of the LSC Act and Board review of LSC promulgations:
Mattie Cohan, Office of Legal Affairs.
5. Staff report on LSC Continuity of Operations Plan.
6. Public comment.
7. Consider and act on other business.
8. Consider and act on adjournment of meeting.
Katherine Ward, Executive Assistant to the Vice President & General Counsel, at (202) 295–1500. Questions may be sent by electronic mail to
In accordance with the Federal Advisory Committee Act (Pub. L. 92–463, as amended), the National Science Foundation announces the following meeting:
The National Science Board's Committee on Programs and Plans Task Force on Unsolicited Mid-Scale Research, pursuant to NSF regulations (45 CFR part 614), the National Science Foundation Act, as amended (42 U.S.C. 1862n–5), and the Government in the Sunshine Act (5 U.S.C. 552b), hereby gives notice in regard to the scheduling of a teleconference for the transaction of National Science Board business and other matters specified, as follows:
Monday, February 27; 12:30 p.m.–1:30 p.m. EST.
(1) Co-Chair's opening remarks; (2) Discussion of the final report of the NSB Task Force on Unsolicited Mid-Scale Research; and (3) Update on data gathering activities.
Open.
This meeting will be held by teleconference at the National Science Board Office, National Science Foundation, 4201 Wilson Blvd., Arlington, VA 22230. A public listening room will be available for this teleconference meeting. All visitors must contact the Board Office [call 703–292–7000 or send an email message to
Please refer to the National Science Board Web site
The National Science Board's Executive Committee, pursuant to NSF regulations (45 CFR part 614), the National Science Foundation Act, as amended (42 U.S.C. 1862n–5), and the Government in the Sunshine Act (5 U.S.C. 552b), hereby gives notice in regard to the scheduling of meetings for the transaction of National Science Board business as follows:
Monday, February 27, 2012 at 2 to 2:30 p.m., EST.
Discuss and vote on the NSF's recommendation to increase the amount and duration of the Alan T. Waterman Award.
Open.
This meeting will be held by teleconference at the National Science Board Office, National Science Foundation, 4201 Wilson Blvd., Arlington, VA 22230. A public listening room will be available for this teleconference meeting. All visitors must contact the Board Office (call 703–292–7000 or send an email message to
Please refer to the National Science Board Web site
Nuclear Regulatory Commission [NRC–2012–0002].
Weeks of February 20, 27, March 5, 12, 19, 26, 2012.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
This meeting will be webcast live at the Web address—
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the week of March 5, 2012.
There are no meetings scheduled for the week of March 12, 2012.
There are no meetings scheduled for the week of March 19, 2012.
This meeting will be webcast live at the Web address—
* The schedule for Commission meetings is subject to change on short notice. To verify the status of meetings, call (recording)—(301) 415–1292. Contact person for more information: Rochelle Bavol, (301) 415–1651.
By a vote of 4–0 on February 10, 2012, the Commission determined pursuant to U.S.C. 552b(e) and § 9.107(a) of the Commission's rules that a Discussion of Management and Personnel issues be held on February 13, 2012, with less than one week notice to the public. The meeting was held on February 13, 2012.
The NRC Commission Meeting Schedule can be found on the Internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings, or need this meeting notice or the transcript or other information from the public meetings in another format (e.g. braille, large print), please notify Bill Dosch, Chief, Work Life and Benefits Branch, at 301–415–6200, TDD: 301–415–2100, or by email at
This notice is distributed electronically to subscribers. If you no longer wish to receive it, or would like to be added to the distribution, please contact the Office of the Secretary, Washington, DC 20555 (301–415–1969), or send an email to
Nuclear Regulatory Commission.
Draft NUREG/CR; extension for public comment period.
On December 29, 2011 (76 FR 81998), the U.S. Nuclear Regulatory Commission (NRC) published in the
The comment period has been extended and expires on April 18, 2012. Comments received after this date will be considered if it is practical to do so, but the NRC staff is able to ensure consideration only for comments received on or before this date.
Please include Docket ID NRC–2011–0295 in the subject line of your comments. For additional instructions on submitting comments and instructions on accessing documents related to this action, see “Submitting Comments and Accessing Information” in the
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Felix E. Gonzalez, Division of Risk Analysis, Office of Nuclear Regulatory Research, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001; telephone: (301) 251–7596, email:
Comments submitted in writing or in electronic form will be posted on the NRC's Web site and on the Federal rulemaking Web site,
The NRC requests that any party soliciting or aggregating comments received from other persons for submission to the NRC inform those persons that the NRC will not edit their comments to remove any identifying or contact information, and therefore, they should not include any information in their comments that they do not want publicly disclosed.
You can access publicly available documents related to this document using the following methods:
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The draft NUREG presents a probabilistic risk assessment (PRA) method for quantitatively analyzing fire risk in commercial nuclear power plants during low power operation and shutdown (LPSD) conditions, including the determination of core damage
The NRC developed this LPSD fire quantitative risk method so analysts would be able to use a quantitative approach for estimating fire risk during LPSD conditions. While current LPSD safety analyses for fires performed under National Fire Protection Association Standard 805 (NFPA 805) focus on qualitative, defense-in-depth methods, it is envisioned that applications in the future may evolve to a more quantitative method.
For the Nuclear Regulatory Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recently-filed Postal Service request to enter into an additional International Business Reply Service contract. This document invites public comments on the request and addresses several related procedural steps.
Submit comments electronically by accessing the “Filing Online” link in the banner at the top of the Commission's Web site (
Stephen L. Sharfman, General Counsel, at 202–789–6820 (case-related information) or
On February 13, 2012, the Postal Service filed a notice announcing that it has entered into an additional International Business Reply Service (IBRS) contract.
In support of its Notice, the Postal Service filed four attachments as follows:
• Attachment 1—a redacted copy of the contract and applicable annexes;
• Attachment 2—a certified statement required by 39 CFR 3015.5(c)(2);
• Attachment 3—a redacted copy of Governors' Decision No. 08–24, which establishes prices and classifications for IBRS contracts, a description of applicable IBRS contracts, formulas for prices, an analysis of the formulas, a certification as to the formulas for prices offered under applicable IBRS contracts, and certification of the Governors' vote; and
• Attachment 4—an application for non–public treatment of materials to maintain redacted portions of the contract and file supporting documents under seal.
The Notice enumerates the reasons why the instant IBRS Competitive Contract allegedly fits within the Mail Classification Schedule language for IBRS Competitive Contract 3. The Postal Service identifies general contract terms that distinguish the instant contract from the IBRS 3 baseline contract, such as: An additional sentence in Article 15 stating that the Postal Service may be required to file information in connection with the contract in other Commission dockets; and an additional Article 30 concerning Intellectual Property, Co-Branding, and Licensing.
The Postal Service concludes that its filing demonstrates that the new IBRS contract complies with the requirements of 39 U.S.C. 3633 and is functionally equivalent to the IBRS 3 baseline contract filed in Docket Nos. MC2011–21 and CP2011–59.
The Commission establishes Docket No. CP2012–16 for consideration of matters related to the contract identified in the Postal Service's Notice.
Interested persons may submit comments on whether the Postal Service's contract is consistent with the policies of 39 U.S.C. 3633 and 39 CFR 3015.5. Comments are due no later than February 22, 2012. The public portions of this filing can be accessed via the Commission's Web site,
The Commission appoints James F. Callow to serve as Public Representative in the captioned proceeding.
1. The Commission establishes Docket No. CP2012–16 for consideration of matters raised by the Postal Service's Notice.
2. Comments by interested persons in this proceeding are due no later than February 22, 2012.
3. Pursuant to 39 U.S.C. 505, James F. Callow is appointed to serve as the officer of the Commission (Public Representative) to represent the interests of the general public in this proceeding.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 15c2–8 under the Securities Exchange Act of 1934 (15 U.S.C. 78a
Additionally, managing underwriters are required to take reasonable steps to ensure that all broker-dealers participating in the distribution of or trading in the security have sufficient copies of the preliminary or final prospectus, as requested by them, to enable such broker-dealer to satisfy their respective prospectus delivery obligations pursuant to Rule 15c2–8, as well as Section 5 of the Securities Act of 1933.
Rule 15c2–8 implicitly requires that broker-dealers collect information, as such; the collection facilitates compliance with the rule. There is no requirement to submit collected information to the Commission. In order to comply with the rule, broker-dealers participating in a securities offering must keep accurate records of persons who have indicated interest in an IPO or requested a prospectus, so that they know to whom they must send a prospectus.
The Commission estimates that broker-dealers will spend a total of 74,010 hours complying with the collection of information required by the rule. The Commission estimates that the total number of responses required by the rule is 6,909. The Commission estimates that the total annualized cost burden (copying and postage costs) is $15,014,400 ($12,300,000 for IPOs + $2,714,400 for other offerings).
Written comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's estimates of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
The Commission may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number. Please direct your written comments to: Thomas Bayer, Director/Chief Information Officer, Securities and Exchange Commission, c/o Remi Pavlik-Simon, 6432 General Green Way, Alexandria, Virginia 22312 or send an email to:
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94–409, that the Securities and Exchange Commission will hold a Closed Meeting on Thursday, February 23, 2012 at 3 p.m.
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the Closed Meeting. Certain staff members who have an interest in the matters also may be present.
The General Counsel of the Commission, or his designee, has certified that, in his opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(3), (5), (7), 9(B) and (10) and 17 CFR 200.402(a)(3), (5), (7), 9(ii) and (10), permit consideration of the scheduled matters at the Closed Meeting.
Commissioner Gallagher, as duty officer, voted to consider the items listed for the Closed Meeting in a closed session.
The subject matter of the Closed Meeting scheduled for Thursday, February 23, 2012 will be:
Institution and settlement of injunctive actions;
Institution and settlement of administrative proceedings;
Adjudicatory matters; and
Other matters relating to enforcement proceedings.
At times, changes in Commission priorities require alterations in the scheduling of meeting items.
For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact: The Office of the Secretary at (202) 551–5400.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Exchange Act”)
The ISE is proposing to amend fees for certain complex orders executed on the Exchange. The text of the proposed rule change is available on the Exchange's Web site (
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of such statements.
The Exchange currently assesses a per contract transaction fee to market participants that add or remove liquidity in the Complex Order Book (“maker/taker fees”) in symbols that are in the Penny Pilot program. Included therein is a subset of 101 symbols that are assessed a slightly higher taker fee (the “Select Symbols”).
The Exchange also recently adopted fees for complex orders in two of the most actively-traded index option products, the NASDAQ 100 Index option (“NDX”) and the Russell 2000 Index option (“RUT”).
Further, pursuant to Securities and Exchange Commission (“SEC”) approval, the Exchange allows market makers to enter quotations for complex order strategies in the Complex Order Book.
Further, for Priority Customer complex orders in XOP, the Exchange currently provides a rebate of $0.25 per contract ($0.30 per contract for XLB and EFA) when these orders trade with non-Priority Customer orders in the Complex Order Book.
Further, the Exchange provides ISE market makers with a two cent discount when trading against orders that are preferenced to them. Prior to SR–ISE–2011–81, this discount was only applicable when ISE Market Makers removed liquidity from the Complex Order Book. Pursuant to SR–ISE–2011–
Additionally, to incentivize members to trade in the Exchange's various auction mechanisms, the Exchange currently provides a per contract rebate to those contracts that do not trade with the contra order in the Exchange's Facilitation Mechanism,
The Exchange now proposes to extend the fees for complex orders adopted in SR–ISE–2011–81 to the following additional seven symbols: AA, ABX, MSFT, MU, NVDA, VZ, and WFC.
Specifically, the Exchange proposes to increase its maker fee from $0.10 per contract to $0.32 per contract in AA, ABX, MSFT, MU, NVDA, VZ, and WFC for ISE market maker orders, firm proprietary orders, and Customer (Professional Orders) when these orders interact with Priority Customer orders. The Exchange proposes to increase its maker fee from $0.20 per contract to $0.32 per contract in AA, ABX, MSFT, MU, NVDA, VZ, and WFC for Non-ISE Market Makers orders when these orders interact with Priority Customer orders. The Exchange does not propose any change to fees for Priority Customer orders that trade in the Complex Order Book.
Further, the Exchange provides ISE market makers with a two cent discount when trading against orders that are preferenced to them. Accordingly, the Exchange currently provides this fee discount when ISE Market Makers add or remove liquidity from the Complex Order Book in AA, ABX, MSFT, MU, NVDA, VZ, and WFC.
Further, for Priority Customer complex orders in AA, ABX, MSFT, MU, NVDA, VZ, and WFC, the Exchange currently provides a rebate of $0.30 per contract when these orders trade with non-Priority Customer orders in the Complex Order Book. The Exchange does not propose any change to this rebate.
Finally, as noted above, to incentivize members to trade in the Exchange's various auction mechanisms, the Exchange currently provides a per contract rebate to those contracts that do not trade with the contra order in the Exchange's Facilitation Mechanism, Price Improvement Mechanism and Solicited Order Mechanism. This rebate currently applies to all complex orders in symbols that are subject to the Exchange's maker/taker fees. For the Facilitation and Solicited Order Mechanisms, the rebate is currently $0.15 per contract. For the Price Improvement Mechanism, the rebate is currently $0.25 per contract. Accordingly, a per contract rebate at the current levels currently applies to those contracts in AA, ABX, MSFT, MU, NVDA, VZ, and WFC that do not trade with the contra order in the Exchange's Facilitation Mechanism, Price Improvement Mechanism and Solicited Order Mechanism. The Exchange does not propose any change to this rebate.
The Exchange believes that its proposal to amend its Schedule of Fees is consistent with Section 6(b) of the Act
The Exchange believes that increasing the fees applicable to orders executed in the Complex Order Book when trading against Priority Customers in AA, ABX, MSFT, MU, NVDA, VZ, and WFC is appropriate given the new functionality that allows market makers to quote in the Complex Order Book. Additionally, the Exchange's fees remain competitive with fees charged by other exchanges and are therefore reasonable and equitably allocated to those members that opt to direct orders to the Exchange rather than to a competing exchange. Specifically, the Exchange believes that its proposal to assess a `make' fee of $0.32 per contract for AA, ABX, MSFT, MU, NVDA, VZ, and WFC when orders in these symbols interact with Priority Customers is reasonable and equitable because the fee is within the range of fees assessed by other exchanges employing similar pricing schemes. For example, the `make' fee for a broker/dealer complex order in MSFT when trading against a Priority Customer at NASDAQ OMX PHLX (“PHLX”) is $0.20 per contract
The Exchange also believes that it is reasonable and equitable to provide a two cent discount to ISE market makers on preferenced orders because this will provide an incentive for market makers to quote in the Complex Order Book. The Exchange believes that it is reasonable and equitable to continue to provide rebates for Priority Customer complex orders because paying a rebate will continue to attract additional order flow to the Exchange and thereby create liquidity that ultimately will benefit all market participants who trade on the Exchange.
The Exchange believes that it is reasonable and equitable to charge the fees proposed herein as they are already applicable to complex orders in XOP, XLB and EFA; with this proposed rule change, the Exchange is simply extending its current fees to an additional seven symbols. Moreover, the Exchange believes that the proposed fees are fair, equitable and not unfairly discriminatory because the proposed fees are consistent with price differentiation that exists today at other options exchanges. The Exchange believes it remains an attractive venue for market participants to trade complex orders despite its proposed fee change as its fees remain competitive with those charged by other exchanges for similar trading strategies. The Exchange operates in a highly competitive market in which market participants can readily direct order flow to another exchange if they deem fee levels at a particular exchange to be excessive. For the reasons noted above, the Exchange believes that the proposed fees are fair, equitable and not unfairly discriminatory.
The proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Exchange Act.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from members or other interested parties.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Exchange Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Exchange Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend Exchange Rule 123C(4) to provide for how certain interest is included in the calculation of MOC and LOC
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend Exchange Rule 123C(4) to provide more specificity of how certain interest is treated for purpose of calculating MOC and LOC
Exchange Rule 123C(4) describes how the Exchange calculates the MOC and LOC imbalances. The Exchange publishes MOC and LOC imbalance information as part of its Informational Imbalance Publication (as defined in Rule 123C(1)(b)), Mandatory MOC/LOC Imbalance Publication (as defined in Rule 123C(1)(d)), and Order Imbalance Information (as defined in Rule 123C(1)(e)), which are further described in Rule 123C(5) and (6). The MOC and LOC imbalance information is intended to provide market participants with a snapshot of the prices at which interest eligible to participate in the closing transaction would be executed in full against each other at the time the data feed is disseminated. The manner by which the imbalance is calculated takes into consideration the order of execution at the close, as set forth in Rule 123C(7). The goal of such transparency is to attract contra-side interest to offset order imbalances, thereby potentially minimizing price dislocation at the close.
Because the MOC and LOC imbalance calculations under Rule 123C(4) are intended to provide an informational snapshot of what an imbalance may be at a particular time, and are intended to mirror how the imbalance is calculated for purposes of determining the closing price, the Exchange proposes to amend elements of Rule 123C(4) to describe with more specificity how the imbalance is calculated. The Exchange notes that these proposed rule change does not change how the Exchange currently calculates the imbalance information, but rather provides more detail in the rule text concerning the methodology for calculation.
First, the Exchange proposes to amend Exchange Rule 123C(4)(a)(vi) to describe with more specificity how LOC interest that is priced equal to the last sale is addressed in the MOC and LOC imbalance calculation. Because the Buy or Sell Imbalance is intended to be indicative of what the imbalance would be at the close, the Exchange seeks to reduce the Buy or Sell Imbalance by any closing interest that could potentially participate in the close, which is why the rule currently provides that tick sensitive MOC and LOC interest can reduce the Buy or Sell Imbalance to bring the imbalance quantity as close to zero as possible.
The Exchange proposes to amend Rule 123C(4)(a)(vi) to add that LOC orders priced equal to the last sale also reduce the Buy or Sell Imbalance. The Exchange proposes this change because, as set forth in Rule 123C(7)(b)(ii), LOC orders priced equal to the closing price may participate in the closing transaction. Because such interest may participate in the close, the Exchange believes that when calculating the imbalance, reducing the Buy or Sell Imbalance by the amount of LOC interest priced equal to the last sale provides a potentially more realistic indication of how the imbalance may be offset at the close.
Second, the Exchange proposes to make conforming amendments to Rules 123C(4)(a)(vi)(A) and (B), which currently provide more detail of which tick sensitive interest is included to offset a Buy or Sell Imbalance, as provided for under Rule 123C(4)(a)(vi). Rule 123C(4)(a)(vi)(A) currently provides that of tick sensitive orders, only Sell Plus
Third, the Exchange proposes to amend Rule 123C(4)(a)(vi)(A) and (B) to further specify that tick sensitive interest will be included to offset the Buy or Sell Imbalance only if such orders could be executed consistent with the terms of their tick restrictions. This proposed amendment is consistent with the rationale of how MOC and LOC imbalances are calculated, namely, to include interest that could participate in the closing price to offset the imbalance.
Finally, the Exchange proposes to add supplementary material .30 to Rule 123C to specify how Sell Short interest is treated for purposes of calculating MOC and LOC imbalances during a Short Sale Period, as defined in Rule 440B(d). Rule 123C(4)(a)(iv) currently provides that Sell Short MOC and Sell Short LOC orders priced below the last sale price are included in the aggregation of the Sell side closing volume. During a Short Sale Period, if a security closes at a price equal to or lower than the last Exchange bid, sell short interest would not be eligible to participate in the closing transaction. Because a Sell imbalance publication is an indication that the security is more likely to close at a price that is equal to or lower than the bid, during a Short Sale Period, Sell Short MOC and LOC interest likely would not participate in the closing transaction. The Exchange therefore believes it is appropriate during a Short Sale Period to exclude Sell Short MOC and LOC orders from the Sell side volume because such interest would likely not be eligible to participate in the closing transaction.
In addition, during a Short Sale Period, in addition to the interest specified in Rule 123C(a)(4)(vi)(A) that offsets the Buy Imbalance (as amended by this rule proposal), all Sell Short MOC and LOC interest priced equal to or below the last sale price will be included to offset the Buy Imbalance. During a Short Sale Period, if a security closes higher than the last Exchange bid, Sell Short MOC and LOC interest would be eligible to participate in the closing transaction. Because a Buy side imbalance publication is an indication that there may be upward price pressure on the closing sale price, and the security is more likely to close at a price that is above the bid, in such a situation, Sell Short MOC and LOC interest likely would participate in the closing transaction. The Exchange therefore believes it is appropriate during a Short Sale Period to offset the Buy Imbalance with Sell Short MOC and LOC interest because such interest would likely participate in the closing transaction.
The Exchange notes that the manner by which the Exchange currently calculates the MOC and LOC imbalances is consistent with how such interest would participate if the closing transaction were to be based on the point in time at which each MOC and LOC imbalance publication is calculated. The Exchange proposes these rule amendments to provide that level of specificity in how the rule text describes the manner by which the MOC and LOC imbalances are being calculated. The Exchange further notes that this rule change concerns only the manner by which the MOC and LOC imbalance is calculated for purposes of imbalance publications and does not change in any way the manner by which trading occurs at the Exchange or how interest is executed in the closing transaction.
The basis under the Act for these proposed rule changes are the requirement under Section 6(b)(5)
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend NYSE Amex Equities Rule 123C(4) to provide for how certain interest is included in the calculation of MOC and LOC imbalances. The text of the proposed rule change is available at the Exchange, the Commission's Public Reference Room, and
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend NYSE Amex Equities Rule 123C(4) to provide more specificity of how certain interest is treated for purpose of calculating MOC and LOC
NYSE Amex Equities Rule 123C(4) describes how the Exchange calculates the MOC and LOC imbalances. The Exchange publishes MOC and LOC imbalance information as part of its Informational Imbalance Publication (as defined in Rule 123C(1)(b)), Mandatory MOC/LOC Imbalance Publication (as defined in Rule 123C(1)(d)), and Order Imbalance Information (as defined in Rule 123C(1)(e)), which are further described in Rule 123C(5) and (6). The MOC and LOC imbalance information is intended to provide market participants with a snapshot of the prices at which interest eligible to participate in the closing transaction would be executed in full against each other at the time the data feed is disseminated. The manner by which the imbalance is calculated takes into consideration the order of execution at the close, as set forth in Rule 123C(7). The goal of such transparency is to attract contra-side interest to offset order imbalances, thereby potentially minimizing price dislocation at the close.
