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Agricultural Marketing Service, USDA.
Affirmation of interim rule as final rule.
The Department of Agriculture (USDA) is adopting, as a final rule, without change, an interim rule that suspended the quality, inspection, reporting, and assessment requirements specified under the California nectarine and peach marketing orders (orders). The interim rule suspended the handling regulations for the 2011 and subsequent marketing seasons relieving handlers of all regulatory burdens under the orders while USDA processes the terminations of the orders.
Effective July 22, 2011.
Jerry L. Simmons, Marketing Specialist, or Kurt J. Kimmel, Regional Manager, California Marketing Field Office, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA;
Small businesses may obtain information on complying with this and other marketing order regulations by viewing a guide at the following Web site:
This rule is issued under Marketing Agreement Nos. 916 and 917, both as amended (7 CFR parts 916 and 917), regulating the handling of nectarines and peaches grown in California, hereinafter referred to as the “orders.” The orders are effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601–674), hereinafter referred to as the “Act.”
The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866.
The handling of nectarines and peaches grown in California is regulated by 7 CFR parts 916 and 917, respectively. In early 2011, USDA conducted mandatory referenda among California nectarine and peach growers to determine if they favored continuation of their programs. The referenda results demonstrated a lack of grower support for continuing the orders. Thus, USDA intends to terminate the orders.
In an interim rule published in the
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601–612), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.
There are approximately 97 California nectarine and peach handlers subject to regulation under the orders, and about 447 growers of these fruits in California. Small agricultural service firms, which include handlers, are defined by the Small Business Administration as those having annual receipts of less than $7,000,000, and small agricultural growers are defined as those having annual receipts of less than $750,000 (13 CFR 121.201). A majority of these handlers and growers may be classified as small entities.
For the 2010 marketing season, the committees' staff estimated that the average handler price received was $10.50 per container or container equivalent of nectarines or peaches. A handler would have to ship at least 666,667 containers to have annual receipts of $7,000,000. Given data on shipments maintained by the committees' staff and the average handler price received during the 2010 season, the committees' staff estimates that approximately 46 percent of handlers in the industry would be considered small entities.
For the 2010 marketing season, the committees' staff estimated the average grower price received was $5.50 per container or container equivalent for nectarines and peaches. A grower would have to produce at least 136,364 containers of nectarines and peaches to have annual receipts of $750,000. Given data maintained by the committees' staff and the average grower price received during the 2010 season, the committees' staff estimates that more than 80 percent of the growers within the industry would be considered small entities.
This rule continues in effect the suspension of the quality, inspection, reporting, and assessment requirements for nectarines and peaches under the orders. This action is consistent with USDA's decision to seek termination of the nectarine and peach order provisions. Suspension of the requirements is expected to reduce the regulatory burden on handlers and growers of all sizes.
In accordance with the Paperwork Reduction Act of 1995, (44 U.S.C. Chapter 35), the orders' information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581–0189, Marketing Order Administration Branch
This rule will not impose any additional reporting or recordkeeping requirements on either small or large California nectarine or peach handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. In addition, USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule.
Comments on the interim rule were required to be received on or before June 17, 2011. No comments were received. Therefore, for the reasons given in the interim rule, we are adopting the interim rule as a final rule, without change.
To view the interim rule, go to:
This action also affirms information contained in the interim rule concerning Executive Orders 12866 and 12988, the Paperwork Reduction Act (44 U.S.C. Chapter 35), and the E-Gov Act (44 U.S.C. 101).
After consideration of all relevant material presented, it is found that the regulatory requirements suspended by the interim rule, (76 FR 21615, April 18, 2011), affirmed in this action, do not tend to effectuate the declared policy of the Act.
Marketing agreements, Nectarines, Reporting and recordkeeping requirements.
Marketing agreements, Peaches, Pears, Reporting and recordkeeping requirements.
Accordingly, the interim rule that amended 7 CFR parts 916 and 917 and that was published at 76 FR 21615 on April 18, 2011, is adopted as a final rule, without change.
Nuclear Regulatory Commission.
Final rule.
The U.S. Nuclear Regulatory Commission (NRC or the Commission) is amending its regulations governing the fitness for duty of workers at nuclear power plants. These amendments allow holders of nuclear power plant operating licenses the option to use a different method from the one already prescribed in the NRC's regulations for determining when certain nuclear power plant workers must be afforded time off from work to ensure that such workers are not impaired due to cumulative fatigue caused by work schedules.
You can access publicly available documents related to this document using the following methods:
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Howard Benowitz, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555;
On March 31, 2008, the NRC promulgated a final rule which substantially revised its regulations for fitness for duty (FFD) in Title 10 of the
In addition, by establishing clear and enforceable requirements for the management of worker fatigue, the 2008 amendments require nuclear power plant licensees to ensure that worker fatigue does not adversely affect public health and safety and the common defense and security. Among these fatigue management requirements is a minimum days off requirement, which requires licensees to manage cumulative fatigue by providing workers with a minimum number of days off over the course of a period not to exceed 6 weeks.
On September 3, 2010, the Nuclear Energy Institute (NEI) submitted a
The NEI requested, among other changes, that 10 CFR Part 26, Subpart I, be amended to replace the minimum days off requirements in § 26.205(d) with a performance-based objective, consisting of an average of 54 hours worked per week, averaged over a calendar quarter. The NEI also proposed changing the § 26.205(e)(1) annual assessment of actual hours worked and performance of individuals subject to the work hour controls to a quarterly assessment to provide a more frequent review of hours worked. The NEI proposed to eliminate the minimum days off requirements in § 26.205(d)(3) through § 26.205(d)(6), while the work hour limits and break requirements in § 26.205(d)(1)(i)–(iii) and (d)(2)(i)–(ii), respectively, would remain unchanged.
Separately from PRM–26–5, on September 23, 2010, the NEI submitted a request for enforcement discretion regarding the minimum days off provisions of 10 CFR Part 26. The request reiterated the NEI's opinion that the regulations that govern fatigue management impeded “many safety-beneficial practices at plant sites, adversely [impact] the quality of life of covered workers, and [result] in conflicts between rule requirements and represented bargaining unit agreements.” The letter requested that the NRC “exercise enforcement discretion from the [minimum days off] provisions of the rule” until the final disposition of PRM–26–5.
Mr. Erik Erb, a nuclear security officer at the Nine Mile Point Nuclear Station, submitted a petition for rulemaking (PRM–26–6) on August 17, 2010. Mr. Erb requested that the NRC amend 10 CFR Part 26, Subpart I, to decrease the minimum days off requirement for security officers working 12-hour shifts from an average of 3 days per week to an average of 2.5 or 2 days per week. This petition was endorsed by 91 security officers.