Because the MOC and LOC imbalance calculations under Rule 123C(4) are intended to provide an informational snapshot of what an imbalance may be at a particular time, and are intended to mirror how the imbalance is calculated for purposes of determining the closing price, the Exchange proposes to amend elements of Rule 123C(4) to describe with more specificity how the imbalance is calculated. The Exchange notes that these proposed rule change does not change how the Exchange currently calculates the imbalance information, but rather provides more detail in the rule text concerning the methodology for calculation.
First, the Exchange proposes to amend Rule 123C(4)(a)(vi) to describe with more specificity how LOC interest that is priced equal to the last sale is addressed in the MOC and LOC imbalance calculation. Because the Buy or Sell Imbalance is intended to be indicative of what the imbalance would be at the close, the Exchange seeks to reduce the Buy or Sell Imbalance by any closing interest that could potentially participate in the close, which is why the rule currently provides that tick sensitive MOC and LOC interest can reduce the Buy or Sell Imbalance to bring the imbalance quantity as close to zero as possible.
The Exchange proposes to amend Rule 123C(4)(a)(vi) to add that LOC orders priced equal to the last sale also reduce the Buy or Sell Imbalance. The Exchange proposes this change because, as set forth in Rule 123C(7)(b)(ii), LOC orders priced equal to the closing price may participate in the closing transaction. Because such interest may
Second, the Exchange proposes to make conforming amendments to Rules 123C(4)(a)(vi)(A) and (B), which currently provide more detail of which tick sensitive interest is included to offset a Buy or Sell Imbalance, as provided for under Rule 123C(4)(a)(vi). Rule 123C(4)(a)(vi)(A) currently provides that of tick sensitive orders, only Sell Plus
Third, the Exchange proposes to amend Rule 123C(4)(a)(vi)(A) and (B) to further specify that tick sensitive interest will be included to offset the Buy or Sell Imbalance only if such orders could be executed consistent with the terms of their tick restrictions. This proposed amendment is consistent with the rationale of how MOC and LOC imbalances are calculated, namely, to include interest that could participate in the closing price to offset the imbalance. If, by the terms of the tick restriction, an order could not participate in the close, such interest should not be used to offset the imbalance calculation. For example, if the Buy Imbalance is calculated based on a $10.10 reference price, and the last sale prior to that reference price is $10.11 on a plus or zero plus tick, Sell Plus MOCs and Sell Plus LOCs are not included to offset that Buy Imbalance because they would not participate if that were the closing price at that time. Likewise, if the last sale is $10.09 on a minus or zero minus tick, and the Sell Imbalance is calculated based on a $10.10 reference price, Buy Minus MOCs and Buy Minus LOCS priced below the last sale are not included to offset the Sell Imbalance because they would not participate if that were the closing price at that time.
Finally, the Exchange proposes to add supplementary material .30 to Rule 123C to specify how Sell Short interest is treated for purposes of calculating MOC and LOC imbalances during a Short Sale Period, as defined in Rule 440B(d). Rule 123C(4)(a)(iv) currently provides that Sell Short MOC and Sell Short LOC orders priced below the last sale price are included in the aggregation of the Sell side closing volume. During a Short Sale Period, if a security closes at a price equal to or lower than the last Exchange bid, sell short interest would not be eligible to participate in the closing transaction. Because a Sell imbalance publication is an indication that the security is more likely to close at a price that is equal to or lower than the bid, during a Short Sale Period, Sell Short MOC and LOC interest likely would not participate in the closing transaction. The Exchange therefore believes it is appropriate during a Short Sale Period to exclude Sell Short MOC and LOC orders from the Sell side volume because such interest would likely not be eligible to participate in the closing transaction.
In addition, during a Short Sale Period, in addition to the interest specified in Rule 123C(a)(4)(vi)(A) that offsets the Buy Imbalance (as amended by this rule proposal), all Sell Short MOC and LOC interest priced equal to or below the last sale price will be included to offset the Buy Imbalance. During a Short Sale Period, if a security closes higher than the last Exchange bid, Sell Short MOC and LOC interest would be eligible to participate in the closing transaction. Because a Buy side imbalance publication is an indication that there may be upward price pressure on the closing sale price, and the security is more likely to close at a price that is above the bid, in such a situation, Sell Short MOC and LOC interest likely would participate in the closing transaction. The Exchange therefore believes it is appropriate during a Short Sale Period to offset the Buy Imbalance with Sell Short MOC and LOC interest because such interest would likely participate in the closing transaction.
The Exchange notes that the manner by which the Exchange currently calculates the MOC and LOC imbalances is consistent with how such interest would participate if the closing transaction were to be based on the point in time at which each MOC and LOC imbalance publication is calculated. The Exchange proposes these rule amendments to provide that level of specificity in how the rule text describes the manner by which the MOC and LOC imbalances are being calculated. The Exchange further notes that this rule change concerns only the manner by which the MOC and LOC imbalance is calculated for purposes of imbalance publications and does not change in any way the manner by which trading occurs at the Exchange or how interest is executed in the closing transaction.
The basis under the Act for these proposed rule changes are the requirement under Section 6(b)(5)
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On October 31, 2011, the New York Stock Exchange LLC (“NYSE”) and NYSE Amex LLC (“NYSE Amex”) (collectively, the “SROs”) each filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
On December 22, 2011, the Commission extended the time period in which to either approve the SRO Proposals, disapprove the SRO Proposals, or to institute proceedings to determine whether to disapprove the
The SRO Proposals seek to amend the SROs' rules in several ways. First, the SROs propose to codify certain Trading Floor functions that may be performed by DMMs. Second, the SROs propose to allow DMMs to access Exchange systems that would provide DMMs with additional order information about the securities in which they are registered. Third, the SROs propose to make certain conforming amendments to their rules to reflect the additional order information that would be available to DMMs through Exchange systems, and to specify what information about e-Quotes is available to the DMM. Finally, the SROs propose to modify the terms under which DMMs would be permitted to provide market information to Floor brokers and others.
The SROs propose to codify certain Trading Floor functions formerly performed by specialists that are to be performed by DMMs, and were described in each SRO's respective Floor Official Manual.
The proposed rules would specify four categories of Trading Floor functions that DMMs could perform: (1) Maintaining order among Floor brokers manually trading at the DMM's assigned panel;
Each SRO proposes to make systems available to a DMM at the post that display the following types of information about securities in which the DMM is registered: (A) Aggregated information about buying and selling interest;
The SROs also propose to make conforming amendments to their rules to reflect the additional order information that would be available to DMMs through Exchange systems, and to specify what information about e-Quotes is available to the DMM. Specifically, the SROs propose to revise NYSE Rule 70 and NYSE Amex Rule 70 governing Floor broker e-Quotes to reflect that disaggregated order information would be available to the DMM except as elected otherwise. The SROs would allow a Floor broker to enter e-Quotes with reserve interest (“Reserve e-Quote”) with or without a displayable portion.
A Reserve e-Quote with a displayable portion would participate in manual and automatic executions. Order information at each price point, including the reserve portion, would be included in the aggregate interest available to the DMM. Order information at each price point would be available to the DMM on a disaggregated basis as well. If the Floor broker chooses to exclude the Reserve e-Quote with a displayable portion from the DMM, then the DMM would have access to the entire portion on an aggregated basis but would not have access to any of that interest on a disaggregated basis.
A Floor broker Reserve e-Quote with an undisplayable portion would also participate in manual and automatic executions. Like the Reserve e-Quote with a displayable portion, order information at each price point would be included in the aggregate interest available to DMM. Again, like the Reserve e-Quote with a displayable portion, order information at each price point would be available to DMM on a disaggregated basis as well. If the Floor broker chooses to exclude the Reserve e-Quote with an undisplayable portion from the DMM, however, then the DMM would not have access to such interest on either an aggregated basis or a disaggregated basis. Such interest would not participate in manual executions.
In addition, the SROs propose to delete rules which currently prohibit DMMs from using the Display Book system to access information about Floor broker agency interest excluded from the aggregated agency interest and Minimum Display Reserve Order information, other than for the purpose of effecting transactions that are reasonably imminent where such Floor broker agency and Minimum Display
The SROs also propose to modify the manner under which DMMs would be permitted to provide market information to Floor brokers and visitors on the Trading Floor. Specifically, the proposed rules would permit a DMM to provide the market information to which he or she has access to a: (1) Floor broker in response to an inquiry in the normal course of business; or (2) visitor to the Trading Floor for the purpose of demonstrating methods of trading. As such, Floor brokers would be able to access disaggregated order information that market participants have not otherwise elected to be hidden from the DMM. A Floor broker would not be able to submit such an inquiry for market information by electronic means, and the DMM's response containing market information could not be through electronic means.
Because the proposed rule expands on and incorporates the current SRO rules regarding disclosure of order information by DMMs, the SROs are proposing to delete these rules.
The proposed rules would permit DMMs to provide Floor brokers not only with the same aggregated order information that DMMs currently are permitted to provide under current rules, but also with the disaggregated and post-trade order information described above.
The proposed rules would permit a DMM to provide market information to a Floor broker in response to a specific request by the Floor broker to the DMM at the post, rather than specifying that the information must be provided “in response to an inquiry from a member conducting a market probe in the normal course of business,” as currently provided in the SRO rules. According to the SROs, the term “market probe” no longer accurately reflects the manner in which DMMs and Floor brokers interact on the Trading Floor. Rather, the SROs stated that the Floor broker's normal course of business, as an agent for customers, includes both seeking market probes into the depth of the market as well as seeking out willing contra-side buyers and sellers in a particular security. Under the proposed rule change, Floor brokers would not have access to Exchange systems that provide disaggregated order information, and they would only be able to access such market information through a direct interaction with a DMM at the post.
The Commission is instituting proceedings pursuant to Section 19(b)(2)(B) of the Act to determine whether the SRO Proposals should be disapproved. Institution of such proceedings is appropriate at this time in view of the legal and policy issues raised by the SRO Proposals that are discussed below. Institution of disapproval proceedings does not indicate that the Commission has reached any conclusions with respect to any of the issues involved. Rather, as described in greater detail below, the Commission seeks and encourages interested persons to provide additional comment on the SRO Proposals.
Pursuant to Section 19(b)(2)(B), the Commission is providing notice of the grounds for disapproval under consideration. In particular, Section 6(b)(5) of the Act
As the Commission has previously recognized, the participation of market makers in exchange markets may benefit public customers by promoting more liquid and efficient trading, and an exchange may legitimately confer benefits on market participants willing to accept substantial responsibilities to contribute to market quality.
In their proposals, the SROs take the position that providing DMMs with disaggregated order information would
While the SRO proposals may improve the ability of DMMs and Floor brokers to trade on the SROs, they also would provide DMMs and Floor brokers access to potentially valuable information about individual orders on the SROs that is not available to other exchange members or market participants. This information would include the price and size of individual orders on the SROs, as well as the entering and clearing firm for such orders. It also would include information about trading interest that is not available to other exchange members or market participants even in aggregated form, such as Floor broker Reserve e-Quotes (unless there has been an affirmative election to withhold this information). As noted above, while the Commission has recognized that exchanges may legitimately confer special benefits on market participants willing to accept substantial responsibilities to contribute to market quality, such benefits must not be disproportionate to the services provided. In this case, the SROs have not proposed to require of DMMs or Floor brokers any additional obligations to the market that might correspond to the proposed informational benefits.
The Commission therefore believes that questions remain as to whether the SRO Proposals are consistent with the requirements of Sections 6(b)(5) of the Act, including whether they would promote just and equitable principles of trade, perfect the mechanism of a free and open market and the national market system, protect investors and the public interest, and not permit unfair discrimination.
The Commission requests that interested persons provide written submissions of their views, data and arguments with respect to the concerns identified above, as well as any others they may have with the SRO Proposals. In particular, the Commission invites the written views of interested persons concerning whether the SRO Proposals are inconsistent with Section 6(b)(5) or any other provision of the Act, or the rules and regulation thereunder. Although there do not appear to be any issues relevant to approval or disapproval which would be facilitated by an oral presentation of views, data, and arguments, the Commission will consider, pursuant to Rule 19b–4, any request for an opportunity to make an oral presentation.
Interested persons are invited to submit written data, views and arguments regarding whether the SRO Proposals should be disapproved by March 14, 2012. Any person who wishes to file a rebuttal to any other person's submission must file that rebuttal by March 28, 2012. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
The purpose of the proposed rule change is to enhance NSCC's margining methodology as it applies to municipal and corporate bonds.
In its filing with the Commission, NSCC included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. NSCC has prepared summaries, set forth in sections (A), (B), and (C) below, of the most significant aspects of these statements.
A primary objective of NSCC's Clearing Fund is to have on deposit from each applicable member assets sufficient to satisfy losses that may otherwise be incurred by NSCC as the result of the default of the member and the resultant close out of that member's unsettled positions under NSCC's trade guaranty. Each member's clearing fund (“Clearing Fund”) required deposit is calculated daily pursuant to a formula set forth in Procedure XV of the Rules, which formula is designed to provide sufficient funds to cover this risk of loss. The Clearing Fund formula accounts for a variety of risk factors through the application of a number of components, each described in Procedure XV.
The volatility component or “VaR” is a core component of this formula and is designed to calculate the amount of money that may be lost on a portfolio over a given period of time and that is assumed would be necessary to liquidate the portfolio within a given level of confidence. Pursuant to Procedure XV, NSCC may exclude from this calculation net unsettled positions in classes of securities whose volatility is not amendable to generally accepted statistical analysis in a complex manner, such as illiquid municipal or corporate bonds. The volatility charge for such positions is determined by multiplying the absolute value of the positions by a predetermined percentage (“haircut”), which shall not be less than 2%.
In connection with its ongoing review of the adequacy and appropriateness of its margining methodologies, NSCC is proposing to amend Procedure XV of the Rules so that NSCC will apply this haircut-based margining methodology, at a rate no less than 2%, as is currently permitted by Procedure XV to all municipal and corporate bonds processed through NSCC. The proposed rule change will make clear that to the extent NSCC deems appropriate NSCC may apply this haircut to any of the municipal and corporate bonds that it processes. As NSCC continuously reviews its margin models in order to ensure the reliability of its margining methodology in achieving the desired coverage, the proposed rule change will allow it to apply a margin requirement to these instruments that it deems appropriate.
NSCC reviews its risk management processes against applicable regulatory and industry standards, including, but not limited to: (i) The Recommendations for Central Counterparties (“Recommendations”) of the Committee on Payment and Settlement Systems and the Technical Committee of the International Organization of Securities Commissions (“IOSCO”) and (ii) the securities laws and rulemaking promulgated by the Commission. In conformance to Recommendations 3 and 4 of the IOSCO Recommendations and with the Commission rules proposed under the Dodd–Frank Wall Street Reform and Consumer Protection Act of 2010, specifically proposed Rule 17Ad–22(b)(1) addressing measurement and management of credit exposures, this proposed rule change will assist NSCC in its continuous efforts to ensure the reliability of its margining methodology and will limit NSCC's exposures and losses by allowing it to apply a margin requirement to corporate and municipal bonds cleared at NSCC that captures the risk characteristics of these instruments, including historical price volatility and market liquidity and idiosyncratic risk, which are asset class specific.
Pending Commission approval of this proposed rule change, members will be advised of the implementation date through issuance of an NSCC Important Notice.
In order make clear that, to the extent NSCC deems appropriate, a haircut-based margining methodology may be applied to all municipal and corporate bonds processed at NSCC, NSCC proposes to amend Sections I(A)(1)(a)(ii) and I(A)(2)(a)(ii) of Procedure XV, as marked on Exhibit 5 attached to the proposed rule filing by removing the qualifier “illiquid” before “municipal or corporate bonds.” No other changes to the Rules are contemplated by this proposed rule change.
As a central counterparty, NSCC occupies an important role in the securities settlement system by interposing itself between counterparties to financial transactions, thereby reducing the risk faced by participants and contributing to global financial stability. The effectiveness of a central counterparty's risk controls and the adequacy of its financial resources are critical to achieving these risk-reducing goals. The proposed rule change will assist NSCC in its continuous efforts to ensure the reliability of its margining methodology and will limit NSCC's exposures and losses by allowing it to apply a margin requirement to corporate and municipal bonds cleared at NSCC that captures the risk characteristics of these instruments. NSCC believes the proposed rule change is consistent with the requirements of Section 17A of the Act
NSCC believes that the proposed rule change will not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change will allow NSCC to apply a margin requirement to corporate and municipal bonds cleared at NSCC that captures the risk characteristics of these instruments. Therefore, the proposed rule change will help NSCC to limit its exposures and losses to these instruments and as such will contribute to the goal of financial stability in the event of member default and will render not unreasonable or inappropriate any burden on competition that the changes could be regarded as imposing.
Written comments relating to the proposed rule change have not been solicited or received. NSCC will notify the Commission of any written comments received by NSCC.
Within 45 days of the date of publication of this notice in the
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR–NSCC–2012–02 and should be submitted on or before March 14, 2012.
For the Commission by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The purpose of this filing is to make a technical correction with respect to the Excess Capital Premium as set forth in Procedure XV (Clearing Fund Formula) of NSCC's Rules and Procedures.
In its filing with the Commission, NSCC included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. NSCC has prepared summaries, set forth in sections (A), (B), and (C) below, of the most significant aspects of these statements.
The purpose of this filing is to make a technical correction with respect to the Excess Capital Premium as set forth in Procedure XV (Clearing Fund Formula) of NSCC's Rules and Procedures.
Members are required to make deposits to the Clearing Fund with the amount of each Member's required deposit being fixed by NSCC in accordance with Procedure XV. The Clearing Fund Formula includes an Excess Capital Premium (“Premium”), which may be added to a Members deposit requirement when a Member's Clearing Fund requirement exceeds its regulatory excess capital. Certain components of the Clearing Fund Formula are excluded from the calculation of the Premium, including: (a) A charge applicable to “Market Makers” and (b) a “special charge” based on the price fluctuations, volatility, or lack of liquidity of any security.
NSCC believes that the proposed rule change is consistent with the requirements of Section 17A of the Act
NSCC does not believe that the proposed rule change will have any impact or impose any burden on competition.
Written comments relating to the proposed rule change have not been solicited or received. NSCC will notify the Commission of any written comments received by NSCC.
The foregoing proposed rule change has become effective upon filing pursuant to Section 19(b)(3)(A)(i) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange is filing with the U.S. Securities and Exchange Commission (the “Commission”) a proposed rule change to offer a new historical data feed service (the “Service”) to Members
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in Sections A, B and C below, of the most significant aspects of such statements.
The Exchange proposes to begin offering a new Service, namely EdgeBook Cloud, that will allow Members and non-Members of the Exchange (collectively, referred to as purchasers (“Purchasers”) to obtain and query historical trade and quote data (“historical data”) representing the real-time data feed previously disseminated through the EDGA Exchange book by the Exchange. The historical data service will provide Purchasers with data in a user-friendly, flexible manner for specified fees. Such Service will include the following three separate offerings:
The EdgeBook Cloud Replay offering will allow Members and non-Members of the Exchange to download a Multicast or Unicast
The Exchange is proposing to charge to Purchasers a fee of $500/month for the rolling thirty day replay
Purchasers of the EdgeBook Cloud FlexDownload (“FlexDownload”) offering will be able to submit customized queries of trade or quote information for EDGA, and will be able to specify the time and symbol parameters, as well as other attributes to be retrieved. The requested data will be presented in a text file that can be easily imported into any tool for analysis. FlexDownload is a subscription-based offering that permits the Purchaser to choose a subscription level depending on the amount of data (in gigabytes) it estimates that it will download on a monthly basis. If a Purchaser downloads more data than is included in the subscription, an overage charge will be assessed for each additional gigabyte of data downloaded in that month.
Specifically, the Exchange is proposing to charge $750/month for up to and including 200GB of data, $1500/month for greater than 200GB of data but less than or equal to 800GB of data, and $2500/month for greater than 800GB but less than or equal to 1TB of data. For the first two levels ($750 and $1500/month for FlexDownload), the Exchange is proposing to charge a $5/GB overage charge for any overage beyond paid subscription. For the third level ($2500/month), the Exchange is proposing to charge a $3/GB overage charge beyond the paid subscription level.
The EdgeBook Cloud Snapshot offering
As described in the Exchange's fee schedule, the Exchange is proposing to charge $100 per 500 Hits per month, $250/2,500 Hits per month, $500/10,000 Hits/month, $750/50,000 Hits per month, and $1,000 per 250,000 Hits/month.
Historical data can be used to support many applications, including financial market research and analysis, back-testing of new trading strategies to gauge effectiveness, and quality control checks of changes to trading or data dissemination software. The Exchange proposes to make the Service readily available to its Members and non-Members to download historical data through secure Internet connections. To compensate the Exchange for the costs of storage and data dissemination associated with providing the Service, the Exchange proposes to charge users monthly fees for the ability to download and query the historical data. The proposed fees vary based on the type of offering provided, as set forth in Exhibit 5, and as described above. Furthermore, historical data can be retrieved in many forms, including an FTP download, a distribution to an Amazon S3 account or, for some of the subscription levels, a delivery of an external disk drive through postal mail and, if the Purchaser requests external disk drive delivery, it will be charged at cost for the media and the delivery charge. All such fees and costs relate to the provision of the Service offerings,
In adopting Regulation NMS, the Commission granted self-regulatory organizations (“SROs”) and broker-dealers increased authority and flexibility to offer new and unique market data services to the public. The Commission believed this authority would expand the amount of data available to consumers, and also spur innovation and competition for the provision of market data. EdgeBook Cloud appears to be precisely the sort of market data service that the Commission envisioned when it adopted Regulation NMS. The Service will offer Exchange-specific data in a new form not previously available to market data consumers, yet in a manner similar to that provided by other market centers.
The Exchange intends to implement the proposed rule change on February 13, 2012.
The Exchange believes that the proposed rule change is consistent with the objectives of Section 6 of the Act in general and furthers the objectives of Section 6(b)(4)
The Exchange also believes that the proposed fees are consistent with Section 6(b)(5) of the Act,
The Exchange believes that the fees proposed for the Service are equitable because the Service is purely optional and because the data itself can be obtained at no cost whether or not a
The proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from members or other interested parties.
Because the foregoing proposed rule change does not significantly affect the protection of investors or the public interest, does not impose any significant burden on competition, and, by its terms, does not become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
The Exchange has requested that the Commission waive the 30-day operative delay. The Commission believes that waiver of the operative delay is consistent with the protection of investors and the public interest because the proposal will give Purchasers the ability to better organize and sort historical trade and quote data and is substantially similar to those of other exchanges.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange is filing with the U.S. Securities and Exchange Commission (the “Commission”) a proposed rule change to offer a new historical data feed service (the “Service”) to Members
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in Sections A, B and C below, of the most significant aspects of such statements.
The Exchange proposes to begin offering a new Service, namely EdgeBook Cloud, that will allow Members and non-Members of the Exchange (collectively, referred to as purchasers (“Purchasers”) to obtain and query historical trade and quote data (“historical data”) representing the real-time data feed previously disseminated through the EDGX Exchange book by the Exchange. The historical data service will provide Purchasers with data in a user-friendly, flexible manner for specified fees. Such Service will include the following three separate offerings:
The EdgeBook Cloud Replay offering will allow Members and non-Members of the Exchange to download a Multicast or Unicast
The Exchange is proposing to charge to Purchasers a fee of $500/month for the rolling thirty day replay
Purchasers of the EdgeBook Cloud FlexDownload (“FlexDownload”) offering will be able to submit customized queries of trade or quote information for EDGX, and will be able to specify the time and symbol parameters, as well as other attributes to be retrieved. The requested data will be presented in a text file that can be easily imported into any tool for analysis. FlexDownload is a subscription-based offering that permits the Purchaser to choose a subscription level depending on the amount of data (in gigabytes) it estimates that it will download on a monthly basis. If a Purchaser downloads more data than is included in the subscription, an overage charge will be assessed for each additional gigabyte of data downloaded in that month.
Specifically, the Exchange is proposing to charge $750/month for up to and including 200GB of data, $1500/month for greater than 200GB of data but less than or equal to 800GB of data, and $2500/month for greater than 800GB but less than or equal to 1TB of data. For the first two levels ($750 and $1500/month for FlexDownload), the Exchange is proposing to charge a $5/GB overage charge for any overage beyond paid subscription. For the third level ($2500/month), the Exchange is proposing to charge a $3/GB overage charge beyond the paid subscription level.
The EdgeBook Cloud Snapshot offering
As described in the Exchange's fee schedule, the Exchange is proposing to charge $100 per 500 Hits per month, $250/2,500 Hits per month, $500/10,000 Hits/month, $750/50,000 Hits per month, and $1,000 per 250,000 Hits/month.
Historical data can be used to support many applications, including financial market research and analysis, back-testing of new trading strategies to gauge effectiveness, and quality control checks of changes to trading or data dissemination software. The Exchange proposes to make the Service readily available to its Members and non-Members to download historical data through secure Internet connections. To compensate the Exchange for the costs of storage and data dissemination associated with providing the Service, the Exchange proposes to charge users monthly fees for the ability to download and query the historical data. The proposed fees vary based on the type of offering provided, as set forth in Exhibit 5, and as described above. Furthermore, historical data can be retrieved in many forms, including an FTP download, a distribution to an Amazon S3 account or, for some of the subscription levels, a delivery of an external disk drive through postal mail and, if the Purchaser requests external disk drive delivery, it will be charged at cost for the media and the delivery charge. All such fees and costs relate to the provision of the Service offerings,
In adopting Regulation NMS, the Commission granted self-regulatory organizations (“SROs”) and broker-dealers increased authority and flexibility to offer new and unique market data services to the public. The Commission believed this authority would expand the amount of data available to consumers, and also spur innovation and competition for the provision of market data. EdgeBook Cloud appears to be precisely the sort of market data service that the Commission envisioned when it adopted Regulation NMS. The Service will offer Exchange-specific data in a new form not previously available to market data consumers, yet in a manner similar to that provided by other market centers.
The Exchange intends to implement the proposed rule change on February 13, 2012.
The Exchange believes that the proposed rule change is consistent with the objectives of Section 6 of the Act in general and furthers the objectives of Section 6(b)(4)
The Exchange also believes that the proposed fees are consistent with Section 6(b)(5) of the Act,
The Exchange believes that the fees proposed for the Service are equitable because the Service is purely optional and because the data itself can be obtained at no cost whether or not a Member or non-Member subscribes to the Service.
The proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from members or other interested parties.
Because the foregoing proposed rule change does not significantly affect the protection of investors or the public interest, does not impose any significant burden on competition, and, by its terms, does not become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
The Exchange has requested that the Commission waive the 30-day operative delay. The Commission believes that waiver of the operative delay is consistent with the protection of investors and the public interest because the proposal will give Purchasers the ability to better organize and sort historical trade and quote data and is substantially similar to those of other exchanges.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of BIOTECH Holdings Ltd. because it has not filed any annual reports since the period ended March 31, 2008.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of California Oil & Gas Corp. because it has not filed any periodic reports since the period ended August 31, 2008.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Central Minera Corp. because it has not filed any annual reports since the period ended June 30, 2008.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Chemokine Therapeutics Corp. because it has not filed any periodic reports since the period ended September 30, 2008.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Global Precision Medical Inc. because it has not filed any periodic reports since the period ended March 31, 2007.
The Commission is of the opinion that the public interest and the protection of investors require a suspension of trading in the securities of the above-listed companies. Therefore, it is ordered, pursuant to Section 12(k) of the Securities Exchange Act of 1934, that trading in the securities of the above-listed companies is suspended for the period from 9:30 a.m. EST on February 17, 2012, through 11:59 p.m. EST on March 2, 2012.
By the Commission.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the exhibit objects, contact Paul W. Manning, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202–632–6469). The mailing address is U.S. Department of State, SA–5, L/PD, Fifth Floor (Suite 5H03), Washington, DC 20522–0505.
Susquehanna River Basin Commission.
Notice.
The Susquehanna River Basin Commission will hold its regular business meeting on March 15, 2012, in Harrisburg, Pennsylvania. Details concerning the matters to be addressed at the business meeting are contained in the Supplementary Information section of this notice.
March 15, 2012, at 8:30 a.m.
North Office Building, Hearing Room 1 (Ground Level), North Street (at Commonwealth Avenue), Harrisburg, Pa. 17120
Richard A. Cairo, General Counsel, telephone: (717) 238–0423, ext. 306; fax: (717) 238–2436; email:
The business meeting will include actions on the following items: (1) A resolution concerning the use of lesser quality water; (2) approval for Susquehanna River Flow Management project expenditures; (3) a revision of the by-laws relating to the Commission's Investment Policy Statement; (4) a request for a partial fee waiver; (5) ratification/approval of grants/contracts (6) revision of FY–2013 Budget; (7) release for public review and comment of a Low Flow Protection Policy; and (8) Regulatory Program projects. Projects listed for Commission action are those that were the subject of a public hearing conducted by the Commission on February 16, 2012; notice of which was published in 77 FR 3321, January 23, 2012. Please note, in such notice, Project No. 34 under Supplementary Information, Additional Projects, identifies the project sponsor and facility as Water Treatment Solutions, LLC (South Mountain Lake) as being located in Wood Township, Lycoming County, Pa. The correct location is Woodward Township, Lycoming County, Pa.
Interested parties are invited to attend the business meeting and encouraged to review the Commission's Public Meeting Rules of Conduct, which are posted on the Commission's Web site, www.srbc.net. As identified in the public hearing notice referenced above, written comments on the Regulatory Program projects that were the subject of the public hearing, and are listed for action at the business meeting, were due on or before February 27, 2012. Written comments pertaining to any other matters listed for action at the business meeting may be mailed to the Susquehanna River Basin Commission, 1721 North Front Street, Harrisburg, Pennsylvania 17102–2391, or submitted electronically to Richard A. Cairo, General Counsel, email: rcairo@srbc.net or Stephanie L. Richardson, Secretary to the Commission, email:
Public Law 91–575, 84 Stat. 1509 et seq., 18 CFR parts 806, 807, and 808.
Federal Highway Administration (FHWA), DOT.
Notice; request for comment.
Section 6005 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA–LU) established the Surface Transportation Project Delivery Pilot Program, codified at 23 U.S.C. 327. To ensure compliance by each State participating in the Pilot Program, 23 U.S.C. 327(g) mandates semiannual audits during each of the first 2 years of State participation and annual audits during each subsequent year of State participation. This notice announces and solicits comments on the sixth audit report for the California Department of Transportation (Caltrans).
Comments must be received on or before March 23, 2012.
Mail or hand deliver comments to Docket Management Facility: U.S. Department of Transportation, 1200 New Jersey Avenue SE., Room W12–140, Washington, DC 20590. You may also submit comments electronically at
All comments should include the docket number that appears in the heading of this document. All comments received will be available for examination and copying at the above address from 9 a.m. to 5 p.m., e.t., Monday through Friday, except Federal holidays. Those desiring notification of receipt of comments must include a self-
Ms. Ruth Rentch, Office of Project Development and Environmental Review, (202) 366–2034,
An electronic copy of this notice may be downloaded from the Office of the Federal Register's home page at
Section 6005 of SAFETEA–LU (codified at 23 U.S.C. 327) established a pilot program to allow up to five States to assume the Secretary of Transportation's responsibilities for environmental review, consultation, or other actions under any Federal environmental law pertaining to the review or approval of highway projects. In order to be selected for the pilot program, a State must submit an application to the Secretary.
On June 29, 2007, Caltrans and FHWA entered into a Memorandum of Understanding (MOU) that established the assignments to and assumptions of responsibility to Caltrans. Under the MOU, Caltrans assumed the majority of the FHWA's responsibilities under the National Environmental Policy Act, as well as the FHWA's responsibilities under other Federal environmental laws for most highway projects in California.
To ensure compliance by each State participating in the Pilot Program, 23 U.S.C. 327(g) requires the Secretary to conduct semiannual audits during each of the first 2 years of State participation; and annual audits during each subsequent year of State participation. The results of each audit must be presented in the form of an audit report and be made available for public comment. This notice announces the availability of the sixth audit report for Caltrans and solicits public comment on same.
Section 6005 of Pub. L. 109–59; 23 U.S.C. 315 and 327; 49 CFR 1.48.
Based on the information reviewed, it is the Federal Highway Administration (FHWA) audit team's opinion that as of October 21, 2011, the California Department of Transportation (Caltrans) continued to make progress toward meeting all responsibilities assumed under the Surface Transportation Project Delivery Pilot Program (Pilot Program), as specified in the Memorandum of Understanding (MOU)
The FHWA commends Caltrans for its implementation of corrective actions in response to previous FHWA audit report findings. The FHWA also observed that Caltrans continued to identify and implement on a statewide Pilot Program basis best practices in use at individual Caltrans Districts (Districts).
With the completion of FHWA's sixth audit, Caltrans has now operated under the Pilot Program for 4 years. In compliance with the time specifications for the required audits, FHWA completed four semiannual audits in the first 2 years of State participation and is now conducting the annual audit cycle, which began with the fifth audit in July 2010 and includes this sixth audit in October 2011. Collectively, FHWA audits have included on-site audits to Caltrans headquarters offices, 10 of the 12 Caltrans Districts, and to the Caltrans Regional Offices supporting the remaining two Districts. The audit team continues to identify significant differences across the Districts in terms of implementing Pilot Program policies, procedures, and responsibilities. Examples of such differences include: resource availability and allocation; methods of implementation; methods of process evaluation and improvement; and levels of progress in meeting all assumed responsibilities. It is the audit team's opinion that the highly decentralized nature of operations across Districts continues to be a major contributing factor to the variations observed in the Pilot Program. As a result of this organizational structure, Caltrans Headquarters (HQ) must provide clear, consistent, and ongoing oversight over Districts' implementation and operation of the Pilot Program responsibilities. Implementation of a robust oversight program will help foster the exchange of information and the sharing of best practices and resources between Districts and will put the entire organization in a better position to more fully implement all assumed responsibilities and meet all Pilot Program commitments.
Due to the multiyear timeframes associated with most complex and controversial projects, the full lifecycle of the environmental review aspect of project development (proceeding from initiation of environmental studies and concluding with the issuance of a Record of Decision (ROD) or equivalent decision document) has yet to be realized within the Pilot Program to date. Caltrans continues to gain experience in understanding the resource requirements and processes necessary to administer its Program. It is the audit team's opinion that Caltrans needs to continue to refine its approaches and use of resources to meet all Pilot Program commitments, especially given the increasing resource demands associated with managing ever-more complex and controversial projects under the Pilot Program under recent resource constraints.
The Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA–LU) Section 6005(a) established the Pilot Program, codified at 23 U.S.C. 327. Under the provisions of 23 U.S.C 327(i)(1), as enacted in SAFETEA–LU, “the program shall terminate on the date that is 6 years after the date of enactment of this section,” which was August 10, 2011. However, section 2203(c) of the Surface Transportation Extension Act of 2010, Part II, Public Law 111–322, amended 23 U.S.C 327 (i)(1) to require the Pilot Program to terminate seven years after the date of the enactment of SAFETEA–LU or August 10, 2012. The MOU between FHWA and Caltrans was amended
The FHWA audit team observed the following effective practices during the sixth audit:
1. The creation of a statewide Community Impacts working team that holds monthly calls to share Community Impact Assessment (CIA) and Environmental Justice information. Caltrans has also developed new CIA guidance.
2. Improved level of consistency in implementing processes and documenting information, largely due to the use of the Standard Environmental Reference (SER) and templates.
3. Improved Section 4(f) de minimis letters to the officials with jurisdiction, with good examples from local agencies in District 4.
4. Increased access to training, including the availability of on-demand training, PowerPoint, Webinars and videoconferencing.
5. Complete and well-organized project files in District 10.
6. Assumptions and Risk statements included in early project development/scoping that list possible consequences, effects and costs of not complying with all environmental requirements and procedures.
7. Caltrans'
8. The new Caltrans Standard Tracking and Exchange Vehicle for Environmental (STEVE) supports tracking of the environmental review process and sharing of project status across project teams and includes an internal dispute resolution process.
The Pilot Program allows the Secretary of Transportation (Secretary) to assign, and the State to assume, the Secretary's responsibilities under the National Environmental Policy Act (NEPA) for one or more highway projects. Upon assigning NEPA responsibilities, the Secretary may further assign to the State all or part of the Secretary's responsibilities for environmental review, consultation, or other action required under any Federal environmental law pertaining to the review of a specific highway project. When a State assumes the Secretary's responsibilities under this program, the State becomes solely responsible and is liable for carrying out the responsibilities it has assumed, in lieu of FHWA.
To ensure compliance by each State participating in the Pilot Program, 23 U.S.C. 327(g) mandates that FHWA, on behalf of the Secretary, conduct semiannual audits during each of the first 2 years of State participation; and annual audits during each subsequent year of State participation. The focus of the FHWA audit process is four-fold: (1) To assess a Pilot State's compliance with the required MOU and applicable Federal laws and policies; (2) to collect information needed to evaluate the success of the Pilot Program; (3) to evaluate Pilot State progress in meeting its performance measures; and (4) to collect information for use in the Secretary's annual Report to Congress on the administration of the Pilot Program. Additionally, 23 U.S.C. 327(g) requires FHWA to present the results of each audit in the form of an audit report published in the
This is the sixth FHWA audit of Caltrans participation in the Pilot Program. The on-site portion of the audit was conducted in California from October 17 through October 21, 2011. As required in SAFETEA–LU, each FHWA audit must assess compliance with the roles and responsibilities assumed by the Pilot State in the MOU. The audit also includes recommendations to assist Caltrans in successful participation in the Pilot Program.
Prior to the on-site audit, FHWA completed telephone interviews with Federal resource agency staff at the U.S. Army Corps of Engineers, the U.S. Fish and Wildlife Service (FWS), the National Park Service, the National Oceanic and Atmospheric Administration, the Advisory Council on Historic Preservation, and the Environmental Protection Agency. The on-site audit included visits to the Caltrans Offices in District 2 (Redding), District 3/North Region (Marysville), District 4 (Oakland), District 6 (Fresno), District 10 (Stockton), and Headquarters (Sacramento).
This report documents findings within the scope of the audit as of the completion date of the on-site audit on October 21, 2011.
The intent of each FHWA audit completed under the Pilot Program is to ensure that the Pilot State complies with the commitments in its MOU with FHWA. The FHWA does not evaluate specific project-related decisions made by the State; these decisions are the sole responsibility of the Pilot State. However, the FHWA audit scope does include the review of the processes and procedures (including documentation) used by the Pilot State to reach project decisions in compliance with MOU Section 3.2.
In addition, Caltrans committed in its Application (incorporated by reference in MOU Section 1.1.2) to implement specific processes to strengthen its environmental procedures in order to assume the responsibilities assigned by FHWA under the Pilot Program. The FHWA audits review how Caltrans is meeting each commitment and assess Pilot Program performance in the core areas specified in the
The Caltrans' Pilot Program commitments address:
• Organization and Procedures under the Pilot Program;
• Expanded Quality Control Procedures;
• Independent Environmental Decisionmaking;
• Determining the NEPA Class of Action;
• Consultation and Coordination with Resource Agencies;
• Issue Identification and Conflict Resolution Procedures;
• Recordkeeping and Retention;
• Expanded Internal Monitoring and Process Reviews;
• Performance Measures to Assess the Pilot Program;
• Training to Implement the Pilot Program;
• Legal Sufficiency Review.
The FHWA team for the sixth audit included representatives from the following offices or agencies:
• FHWA Office of Project Development and Environmental Review;
• FHWA Office of the Chief Counsel;
• FHWA Alaska Division Office;
• FHWA Resource Center Environmental Team;
• Volpe National Transportation Systems Center;
• U.S. FWS.
During the onsite audit, the audit team interviewed more than 60 staff from 5 Caltrans District and HQ offices. The audit team also reviewed project files and records for over 55 projects managed by Caltrans under the Pilot Program.
The FHWA acknowledges that Caltrans identified specific issues during its sixth self-assessment performed under the Pilot Program (required by MOU section 8.2.6), and is working on corrective actions to address the identified issues. Some issues described in the Caltrans self-assessment may overlap with FHWA findings identified in this audit report.
In accordance with MOU Section 11.4.1, FHWA provided Caltrans with a 30-day comment period to review this draft audit report. The FHWA reviewed comments received from Caltrans and revised sections of the draft report, where appropriate, prior to publishing it in the
The conclusions presented in this report are opinions based upon interviews of selected persons knowledgeable about past and current activities related to the execution of the Pilot Program at Caltrans, and a review of selected documents over a limited time period. The FHWA audit team's ability to conduct each audit and make determinations of Caltrans' compliance with assumed responsibilities and commitments under the Pilot Program has been further limited by the following:
• Select Districts visited by the FHWA audit team. The FHWA audit team has not visited each District during the audit process. Each audit (including this audit) has consisted of visits to Districts with significant activity under the Pilot.
• Caltrans staff availability during audits. Some Caltrans staff selected to be interviewed by the audit team were out of the office and unavailable to participate in the onsite audit, including participation in scheduled interviews, despite Caltrans having been notified ahead of time. This limited the extent of information gathering.
• Limited scope of Pilot Program project development activity. Caltrans has not operated under the Pilot Program for a sufficient period of time to manage the full lifecycle of most Environmental Impact Statements (EIS) and other complex environmental documents. Therefore, FHWA is not yet able to fully determine how Caltrans will comply with its responsibilities assumed under the Pilot Program for these project situations.
• Insufficient data to determine time savings reported by Caltrans in the completion of environmental documents. Due to the relatively short period of time that the Pilot Program has been in place, Caltrans has not completed the environmental process for a sufficient number of projects of varying complexities to adequately support a determination on the potential time savings resulting from participation in the Pilot Program.
• Continued errors in the quarterly reports. As has been the case in every audit, the quarterly reports prepared by Caltrans listing environmental approvals and decisions made under the Pilot Program continue to contain omissions and errors. It is difficult for FHWA to exercise full oversight on Pilot Program projects without a complete accounting of all NEPA documents produced under the Pilot.
As part of the sixth audit, FHWA evaluated the corrective actions implemented by Caltrans in response to the “Deficient” and “Needs Improvement” findings in the fifth FHWA audit report.
1. Quarterly Reports—The quarterly reports Caltrans provided to FHWA under MOU Section 8.2.7 continued to include inaccuracies related to environmental document approvals and decisions made under the Pilot Program. The audit team acknowledges that Caltrans has recently implemented the STEVE environmental database system on a statewide basis to assist in the development of a comprehensive database of environmental projects and milestones.
2. Section 4(f) Documentation—As noted in the past two audits, inconsistencies in Section 4(f) compliance and documentation have been observed by the audit team. The FHWA acknowledges that Caltrans continues to provide Section 4(f) training and assistance to the Districts to improve the understanding of the Section 4(f) statute and regulations. However, training implementation is inconsistent with staff implementing Section 4(f) across Districts.
3. Quality Assurance/Quality Control (QA/QC) Certification Process—Project file reviews completed during the sixth audit continued to identify incorrect and incomplete QC certification forms. Caltrans continues to address inadequacies in this process through staff-specific training when inconsistencies are identified, most notably during the self-assessment process.
1. Maintenance of Project and General Administrative Files—Caltrans has instituted specific procedures for maintaining project files in accordance with the Uniform Filing System and has provided training on these procedures. Inconsistencies in the application of these procedures, reported in previous audit findings, were also identified in this audit.
2. Performance Measure—FHWA recommended that Caltrans share with FHWA the specific agencies' rating information so that specific issues could be identified. Caltrans has provided this information to FHWA.
3. Coordination with Resource Agencies—Conversations with Federal resource agencies prior to the onsite audit indicated that relationships between the agencies and Caltrans are generally considered to be effective; however, the audit team noted an issue regarding insufficient information being initially submitted to the resource agencies.
4. Procedural and Substantive Requirements—There were identified instances of incomplete documentation regarding the Endangered Species Act Section 7 process. This was also an area of irregularities identified in the Caltrans Self Assessment. Section 7 compliance continues to be a topic addressed by the Biological Consultancy group and, included as part of the STEVE, there is an elevation process for Section 7 conflicts.
5. Re-evaluation Process—Project file reviews and staff interviews continue to indicate varying degrees of compliance with the re-evaluation process and procedures.
6. Section 4(f) Consistency Issue—Project file reviews and interviews with Caltrans staff confirmed continuing inconsistencies in the implementation of the Section 4(f) process as well as with a general understanding required in carrying out Section 4(f) provisions. The audit team does acknowledge that a Section 4(f) evaluation training on demand module was recently posted for use by Caltrans staff.
7. Training—As in past audits, the audit team observed inconsistencies in the use of tools to identify training needs, ensure training is received, and to track employees' training histories. The audit team also determined there was no method for employees to track completion of any online training available on the Caltrans Web site.