The NRC held a public meeting on November 18, 2010, to learn, directly from the affected stakeholders, more details about the unintended consequences of the minimum days off requirements. Although some of the stakeholders were comfortable with the minimum days off requirements in the 2008 final rule, the stakeholders at this public meeting claimed that the unintended consequences had diminished the safety benefits of the fatigue management provisions of 10 CFR part 26 and expressed the need for an alternative that was simpler and would provide greater scheduling flexibility. Additional public meetings were held on January 6, 2011, and January 25, 2011, to provide opportunities for stakeholders and the NRC staff to discuss alternatives to the minimum days off requirements.
In a February 8, 2011, public meeting, the NRC staff and stakeholders briefed the Commission on the implementation of the 10 CFR Part 26 fatigue management requirements. The nuclear power industry stakeholders conveyed many of the same concerns raised in the three public meetings. The NRC staff presented the scientific and technical bases for the requirements for managing cumulative fatigue and a proposal to address the concerns raised by the industry stakeholders. The NRC staff proposed a maximum average 54-hour work week, averaged over a 6-week rolling period, as an alternative to the § 26.205(d)(3) minimum days off requirements. The NRC staff and industry stakeholders generally agreed that this proposal could provide the relief sought by the industry while meeting the objectives of the minimum days off requirements. Other stakeholders were less certain that the NRC should consider proposals to change the requirements.
On March 24, 2011, the Commission issued a Staff Requirements Memorandum (SRM) that directed the NRC staff to conduct a rulemaking to provide an alternative to the minimum days off requirements that would be consistent with the proposal presented by the NRC staff at the February 8, 2011, briefing. The Commission limited the scope of the rulemaking to the alternative to the minimum days off requirements and instructed the NRC staff to consider the following in a separate rulemaking effort: (1) Other issues related to the petitions for rulemaking, (2) other changes to 10 CFR part 26, and (3) comments received in this rulemaking proceeding that are outside the limited scope of this rulemaking. The Commission also directed the staff to expedite this rulemaking and provide a 30-day public comment period for the proposed rule instead of the typical 75-day public comment period.
On April 25, 2011, consistent with the March 24, 2011, SRM, the NRC revised its Enforcement Policy to include an interim provision allowing licensees enforcement discretion for violations of § 26.205(d)(3) if the licensees implement an alternative approach to the minimum days off requirements (76 FR 22802). This alternative approach limits an individual's number of hours worked to a weekly average of 54 hours, calculated using a rolling window of up to 6 weeks. The enforcement discretion remains in place until the effective date of this final rule.
The NRC held public meetings on April 27, 2011, May 11, 2011, June 1, 2011, and June 23, 2011, to discuss implementation guidance for an alternative to the minimum days off requirements.
On May 16, 2011, consistent with the March 24, 2011, SRM, the NRC published notices that it would consider the issues raised in PRM–26–5 and PRM–26–6 in the planned “Quality Control/Quality Verification” rulemaking (Docket ID NRC–2009–0090) (76 FR 28191–28193).
The NRC issued a proposed rule on April 26, 2011, to amend 10 CFR Part 26 to provide licensees with an option for managing cumulative fatigue that differed from the minimum days off requirements in § 26.205(d)(3) (76 FR 23208). The proposed rule would have permitted licensees to maintain individuals' work hours at or below a weekly average of 54 work hours, calculated using a rolling period of up to 6 weeks, which would roll by no more than 7 consecutive calendar days at any time. On May 3, 2011, the NRC published a correction in the
The NRC received submittals from 10 commenters, which included 25 separate comments. Seven of the commenters supported the proposed rule's concept of providing the alternative method of managing
Comments from the UCS indicate that one reason it supports the alternative is that, unlike the minimum days off requirements, the alternative would apply the same requirement to all workers subject to the work hour controls, without regard to their specific duties. The UCS remarked that this approach is supported by science, in contrast to the minimum days off requirements, which apply to individuals based on their duties and the length of their shift schedules.
Notwithstanding that the UCS supports the proposed rule as written, the NRC disagrees with the position in the comment that the minimum days off requirements are not supported by science. The intent of both of the minimum days off and alternative requirements is to manage cumulative fatigue. As explained in section III.A of this document, one method of managing cumulative fatigue is to require that an individual have a minimum number of days off from work. The Statement of Considerations (SOC) for the 2008 10 CFR Part 26 final rule provides the scientific basis for these requirements. The 2008 SOC describes why the number of days off each individual must have depends, in part, on their duties and the length of their shifts.
Another method of managing cumulative fatigue is to limit the number of hours an individual works, which indirectly imposes days off. The alternative provided by this final rule offers this method. This approach provides a level of assurance of the management of cumulative fatigue that is comparable to the minimum days off requirements. Although individuals who perform certain duties, such as security personnel, could work more hours in a 6-week period under the alternative as compared to the minimum days off requirements, the potential for fatigue that could result from the increased hours should be offset by anticipated reductions in fatigue that will result from using an averaging period that advances by one week increments rather than by non-overlapping shift cycles. As noted elsewhere in this document, an averaging period that incrementally advances on a regular basis reduces the potential for front-loading and backloading successive weeks of long work hours. In addition, the alternative provides more flexibility for licensees to manage work hour schedules, thereby reducing the potential for fatigue caused by scheduling constraints. Implementing the alternative also reduces the administrative burden on licensees by having only one set of requirements for all covered workers.
The availability of the alternative does not diminish or call into question the efficacy of the minimum days off requirements. The implementation of either approach provides reasonable assurance that individuals will not be impaired due to cumulative fatigue.
In the proposed rule's SOC, the NRC sought comments and supporting rationale from the public on the following issue: Would the alternative approach provide assurance of the management of cumulative fatigue comparable to the current minimum days off requirements? Two commenters, Mr. Erb and the UCS, agreed that the alternative requirements would provide assurance that licensees could manage cumulative fatigue at a level that is comparable to the assurance provided by the minimum days off requirements. Mr. Erb also said that the alternative would help to alleviate the unintended consequences caused by the minimum days off requirements.
The NRC agrees with the commenters. As described in section III.A of this document, the alternative provides licensees with a method for managing cumulative fatigue that is different in several ways from the minimum days off requirements but provides a comparable level of assurance that covered workers will not be impaired from cumulative fatigue due to their work schedules. The alternative also should eliminate the unintended consequences of the minimum days off requirements by offering a simpler method for computing work hours and allowing licensees to be more flexible in how they schedule individuals' work hours.
Although Mr. Lawson did not directly respond to the question presented in the proposed rule's SOC, he stated that the alternative would ease the minimum days off restrictions and increase fatigue.
The NRC disagrees that the alternative would relax the cumulative fatigue management requirements. For the reasons given in section III.A of this document, the NRC has determined that the alternative approach provides assurance of the management of cumulative fatigue that is comparable to assurance provided by the minimum days off requirements.
Other commenters did not address this specific request for comment.