The FHWA audit team carefully examined Pilot Program areas to assess
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Audit determined that a process, procedure or other component of the Pilot Program did not meet the stated commitment in the Application and/or MOU. Corrective action is required prior to the next audit;
Audit determined that for a past Needs Improvement finding, the rate of corrective action has not proceeded in a timely manner; is not on the path to timely resolution of the finding.
Caltrans was found to be compliant in meeting the requirements of the MOU for the key Pilot Program areas within the scope and the limitations of the audit, with the exceptions noted in the Deficient and Needs Improvement findings in this audit report set forth below.
(N1)
The audit team found the following inconsistencies across the Districts regarding the level of needed trainings received by Caltrans staff:
(a) Several of the Section 4(f) District Points of Contact (POC) have very little, if any experience with writing or reviewing a Section 4(f) document and have had little training in Section 4(f). The audit team learned that the specific roles and responsibilities for the POCs had not yet been determined. Also, it has not been decided if there will be the formation of a working/peer group of these POCs or how they should proceed in becoming “expert” in this area;
(b) The audit team learned through interviews that the number and variety of available online on-demand trainings have increased. However, the lack of a system to track those taking these trainings creates difficulties in identifying staff training needs;
(c) Interviews with staff reflected instances where staff had to cancel their attendance at trainings due to resource limitations, or schedule demands; and
(d) Interviews with staff indicated a large staff turnover in certain Districts. The loss of experienced staff increases the importance of the training needed for new employees, which is uncertain due to resource restrictions in these same Districts.
(N2)
(a) Interviews with Caltrans staff in varying positions in three Districts revealed a lack of understanding of the FHWA fiscal constraint requirements and its relationship to NEPA documents;
(b) A majority of Caltrans staff members interviewed indicated that there is a lack of understanding of the definitions for the following Section 4(f) terms: Section 4(f) use; temporary occupancy; avoidance alternatives; least overall harm analysis; and constructive use of a Section 4(f) resource.
(c) Interviews with Caltrans staff reflected that there was a lack of understanding for determining a de minimis impact on a Section 4(f) resource;
(d) Several Caltrans staff members interviewed indicated a lack of knowledge regarding the identification of officials with jurisdiction over Section 4(f) resources; and
(e) Interviews with Caltrans District 4 staff reflected that there was a lack of communication among all staff concerning the District's new requirement to hold public hearings for all EAs.
(N3)
Through interviews and project file reviews, the audit team identified an environmental assessment (EA) that was approved without a project-level conformity determination letter from FHWA. This determination letter was later obtained from FHWA and a re-evaluation was performed by Caltrans and included in the project file.
(D1)
Among the reporting errors identified in this audit were the omission of two completed decisions—one ROD and one Finding of No Significant Impact (FONSI).
The FHWA acknowledges that a new statewide database (STEVE) has recently been implemented throughout the Districts, and Caltrans anticipates that this new system will improve the accuracy of information provided in the quarterly reports provided to FHWA.
(D2)
(a) Four Internal QC certification forms (for three projects) were completed and signed and dated by reviewers after the approval date of the document;
(b) One class of action determination form was signed on the same date that the document was approved;
(c) Five QC certification forms contained undated review signatures or the signatures were not obtained in the proper sequence in accordance with the Caltrans established QA/QC processes. This included four projects where external QC certification forms contained signatures that were obtained after the internal QC certification form signatures; and
(d) Five QC certification forms were missing the signatures of required reviewers.
(D3)
Interviews with Caltrans staff and project file reviews in one District indicated that a NEPA QC reviewer was directed by the Office Chief of Environmental Affairs and the District Director to sign the internal certification form without having reviewed the final version of the environmental document in order to meet the project schedule. The NEPA QC reviewer had noted in the project file that there were two items, previously identified to be addressed, that had not yet been addressed in the document that was signed.
(D4)
(a) A re-evaluation is done to determine if the approved environmental document or the Categorical Exclusion (CE) designation remains valid. In the re-evaluation process, the original decision and analysis needs to be reviewed for its validity. A re-evaluation was used to increase the scope of the original EA/FONSI. The FHWA re-evaluation process does not accommodate such an approach. The supporting documentation and project files for this project were not available for review; and
(b) In a second project, the NEPA document was identified in the Quarterly Report as a re-evaluation. This project was identified as an intersection improvement that was to be added to a larger project, already under construction. The project file contained both re-evaluation forms and CE checklist forms. Under NEPA, the project should have been a stand-alone CE, as it was not a part of the original project.
(D5)
In the case of Section 4(f) evaluations, the audit team found the following:
(a) Two of the three evaluations did not contain a required Section 4(f) avoidance alternative analysis.
(b) Two of the three evaluations did not provide a required Least Overall Harm Analysis.
(D6)
(a) The cover page for one EA reviewed during the audit did not include this required statement;
(b) The cover page for one Final EIS had been modified from the language agreed to in the MOU; and
(c) The cover page for three California Environmental Quality Act only document contained the FHWA assumption statement, even though there was no FHWA involvement in this document.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of renewal of exemptions; request for comments.
FMCSA announces its decision to renew the exemptions from the vision requirement in the Federal Motor Carrier Safety Regulations for 36 individuals. FMCSA has statutory authority to exempt individuals from the vision requirement if the exemptions granted will not compromise safety. The Agency has concluded that granting these exemption renewals will provide a level of safety that is equivalent to or greater than the level of safety maintained without the exemptions for these commercial motor vehicle (CMV) drivers.
This decision is effective March 2, 2012. Comments must be received on or before March 23, 2012.
You may submit comments bearing the Federal Docket Management System (FDMS) numbers: FMCSA–
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Elaine M. Papp, Chief, Medical Programs Division, 202–366–4001,
Under 49 U.S.C. 31136(e) and 31315, FMCSA may renew an exemption from the vision requirements in 49 CFR 391.41(b)(10), which applies to drivers of CMVs in interstate commerce, for a two-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” The procedures for requesting an exemption (including renewals) are set out in 49 CFR part 381.
This notice addresses 36 individuals who have requested renewal of their exemptions in accordance with FMCSA procedures. FMCSA has evaluated these 36 applications for renewal on their merits and decided to extend each exemption for a renewable two-year period. They are:
William M. Arbogast (FL), Cris D. Bush (TN), John E. Cain (NM), Billy C. Chenault (NM), Eugene Contreras (NM), Jim L. Davis (NM), David E. Evans (NC), Nigel L. Farmer (CT), Wayne W. Ferguson (VA), Randy M. Garcia (NM), John A. Graham (PA), Henry J. Gregoire, Jr. (MN), Jason L. Hoovan (UT), Amos W. Hulsey (AL), Guy A. Lanham (FL), Curtis M. Lawless (VA), James M. McCormick (ID), Joseph F. McIntyre, Jr. (GA), Richard K. Mell (VA), Glen A. Miller (VA), Shane W. Mincey (AL), Russell L. Moyers (WV), Millard F. Neace, II (WV), William E. Norris (NC), Frank L. Ortolani (OH), Willie L. Parks (CA), Paul D. Prillaman (VA), Scott Randol (MO), Clarence J. Robishaw, Jr (NY), Miguel A. Sanchez (NM), Dennis R. Schneider (NM), James Vickery (KY), Norman J. Watson (NC), Lewis H. West, Jr. (MA), Billy R. Wilkey (TX), Reginald J. Wuethrich (IL).
The exemptions are extended subject to the following conditions: (1) That each individual has a physical examination every year (a) by an ophthalmologist or optometrist who attests that the vision in the better eye continues to meet the requirements in 49 CFR 391.41(b)(10), and (b) by a medical examiner who attests that the individual is otherwise physically qualified under 49 CFR 391.41; (2) that each individual provides a copy of the ophthalmologist's or optometrist's report to the medical examiner at the time of the annual medical examination; and (3) that each individual provide a copy of the annual medical certification to the employer for retention in the driver's qualification file and retains a copy of the certification on his/her person while driving for presentation to a duly authorized Federal, State, or local enforcement official. Each exemption will be valid for two years unless rescinded earlier by FMCSA. The exemption will be rescinded if: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315.
Under 49 U.S.C. 31315(b)(1), an exemption may be granted for no longer than two years from its approval date and may be renewed upon application for additional two year periods. In accordance with 49 U.S.C. 31136(e) and 31315, each of the 36 applicants has satisfied the entry conditions for obtaining an exemption from the vision requirements (72 FR 46261; 72 FR 54972; 72 FR 58362; 72 FR 67340; 72 FR 67344; 73 FR 1395; 73 FR 35194; 73 FR 48275; 74 FR 37295; 74 FR 48343; 74 FR 57553; 74 FR 60022; 74 FR 65842; 74 FR 65845; 75 FR 1835; 75 FR 4623; 75 FR 9482). Each of these 36 applicants has requested renewal of the exemption and has submitted evidence showing that the vision in the better eye continues to meet the requirement specified at 49 CFR 391.41(b)(10) and that the vision impairment is stable. In addition, a review of each record of safety while driving with the respective vision deficiencies over the past two years indicates each applicant continues to meet the vision exemption requirements. These factors provide an adequate basis for predicting each driver's ability to continue to drive safely in interstate commerce. Therefore, FMCSA concludes that extending the exemption for each renewal applicant for a period of two years is likely to achieve a level of safety equal to that existing without the exemption.
FMCSA will review comments received at any time concerning a particular driver's safety record and determine if the continuation of the exemption is consistent with the requirements at 49 U.S.C. 31136(e) and 31315. However, FMCSA requests that interested parties with specific data concerning the safety records of these
FMCSA believes that the requirements for a renewal of an exemption under 49 U.S.C. 31136(e) and 31315 can be satisfied by initially granting the renewal and then requesting and evaluating, if needed, subsequent comments submitted by interested parties. As indicated above, the Agency previously published notices of final disposition announcing its decision to exempt these 36 individuals from the vision requirement in 49 CFR 391.41(b)(10). The final decision to grant an exemption to each of these individuals was made on the merits of each case and made only after careful consideration of the comments received to its notices of applications. The notices of applications stated in detail the qualifications, experience, and medical condition of each applicant for an exemption from the vision requirements. That information is available by consulting the above cited
Interested parties or organizations possessing information that would otherwise show that any, or all, of these drivers are not currently achieving the statutory level of safety should immediately notify FMCSA. The Agency will evaluate any adverse evidence submitted and, if safety is being compromised or if continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315, FMCSA will take immediate steps to revoke the exemption of a driver.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of renewal of exemptions; request for comments.
FMCSA announces its decision to renew the exemptions from the vision requirement in the Federal Motor Carrier Safety Regulations for 10 individuals. FMCSA has statutory authority to exempt individuals from the vision requirement if the exemptions granted will not compromise safety. The Agency has concluded that granting these exemption renewals will provide a level of safety that is equivalent to or greater than the level of safety maintained without the exemptions for these commercial motor vehicle (CMV) drivers.
This decision is effective March 15, 2012. Comments must be received on or before March 23, 2012.
You may submit comments bearing the Federal Docket Management System (FDMS) numbers: FMCSA–2002–12844; FMCSA–2005–23099; FMCSA–2007–27897; FMCSA–2009–0291; FMCSA–2009–0321, using any of the following methods:
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Elaine M. Papp, Chief, Medical Programs Division, 202–366–4001,
Under 49 U.S.C. 31136(e) and 31315, FMCSA may renew an exemption from the vision requirements in 49 CFR 391.41(b)(10), which applies to drivers of CMVs in interstate commerce, for a two-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” The procedures for requesting an exemption (including renewals) are set out in 49 CFR part 381.
This notice addresses 10 individuals who have requested renewal of their exemptions in accordance with FMCSA procedures. FMCSA has evaluated these 10 applications for renewal on their merits and decided to extend each exemption for a renewable two-year period. They are:
The exemptions are extended subject to the following conditions: (1) That each individual has a physical examination every year (a) by an ophthalmologist or optometrist who attests that the vision in the better eye continues to meet the requirements in 49 CFR 391.41(b)(10), and (b) by a medical examiner who attests that the individual is otherwise physically qualified under 49 CFR 391.41; (2) that each individual provides a copy of the ophthalmologist's or optometrist's
Under 49 U.S.C. 31315(b)(1), an exemption may be granted for no longer than two years from its approval date and may be renewed upon application for additional two year periods. In accordance with 49 U.S.C. 31136(e) and 31315, each of the 10 applicants has satisfied the entry conditions for obtaining an exemption from the vision requirements (67 FR 68719; 68 FR 2629; 70 FR 7545; 71 FR 4194; 71 FR 13450; 72 FR 39879; 72 FR 40362; 72 FR 52419; 73 FR 9158; 74 FR 64124; 74 FR 65842; 75 FR 1451; 75 FR 1835; 75 FR 9482; 75 FR 9484;). Each of these 10 applicants has requested renewal of the exemption and has submitted evidence showing that the vision in the better eye continues to meet the requirement specified at 49 CFR 391.41(b)(10) and that the vision impairment is stable. In addition, a review of each record of safety while driving with the respective vision deficiencies over the past two years indicates each applicant continues to meet the vision exemption requirements. These factors provide an adequate basis for predicting each driver's ability to continue to drive safely in interstate commerce. Therefore, FMCSA concludes that extending the exemption for each renewal applicant for a period of two years is likely to achieve a level of safety equal to that existing without the exemption.
FMCSA will review comments received at any time concerning a particular driver's safety record and determine if the continuation of the exemption is consistent with the requirements at 49 U.S.C. 31136(e) and 31315. However, FMCSA requests that interested parties with specific data concerning the safety records of these drivers submit comments by March 23, 2012.
FMCSA believes that the requirements for a renewal of an exemption under 49 U.S.C. 31136(e) and 31315 can be satisfied by initially granting the renewal and then requesting and evaluating, if needed, subsequent comments submitted by interested parties. As indicated above, the Agency previously published notices of final disposition announcing its decision to exempt these 10 individuals from the vision requirement in 49 CFR 391.41(b)(10). The final decision to grant an exemption to each of these individuals was made on the merits of each case and made only after careful consideration of the comments received to its notices of applications. The notices of applications stated in detail the qualifications, experience, and medical condition of each applicant for an exemption from the vision requirements. That information is available by consulting the above cited
Interested parties or organizations possessing information that would otherwise show that any, or all, of these drivers are not currently achieving the statutory level of safety should immediately notify FMCSA. The Agency will evaluate any adverse evidence submitted and, if safety is being compromised or if continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315, FMCSA will take immediate steps to revoke the exemption of a driver.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition.
FMCSA announces its decision to exempt sixteen individuals from its rule prohibiting persons with insulin-treated diabetes mellitus (ITDM) from operating commercial motor vehicles (CMVs) in interstate commerce. The exemptions will enable these individuals to operate CMVs in interstate commerce.
The exemptions are effective February 22, 2012. The exemptions expire on February 21, 2014.
Elaine M. Papp, Chief, Medical Programs Division, (202) 366–4001,
You may see all the comments online through the Federal Document Management System (FDMS) at:
On January 5, 2012, FMCSA published a notice of receipt of Federal diabetes exemption applications from seventeeen individuals and requested comments from the public (77 FR 533). The public comment period closed on February 5, 2012, and no comments were received.
One of the applicants, Mr. Randall T. Buffkin (NC) no longer requires the use of insulin and therefore does not need a Federal diabetes exemption.
FMCSA has evaluated the eligibility of the sixteen applicants and determined that granting the exemptions to these individuals would achieve a level of safety equivalent to or greater than the level that would be achieved by complying with the current regulation 49 CFR 391.41(b)(3).
The Agency established the current requirement for diabetes in 1970 because several risk studies indicated that drivers with diabetes had a higher rate of crash involvement than the general population. The diabetes rule provides that “A person is physically qualified to drive a commercial motor vehicle if that person has no established medical history or clinical diagnosis of diabetes mellitus currently requiring insulin for control” (49 CFR 391.41(b)(3)).
FMCSA established its diabetes exemption program, based on the Agency's July 2000 study entitled “A Report to Congress on the Feasibility of a Program to Qualify Individuals with Insulin-Treated Diabetes Mellitus to Operate in Interstate Commerce as Directed by the Transportation Act for the 21st Century.” The report concluded that a safe and practicable protocol to allow some drivers with ITDM to operate CMVs is feasible. The September 3, 2003 (68 FR 52441),
These sixteen applicants have had ITDM over a range of 1 to 19 years. These applicants report no severe hypoglycemic reactions resulting in loss of consciousness or seizure, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning symptoms, in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the past 5 years. In each case, an endocrinologist verified that the driver has demonstrated a willingness to properly monitor and manage his/her diabetes mellitus, received education related to diabetes management, and is on a stable insulin regimen. These drivers report no other disqualifying conditions, including diabetes-related complications. Each meets the vision requirement at 49 CFR 391.41(b)(10).
The qualifications and medical condition of each applicant were stated and discussed in detail in the January 5, 2012,
FMCSA did not receive any comments in this proceeding.
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the diabetes requirement in 49 CFR 391.41(b)(3) if the exemption is likely to achieve an equivalent or greater level of safety than would be achieved without the exemption. The exemption allows the applicants to operate CMVs in interstate commerce.
To evaluate the effect of these exemptions on safety, FMCSA considered medical reports about the applicants' ITDM and vision, and reviewed the treating endocrinologists' medical opinion related to the ability of the driver to safely operate a CMV while using insulin.
Consequently, FMCSA finds that in each case exempting these applicants from the diabetes requirement in 49 CFR 391.41(b)(3) is likely to achieve a level of safety equal to that existing without the exemption.
The terms and conditions of the exemption will be provided to the applicants in the exemption document and they include the following: (1) That each individual submit a quarterly monitoring checklist completed by the treating endocrinologist as well as an annual checklist with a comprehensive medical evaluation; (2) that each individual reports within 2 business days of occurrence, all episodes of severe hypoglycemia, significant complications, or inability to manage diabetes; also, any involvement in an accident or any other adverse event in a CMV or personal vehicle, whether or not it is related to an episode of hypoglycemia; (3) that each individual provide a copy of the ophthalmologist's or optometrist's report to the medical examiner at the time of the annual medical examination; and (4) that each individual provide a copy of the annual medical certification to the employer for retention in the driver's qualification file, or keep a copy in his/her driver's qualification file if he/she is self-employed. The driver must also have a copy of the certification when driving, for presentation to a duly authorized Federal, State, or local enforcement official.
Based upon its evaluation of the sixteen exemption applications, FMCSA exempts, Gary L. Camden (IN), Loren A. Cox (NY), Dennis D. Dingman (CO), Daryl F. Gilbertson (WI), Alfred Gutierrez, II (OK), Matthew D. Hulse (KS), Jeremy L. Igert (MS), Neil E. Karvonen (WA), Damon A. Kruger (CO), Bryan R. Lee (MI), Earl T. Morton (VA), Richard A. Norstebon (ND), Donald J. Olbinski (IL), Kevin E. Risley (IN), Steven L. Schmenk (OH) and Benny L. Westbrooks (TX) from the ITDM requirement in 49 CFR 391.41(b)(3), subject to the conditions listed under “Conditions and Requirements” above.
In accordance with 49 U.S.C. 31136(e) and 31315 each exemption will be valid for two years unless revoked earlier by FMCSA. The exemption will be revoked if the following occurs: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315. If the exemption is still effective at the end of the 2-year period, the person may apply to FMCSA for a renewal under procedures in effect at that time.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition.
FMCSA announces its decision to exempt twelve individuals from the vision requirement in the Federal Motor Carrier Safety Regulations (FMCSRs). The exemptions will enable these individuals to operate commercial motor vehicles (CMVs) in interstate commerce without meeting the prescribed vision requirement. The Agency has concluded that granting these exemptions will provide a level of safety that is equivalent to or greater than the level of safety maintained without the exemptions for these CMV drivers.
The exemptions are effective February 22, 2012. The exemptions expire on February 21, 2014.
Elaine M. Papp, Chief, Medical Programs Division, (202) 366–4001,
You may see all the comments online through the Federal Document Management System (FDMS) at
On January 5, 2012, FMCSA published a notice of receipt of exemption applications from certain individuals, and requested comments from the public (77 FR 539). That notice listed twelve applicants' case histories. The twelve individuals applied for exemptions from the vision requirement in 49 CFR 391.41(b)(10), for drivers who operate CMVs in interstate commerce.
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption for a 2-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” The statute also allows the Agency to renew exemptions at the end of the 2-year period. Accordingly, FMCSA has evaluated the twelve applications on their merits and made a determination to grant exemptions to each of them.
The vision requirement in the FMCSRs provides:
A person is physically qualified to drive a commercial motor vehicle if that person has distant visual acuity of at least 20/40 (Snellen) in each eye without corrective lenses or visual acuity separately corrected to 20/40 (Snellen) or better with corrective lenses, distant binocular acuity of a least 20/40 (Snellen) in both eyes with or without corrective lenses, field of vision of at least 70° in the horizontal meridian in each eye, and the ability to recognize the colors of traffic signals and devices showing requirement red, green, and amber (49 CFR 391.41(b)(10)).
FMCSA recognizes that some drivers do not meet the vision requirement but have adapted their driving to accommodate their vision limitation and demonstrated their ability to drive safely. The twelve exemption applicants listed in this notice are in this category. They are unable to meet the vision requirement in one eye for various reasons, including amblyopia, keratoconus, reduced vision, macular scaring, retinal vein occlusion and a corneal scar. In most cases, their eye conditions were not recently developed. Nine of the applicants were either born with their vision impairments or have had them since childhood. The three individuals sustained their vision conditions as adults and have had them for a period of 5 to 31 years.
Although each applicant has one eye which does not meet the vision requirement in 49 CFR 391.41(b)(10), each has at least 20/40 corrected vision in the other eye, and in a doctor's opinion, has sufficient vision to perform all the tasks necessary to operate a CMV. Doctors' opinions are supported by the applicants' possession of valid commercial driver's licenses (CDLs) or non-CDLs to operate CMVs. Before issuing CDLs, States subject drivers to knowledge and skills tests designed to evaluate their qualifications to operate a CMV.
All of these applicants satisfied the testing requirements for their State of residence. By meeting State licensing requirements, the applicants demonstrated their ability to operate a CMV, with their limited vision, to the satisfaction of the State.
While possessing a valid CDL or non-CDL, these twelve drivers have been authorized to drive a CMV in intrastate commerce, even though their vision disqualified them from driving in interstate commerce. They have driven CMVs with their limited vision for careers ranging from 2 to 26 years. In the past 3 years, none of the drivers were involved in crashes, and none were convicted of moving violations in a CMV.
The qualifications, experience, and medical condition of each applicant were stated and discussed in detail in the January 5, 2012 notice (77 FR 539).