The NEI stated that the proposed rule language uses the terms “rolling period” and “rolling window” interchangeably, and the SOC for the proposed rule also uses the term “averaging period,” when referring to the 6-week maximum period over which the 54-hour per week average is to be calculated. The NEI suggested that the NRC use only the term “averaging period.”
The NRC agrees with the NEI that the terms are used interchangeably throughout the proposed rule's SOC but notes that the proposed rule language uses “averaging period” and “rolling period.” The NRC agrees that, to ensure clarity, one term should be used when referring to the 6-week maximum period over which the 54-hour per week average is to be calculated. That term is “averaging period.” The term “incremental period” is used in this document to describe the amount of time by which a licensee rolls forward, or incrementally advances, its averaging periods.
The NEI also recommended that the following words in proposed § 26.205(d)(7)(i) be removed: “which rolls by no more than 7 consecutive calendar days at any time.” The NEI contended that those words add a new requirement that (1) Was not discussed at the February 8, 2011, Commission briefing; (2) is not based on the technical and regulatory analysis performed by the NRC staff; (3) is inconsistent with the minimum days off requirements and its associated guidance, neither of which stipulates the duration of the rolling increment; and (4) would be outside the scope of the March 24, 2011, SRM. According to the NEI, this proposed rule language would result in an unintended consequence of preventing the rolling periods from being matched to the licensee's payroll schedules, thereby possibly resulting in rolling schedules
The NRC agrees in part and disagrees in part with the NEI comments. The words, “which rolls by no more than 7 consecutive calendar days at any time,” in proposed § 26.205(d)(7)(i), were not discussed at the February 8, 2011, Commission briefing. However, as noted by the NEI, the NRC and stakeholders discussed at public meetings how the averaging periods could be advanced on a weekly basis. The intent of the rule language in question was to establish the minimum and maximum periods by which a licensee could advance an averaging period. Thus, a licensee could advance its averaging period by as little as one day but by no more than one week, or 7 consecutive calendar days. Although licensees at the public meetings may have talked about advancing their averaging periods on a weekly basis, the NRC did not want to limit licensees' flexibility by requiring 1-week incremental periods.
More importantly, without having an upper limit on the length of the incremental period, licensees could advance their averaging periods on a 6-week basis, resulting in fixed 6-week schedules. An approach requiring a maximum weekly average of 54 work hours using fixed averaging schedules would allow more consecutive weeks of high levels of work hours than using averaging schedules that incrementally advance on a regular basis. Under the former type of schedule, a licensee could back-load one fixed schedule with long work hour weeks and front-load the next fixed schedule with long work hour weeks, resulting in several consecutive excessive work hour weeks and potentially cumulatively-fatigued individuals. The latter type of schedule limits the number of hours that can be worked in consecutive weeks because each week's hours affect the number of hours worked in the other weeks in the averaging period. By advancing the averaging period on a consistent basis, licensees must consider the impact of each week's work hours before and after each incremental advance. The use of fixed averaging schedules also would be inconsistent with the incrementally advancing averaging period concept considered in the NRC regulatory basis and with the NRC staff's statements to the Commission at the February 8, 2011, briefing.
The NRC agrees with the NEI that use of an incremental period that is shorter than 7 days could introduce unintended complexity to the implementation of the alternative. In some cases, such as when an averaging period ends 4 days before a unit outage is scheduled to begin, the licensee cannot advance the averaging period by a full incremental period of 7 days. The proposed rule would have required the use of an incremental period of less than 7 days. The NRC is revising the rule language to eliminate the requirement to advance an averaging period by fewer than 7 calendar days. The final rule requires licensees to advance averaging periods on a 7-day (
The NEI identified another unintended consequence of the words, “which rolls by no more than 7 consecutive calendar days at any time,” in proposed § 26.205(d)(7)(i). The definition of a day off contained in § 26.205(d)(3) states that a day off is a calendar day in which an individual does not start a work shift. For many licensees, this definition is used in computer software to count the work hours of a shift that begins at the end of a calendar day but ends during the next calendar day, as hours worked on the day the shift started as opposed to splitting the hours between the two days. The NEI claimed that the NRC's interpretation of this proposed rule language, as expressed at the May 11, 2011, public meeting, would impact this practice and cause an unnecessary change to the industry software.
The NRC agrees with the NEI's comment. At the May 11, 2011, public meeting, the NRC explained that when a shift begins near the end of a calendar day that also happens to be the last day of an averaging period, but that shift ends during the next calendar day (and, thus, the next averaging period), the proposed rule would have required licensees to: (1) Count the hours worked on the calendar day that was the end of the averaging period as hours worked during that averaging period; and (2) count the hours worked during that same shift but on the next calendar day as hours worked during the next averaging period. The NRC has added language to the final rule to clarify that when a shift starts at the end of a calendar day and concludes during the next calendar day, a licensee will have the option to consider the hours worked during that shift as if they were all worked on the day the shift started or count the hours on the calendar days the hours were actually worked. The licensee must choose only one option. Because the number of hours worked in an averaging period is averaged on a weekly incremental basis, hours counted in one averaging period instead of the next averaging period will still be taken into account in the weekly averaging calculation. In addition, this structure will not force upon licensees an undue burden of using a method for counting hours that is different from the way licensees currently count hours to determine a day off to comply with minimum days off requirements.
The NEI also commented that in the fourth paragraph in section III.C of the proposed rule's SOC, which includes a discussion of the force-on-force tactical exercise exception, the last sentence is inconsistent with the proposed rule language and the 2008 final rule. The NEI suggested that the paragraph should be revised to read: “exclude from the § 26.205(d)(7) calculations the shifts worked” instead of “exclude from the § 26.205(d)(7) calculations the hours worked.”
The NRC disagrees with this comment. The proposed rule would have allowed licensees to exclude the
The last paragraph in section III.C of the proposed rule's SOC addresses the applicability of EGM–09–008, “Enforcement Guidance Memorandum—Dispositioning Violations of NRC Requirements for Work Hour Controls Before and Immediately After a Hurricane Emergency Declaration,” dated September 24, 2009, to the proposed maximum average work hours alternative. The NEI requests that this paragraph include an explanation of whether licensees with exemptions from the minimum days off requirements could rely on those existing exemptions if they choose to adopt the maximum average work hours alternative.
The NRC agrees that the paragraph in question could benefit from further clarity. A licensee that has already been granted an exemption from § 26.205(d) before and immediately after a hurricane emergency declaration can rely on that exemption if it implements the requirements in the new § 26.205(d)(7). The final rule's SOC is also revised to provide further explanation of the conditions that must exist before the NRC staff may exercise enforcement discretion under EGM–09–008.
The NEI contends that the second sentence in proposed § 26.205(d)(7) is not necessary. That sentence reads: “Licensees voluntarily choosing to comply with the alternative maximum average work hours requirements in this paragraph are not relieved from complying with all other requirements in § 26.205 other than § 26.205(d)(3).” The NEI argues that there is nothing stated or implied in § 26.205(d)(7) that would lead one to conclude that § 26.205(d)(7) provides any relief from complying with all other requirements in § 26.205 other than those in § 26.205(d)(3).
The NRC agrees with the NEI's comment and has deleted the second sentence of § 26.205(d)(7) in the final rule, because it is unnecessary.
The APS commented that although the NRC analysis of the proposed alternative relied on a licensee's implementation of only the alternative for all covered workers, the proposed rule language does not prohibit implementation of both the minimum days off and alternative requirements at one site. The APS claimed that plant procedures and management tools have the capacity to implement either cumulative fatigue management approach. Because both methods are effective in controlling cumulative fatigue, the APS argued that licensees should be able to select the method that works best for a given covered work group. It also claimed that at the Palo Verde Nuclear Generating Station, not allowing split implementation may have the effect of delaying restoration of longstanding safety beneficial practices by approximately one year.
The NRC disagrees that the proposed rule language did not prohibit implementation of both the minimum days off and alternative requirements at one site. The APS pointed to the following language in proposed § 26.205(d)(3) to support its argument: “Licensees shall e
However, the NRC is clarifying the rule language to ensure that all licensees document, in their FFD policies and procedures, the set of requirements with which they will comply, without regard to whether they comply with the minimum days off or the alternative requirements. The proposed rule could have been read to require licensees to document their election only if they implemented the alternative. This change to the final rule results from the APS comment.
The NRC also disagrees that a licensee should be able to implement the minimum days off requirements and the alternative requirements simultaneously for different covered groups, even for less than one year. The NRC's determination that the proposed alternative is equivalent to the minimum days off requirements considered the collective advantages and disadvantages of having all individuals who are subject to the work hour controls under a single set of cumulative fatigue management requirements. Allowing licensees to implement the minimum days off and alternative requirements simultaneously would also create an undue burden for NRC inspectors and undue cost and burden for licensees. Moreover, during the public meetings and Commission briefing before the issuance of the proposed rule and in the request for enforcement discretion, industry stakeholders consistently requested swift relief from the minimum days off requirements for all covered workers. The industry stakeholders did not request relief from the minimum days off requirements for only certain covered groups of workers. By this final rule, which was produced on an expedited basis due to the compelling industry stakeholder needs, the NRC is providing an alternative to the minimum days off requirements for all covered workers. No change was made to the final rule as a result of this comment.
Mr. Lawson asserted that the work hour controls were issued to encourage licensees to adequately staff their plants, thereby reducing the effects of cumulative fatigue on plant operations. He stated that licensees have not hired more workers and won't hire more workers unless it is financially beneficial to do so. He argued that the proposed rule would provide relief from the work hour controls, thus removing any incentive for licensees to increase staffing.
The NRC disagrees with Mr. Lawson. The work hour controls were issued in 2008 to ensure against worker fatigue adversely affecting public health and safety and the common defense and security by establishing clear and enforceable requirements for the management of worker fatigue. The NRC requires that licensees comply with the requirements but does not direct licensees to satisfy these requirements by any particular means, such as by hiring more workers. Further, as stated in the SOC for this final rule, the alternative provides reasonable assurance of the management of cumulative fatigue that is comparable to the assurance provided by the minimum days off requirements. In doing so, the alternative does not provide relief from or relaxation of the minimum days off requirements. No change was made to the final rule as a result of this comment. Mr. Lawson also maintained that, as demonstrated by this rulemaking and the shortened public
Mr. Lawson contended that the alternative would allow licensees to give covered workers only one day off every 17 days, which, he said, the NRC admits could lead to fatigue. Nevertheless, the NRC proposed to permit this alternative. Mr. Lawson claimed that a violation of the alternative approach would result in either a “minor or non-cited violation,” which would not be much of “a deterrent to the type of abuse we had during [the period when the only industry-wide direction was based on Generic Letter 82–12, `Nuclear Power Plant Staff Working Hours'].”
The NRC agrees in part and disagrees in part with Mr. Lawson's comments. The alternative allows licensees to create work schedules that could result in cumulative fatigue. The industry representatives at the February 8, 2011, Commission briefing illustrated this point with an example of a schedule of four consecutive weeks of 72-hour work weeks, the most hours a licensee can schedule in a 7-day period under the work hour controls.
A schedule that provides an individual only 1 day off in 17 consecutive days under the alternative approach could result in cumulative fatigue. However, to limit an individual's number of days off to one in a 17-day period and still meet the 54-hour maximum weekly average, a licensee could not schedule an excessive number of work hours every week in the averaging periods containing that 17-day period. The NRC is also endorsing implementation guidance for licensees that summarizes this concern and reiterates each licensee's obligation to schedule work hours of covered workers consistent with the objective of preventing impairment from fatigue due to the duration, frequency, or sequencing of successive shifts as required by 10 CFR 26.205(c). Therefore, with the inherent self-limiting nature of a maximum weekly work hour average schedule, the use of regularly-repeating standard shift schedules by most licensees, site procedures that reinforce the requirement to effectively manage fatigue, and the other work hour controls in § 26.205(d)(1) and (d)(2), the risk of cumulative fatigue is low under the schedule posited by Mr. Lawson. No change was made to the final rule as a result of this comment.
Concerning Mr. Lawson's comment comparing the alternative approach to the work hour controls that existed before the 2008 final rule, the NRC has examined the enforceability of the previous regulatory framework applicable to worker fatigue, which included the non-legally-binding Generic Letter 82–12. As explained in the 2008 final rule's SOC, the broad and nonprescriptive provisions of the pre-2008 10 CFR part 26 and the technical specifications and license conditions pertaining to fatigue that existed at that time lacked clearly defined terms or measures of fatigue. This regulatory structure made it difficult for the NRC to enforce worker fatigue requirements and work hour limits in an effective, efficient, and uniform manner that would ensure that all licensees provided reasonable assurance that workers were able to safely and competently perform their duties. In contrast to that framework, the 2008 final rule established fatigue management program requirements that can be readily and consistently enforced. This final rule does not detract from that program but rather provides an optional means to achieve the goal of providing reasonable assurance of the management of cumulative fatigue. No change was made to the final rule as a result of this comment.
The UCS suggested that workers on 12-hour shifts would be restricted to working alternating 5-day (60 hours per week) and 4-day (48 hours per week) work weeks to adhere to the 54-hour average limit. The NRC disagrees that such a schedule would be the only permissible schedule under the alternative. For example, licensees could arrange a 6-week schedule of 72 hours, 72 hours, 60 hours, 48 hours, 36 hours, and 36 hours, which would average 54 hours per week and also meet the work hour controls in § 26.205(d)(1) and (d)(2). No change was made to the final rule as a result of this comment.