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the vision requirement in 49 CFR 391.41(b)(10) if the exemption is likely to achieve an equivalent or greater level of safety than would be achieved without the exemption. Without the exemption, applicants will continue to be restricted to intrastate driving. With the exemption, applicants can drive in interstate commerce. Thus, our analysis focuses on whether an equal or greater level of safety is likely to be achieved by permitting each of these drivers to drive in interstate commerce as opposed to restricting him or her to driving in intrastate commerce.
To evaluate the effect of these exemptions on safety, FMCSA considered the medical reports about the applicants' vision as well as their driving records and experience with the vision deficiency.
To qualify for an exemption from the vision requirement, FMCSA requires a person to present verifiable evidence that he/she has driven a commercial vehicle safely with the vision deficiency for the past 3 years. Recent driving performance is especially important in evaluating future safety, according to several research studies designed to correlate past and future driving performance. Results of these studies support the principle that the best predictor of future performance by a driver is his/her past record of crashes and traffic violations. Copies of the studies may be found at Docket Number FMCSA–1998–3637.
We believe we can properly apply the principle to monocular drivers, because data from the Federal Highway Administration's (FHWA) former waiver study program clearly demonstrate the driving performance of experienced monocular drivers in the program is better than that of all CMV drivers collectively (See 61 FR 13338, 13345, March 26, 1996). The fact that experienced monocular drivers demonstrated safe driving records in the waiver program supports a conclusion that other monocular drivers, meeting the same qualifying conditions as those required by the waiver program, are also likely to have adapted to their vision deficiency and will continue to operate safely.
The first major research correlating past and future performance was done in England by Greenwood and Yule in 1920. Subsequent studies, building on
Applying principles from these studies to the past 3-year record of the twelve applicants, none of the drivers were involved in a crash and none were convicted of moving violations in a CMV. All the applicants achieved a record of safety while driving with their vision impairment, demonstrating the likelihood that they have adapted their driving skills to accommodate their condition. As the applicants' ample driving histories with their vision deficiencies are good predictors of future performance, FMCSA concludes their ability to drive safely can be projected into the future.
We believe that the applicants' intrastate driving experience and history provide an adequate basis for predicting their ability to drive safely in interstate commerce. Intrastate driving, like interstate operations, involves substantial driving on highways on the interstate system and on other roads built to interstate standards. Moreover, driving in congested urban areas exposes the driver to more pedestrian and vehicular traffic than exists on interstate highways. Faster reaction to traffic and traffic signals is generally required because distances between them are more compact. These conditions tax visual capacity and driver response just as intensely as interstate driving conditions. The veteran drivers in this proceeding have operated CMVs safely under those conditions for at least 3 years, most for much longer. Their experience and driving records lead us to believe that each applicant is capable of operating in interstate commerce as safely as he/she has been performing in intrastate commerce. Consequently, FMCSA finds that exempting these applicants from the vision requirement in 49 CFR 391.41(b)(10) is likely to achieve a level of safety equal to that existing without the exemption. For this reason, the Agency is granting the exemptions for the 2-year period allowed by 49 U.S.C. 31136(e) and 31315 to the twelve applicants listed in the notice of January 5, 2012 (77 FR 539).
We recognize that the vision of an applicant may change and affect his/her ability to operate a CMV as safely as in the past. As a condition of the exemption, therefore, FMCSA will impose requirements on the twelve individuals consistent with the grandfathering provisions applied to drivers who participated in the Agency's vision waiver program.
Those requirements are found at 49 CFR 391.64(b) and include the following: (1) That each individual be physically examined every year (a) by an ophthalmologist or optometrist who attests that the vision in the better eye continues to meet the requirement in 49 CFR 391.41(b)(10) and (b) by a medical examiner who attests that the individual is otherwise physically qualified under 49 CFR 391.41; (2) that each individual provide a copy of the ophthalmologist's or optometrist's report to the medical examiner at the time of the annual medical examination; and (3) that each individual provide a copy of the annual medical certification to the employer for retention in the driver's qualification file, or keep a copy in his/her driver's qualification file if he/she is self-employed. The driver must have a copy of the certification when driving, for presentation to a duly authorized Federal, State, or local enforcement official.
FMCSA received no comments in this proceeding.
Based upon its evaluation of the twelve exemption applications, FMCSA exempts Rene Amaya (NM), Brian K. Cline (NC), Robert R. Judd (IN), Mickey E. Lawson (NC), Robbery J. Nelson (NC), Thomas M. Nubert (NC), Terri D. Payne (KY), Michael C. Reese (GA), Mark C. Reineke (NM), Robert T. Reynolds (OH), Lawrence D. Ventimiglia (NV) and Chadwick L. Wyatt (NC) from the vision requirement in 49 CFR 391.41(b)(10), subject to the requirements cited above (49 CFR 391.64(b)).
In accordance with 49 U.S.C. 31136(e) and 31315, each exemption will be valid for 2 years unless revoked earlier by FMCSA. The exemption will be revoked if: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136 and 31315.
If the exemption is still effective at the end of the 2-year period, the person may apply to FMCSA for a renewal under procedures in effect at that time.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of applications for exemptions; request for comments.
FMCSA announces receipt of applications from twelve individuals for exemption from the vision requirement in the Federal Motor Carrier Safety Regulations. If granted, the exemptions would enable these individuals to qualify as drivers of commercial motor vehicles (CMVs) in interstate commerce without meeting the Federal vision requirement.
Comments must be received on or before March 23, 2012.
You may submit comments bearing the Federal Docket Management System (FDMS) Docket No. FMCSA–2011–0378 using any of the following methods:
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Elaine M. Papp, Chief, Medical Programs Division, (202) 366–4001,
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the Federal Motor Carrier Safety Regulations for a 2-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” FMCSA can renew exemptions at the end of each 2-year period. The twelve individuals listed in this notice have each requested such an exemption from the vision requirement in 49 CFR 391.41(b)(10), which applies to drivers of CMVs in interstate commerce. Accordingly, the Agency will evaluate the qualifications of each applicant to determine whether granting an exemption will achieve the required level of safety mandated by statute.
Mr. Abbas, age 62, has had amblyopia in his left eye since birth. The best corrected visual acuity in right eye is 20/20 and in his left eye, 20/100. Following an examination in 2011, his ophthalmologist noted, “In my medical opinion, this patient has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Abbas reported that he has driven tractor-trailer combinations for 31 years, accumulating 2.3 million miles. He holds a Class A Commercial Driver's License (CDL) from Minnesota. His driving record for the last 3 years shows no crashes and one conviction for speeding in a Commercial Motor Vehicle (CMV); he exceeded the speed limit by 13 mph.
Mr. Browning, 50, has a severed optic nerve in his right eye due to a traumatic injury sustained in 1995. The best corrected visual acuity in right eye is light perception and in his left eye, 20/20. Following an examination in 2011, his optometrist noted, “It is my opinion after examining Mr. Browning that visually he is able to operate a commercial motor vehicle in a safe and prudent manner.” Mr. Browning reported that he has driven straight trucks for 13 years, accumulating 273,000 miles. He holds a Class B CDL from Montana. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Clark, 66, has a detached retina in his left eye due to a traumatic injury sustained in 1967. The best corrected visual acuity in right eye is 20/20 and in his left eye, hand motion vision. Following an examination in 2011, his optometrist noted, “It is my opinion that Mr. Clark has sufficient vision to operate a commercial vehicle.” Mr. Clark reported that he has driven straight trucks for 45 years, accumulating 1.1 million miles. He holds a Class B CDL from New York. His driving record for the last 3 years shows no crashes and one conviction for a moving violation in a CMV; driving a CMV while disqualified.
Mr. Earwood, 67, has a corneal scar in his left eye due to an injury sustained 55 years ago. The best corrected visual acuity in right eye is 20/20 and in his left eye, 20/70. Following an examination in 2011, his optometrist noted, “Based on the results of the examination, Mr. Carey Earwood was found to have sufficient vision to safely operate a motor vehicle.” Mr. Earwood reported that he has driven tractor-trailer combinations for 40 years, accumulating 4.4 million miles. He holds a Class D operator's license from Alabama. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mrs. Johnson, 66, has had complete loss of vision in her left eye since birth. The best corrected visual acuity in right eye 20/20. Following an examination in 2011, his ophthalmologist noted, “In my opinion Mrs. Johnson has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mrs. Johnson reported that she has driven buses trucks for 24 years, accumulating 288,000 miles. She holds a chauffeur's license from Indiana. Her driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Larson, 28, has had macular scarring in his left eye since birth. The best corrected visual acuity in his right eye is 20/15, and in his left eye, count-finger vision. Following an examination in 2011, his optometrist noted, “In my medical opinion, and based upon results of Kevan's vision examination, I believe he has sufficient vision capabilities to perform the driving tasks required to operate a commercial vehicle.” Mr. Larson reported that he has driven straight trucks for 10 years, accumulating 280,000 miles. He holds a Class D operator's license from Idaho. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Rolfe, 57, has had amblyopia in his left eye since childhood. The best corrected visual acuity in his right eye is 20/20 and in his left eye, 20/200. Following an examination in 2011, his optometrist noted, “I feel he has sufficient vision to perform the driving tasks of a commercial vehicle.” Mr. Rolfe reported that he has driven straight trucks for 4 years, accumulating 80,000 miles. He holds a Class D
Mr. Rosas, 44, has had amblyopia in his left eye since childhood. The best corrected visual acuity in his right eye is 20/20 and in his left eye, 20/100. Following an examination in 2011, his optometrist noted, “I certify that patient Gilbert Rosas has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Rosas reported that he has driven straight trucks for 14 years, accumulating 1.1 million miles and tractor-trailer combinations for 3 years, accumulating 150,000 miles. He holds a Class A CDL from Arizona. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Shaffer, 61, has a prosthetic right eye due to a traumatic injury sustained as a child. The best corrected visual acuity in his left eye is 20/20. Following an examination in 2011, his optometrist noted, “This patient has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Shaffer reported that he has driven tractor-trailer combinations for 40 years, accumulating 1.4 million miles. He holds a Class A CDL from Pennsylvania. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Slinker, 59, has had amblyopia in his right eye since childhood. The best corrected visual acuity in his right eye is 20/200 and in his left eye, 20/20. Following an examination in 2011, his ophthalmologist noted, “In my opinion, he should be able to perform the driving tasks required to operate a commercial vehicle.” Mr. Slinker reported that he has driven tractor-trailer combinations for 2 years, accumulating 280,000 miles and buses for 2 years, accumulating 41,600 miles. He holds a Class A CDL from Virginia. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Supanchick, 59, has had amblyopia in his left eye since childhood. The best corrected visual acuity in his right eye is 20/25, and in his left eye, 20/150. Following an examination in 2011, his optometrist noted, “In my opinion, Mr. Lonnie Supanchick has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Supanchick reported that he has driven straight trucks for 11 years, accumulating 137,500 miles and tractor-trailer combinations for 10 years, accumulating 175,000 miles. He holds a Class B CDL from Nevada. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Warner, 20, has had amblyopia in his right eye since birth. The best corrected visual acuity in his right eye is 20/70 and in his left eye, 20/20. Following an examination in 2011, his ophthalmologist noted, “In my professional opinion, Mr. Warner has sufficient vision to operate a commercial vehicle and to perform the driving tasks required.” Mr. Warner reported that he has driven straight trucks for 32 years, accumulating 480,000 miles and tractor-trailer combinations for 32 years, accumulating 1.6 million miles. He holds a Class A CDL from Ohio. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
In accordance with 49 U.S.C. 31136(e) and 31315, FMCSA requests public comment from all interested persons on the exemption petitions described in this notice. The Agency will consider all comments received before the close of business March 23, 2012. Comments will be available for examination in the docket at the location listed under the
In addition to late comments, FMCSA will also continue to file, in the public docket, relevant information that becomes available after the comment closing date. Interested persons should monitor the public docket for new material.
Federal Motor Carrier Safety Administration (FMCSA).
Notice of applications for exemption from the diabetes mellitus requirement; request for comments.
FMCSA announces receipt of applications from 17 individuals for exemption from the prohibition against persons with insulin-treated diabetes mellitus (ITDM) operating commercial motor vehicles (CMVs) in interstate commerce. If granted, the exemptions would enable these individuals with ITDM to operate CMVs in interstate commerce.
Comments must be received on or before March 23, 2012.
You may submit comments bearing the Federal Docket Management System (FDMS) Docket No. FMCSA–2011–0382 using any of the following methods:
• Federal eRulemaking Portal: Go to
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Elaine M. Papp, Chief, Medical Programs Division, (202) 366–4001,
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the Federal Motor Carrier Safety Regulations for a 2-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” The statute also allows the Agency to renew exemptions at the end of the 2-year period. The 17 individuals listed in this notice have recently requested such an exemption from the diabetes prohibition in 49 CFR 391.41(b)(3), which applies to drivers of CMVs in interstate commerce. Accordingly, the Agency will evaluate the qualifications of each applicant to determine whether granting the exemption will achieve the required level of safety mandated by the statutes.
Mr. Birdsall, age 41, has had ITDM since 2009. His endocrinologist examined him in 2011 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Birdsall understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a Commercial Motor Vehicle (CMV) safely. Mr. Birdsall meets the vision requirements of 49 CFR 391.41(b)(10). His optometrist examined him in 2011 and certified that he does not have diabetic retinopathy. He holds a Class A Commercial Driver's License (CDL) from Nebraska.
Mr. Bruso, 58, has had ITDM since 2010. His endocrinologist examined him in 2011 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Bruso understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Bruso meets the vision requirements of 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2012 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class B CDL from New York.
Mr. Crabtree, 72, has had ITDM since 2011. His endocrinologist examined him in 2011 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Crabtree understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Crabtree meets the vision requirements of 49 CFR 391.41(b)(10). His optometrist examined him in 2011 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Indiana.
Mr. Drake, 43, has had ITDM since 2002. His endocrinologist examined him in 2011 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Drake understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Drake meets the vision requirements of 49 CFR 391.41(b)(10). His optometrist examined him in 2011 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from California.
Mr. Duea, 37, has had ITDM since 2011. His endocrinologist examined him in 2011 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Duea understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Duea meets the vision requirements of 49 CFR 391.41(b)(10). His optometrist examined him in 2011 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Minnesota.
Mr. Greer, 58, has had ITDM since 2011. His endocrinologist examined him in 2011 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Greer understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Greer meets the vision requirements of 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2012 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class A CDL from Minnesota.
Mr. Hunsaker, 55, has had ITDM since 2004. His endocrinologist examined him in 2011 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or
Mr. Jones, 34, has had ITDM since 2003. His endocrinologist examined him in 2011 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Jones understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Jones meets the vision requirements of 49 CFR 391.41(b)(10). His optometrist examined him in 2011 and certified that he does not have diabetic retinopathy. He holds a Class C operator's license from North Carolina.
Mr. Larsen, 63, has had ITDM since 2000. His endocrinologist examined him in 2011 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Larsen understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Larsen meets the vision requirements of 49 CFR 391.41(b)(10). His optometrist examined him in 2011 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from South Dakota.
Mr. Morofsky, 43, has had ITDM since 1969. His endocrinologist examined him in 2011 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Morofsky understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Morofsky meets the vision requirements of 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2011 and certified that he does not have diabetic retinopathy. He holds a Class C operator's license from California.
Mr. Ragin, 38, has had ITDM since 1997. His endocrinologist examined him in 2011 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Ragin understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Ragin meets the vision requirements of 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2011 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Connecticut.
Mr. Richardson, 55, has had ITDM since 2011. His endocrinologist examined him in 2011 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Richardson understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Richardson meets the vision requirements of 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2011 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class A CDL from North Carolina.
Mr. Simmons, 61, has had ITDM since 2000. His endocrinologist examined him in 2011 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Simmons understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Simmons meets the vision requirements of 49 CFR 391.41(b)(10). His optometrist examined him in 2011 and certified that he does not have diabetic retinopathy. He holds a Class D operator's license from Tennessee.
Mr. Simmons, 58, has had ITDM since 2011. His endocrinologist examined him in 2011 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Simmons understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Simmons meets the vision requirements of 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2011 and certified that he does not have diabetic retinopathy. He holds a Class E operator's license from Florida.
Mr. Snyder, 67, has had ITDM since 2010. His endocrinologist examined him in 2012 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Snyder understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Snyder meets the vision requirements of 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2012 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Ohio.
Mr. Wood, 50, has had ITDM since 2007. His endocrinologist examined him in 2011 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function
Mr. Wright, 31, has had ITDM since 1998. His endocrinologist examined him in 2011 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Wright understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Wright meets the vision requirements of 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2011 and certified that he does not have diabetic retinopathy. He holds a Class C operator's license from Oregon.
In accordance with 49 U.S.C. 31136(e) and 31315, FMCSA requests public comment from all interested persons on the exemption petitions described in this notice. We will consider all comments received before the close of business on the closing date indicated in the
FMCSA notes that section 4129 of the Safe, Accountable, Flexible and Efficient Transportation Equity Act: A Legacy for Users requires the Secretary to revise its diabetes exemption program established on September 3, 2003 (68 FR 52441).
Section 4129 requires: (1) Elimination of the requirement for 3 years of experience operating CMVs while being treated with insulin; and (2) establishment of a specified minimum period of insulin use to demonstrate stable control of diabetes before being allowed to operate a CMV.
In response to section 4129, FMCSA made immediate revisions to the diabetes exemption program established by the September 3, 2003 notice. FMCSA discontinued use of the 3-year driving experience and fulfilled the requirements of section 4129 while continuing to ensure that operation of CMVs by drivers with ITDM will achieve the requisite level of safety required of all exemptions granted under 49 USC. 31136(e).
Section 4129(d) also directed FMCSA to ensure that drivers of CMVs with ITDM are not held to a higher standard than other drivers, with the exception of limited operating, monitoring and medical requirements that are deemed medically necessary.
The FMCSA concluded that all of the operating, monitoring and medical requirements set out in the September 3, 2003 notice, except as modified, were in compliance with section 4129(d). Therefore, all of the requirements set out in the September 3, 2003 notice, except as modified by the notice in the
National Highway Traffic Safety Administration, DOT.
Grant of Petition.
Cooper Tire & Rubber Tire Company, (Cooper)
Pursuant to 49 U.S.C. 30118(d) and 30120(h) (see implementing rule at 49 CFR part 556), Cooper has petitioned for an exemption from the notification and remedy requirements of 49 U.S.C. Chapter 301 on the basis that this noncompliance is inconsequential to motor vehicle safety.
Notice of receipt of Cooper's petition was published, with a 30-day public comment period, on May 17, 2011, in the
For further information on this decision, contact Mr. George Gillespie, Office of Vehicle Safety Compliance, the National Highway Traffic Safety Administration (NHTSA), telephone (202) 366–5299, facsimile (202) 366–7002.
Affected are approximately 6,964 size LT285/75R16 Cooper brand Discoverer S/T MAXX model passenger car replacement tires manufactured between January 23, 2011 and March 26, 2011, at Cooper's plant located in Texarkana, Arkansas.
Cooper explains that the noncompliance is that, due to a mold labeling error, the sidewall marking on the reference side of the tires, required by paragraph S5.5(f), incorrectly describes the actual number of plies in the tread area of the tires. Specifically, the tires in question were inadvertently manufactured with “TREAD 1 PLY NYLON + 2 PLY STEEL + 3 PLY POLYESTER; SIDEWALL 3 PLY POLYESTER.” The labeling should have been “TREAD 2 PLY NYLON + 2 PLY STEEL + 3 PLY POLYESTER; SIDEWALL 3 PLY POLYESTER.”
Cooper also explains that while the non-compliant tires are mislabeled, the tires do in fact have 2 Nylon tread plies and meet or exceed all other applicable Federal Motor Vehicle Safety Standards.
Cooper reported that this noncompliance was discovered during a review of the specified stamping requirements and visual inspection of tire stamping.
Cooper argues that this noncompliance is inconsequential to motor vehicle safety because the noncompliant sidewall marking does not create an unsafe condition and all other labeling requirements have been met.
Cooper points out that NHTSA has previously granted similar petitions for non-compliances in sidewall marking.
In summation, Cooper believes that the described noncompliance of its tires to meet the requirements of FMVSS No. 139 is inconsequential to motor vehicle safety, and that its petition, to exempt from providing recall notification of noncompliance as required by 49 U.S.C. 30118 and remedying the recall noncompliance as required by 49 U.S.C. 30120 should be granted.
Therefore, tire dealers and customers should consider the tire construction information along with other information such as load capacity, maximum inflation pressure, and tread wear, temperature, and traction ratings, to assess performance capabilities of various tires. In the agency's judgment, the incorrect labeling of the tire construction information will have an inconsequential effect on motor vehicle safety because most consumers do not base tire purchases or vehicle operation parameters on the ply material in a tire.
The agency also believes the noncompliance will have no measurable effect on the safety of the tire retread, repair, and recycling industries. The use of steel cord construction in the sidewall and tread is the primary safety concern of these industries. In this case, since the tire sidewalls do not contain steel plies, this potential safety concern does not exist.
NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and 30120(h)) that permit manufacturers to file petitions for a determination of inconsequentiality allow NHTSA to exempt manufacturers only from the duties found in sections 30118 and 30120, respectively, to notify owners, purchasers, and dealers of a defect or noncompliance and to remedy the defect or noncompliance. Therefore, this decision only applies to the 6,964
In consideration of the foregoing, NHTSA has decided that Cooper has met its burden of persuasion that the subject FMVSS No. 139 labeling noncompliances are inconsequential to motor vehicle safety. Accordingly, Cooper's petition is granted and the petitioner is exempted from the obligation of providing notification of, and a remedy for, the subject noncompliance under 49 U.S.C. 30118 and 30120.
49 U.S.C. 30118, 30120: delegations of authority at CFR 1.50 and 501.8.
Research and Innovative Technology Administration (RITA), Department of Transportation.
Notice.
This notice announces, pursuant to Section 10(a)(2) of the Federal Advisory Committee Act (FACA) (Pub. L. 72–363; 5 U.S.C. app. 2), a meeting of the Advisory Council on Transportation Statistics (ACTS). The meeting will be held on Tuesday, March 6, from 9 a.m. to 4:30 p.m. EST in the Oklahoma City Room at the U.S. Department of Transportation, 1200 New Jersey Ave. SE., Washington, DC. Section 5601(o) of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA–LU) directs the U.S. Department of Transportation to establish an Advisory Council on Transportation Statistics subject to the Federal Advisory Committee Act (5 U.S.C. app. 2) to advise the Bureau of Transportation Statistics (BTS) on the quality, reliability, consistency, objectivity, and relevance of transportation statistics and analyses collected, supported, or disseminated by the Bureau and the Department.
The following is a summary of the draft meeting agenda: (1) USDOT welcome and introduction of Council Members; (2) Overview of prior meeting; (3) Discussion of the FY 2013 budget; (4) Update on BTS data programs and future plans; (5) Council Members review and discussion of BTS programs and plans; (6) Public Comments and Closing Remarks. Participation is open to the public. Members of the public who wish to participate must notify Courtney Freiberg at
Questions about the agenda or written comments may be emailed or submitted by U.S. Mail to: U.S. Department of Transportation, Research and Innovative Technology Administration, Bureau of Transportation Statistics,
CSX Transportation, Inc. (CSXT), has filed a verified notice of exemption under 49 CFR part 1152 subpart F—
CSXT has certified that: (1) No local traffic has moved over the line for at least 2 years; (2) there is no overhead traffic on the line; (3) no formal complaint filed by a user of rail service on the line (or by a state or local government entity acting on behalf of such user) regarding cessation of service over the line either is pending with the Surface Transportation Board (Board) or with any U.S. District Court or has been decided in favor of complainant within the 2-year period; and (4) the requirements at 49 CFR 1105.7(c) (environmental report), 49 CFR 1105.11 (transmittal letter), 49 CFR 1105.12 (newspaper publication), and 49 CFR 1152.50(d)(1) (notice to governmental agencies) have been met.
As a condition to this exemption, any employee adversely affected by the abandonment shall be protected under
Provided no formal expression of intent to file an offer of financial assistance (OFA) has been received, this exemption will be effective on March 23, 2012, unless stayed pending reconsideration. Petitions to stay that do not involve environmental issues,
A copy of any petition filed with the Board should be sent to CSXT's representative: Louis E. Gitomer, 600 Baltimore Ave., Suite 301, Towson, MD 21204.
If the verified notice contains false or misleading information, the exemption is void
CSXT has filed a combined environmental and historic report which addresses the effects, if any, of the abandonment on the environment and historic resources. OEA will issue an environmental assessment (EA) by February 27, 2012. Interested persons may obtain a copy of the EA by writing to OEA (Room 1100, Surface Transportation Board, Washington, DC 20423–0001) or by calling OEA at (202) 245–0305. Assistance for the hearing impaired is available through the Federal Information Relay Service at 1–800–877–8339. Comments on environmental and historic preservation matters must be filed within 15 days after the EA becomes available to the public.
Environmental, historic preservation, public use, or trail use/rail banking conditions will be imposed, where appropriate, in a subsequent decision.
Pursuant to the provisions of 49 CFR 1152.29(e)(2), CSXT shall file a notice of consummation with the Board to signify that it has exercised the authority granted and fully abandoned the line. If consummation has not been effected by CSXT's filing of a notice of consummation by February 22, 2013, and there are no legal or regulatory barriers to consummation, the authority to abandon will automatically expire.
Board decisions and notices are available on our Web site at
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
Wellsboro & Corning Railroad, LLC (WCLLC), a noncarrier, has filed a verified notice of exemption under 49 CFR 1150.31 to acquire from Wellsboro & Corning Railroad Company and to operate approximately 35.5 miles of rail line between milepost 109.90 at Wellsboro, Pa., and milepost 74.70 at Erwin, NY, in Tioga County, PA, and Steuben County, NY.
WCLLC states that it intends to interchange traffic with Norfolk Southern Railway Company and Canadian Pacific Railway Company.
The transaction is scheduled to be consummated on or after March 7, 2012 (30 days after the notice of exemption was filed).
WCLLC certifies that its projected annual revenues as a result of this transaction will not result in its becoming a Class II or Class I rail carrier and will not exceed $5 million.
If the verified notice contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to Docket No. FD 35595, must be filed with the Surface Transportation Board, 395 E Street, SW., Washington, DC 20423–0001. In addition, a copy of each pleading must be served on Louis E. Gitomer, 600 Baltimore Ave., Suite 301, Towson, MD 21204.
Board decisions and notices are available on our Web site at
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
Eric Temple (applicant), a noncarrier individual, has filed a verified notice of exemption to acquire direct control of Portland Vancouver Junction Railroad, LLC (PVJR), a wholly owned subsidiary of Columbia Basin Railroad Company, Inc. (CBRW), upon his acquiring 100% of the membership interest in PVJR.
The transaction is expected to be consummated on or after March 7, 2012.
Applicant and Nicholas B. Temple directly control CBRW and Central Washington Railroad Company (CWA), and they indirectly control PVJR.
Applicant states that: (1) PVJR does not connect with any rail lines of CBRW or CWA; (2) the transaction is not part of a series of anticipated transactions that would connect these rail lines with each other; and (3) the transaction does not involve a Class I rail carrier. Therefore, the transaction is exempt from the prior approval requirements of 49 U.S.C. 11323.
Under 49 U.S.C. 10502(g), the Board may not use its exemption authority to relieve a rail carrier of its statutory obligation to protect the interests of its employees. Section 11326(c), however, does not provide for labor protection for transactions under §§ 11324 and 11325 that involve only Class III rail carriers. Accordingly, the Board may not impose labor protective conditions here, because all of the carriers involved are Class III carriers.
If the notice contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to Docket No. FD 35594, must be filed with the Surface Transportation Board, 395 E Street, SW., Washington, DC 20423–0001. In addition, a copy of each pleading must be served on Rose-Michele Nardi., Weiner Brodsky Sidman Kider PC, 1300 19th St. NW., Fifth Floor, Washington, DC 20036–1609.
Board decisions and notices are available on our Web site at
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
Surface Transportation Board, DOT.
Notice of public hearing.
The Surface Transportation Board (Board) instituted a declaratory order proceeding on September 28, 2011,
The hearing will begin at 9:30 a.m., on Thursday, March 22, 2012, in the Board's hearing room at the Board's headquarters located at 395 E Street SW., Washington, DC. The hearing will be open for public observation. Anyone wishing to participate at the hearing shall file with the Board a notice of intent to participate (identifying the party, the proposed speaker, and the time requested), and a summary of the intended testimony (not to exceed 3 pages), no later than Tuesday, March 6, 2012. All witnesses are encouraged to use their hearing time to call attention to the points they believe are particularly important. Witnesses should present a short oral statement of their comments and be prepared to answer questions from the Board.
All filings may be submitted either via the Board's e-filing format or in the traditional paper format. Any person using e-filing should attach a document and otherwise comply with the instructions at the “E-FILING” link on the Board's
Copies of written submissions will be posted to the Board's Web site and will be available for viewing and self-copying in the Board's public docket room, Suite 131. Copies of the submissions will also be available (for a fee) by contacting the Board's Chief Records Officer at (202) 245–0238 or 395 E Street SW., Washington, DC 20423–0001.
Valerie Quinn at (202) 245–0382. Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at (800) 877–8339.
In this proceeding, the Western Coal Traffic League (WCTL), and other parties,
BNSF counters WCTL's claims by arguing that the Board's precedent on this subject is well-settled, as the Board, the Interstate Commerce Commission (the Board's predecessor agency), the Railroad Accounting Principles Board, and the courts have determined that acquisition cost is an economically accurate measure of current market value. BNSF argues that the issue of the acquisition premium raised by WCTL has been litigated and resolved in favor of GAAP accounting. BNSF further claims that WCTL has presented no evidence or argument that merits revisiting the use of the Berkshire acquisition cost for URCS costing or any other regulatory purpose.
This action will not significantly affect either the quality of the human environment or the conservation of energy resources.
1. A public hearing in this proceeding will be held on Thursday, March 22, 2012, at 9:30 a.m., in the Surface Transportation Board Hearing Room, at 395 E Street SW., Washington, DC, as described above.
2. By Tuesday, March 6, 2012, anyone wishing to participate at the hearing shall file with the Board a notice of intent to participate (identifying the party, the proposed speaker, and the time requested), and a summary of the intended testimony (not to exceed 3 pages).
3. This decision is effective on the date of service.
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
U.S. Customs and Border Protection, Department of Homeland Security; Department of the Treasury.
Notice of proposed rulemaking.
Under the U.S. Customs and Border Protection (CBP) regulations, imported merchandise may be transported in-bond. This process allows imported merchandise to be entered at one U.S. port of entry without appraisement or payment of duties and transported by a bonded carrier to another U.S. port of entry provided all statutory and regulatory conditions are met. At the destination port, the merchandise is officially entered into the commerce of the United States and duties paid, or, the merchandise is exported. CBP is proposing various changes to the in-bond regulations to enhance CBP's ability to regulate and track in-bond merchandise and to ensure that the in-bond merchandise is properly entered and duties are paid or that the in-bond merchandise is exported. Among other things, the proposed changes would: eliminate the paper in-bond application (CBP Form 7512) and require carriers or their agents to electronically file the in-bond application; require additional information on the in-bond application including the six-digit Harmonized Tariff Schedule number, if available, and information relevant to the safety and security of the in-bond merchandise; establish a 30-day maximum time to transport in-bond merchandise between United States ports, for all modes of transportation except pipeline; require carriers to electronically request permission from CBP before diverting the in-bond merchandise from its intended destination port to another port; and require carriers to report the arrival and location of the in-bond merchandise within 24 hours of arrival at the port of destination or port of export. CBP also proposes various other changes, including the restructuring of the in-bond regulations, so that they are more logical and better track the in-bond process. At this time, CBP is not proposing to change the in-bond procedures found in the air commerce regulations, except to change certain times periods to conform to the proposed changes in this document.
Comments must be received on or before April 23, 2012.
Gary Schreffler, Office of Field Operations, (202) 344–1535.
You may submit comments, identified by docket number, by one of the following methods:
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Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of the proposed rule. U.S. Customs and Border Protection (CBP) also invites comments that relate to the economic, environmental or federalism effects that might result from this proposed rule. Comments that will provide the most assistance to CBP in developing these procedures will reference a specific portion of the proposed rule, explain the reason for any recommended change, and include data, information, or authority that support such recommended change.
Generally, when a shipment of merchandise reaches the United States, the merchandise in the shipment may be entered for consumption, entered for warehouse, admitted into a foreign trade zone or entered for transportation in-bond to another port. The focus of this proposed rule is on merchandise that is entered for transportation in-bond. Transportation of merchandise in-bond is the movement of imported merchandise, secured by a bond, from one port to another prior to the appraisement of the merchandise and prior to the payment of duties. The transportation of merchandise in-bond is frequently referred to as an in-bond movement or shipment.
Currently, in-bond merchandise may be transported through the United States without appraisement or the payment of duties, provided the carrier or other appropriate party obtains a bond and files a transportation entry on a CBP
The in-bond system is widely used. According to a 2007 Report from the U.S. Government Accountability Office (GAO),
Subject to specified exceptions, 19 U.S.C. 1484 requires the “importer of record” to use reasonable care to make entry by filing appropriate entry documentation to enable CBP to determine whether such cargo may be released from CBP's custody and to declare the value and classification and other relevant information to enable CBP to properly assess duties on the merchandise, collect accurate statistics, and determine whether any other applicable requirements of law are met.
Two of the specified exceptions in 19 U.S.C. 1484 concern merchandise entered for immediate transportation to another port (19 U.S.C. 1552) and merchandise entered for transportation and exportation (19 U.S.C. 1553). Pursuant to these sections, merchandise may be entered at a U.S. port of entry without appraisement or the payment of duties, for transportation to another port for entry into U.S. commerce or for exportation, provided that all statutory and regulatory conditions are met. Specifically, merchandise may be entered without the payment of duties if the merchandise is transported by a bonded carrier to another U.S. port (the port of destination or the port of export). Upon arrival at the port of destination or export, several options are available regarding the in-bond merchandise. The merchandise may be, among other things, entered for consumption, entered for further transportation by a bonded carrier to another port, or exported to a foreign port. In addition, pursuant to 19 U.S.C. 1551a, bonded cartmen and lightermen are allowed to transport in-bond merchandise between certain specified ports.
Pursuant to 19 U.S.C. 1623 and 1624, the Secretary of the Treasury is authorized, by regulation or specific instruction, to require bonds as necessary for the protection of the revenue or to ensure compliance with applicable laws and regulations. Following the enactment of the Homeland Security Act of 2002 (107 Pub. L. 296, 116 Stat. 2135), on May 15, 2003, the Secretary of the Treasury delegated certain powers to perform customs revenue functions to the Secretary of Homeland Security.
The applicable regulations regarding the in-bond system issued under the above authorities are set forth in title 19 of the Code of Federal Regulations (19 CFR), Parts 18, 122, and 123. Part 18 covers “Transportation in bond and merchandise in transit;” part 122 covers “Air Commerce regulations;” and part 123 covers “Customs relations with Canada and Mexico.”
The CBP regulations provide for several types of in-bond entries. The most commonly used in-bond entries are: Immediate Transportation (IT), Transportation and Exportation (T&E), and Immediate Exportation (IE). An IT entry allows merchandise, upon its arrival at a U.S. port, to be transported to another U.S. port, where a subsequent entry must be filed.
This Notice of Proposed Rulemaking (NPRM) addresses certain weaknesses in the in-bond system identified by the Government Accountability Office (GAO) in a report to Congress dated April 2007 (GAO Report).
The GAO observed that the in-bond regulations provide unusual flexibility for the trade community. For example, the GAO noted that the regulations currently allow carriers from 15 to 60 days, depending on the mode of shipment, to reach their final destination and allow carriers to change a shipment's final destination without notifying CBP. The GAO also concluded that the in-bond system collects inadequate information about the in-bond merchandise, thus undermining CBP's efforts to manage associated security risks and ensure proper targeting of inspections.
In response to the GAO report, CBP conducted an internal audit, formed a working group comprised of CBP in-bond experts, and worked closely with the trade community to identify solutions to the in-bond system's regulatory weaknesses. This NPRM reflects those deliberations and addresses the GAO's concerns by proposing various amendments to the in-bond regulations. The specific changes to the regulations are discussed in Section III. In conjunction with the proposed regulatory changes, CBP is also in the process of expanding and modernizing the capabilities of its centralized commercial trade processing system, the Automated Commercial Environment (ACE). This expansion and modernization of ACE will facilitate the implementation of the proposed regulatory changes. To eliminate errors in reporting overdue in-bond
This document proposes to revise and modernize part 18 and some other parts of the regulations to change the in-bond process from a paper dependent entry process to an automated paperless process. In addition to modernizing the regulations to meet the realities of today's real time shipping environment, the proposed amendments are designed to provide CBP with the necessary tools to better track in-bond merchandise, which is vital to security and enforcing trade compliance. Among the various changes, CBP is proposing the following five major changes to the in-bond process: (1) Except for merchandise transported by pipeline, eliminate the paper in-bond application (CBP Form 7512) and require carriers or their agents to electronically file the in-bond application, (2) require additional information on the in-bond application including the six-digit Harmonized Tariff Schedule number, if available, and information relevant to the safety and security of the in-bond merchandise, (3) establish a 30-day maximum transit time to transport in-bond merchandise between United States ports, for all modes of transportation except pipeline, (4) require carriers to electronically request permission from CBP before diverting the in-bond merchandise from its intended destination port to another port, and (5) require carriers to report the arrival and location of the in-bond merchandise within 24 hours of arrival at the port of destination or port of export. At this time, CBP is not proposing to change the in-bond procedures found in the air commerce regulations at 19 CFR part 122, subparts J and L, except to change the specified maximum transit and export times to conform to the proposed changes in Part 18. Any other proposed changes to those subparts will be done in a separate rulemaking.
For merchandise to be transported in-bond, currently the carrier or designated person must obtain a bond and submit an entry document to the appropriate CBP official.
Paper filing raises security issues because it impedes CBP's ability to consider relevant data about the in-bond merchandise and the in-bond movements on a real-time basis. After the CBP Form 7512 is submitted, a CBP officer must manually input the data into the computer system and then manually close the in-bond transaction records once the in-bond merchandise is entered or exported, a time consuming and costly process. In addition, the lack of information about in-bond movements on a real-time basis makes it difficult for CBP to adequately track what merchandise is moving in-bond, where the goods are, or whether any illegal diversions have occurred. The GAO found, and CBP agrees, that due to the large volume of records and CBP's limited resources, the use of the paper form impedes risk management. In addition, the current paper-based system makes it difficult to target and detect violators, thereby impeding CBP's ability to hold carriers accountable when they fail to adhere to the in-bond requirements. Although some in-bond applications are currently transmitted electronically through the Automated Commercial System (ACS), electronic filing is not mandatory.
To address these issues, CBP proposes to generally require carriers and other authorized persons to submit in-bond applications electronically using a CBP-approved electronic data interchange (EDI) system.
ACS will not be able to support all the functionality required to implement the proposed new requirements for in-bond filers described in detail below, such as the requirements for in-bond filers to provide additional data and information on the in-bond application, to update the in-bond record, to submit and update all diversion requests and CBP's approval of the diversion requests, and to provide the location of the merchandise when reporting arrivals. Therefore, CBP intends to designate ACE as the CBP-approved EDI system for submitting the in-bond application and other information that is required to be submitted under this proposal via a CBP-approved EDI system.
The current regulations generally require only limited information on the in-bond document (CBP Form 7512). In most cases, only a description and quantity of the merchandise are required.
The GAO found that the information that CBP collects on the CBP Form 7512 often lacks sufficient details pertaining to the imported merchandise. GAO noted that importers and shipping agents typically provide imprecise and vague descriptions of the cargo based on the information provided for insurance purposes. The GAO found that this diminishes CBP's ability to assess risks and monitor trade volume and value, and hampers CBP's ability to effectively target trade and revenue violations.
CBP agrees with GAO's observations and concerns. CBP is also of the view that the more detailed information on the in-bond application will enable CBP to better ascertain whether the merchandise to be transported in-bond presents any health, safety, or
This new information combined with the HTS number or the enhanced description, in the event the HTS number is not available, will enable CBP to better monitor the movement and required disposition of in-bond merchandise. It will also enable CBP to accurately and timely identify other agencies' jurisdiction over the admissibility of the in-bond merchandise.
These new requirements are reflected in the proposed amendment to the regulations under 19 CFR 18.1(d), except for the container/conveyance seal requirement, which is reflected in section 18.4.
Under the current regulations, the time period to transport in-bond merchandise from the origination port to the destination port, or to the port of export, varies depending on the mode of transit. Currently, in-bond merchandise transported by truck must be delivered within 30 days.
CBP believes that having different time frames for each mode of transportation is confusing and burdensome to both CBP and the trade community. This is due to the fact that cargo is often transported through the in-bond system by more than one mode of transportation. In some cases, in-bond cargo is moved by air, sea, and truck. The set of varied time frames is confusing in this multi-modal environment and creates uncertainty as to which time frame applies. As a result, the required time frames are difficult to enforce. Moreover, the lengthy 60-day time period for sea vessels is not appropriate in today's environment where the supply chain relies on rapid deliveries. During this period, the in-bond shipments are often unaccounted for, and transactions are open for too long a period of time, hindering CBP's enforcement and targeting efforts. Therefore, CBP proposes to harmonize the time limits across all modes of transportation, except for pipeline shipments, which will continue to have no time limit.
After consultations with members of the trade community and observing transportation patterns, CBP has concluded that the 30-day time limit now applicable to truck shipments is a reasonable time period that can be applied for all modes of transportation (except pipeline shipments) and that this time period addresses CBP's security concerns. Therefore, this document proposes to amend 19 CFR to harmonize the maximum time limits across all modes of transportation to 30 days. Under the proposal, subject to certain exceptions, the merchandise must be delivered to CBP at the port of destination or export within 30 days from the date CBP authorizes the in-bond movement. This is a change from the current regulations that measure the time frame for delivery from the date the merchandise was delivered to the forwarding carrier. This change will provide transparency and facilitate compliance. This uniform 30-day standard will enable CBP to better track in-bond shipments and will often enable CBP to ascertain at an earlier time point whether a shipment has been improperly diverted.
Under the current regulations, in-bond merchandise that is in transit or that has reached the destination port or port of export may be diverted to a new destination port or port of export. With some exceptions, prior application and CBP approval of the diversion is not required.
The current diversion procedures make it virtually impossible for CBP to identify the ultimate destination of a diverted shipment and to determine whether the merchandise reaches that destination. This presents a security risk, a risk of circumvention of other agencies' admissibility requirements, and a risk that proper duties are not collected. In its report, the GAO noted several instances where in-bond merchandise was diverted without the payment of duties. For example, the GAO reported that “the United States experienced an estimated $100 million loss in trade revenue due to more than 7,500 in-bond shipments of apparel that were diverted from Los Angeles to U.S. commerce, from September 1999 through September 2002.”
CBP agrees that tighter control of cargo transiting between ports, including in-bond merchandise that will be diverted to a different port, is critical to security and is necessary to ensure the proper collection of duties, and to protect the health and safety of consumers.
To address these issues, CBP proposes to amend section 18.5 to require in-bond carriers and other applicable parties to electronically request permission from CBP prior to diverting the imported merchandise to another port. CBP will run the diversion request through its systems to verify other agency requirements and to assess risk. The requestor will receive an electronic response from CBP either authorizing the diversion or, if it is not authorized, indicating the reason for the denial of the diversion request.
CBP also proposes to amend sections 18.2 and 18.5 to close a loophole regarding in-transit times. Under the current regulations, the filing of a new transportation entry has the effect of allowing the carrier additional time to transport the cargo. Under the proposed amendments, neither diversion to another port nor the filing of a new in-bond application extends the transit time. In either case, the movement of diverted merchandise must be completed within the original 30 day period.
The current regulations require the carrier to report to CBP the arrival of any portion of the in-bond shipment promptly, but no more than two working days after the arrival of the merchandise at the port of destination or the port of export. The carrier generally must manually surrender the in-bond document, CBP Form 7512, to the port director, as notice of arrival of the merchandise.
To allow for better tracking, CBP proposes to amend sections 18.2, 18.7 and 18.20 to require the delivering carrier to report the arrival of each in-bond shipment within 24 hours of the arrival of the merchandise at the port of destination or the port of export and to require the delivering carrier to transmit the notice of arrival electronically via a CBP-approved EDI system.
CBP is also proposing to amend the regulations at 19 CFR 18.1 by adding paragraph (j) to require the carrier, at time of arrival at the port of destination or the port of export, to electronically provide CBP with the physical location of the in-bond merchandise within the port. This will enable CBP to better monitor cargo in a high volume environment, and thus, to better enforce the in-bond requirements.