The UCS commented that the proposed revision to § 26.205(d)(4) would require licensees to follow the minimum days off requirements during outages lasting longer than 60 days, even if they applied the alternative approach before and during the outage. The NRC does not agree that the proposed rule would have required these licensees to meet the minimum days off requirements following the first 60 days of a unit outage. Individuals subject to the minimum days off requirements before a unit outage are subject to those same requirements after the first 60 days of the outage, unless § 26.205(d)(6) applies. Under the proposed and final rules, licensees who use the maximum average work hours provisions before an outage must follow
Mr. Sloan remarked that some duties do not require constant surveillance, so the individuals performing these duties should not be subject to the fatigue management requirements. He also commented that it is more important to have a qualified person performing a task than it is to ensure that the person performing the task complies with the work hour controls. Mr. Sloan also believes that the rule is too complex and does not guarantee that an individual subject to the work hour requirements will diligently perform their duties.
The NRC considers Mr. Sloan's comments to be beyond the limited scope of the proposed and final rules. Mr. Sloan's comments concern the overall concept of the 10 CFR part 26 work hour controls. As directed by the Commission in the March 24, 2011, SRM, the NRC will consider these comments in a separate rulemaking effort, which the NRC has identified as the Quality Control/Quality Verification rulemaking. No change was made to the final rule as a result of these comments.
Mr. Callahan claimed that the 10 CFR part 26 work hour controls do not reduce worker fatigue but can increase fatigue during outages. Specifically, he noted that when an individual works a backshift schedule, taking a 1-day break disrupts that person's sleep pattern. Recovery from this disruption takes several days, thus inducing fatigue. Mr. Callahan concluded that once a person adjusts to the unnatural sleep pattern (e.g., nightshift), it is far better to continue that pattern for the duration of an outage. He also stated that the current rule has caused a drop in his earnings.
The NRC considers Mr. Callahan's comments to be beyond the limited scope of the proposed and final rules. Mr. Callahan's comments concern the overall concept of the 10 CFR part 26 work hour controls. As directed by the Commission in the March 24, 2011, SRM, the NRC will consider these comments in a separate rulemaking effort, which the NRC has identified as the Quality Control/Quality Verification rulemaking. No change was made to the final rule as a result of these comments.
One cause of cumulative fatigue is consecutive days of restricted or poor quality sleep. In turn, consecutive days of restricted or poor quality sleep may be caused by such things as shift-work, extended work days, and extended work weeks. Former Subpart I of 10 CFR part 26 offered nuclear power plant licensees only one primary method to manage cumulative fatigue: provide individuals with a minimum number of days off over the course of a period not to exceed 6 weeks. The distribution of the days off during the 6-week period acts to either prevent or mitigate cumulative fatigue.
An alternative method for managing cumulative fatigue is to establish a requirement to limit actual hours worked instead of mandating the number of days off which individuals must have. A limit on actual hours worked, when applied to schedules that require regular shift coverage, limits the number of work hours that can contribute to cumulative fatigue and, as a practical matter, results in periodic days off for recovery rest. A schedule resulting in a weekly average of 54 hours worked, calculated using an averaging period of up to 6 weeks that incrementally advances on a consistent basis, is such a schedule.
In general, most individuals that work their normal shift schedule and receive only the minimum number of days off required under the minimum days off requirements of § 26.205(d)(3) could average as many as 54 hours of work per week. However, the NEI indicated that implementation of the minimum days off requirements reduced licensee scheduling flexibility and imposed a substantial administrative burden. By comparison, limiting work hours to an average of not more than 54 hours per week by using an averaging period of up to 6 weeks with 7-day incremental periods limits the number of consecutive weeks of extended work hours that an individual can work by using a comparable but simpler and more flexible requirement. The 6-week limit also remains consistent with the averaging duration and technical basis of the minimum days off requirements, as described in the SOC for the 2008 10 CFR part 26 final rule. In addition, this alternative does not depend on the length of an individual's shift schedule. The alternative eliminates for licensees and individuals the burden of tracking the number of days off that an individual receives in a period not to exceed 6 weeks. Based on stakeholder input, the alternative will relieve operational burdens by enabling licensee personnel to engage in certain safety-beneficial practices with fewer scheduling restrictions, such as holding off-shift shift manager meetings and using the most knowledgeable workers in responding to plant events and conditions. The flexibility provided by the alternative also could improve individuals' quality of life by allowing more flexibility in the way that individuals use their time when they are not working.
Use of 7-day incremental periods will provide reasonable assurance that licensees will not schedule several consecutive weeks of high levels of work hours and will not introduce unintended complexity to the implementation of the alternative. An upper limit on the length of the incremental period of 7 days prevents licensees from establishing fixed 5- or 6-week schedules. Those schedules permit licensees to back-load one fixed schedule with long work hour weeks and front-load the next fixed schedule with long work hour weeks, resulting in several consecutive weeks of long work hours and the potential for individuals to experience cumulative fatigue. Requiring licensees to advance their averaging periods on a 7-day basis limits the number of hours that can be worked in consecutive weeks because each week's hours affect the number of hours that can be worked in the other weeks in the averaging period. By advancing the averaging period on a consistent basis, licensees must consider the impact of each week's work hours before and after each incremental advance.
In summary, the maximum number of hours that can be worked under the alternative approach is comparable to the maximum number of hours that can be worked by most individuals under the 10 CFR part 26 minimum days off requirements, except that the alternative requirement provides greater simplicity and flexibility. Although the schedule required under the alternative approach limits the number of consecutive extended work weeks and thereby limits the potential for cumulative fatigue, there are unusual potential circumstances in which the alternative requirement could be met and the schedule could be fatiguing. Such schedules include having only one in every nine days off or consistently
The NRC is creating a new § 26.205(d)(7) that contains the alternative method for managing cumulative fatigue. This final rule allows nuclear power plant licensees and other entities identified in § 26.3(a) and, if applicable, (c) and (d) to choose whether or not to implement this alternative approach, in lieu of compliance with the minimum days off requirements in § 26.205(d)(3). The NRC is not removing the § 26.205(d)(3) minimum days off requirements and mandating that all licensees instead adopt new maximum average work hours requirements. Some licensees may be satisfied with the minimum days off requirements. In addition, a mandated change would constitute backfitting under the NRC's Backfit Rule, 10 CFR 50.109. None of the exceptions in § 50.109(a)(4) to the requirement to prepare a backfit analysis could be justified, and a backfit analysis could not demonstrate that a mandatory rule would constitute a cost-justified substantial increase in protection to public health and safety or common defense and security. For these reasons, the NRC has decided to add the maximum weekly average of 54 work hours, averaged over a period of up to 6 weeks that advances every 7 days, as an alternative to the minimum days off requirements.