To ensure that bond principals and sureties are sufficiently informed of the bond conditions and limitations arising out of the above noted proposed change, CBP proposes to amend 19 CFR 113.63, paragraph (c)(1) to provide that the arrival of the merchandise must be reported within 24 hours after the arrival of the merchandise.
Entry for Immediate Exportation (IE) is often used when merchandise is unloaded from one conveyance and loaded onto a different conveyance for direct exportation from the U.S. CBP is proposing to amend section 18.25 to require that shipments arriving at a United States port by truck, for which an immediate exportation entry is presented as the sole means of entry, will be denied a permit to proceed and the truck may be turned back to the country from which it came or, at the discretion of the port director, the truck may be allowed to file a new entry. CBP is proposing this change due to the heavy volume of truck shipments arriving in the U.S. from a foreign destination that are entered as for immediate exportation and then promptly exported back to the country from where the shipment originated. This practice has led to a serious problem with congestion at certain ports and has monopolized CBP's limited targeting and enforcement resources at the most congested ports. In some cases, these IE entries were utilized to engage in fraudulent activities and to circumvent international trade laws. This proposed change conforms the regulations to current CBP policy prohibiting this practice.
This document proposes to amend section 18.4 to clarify the rules concerning sealing of conveyances by removing the underutilized and obsolete seal options that are no longer commercially necessary or operationally feasible and adding new requirements.
Specifically, CBP proposes to amend 19 CFR 18.4 to: (1) Require the carrier or other authorized party to seal the containers and/or conveyance with seals pursuant to 19 CFR 24.13 and 24.13a and to ensure that the seals remain intact until the cargo arrives at the port of destination or port of export; (2) require the carrier or other authorized party to transmit the container/conveyance seal numbers to CBP as part of the in-bond application pursuant to section 18.1(d); (3) provide for the assessment of liquidated damages against the carrier or other authorized party for any unauthorized removal of the seals; and (4) specify that only CBP may waive the seal requirement.
CBP is proposing to update or remove certain provisions in 19 CFR that will no longer be relevant when electronic filing is required.
For example, CBP proposes to delete paragraph 19 CFR 18.1(a)(1) from the regulations. This paragraph generally requires carriers to take receipt of the merchandise within 5 working days after presentation of an entry. For in-bond entries filed by paper, this time limit permits CBP officers to more easily verify the receipt of the merchandise by the carrier. Electronic filing will render this provision obsolete.
CBP also proposes to delete paragraphs 19 CFR 18.2(a)(2), (3), and (4), each of which generally requires a CBP officer to supervise the lading of merchandise delivered to a bonded carrier. Paragraph 18.2(a)(2) applies to merchandise delivered to a bonded carrier for transportation in-bond; paragraph 18.2(a)(3) pertains to merchandise delivered from a warehouse to a bonded carrier; and paragraph (a)(4) pertains to merchandise from a Foreign Trade Zone (FTZ) to a bonded carrier. CBP officers no longer physically supervise each lading. CBP has centralized its operations to reflect the great increase in trade volume that has transpired since these regulations were last amended. Under current policy, should a CBP officer wish to examine merchandise, a hold is placed
CBP also proposes to amend the regulations pertaining to splitting up a shipment for exportation. Under the current regulations, the splitting up of a shipment for exportation is permitted in specified instances: When exportation of a shipment in its entirety is not possible by reason of the different destinations to which portions of the shipment are destined; when the exporting vessel cannot properly accommodate the entire quantity; or in other similar circumstances. The regulations impose no time limits for the exportation of split shipments. The lack of a time limit combined with paper filing of the in-bond application make it virtually impossible for CBP to properly oversee the export of split shipments and to know whether split shipments are properly exported. To address this issue, CBP proposes to amend 19 CFR 18.24(b), to require that all split shipments must be initiated within two days of the date that the split shipment is authorized. The electronic filing of the in-bond application will also help CBP track split shipments.
CBP proposes to add a new section 18.0 that will describe the scope of part 18 and define terms that are regularly used in part 18. The defined terms are: Common carrier, Origination port, Port of destination, Port of diversion, and Port of export.
CBP also proposes several amendments to part 18 to ensure that the regulations are consistent with other existing provisions or current CBP policy, to address security concerns, and for clarification purposes.
For example, there is an inconsistency in the regulations regarding what kinds of transportation entries may be used to transport explosives. Although current section 18.11(a) generally prohibits the movement of explosives via an IT entry, section 18.21(d) allows for the movement of explosives via an IT entry provided the importer has first obtained a license or permit from the proper government agency.
CBP is also proposing to move paragraph 19 CFR 18.5(g), currently in the section on diversions, to its own section 19 CFR 18.46. This provision was added to the regulations as part of the Importer Security Filing and Additional Carrier Requirements rulemaking, commonly known as 10+2. That rule was published in the
Current paragraph 18.5(g) addresses the procedures to be followed when merchandise which, at the time of the transmission of the ISF, was intended to be entered as an immediate exportation (IE) or transportation and exportation (T&E), is entered instead as a consumption entry. It also addresses the procedures for the diversion of the in-bond merchandise. Under the regulation, if the in-bond movement will be diverted to a port other than the port of destination or export, or the IE or T&E is changed to a consumption entry, permission is needed from the port director at the port of origin which may only be granted upon receipt by CBP of a complete ISF filing.
CBP is proposing to amend 19 CFR 18.7, 18.12, 18.20, 18.25, and 18.26 to clarify the time limit for exporting or entering in-bond merchandise that has arrived at the port of destination or port of export. This will make it easier for CBP to verify that the in-bond merchandise was in fact either exported or entered. Specifically, CBP is proposing that in-bond merchandise that has arrived at the port of export or destination port must be exported, entered for consumption, or entered under another form of entry, no more than 15 days after the report of the arrival of the merchandise was submitted to CBP. Failure to enter or export the merchandise will result in the merchandise being subject to general order requirements under 19 CFR 4.37, 122.50, and 123.10, as applicable, and the assessment of liquidated damages as appropriate. In accordance with these changes section 18.12(a) is being amended to remove the provision requiring merchandise that has not been entered or exported within six months to be entered for consumption.
CBP is proposing to amend sections 18.7, 18.20, 18.25 and 18.26 to require the bonded carrier to update the in-bond record to reflect that merchandise has been exported and to specify that the port director may require evidence of exportation in accordance with the requirements of 113.55.
CBP is also proposing to remove the clause and legend in paragraph (f) of section 19.15 relating to flour exports to Cuba because the original basis for the provision, to facilitate compliance with the Cuban Reciprocity Treaty of 1902, is no longer applicable due to the termination of the treaty on August 21, 1963.
This document also proposes non-substantive amendments to 19 CFR to reflect the nomenclature changes made necessary by the transfer of the legacy U.S. Customs Service of the Department of the Treasury to the Department of Homeland Security (DHS) and DHS's subsequent renaming of the agency as U.S. Customs and Border Protection (CBP) on March 31, 2007.
• Paragraph (a) is new and mandates the filing of an in-bond entry in order to transport merchandise in-bond.
• Paragraph (b) lists the types of transportation entries and withdrawals and is derived from current section 18.10(a).
• Paragraph (c) states who can file an in-bond application and is derived from current section 18.11(b).
• Paragraph (d) requires the submission of an in-bond application via a CBP-approved EDI system for in-bond entry types and is derived from the current section 18.2(b).
○ Paragraph (d)(1) lists what information must be contained in the in-bond application.
Paragraph (d)(1)(i) requires the description of the merchandise, consisting of the six-digit tariff number, if available. CBP will also accept the eight or ten-digit HTS number. If the six digit HTS number is not available, then a detailed description that includes the exact nature of the merchandise with sufficient detail to allow CBP and other government agencies to determine if the merchandise is subject to a rule, regulation, law, standard or ban relating to health, safety or conservation, must be provided.
Paragraph (d)(1)(ii) requires that if the carrier or other responsible party submitting the in-bond application knows that the merchandise is subject to a rule, regulation, law, standard or ban relating to health, safety or conservation enforced by CBP or another government agency, a statement providing the rule, regulation, law, standard or ban to which the merchandise is subject to and the name of the government agency responsible for enforcing the rule, regulation, law, standard or ban, must be provided.
Paragraph (d)(1)(iii) requires that merchandise that is prohibited or subject to restricted importation in the U.S. must be identified accordingly.
Paragraph (d)(1)(iv) requires that certain textile articles be described in sufficient detail to allow CBP to estimate duties and taxes. This provision is derived and moved from current section 18.11(e).
Paragraph (d)(1)(v) requires that the description contain other identifying information such as a visa, permit, license, entry number, or other number, that has been issued by the U.S. government, foreign government or other issuing authority. This is a new requirement.
Paragraph (d)(1)(vi) requires that the quantity of the merchandise, to the smallest piece count, be provided. This is derived from current section 18.2(b).
Paragraph (d)(1)(vii) requires that the container and/or seal number be provided. This is a new requirement.
Paragraph (d)(1)(viii) requires that the ultimate destination, either in the U.S. or abroad, be provided. This is a new requirement.
○ Paragraph (d)(2) requires that the in-bond application be electronically transmitted to CBP via a CBP-approved EDI system and also requires that an in-bond application be filed for each conveyance transporting the shipment. This provision eliminates the option of filing a CBP Form 7512.
○ Paragraph (d)(3) requires that all in-bond applications be submitted before the merchandise departs the origination port named in the in-bond application. This is a new provision.
○ Paragraph (d)(4) provides that the initial bonded carrier, by filing the in-bond application, asserts that there is no discrepancy between the quantity of goods received from the importing carrier and the quantity of goods delivered to the initial bonded carrier. This provision is derived from the current section 18.2(b).
• Paragraph (e) requires a custodial bond on a CBP Form 301, containing the bond conditions set forth in 19 CFR 113.63, to transport merchandise in-bond. Currently, this requirement is included only in the section on direct exportation (section 18.25(b)). This new paragraph (e) applies to all types of in-bond entries.
• Paragraph (f) requires CBP authorization before merchandise can be transported in-bond and provides that movement authorization will be transmitted via a CBP-approved EDI system. This is a new provision.
• Paragraph (g)(1) provides CBP discretion to supervise the lading of merchandise delivered to a bonded carrier. This provision is derived from the current section 18.2(a)(2) and eliminates the requirement that CBP supervise the lading of in-bond merchandise, except in certain circumstances, and gives CBP the authority to exercise its supervision authority as necessary.
• Paragraph (g)(2) requires that the quantity of goods transported in-bond from a CBP bonded warehouse will be accounted for pursuant to 19 CFR 19.6. This requirement is contained in the current section 18.2(a)(3).
• Paragraph (g)(3) requires merchandise being delivered from a foreign trade zone to a bonded carrier for transportation in-bond to be supervised in accordance with the procedure set forth in section 146.71(a) of this chapter.
• Paragraph (h) provides that the in-bond filer or any party provided for in paragraph (c), with the permission of the in-bond filer, may update or amend the in-bond record using a CBP-approved EDI system. This is a new provision.
• Paragraph (i) provides the time frame for the transportation of merchandise being transported in-bond.
○ Paragraph (i)(1) requires merchandise being transported in-bond to be delivered to CBP at the port of destination or export within 30 days from the date CBP provides movement authorization to the in-bond applicant. This 30-day requirement is applicable to all in-bond movements, except pipeline movements. Under this provision, neither the diversion to another port nor the filing of a new in-bond application will extend the in-transit time. This requirement is derived from current section 18.2(c)(2). See discussion in III.C. above for a more detailed explanation.
○ Paragraph (i)(2) provides for an extension of the 30-day requirement in cases where it is anticipated that a shipment will not be capable of completing its transit within 30 days. It also provides that CBP may extend the in-transit period if delays are caused due to the examination or inspection of the merchandise by CBP or another government agency or for some other reason.
○ Paragraph (i)(3) provides that CBP or any other government agency with jurisdiction over the merchandise may shorten the in-transit time to less than 30 days and that notice of the shortened in-transit time will be provided with the movement authorization transmitted by CBP.
• Paragraph (j) mandates the delivering carrier to report, via a CBP-approved EDI system, the arrival of any portion of an in-bond shipment within 24 hours of arrival at the port of destination or port of export and subjects the carrier to liquidated damages and other applicable claims for failure to do so. It also requires the delivering carrier to notify CBP of the physical location of the merchandise within the port. This provision is derived from current section 18.2(d), but the 24-hour time period and the requirement to report the location of the merchandise is new.
• Paragraph (k) specifies that in-bond merchandise that has arrived at the port of destination or the port of export must be entered or exported within 15 calendar days from the date of arrival at the port of destination or port of export. On the 16th day it will become subject to general order requirements. This is a new provision.
• Paragraph (l) provides the requirements for processing merchandise that is regulated for purposes of health, safety and conservation, and merchandise that is restricted and prohibited, including narcotics and non-narcotics, explosives, and other prohibited articles. This paragraph is mostly comprised of provisions currently contained in part 18. This provision is applicable to all types of in-bond shipments.
○ Paragraph (l)(1) is a new provision that applies to all merchandise that is regulated for purposes of health, safety or conservation. It allows for the release of merchandise not in compliance with an applicable rule, regulation, law, standard, or ban relating to health, safety, or conservation, for transportation or exportation only upon the authorization of the government agency administering the rule, regulation, law, standard or ban, applicable to the merchandise.
○ Paragraph (l)(2)(i) is derived from the current section 18.21(a).
○ Paragraph (l)(2)(ii) is derived from current section 18.21(b).
○ Paragraph (l)(2)(iii) is derived from current section 18.21(c).
○ Paragraph (l)(2)(iv) is derived from current section 18.21(d) and allows for explosives to be entered for immediate transportation, for transportation and exportation, or for immediate exportation, as specified by the approving government agency. The in-bond entry of explosives is permissible pursuant to Treasury Decision 84–77.
○ Paragraph (l)(2)(v) is derived from current section 18.11(d).
• Paragraph (a) is derived from the current paragraph (c). The proposed paragraph (a) is separated into two paragraphs, the first allowing for the depositing of IT merchandise outside the port limits, and the second providing the procedures for doing so. The provisions of the current paragraph (a) are now encompassed in proposed sections 18.1(l)(2)(iv) and 18.1(l)(1).
• Paragraph (b) is derived from the current paragraph (f). The provisions in current paragraph (b) are now encompassed by proposed section 18.1(c).
• Paragraph (c) is derived from current paragraph (f).
• Current paragraph (d) concerning livestock is deleted because this provision is now encompassed in section 18.1a(l)(2)(v).
• Current paragraph (e) is deleted because this provision is now encompassed in sections 18.1(d)(1)(ii) and 18.1(l)(1) and (2).
• Current paragraph (h) is deleted.
• Current paragraph (i) is deleted.
• Paragraph (a) regarding the retention of goods on a dock is amended so that it is applicable to merchandise within the port limits, and not just merchandise on a dock. It is also amended by requiring an in-bond application to retain in-transit merchandise at the port to be filed via a CBP-approved EDI system and by allowing the consent of the owner of the premises to be provided by email or other electronic means. Additionally, it is amended by deleting the sentence stating that the port director may take possession of the merchandise at any time and replacing it with a sentence that addresses what happens when the merchandise remains on the dock beyond the time period authorized by CBP. It provides that merchandise which remains in the port limits without authorization is subject to general order requirements under §§ 4.37, 122.50, or 123.10 of this chapter, as applicable.
• Paragraph (b) regarding split shipments is amended by requiring the application to be filed via a CBP-approved EDI system.
• Paragraph (a) is derived from the current paragraph (a) and addresses the immediate exportation of prohibited merchandise and carnets. It replaces the reference to Form 7512 with in-bond application.
• Paragraph (b) is new and provides that shipments arriving at a U.S. port by truck, for which an immediate exportation entry is presented as the sole means of entry, will be denied a permit to proceed. It further provides that the truck may be turned back to the country from which it came or, at the discretion of the port director, may be allowed to file a new entry.
• Paragraph (c) requires in-bond merchandise entered for immediate exportation or transportation and exportation to be exported within 15 calendar days from the date of arrival at the port of export.
• Paragraph (d) is derived from the current paragraph (c) and is amended to reflect the changes in 15 CFR part 30 concerning the filing of Electronic Export Information.
• Paragraph (e) is derived from the current paragraph (d) and is largely unchanged.
• Paragraph (f) is derived from the current paragraph (e) and is amended to require the bonded carrier to update the in-bond record within 24 hours of exportation to reflect the exportation.
• Paragraph (g) is derived from the current paragraph (f) and is largely unchanged.
• Paragraph (h) is a new provision and provides that the transfer of articles by express shipment must be in accordance with the procedures set forth in section 18.22.
• Paragraph (a) is derived from the first three sentences of the current paragraph (a) and replaces the reference to Customs Form 7512 with an in-bond application. The current paragraph (b), which states that the merchandise shall be forwarded in accordance with the general provisions for transportation in bond, sections 18.1 through 18.8 is deleted because the new section 18.0 regarding the scope of part 18 makes this provision unnecessary.
• Paragraph (b) is derived from the last three sentences of the current paragraph (a) and replaces the reference to Customs Form 7512 with in-bond application.
• Paragraph (c) includes some minor wording changes.
• Paragraph (d) is revised to require that the bonded carrier cause the merchandise to be exported within 15 calendar days from the date of arrival at the port of export. (The current requirement is 30 days).
• Paragraph (e) is a new provision to require the bonded carrier to update the in-bond record within 24 hours of exportation to reflect the exportation and to specify that the port director may require evidence of exportation.
Executive Order 12866 (Regulatory Planning and Review; September 30, 1993) requires Federal agencies to conduct economic analyses of significant regulatory actions as a means to improve regulatory decision-making. Significant regulatory actions include those that may “(1) [h]ave an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities; (2) [c]reate a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) [m]aterially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) [r]aise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.” It has been determined that this rule is not a significant regulatory action.
Under the requirements of the Regulatory Flexibility Act of 1980 as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (RFA/SBREFA) and E.O. 13272, titled “Proper Consideration of Small Entities in Agency Rulemaking,” agencies must consider the potential impact of regulations on small businesses, small governmental jurisdictions, and small organizations during the development of their rules. CBP is required to prepare a regulatory flexibility analysis and take other steps to assist small entities, unless the Agency certifies that a rule will not have a “significant economic impact on a substantial number of small entities.”
The types of entities subject to the rule's requirements include originating or bonded carriers, brokers, and other supply chain entities (e.g., exporters, manufacturers and suppliers, cargo consolidators, freight forwarders, 3PLs, and CFS) involved in the transaction filing, conveyance, and arrivals reporting of in-bond goods. If the initial screening analysis (discussed below) indicates that the rule might significantly affect a substantial number of small entities, CBP is required to conduct an Initial Regulatory Flexibility Analysis (IRFA) to further assess these impacts.
Based on FY 2007 in-bond shipment data, we estimate at least 6,180 trade entities could be affected by the rule, including 5,081 non-air carriers (sea vessel, rail, and truck carriers), between 212 and 221 air carriers, and possibly at least 870 other entities (e.g., freight forwarders, cargo consolidators, 3PLs, brokers, and CFS). The specific requirements of the rule (file in-bond transactions electronically, report in-bond arrivals electronically, provide additional data elements, request diversions, and meet allowable in-bond transit times) will affect all of these entities in some way. CBP lacks the data necessary to quantify the incremental cost of the rule or differentiate these costs by entity type, including size and nationality (many of the entities affected are likely foreign). Instead, we discuss these costs qualitatively. The following exhibit lists various alternatives CBP considered in developing this rule and characterizes their costs.
To determine whether a substantial number of small entities would be affected by the rule, we ideally would have employment and revenue information and data for all affected entities. The SBA defines entities as “small” if they fall below certain size standards in their industry (as defined by a North American Industry Classification System (NAICS) Code), such as the number of employees or average annual receipts.
As a result, we use national data on entities in the affected industries from the SBA to determine whether a substantial number of small entities are likely to be affected by the rule. Use of these data is imperfect because not all entities included in the SBA data set participate in the processing and movement of in-bond goods. Based on these data, nearly all of the entities in all industry groups likely to be affected by the proposed rule are small. CBP concludes, therefore, that a substantial number of small entities are likely to be affected by the proposed rule. CBP has characterized but can not estimate the potential costs to entities of complying with the rule as proposed. As a result, we cannot quantify the impact on small entities. We, therefore, conclude that the rule may significantly affect a substantial number of small entities, and provide a summary of the IRFA prepared to further assess these impacts.
The description of the proposed requirements, the legal basis for the proposed rule, and the number and types of entities affected have been described elsewhere in this preamble and are not repeated here.
The reporting and recordkeeping skills needed are professional skills necessary for preparation of electronic in-bond transactions, arrivals notifications, and diversion requests. These include basic administrative, recordkeeping, and information technology skills used to manage data transaction, shipment, manifest, security, and other data used in the commercial supply chain environment, along with a working knowledge of import shipment arrangements, brokerage, conveyance/shipping, consolidation, and customs procedures and regulation.
CBP is unaware of other relevant Federal rules that may duplicate, overlap or conflict with the proposed rule.
CBP does not at this time identify any significant regulatory alternatives to the rule that specifically address small entities while also meeting the rule's objective, which is to improve CBP's ability to regulate, track, and control in-bond cargo and to ensure that proper duties are paid or that the in-bond merchandise is exported. As described above, we evaluated three regulatory alternatives to consider changes in the in-bond requirements, including those that minimize the incremental cost burden to carriers, brokers, and agents, including small entities.
Though we cannot determine the precise number of small entities affected by the rule, we conclude that the number will be substantial, including small carriers, brokers, and other entities involved in the transaction filing, conveyance, and arrivals reporting of in-bond goods. However, based on the data limitations discussed in this chapter and the sources of uncertainty discussed below, we are uncertain whether the costs borne by these small entities (e.g., filing in-bond transactions electronically, providing additional in-bond shipment data and information, requesting diversions electronically, reporting in-bond arrivals electronically within 24 hours) will be significant. Therefore, based on the results of this analysis, CBP believes that the rule may have a significant economic impact on a substantial number of small entities. As a result, CBP has prepared an IRFA and seeks comments on this conclusion. The complete “IFRA” can be found in the docket for this rulemaking:
Title II of the Unfunded Mandate Reform Act of 1995 (UMRA) requires agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. This proposed rule is exempt from these requirements under 2 U.S.C. 1503 (Exclusions) which states that UMRA “shall not apply to any provision in a bill, joint resolution, amendment, motion, or conference report before Congress and any provision in a proposed or final Federal regulation that is necessary for the national security or the ratification or implementation of international treaty obligations.”
In accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104–13, 44 U.S.C. 3507) the collections of information for this NPRM are included in an existing collection for CBP Form 7512 and 7512A (OMB control number 1651–0003). An agency may not conduct, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number assigned by OMB.
The estimated burden hours related to CBP Form 7512 and 7512A for OMB Control number 1651–0003 are as follows:
The burden hours in this collection have been updated to reflect revised and updated estimates of filers of CBP Form 7512. These most recent data available are also used in the Regulatory Assessment summarized above.
This proposed regulation is being issued in accordance with 19 CFR 0.1(a)(1) pertaining to the Secretary of the Treasury's authority (or that of his delegate) to approve regulations related to certain customs revenue functions.
Customs duties and inspection, Exports, Freight, Harbors, Maritime carriers, Oil pollution, Reporting and recordkeeping requirements, Vessels.
Caribbean Basin initiative, Customs duties and inspection, Exports, Reporting and recordkeeping requirements.
Customs duties and inspection, Reporting and recordkeeping requirements.
Common carriers, Customs duties and inspection, Exports, Freight, Penalties, Reporting and recordkeeping requirements, and Surety bonds.
Customs duties and inspection, Exports, Freight, Reporting and recordkeeping requirements, Surety bonds, Warehouses, Wheat.
Common carriers, Customs duties and inspection, Exports, Freight, Laboratories, Reporting and recordkeeping requirements, Surety bonds.
Common carriers, Customs duties and inspection, Exports, Freight, Penalties, Reporting and recordkeeping requirements, and Security measures.
Canada, Customs duties and inspection, Freight, International boundaries, Mexico, Motor carriers, Railroads, Reporting and recordkeeping requirements, Vessels.
Customs duties and inspection, Reporting and recordkeeping requirements.
Canada, Customs duties and inspection, Mexico, Reporting and recordkeeping requirements.
Customs duties and inspection, Reporting and recordkeeping requirements.
Customs duties and inspection, Reporting and recordkeeping requirements, Warehouses.
Administrative practice and procedure, Customs duties and inspection, Exports, Foreign trade zones, Penalties, Petroleum, Reporting and recordkeeping requirements.
Cigars and cigarettes, Cotton, Customs duties and inspection, Fruit juices, Laboratories, Metals, Oil imports, Reporting and recordkeeping requirements, Sugar.
Administrative practice and procedure, Canada, Customs duties and inspection, Exports, Imports, Mexico, Reporting and recordkeeping requirements, Trade agreements.
For the reasons set forth in the preamble, it is proposed to amend parts 4, 10, 18, 113, 122, 123, 141, 142, 143, 144, 146, 151, and 181 of title 19 of the Code of Federal Regulations as set forth below.
1. The general authority citation for part 4 continues to read as follows:
5 U.S.C. 301; 19 U.S.C. 66, 1431, 1433, 1434, 1624, 2071 note; 46 U.S.C. 501, 60105.
2. In § 4.82, revise paragraph (b) to read as follows:
(b) The master must also present to the port director a coastwise Cargo Declaration in triplicate of the merchandise to be transported via the foreign port or ports to the subsequent ports in the United States. It must describe the merchandise and show the marks and numbers of the packages, the names of the shippers and consignees, and the destinations. The port director will certify the two copies and return them to the master. Merchandise carried by the vessel in bond under a transportation entry pursuant to part 18 of this chapter is not to be shown on the coastwise Cargo Declaration.
3. The general authority citation for part 10 continues to read as follows:
19 U.S.C. 66, 1202 (General Note 3(i), Harmonized Tariff Schedule of the United States (HTSUS)), 1321, 1481, 1484, 1498, 1508, 1623, 1624, 3314.
4. In § 10.60, revise paragraphs (a) and (d) to read as follows:
(a) Withdrawals from warehouse shall be made on CBP Form 7501. Each withdrawal must contain the statement prescribed for withdrawals in § 144.32 of this chapter and all of the statistical information as provided in § 141.61(e) of this chapter. Withdrawals from continuous CBP custody elsewhere than in a bonded warehouse must be made by filing an in-bond application pursuant to part 18 of this chapter, except as provided for by paragraph (h) of this section. When a withdrawal of supplies or other articles is made which may be used on a vessel while it is proceeding in ballast to another port as provided for by § 10.59(a)(3), a notation of this fact shall be made on the withdrawal and the name of the other port given if known.
(d) Except as otherwise provided in § 10.62b, relating to withdrawals from warehouse of aircraft turbine fuel to be used within 30 days of such withdrawal as supplies on aircraft under § 309, Tariff Act of 1930, as amended, when the supplies are to be laden at a port other than the port of withdrawal from warehouse, they shall be withdrawn for transportation in bond to the port of lading by filing an in-bond application pursuant to part 18 of this chapter. The procedure shall be the same as that prescribed in 144.37 of this chapter.
5. The general authority citation for part 12 continues to read as follows:
5 U.S.C. 301; 19 U.S.C. 66, 1202 (General Note 3(i), Harmonized Tariff Schedule of the United States (HTSUS)), 1624.
6. Revise § 12.5 to read as follows:
When imported merchandise, the subject of § 12.1, is shipped to another port for reconditioning or exportation, such shipment must be made in the same manner as shipments in bond in accordance with the requirements of part 18 of this chapter.
7. In § 12.11, revise paragraph (b) to read as follows:
(b) Where plant or plant products are shipped from the port of first arrival to another port or place for inspection or other treatment by a representative of the Animal and Plant Health Inspection Service, Plant Protection and Quarantine Programs and all CBP requirements for the release of the merchandise have been met, the merchandise must be forwarded as an in-bond shipment pursuant to part 18 of this chapter to the representative of the Animal and Plant Health Inspection Service, Plant Protection and Quarantine Programs at the place at which the inspection or other treatment is to take place. No further release by the port director will be required.
8. Revise part 18 to read as follows:
5 U.S.C. 301; 19 U.S.C. 66, 1202 (General Note 3(i), Harmonized Tariff Schedule of the United States), 1551, 1552, 1553, 1623, 1624; Section 18.1 also issued under 19 U.S.C. 1484, 1557, 1490; Section 18.2 also issued under 19 U.S.C. 1551a; Section 18.3 also issued under 19 U.S.C. 1565; Section 18.4 also issued under 19 U.S.C. 1322, 1323; Section 18.7 also issued under 19 U.S.C. 1490, 1557; 1646a; Section 18.11 also issued under 19 U.S.C. 1484; Section 18.12 also issued under 19 U.S.C. 1448, 1484, 1490; Section 18.13 also issued under 19 U.S.C. 1498(a); Section 18.14 also issued under 19 U.S.C. 1498. Section 18.25 also issued under 19 U.S.C. 1490. Section
(a)
(b)
(a)
(b)
(1) Entry for immediate transportation (IT).
(2) Warehouse or rewarehouse withdrawal for immediate transportation.
(3) Warehouse or rewarehouse withdrawal for immediate exportation or for transportation and exportation.
(4) Entry for transportation and exportation (T&E).
(5) Entry for immediate exportation (IE).
(6) Entry of vessel and aircraft supplies for immediate exportation (IE) or for transportation and exportation (T&E).
(7) Entry of vessel and aircraft supplies for transportation and exportation (T&E).
(c)
(1) The carrier that brings the merchandise to the origination port;
(2) The carrier that is to accept the merchandise under its bond or a carnet for transportation to the port of destination or the port of export; or
(3) Any person who has a sufficient interest in the merchandise as shown by the bill of lading or manifest, a certificate of the importing carrier, or by any other document satisfactory to CBP.
(d)
(1)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(2)
(3)
(4)
(e)
(f)
(g)
(2)
(3)
(h)
(i)
(2)
(3)
(j)
(k)
(l)
(2)
(ii)
(iii)
(iv)
(v)
(a)
(2)
(3)
(b)
(a)
(b)
(c)
(d)
(2)
(e)
(a)
(2)
(ii) Examples of situations where CBP my authorize a waiver of the sealing requirement include when the compartment or conveyance cannot be effectively sealed, as in the case of merchandise shipped in open cars or barges, on the decks of vessels, or when it is known that any seals would necessarily be removed outside the jurisdiction of the United States for the purpose of discharging or taking on cargo, or when it is known that the breaking of the seals will be necessary to ventilate the hatches.
(3)
(b)
(2) Merchandise moving under cover of a carnet may not be consolidated with other merchandise.
(c)
(d)
(1)(i)
(A) Durably marked with the name and address of the owner, particulars of tare, and identification marks and numbers, and
(B) Constructed and equipped as outlined in Annex 1 to the Customs Convention on Containers, as evidenced by an accompanying unexpired certificate of approval in the form prescribed by Annex 2 to that Convention or by a metal plate showing design type approval by a competent authority.
(ii)
(A) Durably marked with the name and address of the owner, particulars of tare, and identification marks and numbers,
(B) Constructed and equipped as outlined in Annex 6 to the TIR Convention, as evidenced by an accompanying unexpired certificate of approval in the form prescribed by Annex 8 to that Convention, or by a metal plate showing design type approval by a competent authority, and
(C) If the container or road vehicle hauling the container has affixed to it a rectangular plate bearing the letters “TIR” in accordance with Article 31 of the TIR Convention.
(2)
(i) Durably marked with the name and address of the owner, particulars of tare, and identification marks and numbers,
(ii) Constructed and equipped as outlined in Annex 3 to the TIR Convention, as evidenced by an accompanying unexpired certificate of approval in the form prescribed by Annex 5 to that Convention, or by a metal plate showing design type approval by a competent authority, and
(iii) If the road vehicle has affixed to it a rectangular plate bearing the letters “TIR” in accordance with Article 31 of the TIR Convention.
(3)
(4)
(a)
(b)
(c)
(d)
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(a)
(2)
(3)
(b)
(c)
(a)
(b)
(2)
(c)
(d)
(ii) Within 3 months from the date demand for payment is made by the port director as provided by § 18.6(e), the guaranteeing association must pay the amount claimed, except that if the amount claimed exceeds the liability of the guaranteeing association under the carnet (see § 114.22(d) of this chapter), the carrier must pay the excess. The amount paid will be refunded if, within a period of 1 year from the date on which the claim for payment was made, it is established to the satisfaction of the Commissioner of CBP that no irregularity occurred. CBP may cancel liquidated damages assessed against the guaranteeing association to the extent authorized by paragraph (c) of this section.
(2)
The carrier or any of the parties named in § 18.1(c) must, in accordance with the filing requirements of § 18.1, submit a new in-bond application in order to forward or return merchandise from the port of destination or port of export named in the original in-bond application, or from the port of diversion, to any another port. If the merchandise is moving under cover of a carnet, the carnet may be accepted as a transportation entry.
(a)
(b)
(a)
(2) The carrier or any of the parties named in § 18.1(c) must request, via a CBP-approved EDI system, permission to transport the merchandise in-bond. Before permission will be granted by CBP, the importer must stipulate in the in-bond application that within 24 hours after the arrival of any part of the merchandise or baggage to a place outside the port of entry, the importer will file an entry for the shipment and will comply with the provisions of § 151.9 of this chapter. Authorization for the movement of merchandise will be transmitted via a CBP-approved EDI system.
(b)
(c)
(a)
(b)
(c)
(d)
(a)
(b)
The baggage of any person in transit through the United States from one foreign country to another may be shipped over a bonded route for exportation. Such baggage must be shipped under the regulations prescribed in § 18.13. See § 123.64 of this chapter for the regulations applicable to baggage shipped in transit through the United States between points in Canada or Mexico.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(a)
(b)
(a) The carrier or any of the parties provided for in § 18.1(c) must notify CBP of a change of the foreign destination that was provided in the original in-bond application by updating the in-bond record via a CBP-
(b) Merchandise received at the anticipated port of export may be entered for consumption, warehouse, FTZ or any other form of entry, and is subject to all the conditions pertaining to merchandise entered at a port of first arrival.
(a)
(b)
(a)
(i) Merchandise in CBP custody for which no entry has been made or completed;
(ii) Merchandise covered by an unliquidated consumption entry; or
(iii) Merchandise that has been entered in good faith but is found to be prohibited under any law of the United States.
(2)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(a)
(b)
(c)
(d)
(e) Notice and Proof of Exportation. The bonded carrier must promptly, but no more than 24 hours after exportation, update the in-bond record via a CBP approved EDI system to reflect that the merchandise has been exported. The principal on any bond filed to guarantee exportation may be required by the port director to provide evidence of exportations in accordance with § 113.55 of this chapter within 30 days of exportation.
Port marks may be added by authority of the port director and under the supervision of a CBP officer. The original marks and the port marks must appear in all documentation pertaining to the exportation.
(a)(1)
(2)
(b)
(c)
(d)
(i) When the merchandise is to be transferred to one conveyance, a copy of the bill of lading or equivalent document issued by the pipeline operator to the shipper must be delivered to the person in charge of the conveyance for delivery to the appropriate CBP official at the port of destination or export; or
(ii) When the merchandise is to be transferred to more than one conveyance, a copy of the bill of lading or equivalent document issued by the pipeline operator to the shipper must be delivered to the person in charge of each additional conveyance, for delivery to the appropriate CBP official at the port of destination or exportation.
(2)
(3)
(e)
The provisions of §§ 18.41 through 18.45 apply only to merchandise to be exported under cover of a TIR carnet for the convenience of the U.S. exporter or other party in interest and do not apply to merchandise otherwise required to be transported in bond under the provisions of this chapter. Merchandise to be exported under cover of a TIR carnet for the convenience of the U.S. exporter or other party in interest may be transported with the use of the facilities of either bonded or nonbonded carriers.
At the port of exportation, the container or road vehicle, the merchandise, and the TIR carnet shall be made available to the port director. Any required export declarations shall be filed in accordance with the applicable regulations of the Bureau of the Census (15 CFR part 30) and the Export Administration (15 CFR chapter VII, subchapter C). The port director shall examine the merchandise to the extent he believes necessary to determine that the carnet has been properly completed and shall verify that the container or road vehicle has the necessary certificate of approval or approval plate intact and is in satisfactory condition. After completion of any required examination and
(a)
(b)
(c)
In the event that exportation is abandoned at any time after merchandise has been placed under cover of a TIR carnet, the carrier or agent shall deliver the carnet to the nearest CBP office or to the CBP office at the port of origin for cancellation (see § 114.26(c) of this chapter). When the carnet has been canceled, the carrier or agent may remove customs seals or labels and unload the container (or heavy or bulky goods) or road vehicle without customs supervision.
The provisions of §§ 18.41 through 18.44 do not require the director of the port of actual exportation to verify that merchandise moving under cover of a TIR carnet is loaded on board the exporting carrier.
For merchandise transported in bond, which at the time of transmission of the Importer Security Filing as required by § 149.2 of this chapter is intended to be entered as an immediate exportation (IE) or transportation and exportation (T&E) shipment, permission from the port director of the port of origin is needed to change the in-bond entry into a consumption entry. Such permission will only be granted upon receipt by CBP of a complete Importer Security Filing as required by part 149 of this chapter.
9. The general authority for part 19, CBP regulations continues to read as follows:
5 U.S.C. 301; 19 U.S.C. 66, 1202 (General Note 3(i), Harmonized Tariff Schedule of the United States), 1624;
10. In § 19.15, revise paragraphs (f) and (g)(1) to read as follows:
(f) The general procedure covering warehouse withdrawals for exportation must be followed in the case of articles withdrawn for exportation from a bonded manufacturing warehouse.
(g)(1) Articles may be withdrawn for transportation and delivery to a bonded storage warehouse at an exterior port under the provisions of section 311, Tariff Act of 1930, as amended (19 U.S.C. 1311), for the sole purpose of immediate export, except for distilled spirits which may be withdrawn under the provisions of section 311 for transportation and delivery to any bonded storage warehouse for the sole purpose of immediate export, or may be withdrawn pursuant to § 309(a) of the Tariff Act of 1930, as amended (19 U.S.C. 1309(a)). To make a withdrawal an in-bond application must be filed (see part 18 of this chapter), as provided for in § 144.36 of this chapter. A rewarehouse entry shall be made in accordance with § 144.34(b) of this chapter, supported by a bond on CBP Form 301, containing the bond conditions set forth in § 113.63 of this chapter.
11. The general authority for part 113, CBP regulations continues to read as follows:
19 U.S.C. 66, 1623, 1624.
12. In § 113.63, revise paragraph (c)(1) to read as follows:
(c)
(1) If a bonded carrier, to report in-bond arrivals and exportations in the manner and in the time prescribed by regulation and to export in-bond merchandise in the time periods prescribed by regulation.
13. The general authority for part 122, CBP regulations continues to read as follows:
5 U.S.C. 301; 19 U.S.C. 58b, 66, 1431, 1433, 1436, 1448, 1459, 1590, 1594, 1623, 1624, 1644, 1644a, 2071 note.
14. In § 122.118, revise (b) to read as follows:
(b)
15. In § 122.119, revise paragraph (b) to read as follows:
(b)
16. In § 122.120, revise paragraphs (c) and (k) to read as follows:
(c)
(k)
17. The general authority for part 123, CBP regulations continues to read as follows:
19 U.S.C. 66, 1202 (General Note 3(i), Harmonized Tariff Schedule of the United States (HTSUS)), 1431, 1433, 1436, 1448, 1624, 2071 note.
18. In § 123.31, revise paragraph (b) to read as follows:
(b)
19. Revise § 123.32 to read as follows:
An in-bond application must be submitted pursuant to part 18 of this chapter upon arrival of merchandise which is to proceed under the provisions of this subpart.
20. Remove and reserve § 123.34.
21. In § 123.42, revise paragraph (c)(1) and the introductory text of paragraph (d), to read as follows:
(c)
* * *
(d)
22. Revise § 123.52 (a) to read as follows:
(a)
23. Revise § 123.64(a) to read as follows:
(a)
24. The general authority for part 141, CBP regulations, continues to read as follows:
19 U.S.C. 66, 1414, 1448, 1484, 1624.
25. In § 141.61, revise paragraph (e)(1)(i)(A) to read as follows:
(e)
26. The general authority for part 142, CBP regulations, continues to read as follows:
19 U.S.C. 66, 1448, 1484, 1624.
27. In § 142.18, revise paragraphs (a)(1) and (2) to read as follows:
(a) * * *
(1) An entry for exportation filed using an in-bond application pursuant to part 18 of this chapter, or an application to destroy the merchandise under CBP supervision is made within 10 days after the time of entry, and the exportation or destruction is accomplished promptly, or
(2) An entry for transportation and exportation, filed using an in-bond application pursuant to part 18 of this chapter, is made within 10 days after the time of entry and domestic carriage of the merchandise does not conflict with the requirements of another Federal agency.
28. In § 142.28, revise paragraph (a)(2) to read as follows:
(a) * * *
(2) An entry for exportation or for transportation and exportation filed using an in-bond application pursuant to part 18 of this chapter, or an application to destroy the merchandise, is made within the specified time limit, and the exportation or destruction is accomplished promptly.
29. The general authority for part 143, CBP regulations, continues to read as follows:
19 U.S.C. 66, 1414, 1481, 1484, 1498, 1624, 1641.
30. In § 143.1, revise paragraph (c) to read as follows:
(c)
31. The general authority for part 144, CBP regulations, continues to read as follows:
19 U.S.C. 66, 1484, 1557, 1559, 1624.
32. In § 144.22, revise paragraph (b) to read as follows:
(b) In-bond application filed pursuant to part 18 of this chapter, for merchandise to be withdrawn for transportation, exportation, or transportation and exportation.
33. In § 144.36, revise paragraph (c), the introductory text of paragraph (d), paragraph (f), and paragraph (g)(4) to read as follows:
(c)
(2) Separate withdrawals for transportation from a single warehouse, via a single conveyance, consigned to the same consignee, and deposited into a single warehouse, can be filed using one in-bond application, under one control number, provided that the information for each withdrawal, as required in paragraph (d) of this section is provided in the in-bond application for certification by CBP. With the exception of alcohol and tobacco products, this procedure will not be allowed for merchandise that is in any way restricted (for example, quota/visa).
(3) The requirement that an in-bond application be filed and the information required in paragraph (d) of this section be shown will not be required if the merchandise qualifies under the exemption in § 144.34(c).
(d)
(f)
(g) * * *
(4) Forwarded to another port or returned to the port of origin in accordance with §§ 18.5(c) or 18.9 of this chapter;
34. In § 144.37, revise paragraphs (a) and (b), to read as follows:
(a)
(b)
(2)
35. The general authority for part 146, CBP regulations, continues to read as follows:
19 U.S.C. 66, 81a–81u, 1202 (General Note 3(i), Harmonized Tariff Schedule of the United States), 1623, 1624.
36. In § 146.62, revise paragraphs (a) and (b)(2) to read as follows:
(a)
(b) * * *
(2) An in-bond application for merchandise to be transferred to another port or zone or for exportation must provide that the merchandise covered is foreign trade zone merchandise; give the number of the zone from which the merchandise was transferred; state the status of the merchandise; and, if applicable, bear the notation or endorsement provided for in § 146.64(c), § 146.66(b), or § 146.70(c).
37. In § 146.66, revise paragraphs (a) and (b), and remove the words “Customs Form” and adding in their place the words “CBP Form” in paragraphs (c) and (d) to read as follows:
(a)
(b)
38. In § 146.67, revise paragraphs (b) and (c) to read as follows:
(b)
(c)
39. Revise § 146.68 to read as follows:
(a)
(b)
(c)
40. The general authority for part 151, CBP regulations, continues to read as follows:
19 U.S.C. 66, 1202 (General Note 3(i) and (j), Harmonized Tariff Schedule of the United States (HTSUS)), 1624.
41. Revise § 151.9 to read as follows:
When merchandise covered by an immediate transportation entry has been authorized by the port director to be delivered to a place outside a port of entry as provided for in § 18.11(a) of this chapter, the provisions of § 151.7 must be complied with to the same extent as if the merchandise had been delivered to the port of entry, and then authorized to be examined elsewhere than at the public stores, wharf, or other place under the control of CBP.
42. The general authority for part 181, CBP regulations, continues to read as follows:
19 U.S.C. 66, 1202 (General Note 3(i), Harmonized Tariff Schedule of the United States), 1624, 3314.
43. In § 181.47, revise paragraph (b)(2)(ii)(E) by removing the words “Customs Form 7512” and replacing them with the words “In-bond application submitted pursuant to part 18 of this chapter”.