The alternative in this final rule can be used only in place of the minimum days off requirements in § 26.205(d)(3) and is applicable only to individuals subject to work hour controls under § 26.205(a). Under § 26.205(a), the subject individuals are those described in § 26.4(a). The NRC's determination that the proposed alternative is equivalent to the minimum days off requirements considered the collective advantages and disadvantages of having all individuals who are subject to the work hour controls under a single set of cumulative fatigue management requirements. Thus, licensees are not able to subject one group of individuals under § 26.4(a) to the minimum days off requirements in § 26.205(d)(3) and another group of individuals under § 26.4(a) to new § 26.205(d)(7) requirements. Licensees must select only one option. This choice establishes the legally-binding requirement for that licensee for all individuals subject to the work hour controls of § 26.205.
Allowing licensees to implement the minimum days off and alternative requirements simultaneously would also create an undue burden for NRC inspectors and undue cost and burden for licensees. Having different workers subject to different requirements would make inspections more burdensome because of the amount of administrative time that would be necessary for NRC inspectors to prepare for and conduct an inspection. Taking this extra time would reduce the amount of available time for inspectors to conduct risk-informed inspections. Furthermore, licensees implementing both options would incur additional costs associated with having two processes and two training programs to implement the options and increased burden in managing individuals on a work shift who are subject to different work-hour requirements. This scheduling challenge would also diminish the industry's desire to have scheduling flexibility that enables safety-beneficial practices such as shift manager meetings and just-in-time training. These were the types of safety-beneficial practices that were curtailed as a result of the inflexibility of the minimum days off requirements.
Consistent with the minimum days off requirements in § 26.205(d)(3), the alternative maximum average work hours provisions apply to all periods of operations, with several specified exceptions: (1) During force-on-force exercises; (2) during plant emergencies; and (3) for security personnel when they are needed to maintain the common defense and security. In those limited circumstances, special provisions, described in section IV. of this document, apply. In addition, licensees had the option under former § 26.205(d)(4) to comply with the minimum days off requirements in either § 26.205(d)(3) or (d)(4) during unit outages when the affected individuals are working on outage activities. Licensees also had the option under former § 26.205(d)(5) to comply with the minimum days off requirements in either § 26.205(d)(3) or (d)(5) during unit outages, security system outages, or increased threat conditions. Under the final rule, licensees also have the option to comply with the maximum average work hours requirements under the above conditions. The SOC for the 2008 10 CFR part 26 final rule explained the reasons why the Commission permits the exceptions and options involving the minimum days off requirements. The approach set forth in this final rule offers licensees an alternative to the minimum days off requirements that is equally effective at managing cumulative fatigue. Therefore, the SOC for the 2008 10 CFR Part 26 final rule also provides the justification for why the alternative applies to the exceptions and options described in section IV. of this document.
The NRC's Office of Enforcement issued EGM–09–008, “Enforcement Guidance Memorandum—Dispositioning Violations of NRC Requirements for Work Hour Controls Before and Immediately After a Hurricane Emergency Declaration,” on September 24, 2009. The EGM–09–008 gives the NRC staff guidance for processing violations of work hour controls requirements during conditions before and immediately after the declaration of an emergency for a hurricane, when licensees sequester plant staff on site to ensure personnel are available for relief of duties, and potentially granting enforcement discretion for the affected requirements. Under EGM–09–008, the NRC may exercise enforcement discretion for violations of 10 CFR 26.205(c) and (d) while a licensee sequesters site personnel in preparation for hurricane conditions that are expected to result in the declaration of an emergency caused by high winds and immediately after the licensee has exited the emergency declaration. The licensee must meet certain conditions, including having site-specific procedural guidance that specifies the conditions necessary to sequester site personnel, and having requested an exemption from 10 CFR 26.205(c) and (d), or any part thereof, to allow for sequestering site personnel before and immediately after a hurricane. If the licensee must sequester before an exemption has been submitted, then the licensee must agree, in writing, to request the exemption no later than 6 months before the onset of the next hurricane season, as established by the National Oceanic and Atmospheric Administration's National Hurricane Center. The EGM–09–008 refers to § 26.205(d) generally, and therefore, the requirements in § 26.205(d)(7) also fall under the enforcement discretion described by EGM–09–008. Also, licensees who, before the effective date of this final rule, were granted exemptions from
Section 26.203 establishes requirements for licensees' fatigue management policies, procedures, training, examinations, recordkeeping, and reporting. The NRC is making conforming changes to paragraphs within § 26.203 to ensure consistency between the implementation of the minimum days off requirements in § 26.205(d)(3) and the implementation of the maximum average work hours requirements in § 26.205(d)(7).
Section 26.203(d)(2) requires licensees to retain records of shift schedules and shift cycles of individuals who are subject to the work hour requirements established in § 26.205. These records are necessary, in part, to ensure that documentation of the licensee's fatigue management program is retained and available for the NRC inspectors to verify that licensees are complying with the work hour requirements and waiver and fatigue assessment provisions. Licensees that implement the alternative must be able to demonstrate that individuals subject to the new work hour controls have not exceeded the average weekly work hours limit; therefore, inspectors need to know the averaging periods used by the licensee. The NRC is amending § 26.203(d)(2) to include the requirement that licensees implementing the requirements in § 26.205(d)(7) maintain records showing the beginning and end times and dates of all 6-week or shorter averaging periods. These licensees must also retain records of shift schedules to ensure compliance with the requirements in § 26.205(c) and (d)(2).
The former § 26.203(e)(1) required licensees to provide the NRC with an annual summary of all instances during the previous calendar year in which the licensee waived each of the work hour controls specified in § 26.205(d)(1) through (d)(5)(i) for individuals who perform the duties listed in § 26.4(a)(1) through (a)(5). The NRC is revising § 26.203(e)(1) to require licensees to also report the instances when the licensee waived the requirements in § 26.205(d)(7).
Section 26.203(e)(1)(i) and (e)(1)(ii) requires licensees to report whether work hour controls are waived for individuals working on normal plant operations or working on outage activities. The final rule requires licensees to include whether the alternative requirements in § 26.205(d)(7) were waived during normal plant operations or while working on outage activities.
Section 26.205 sets forth the NRC's requirements governing work hour controls applicable to individuals performing the duties in 10 CFR 26.4(a)(1) through (a)(5). The NRC is adding new § 26.205(d)(7) and (d)(8) and making conforming changes to paragraphs within § 26.205 to ensure consistency between the implementation of the minimum days off requirements in § 26.205(d)(3) and the implementation of the maximum average work hours requirements in § 26.205(d)(7).
Section 26.205(b)(5) allows licensees to exclude from the calculation of an individual's work hours unscheduled work performed off site (e.g., technical assistance provided by telephone from an individual's home), provided the total duration of the work does not exceed a nominal 30 minutes during any single break period. For the purposes of compliance with the minimum break requirements of § 26.205(d)(2) and the minimum days off requirements of § 26.205(d)(3) through (d)(5), such duties do not constitute work periods or work shifts. The NRC is revising § 26.205(b)(5) to exclude these incidental duties from hours worked under § 26.205(d)(7).
The former § 26.205(d)(3) required licensees to ensure that subject individuals have, at minimum, the days off as specified in this section. Under the final rule, licensees have the option of either complying with the minimum days off requirements in § 26.205(d)(3) or the alternative requirements in § 26.205(d)(7).
Section 26.205(d)(4) provides a limited discretionary exception from the minimum days off requirements in § 26.205(d)(3) for individuals performing the duties specified in § 26.4(a)(1) through (a)(4) (i.e., certain operations, chemistry, health physics, fire brigade, and maintenance activities). The exception from the minimum days off requirements is available during the first 60 days of a unit outage while a subject individual is working on outage activities. In these circumstances, licensees are not required to calculate the requisite number of an individual's days off by a weekly average over a period of up to 6 weeks. Instead, if the licensee elects to apply the exception, § 26.205(d)(4) requires licensees to ensure that individuals specified in § 26.4(a)(1) through (a)(3) have a minimum of 3 days off in each successive (i.e., non-rolling) 15-day period and that individuals specified in § 26.4(a)(4) have at least 1 day off in any 7-day period. Detailed guidance on the applicability of this rule provision is available in Regulatory Guide 5.73, “Fatigue Management for Nuclear Power Plant Personnel.” After the first 60 days of a unit outage, regardless of whether the individual is working on unit outage activities, the individual is again subject to the minimum days off requirements of § 26.205(d)(3), except as permitted by § 26.205(d)(6). The NRC is revising § 26.205(d)(4) to allow licensees that implement the maximum average work hours alternative before and after an outage to have the option to use the alternative or the fixed number of days off approach during the first 60 days of a unit outage.
Section 26.205(d)(5)(i) provides a discretionary exception from the minimum days off requirements of § 26.205(d)(3) for personnel performing the duties described in § 26.4(a)(5) during unit outages or planned security system outages. The requirement limits this exception period to 60 days from the beginning of the outage and requires that individuals performing the security duties identified in § 26.4(a)(5) during this period have a minimum of 4 days off in each non-rolling 15-day period. Amended § 26.205(d)(5)(i) allows licensees that implement the maximum average work hours alternative before and after an outage to have the option to use the alternative or the fixed number of days off approach in § 26.205(d)(5)(i) for security personnel during the first 60 days of a unit outage or planned security system outage.
Section 26.205(d)(5)(ii) provides a discretionary exception from the minimum days off requirements of § 26.205(d)(3) and (d)(5)(i) for security personnel during the first 60 days of an unplanned security system outage or an increased threat condition. Individuals
The NRC is including a new section in 10 CFR Part 26 governing maximum average work hours for subject individuals, which licensees can implement as an alternative to comparable provisions in § 26.205(d)(3). Licensees who choose to implement this alternative must nonetheless comply with all requirements in § 26.205 other than the minimum days off requirements in § 26.205(d)(3).
The individuals subject to the maximum average work hours requirements in this section are the same as the individuals subject to the comparable controls in § 26.205(d)(3), which, according to § 26.205(a), are the individuals described in § 26.4(a). Unlike the minimum days off requirements, the maximum average work hours alternative establishes a uniform requirement for all individuals described in § 26.205(a) without regard for their assigned duties or the lengths of their shift schedules.
Licensees who elect to implement the requirements of § 26.205(d)(7)(i) must manage affected individuals' cumulative fatigue by limiting the number of hours they work each week to an average of 54 hours. The 54-hour average is computed over an averaging period of up to 6 weeks. As an averaging period ends, a licensee advances (i.e., adjusts forward) the beginning and end times and dates of the averaging periods by 7 consecutive calendar days. Licensees must describe in their FFD procedures, as required by new § 26.205(d)(8), the beginning and end times and days of the week for the averaging periods.
Licensees implementing the maximum average work hours requirements in § 26.205(d)(7)(i) have an option under new § 26.205(d)(7)(ii) regarding how they count work hours, for purposes of computing an individual's average number of work hours, during an individual's overnight work shift. When a shift begins near the end of a calendar day and concludes during the next calendar day, licensees can treat the hours worked during that shift as if the hours were all worked on the day the shift started, or licensees can attribute the hours of the shift to the calendar days on which the hours were actually worked. For example, if an individual begins her 10-hour shift at 8 p.m. on Sunday, then that shift would end at 6 a.m. on Monday. The licensee could consider all 10 hours as having been worked on the Sunday, or the licensee could count 4 hours worked on Sunday (from 8 p.m.–12 a.m.) and 6 hours worked on Monday (from 12 a.m.–6 a.m.). The final rule and section IV. of this document refer to these two methods of counting the hours of an individual's overnight work shift under § 26.205(d)(7) as the “work hour counting systems.”
New § 26.205(d)(7)(iii) requires each licensee to document, in its FFD policies and procedures required by 10 CFR 26.27 and 10 CFR 26.203, which work hour counting system in § 26.205(d)(7)(ii) the licensee is using. As a general matter, good regulatory practice requires each licensee to clearly document its licensing basis, especially where the NRC's requirements offer the licensee one or more regulatory alternatives. If a licensee clearly and sufficiently documents its licensing basis, then the licensee can more easily determine, despite changes (as applicable) in personnel, procedures, or its design, whether the licensee continues to comply with its licensing basis and applicable NRC requirements. Effective documentation also allows the NRC to quickly and accurately determine the licensee's status of compliance and affords the public an opportunity to understand the legal constraints to which that licensee is subject.
Section 26.27 requires licensees to establish written FFD policies and procedures, and 10 CFR 26.203(a) and (b) requires licensees to include in the § 26.27 written policies and procedures the specific policies and procedures for the management of fatigue, including the process for implementing the work hour controls in § 26.205. To ensure clarity in the regulations and each licensee's licensing basis, new § 26.205(d)(7)(iii) clearly establishes the licensee's (and applicant's) regulatory obligation to document in its FFD policies and procedures, required by § 26.27 and § 26.203(a) and (b), the work hour counting system the licensee is using.
Under new § 26.205(d)(8), each licensee needs to explicitly state, in its FFD policies and procedures required by 10 CFR 26.27 and 10 CFR 26.203, the requirements with which it is complying: the minimum days off provisions in § 26.205(d)(3) or the maximum average work hours requirements in § 26.205(d)(7). Under 10 CFR 26.203(a) and (b), information concerning the process for implementing the maximum average work hours requirements would include, for instance, the beginning and end times and days of the week for the averaging periods. As with new § 26.205(d)(7)(iii), because licensees have the option of two cumulative fatigue management programs to implement, § 26.205(d)(8) establishes the licensee's (and applicant's) regulatory obligation to document in its FFD policies and procedures, required by § 26.27 and § 26.203(a) and (b), the requirements with which it will comply: the requirements in § 26.205(d)(3) or § 26.205(d)(7). Licensees are free to switch to the other set of legally-binding requirements, so long as the requirement of § 26.205(d)(8) is met.
Section 26.205(d)(8) was designated as § 26.205(d)(7)(ii) in the proposed rule. That provision of the proposed rule could have been read to require licensees to document their election of requirements only if they implemented the alternative. By removing the requirement from § 26.205(d)(7) and establishing the requirement in a regulatory provision independent of the provisions concerning the alternative, the NRC ensures that all licensees document their election.
Section 26.205(e)(1) requires licensees to review the actual work hours and performance of individuals who are subject to this section for consistency with the requirements of § 26.205(c), so that licensees can determine if they are controlling the work hours of individuals consistent with the objective of preventing impairment from fatigue due to the duration, frequency, or sequencing of successive shifts. Section 26.205(e)(1)(i) requires the licensees to assess the actual work hours and performance of individuals whose actual hours worked during the review period exceeded an average of 54 hours per week in any shift cycle while the individuals' work hours are subject to the requirements of § 26.205(d)(3). The NRC is amending § 26.205(e)(1)(i) to require licensees to assess the actual work hours and performance of
Section 26.207 provides the criteria that licensees must meet to grant waivers and enact exceptions from the work hour requirements in § 26.205(d)(1) through (d)(5)(i). The NRC is making conforming changes to paragraphs within § 26.207 to ensure consistency between the implementation of the minimum days off requirements in § 26.205(d)(3) and the implementation of the maximum average work hours requirements in § 26.205(d)(7).
Section 26.207(a) permits licensees to grant waivers from the work hours requirements in § 26.205(d)(1) through (d)(5)(i) for conditions that meet the two criteria specified in § 26.207(a). The NRC is revising § 26.207(a) to authorize licensees to grant waivers from the work hours requirements in § 26.205(d)(7) if the criteria in § 26.207(a) are met.
Section 26.207(b) relieves licensees from the minimum days off requirements of § 26.205(d)(3) by allowing them to exclude shifts worked by security personnel during the actual conduct of NRC-evaluated force-on-force tactical exercises when calculating the individual's number of days off. The final rule amends § 26.207(b) to permit licensees to exclude from the maximum average work hours requirements of § 26.205(d)(7) the hours worked by security personnel during the actual conduct of NRC-evaluated force-on-force tactical exercises.
Section 26.209 requires licensees to take immediate action in response to a self-declaration by an individual who is working under, or being considered for, a waiver from the work hour controls in § 26.205(d)(1) through (d)(5)(i). The NRC is making a conforming change to § 26.209(a) to ensure consistency between the implementation of the minimum days off requirements in § 26.205(d)(3) and the implementation of the maximum average work hours requirements in § 26.205(d)(7).
Section 26.209(a) is amended to address the situation in which an individual is performing, or being assessed for, work under a waiver of the requirements contained in § 26.205(d)(7) and declares that, due to fatigue, he or she is unable to safely and competently perform his or her duties. The licensee shall immediately stop the individual from performing any duties listed in § 26.4(a), except if the individual is required to continue performing those duties under other requirements in Chapter 1 of Title 10. If the subject individual must continue performing the duties listed in § 26.4(a) until relieved, then the licensee shall immediately take action to relieve the individual.
Section 26.211 requires licensees to conduct fatigue assessments under several conditions. The NRC is making conforming changes to paragraphs within § 26.211 to ensure consistency between the implementation of the minimum days off requirements in § 26.205(d)(3) and the implementation of the maximum average work hours requirements in § 26.205(d)(7).
Section 26.211(b)(2)(iii) prohibits individuals from performing a post-event fatigue assessment if they evaluated or approved a waiver of the limits specified in § 26.205(d)(1) through (d)(5)(i) for any of the individuals who were performing or directing the work activities during which the event occurred if the event occurred while such individuals were performing work under that waiver. The final rule amends § 26.211(b)(2)(iii) to prohibit individuals from performing a post-event fatigue assessment if they evaluated or approved a waiver of the limits specified in § 26.205(d)(7) for any of the individuals who were performing or directing the work activities during which the event occurred if the event occurred while such individuals were performing work under that waiver.
Section 26.211(d) prohibits licensees from concluding that fatigue has not degraded or will not degrade an individual's ability to safely and competently perform his or her duties solely on the basis that the individual's work hours have not exceeded any of the limits specified in § 26.205(d)(1) or that the individual has had the minimum rest breaks required in § 26.205(d)(2) or the minimum days off required in § 26.205(d)(3) through (d)(5). The NRC is amending § 26.211(d) to include the maximum average work hours among the criteria that licensees may not solely rely on when concluding that fatigue has not degraded or will not degrade an individual's ability to safely and competently perform his or her duties.
The following table lists documents that are related to this final rule and available to the public and indicates how they may be obtained. See the
For the purposes of Section 223 of the Atomic Energy Act (AEA), as amended, the NRC is issuing this final rule that amends 10 CFR part 26 under one or more of Sections 161b, 161i, or 161o of the AEA. Willful violations of the rule are subject to criminal enforcement. Criminal penalties as they apply to regulations in 10 CFR part 26 are discussed in § 26.825.
Under the “Policy Statement on Adequacy and Compatibility of Agreement State Programs,” approved by the Commission on June 20, 1997, and published in the
In accordance with Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105–277), the NRC has assessed this action against the seven factors set forth in this act. The NRC has determined that this action will not negatively affect family well-being.
The NRC is using this standard instead of the following voluntary consensus standard developed by the American Nuclear Society (ANS): American National Standards Institute (ANSI)/ANS–3.2–1988. The NRC has determined that using a Government-unique standard is justified. The NRC declined to use the ANS standard when the fatigue management provisions in Subpart I of 10 CFR part 26 were adopted in 2008. (73 FR 16966; March 31, 2008, at 17170 (second and third column)). The alternative for managing cumulative fatigue through a maximum average work hours requirement in this final rule has no counterpart in ANSI/ANS–3.2–1988 that could be adopted to manage cumulative fatigue, and the NRC declines to reconsider its overall decision in the 2008 rulemaking not to adopt the fatigue management approach embodied in the ANS standard. Accordingly, the NRC concludes that there are no voluntary consensus standards that could be adopted in lieu of the adoption of the Government-unique standard in this final rule.
The Commission has determined under the National Environmental Policy Act of 1969, as amended, and the Commission's regulations in Subpart A of 10 CFR part 51, that this final rule is not a major Federal action significantly affecting the quality of the human environment and, therefore, an environmental impact statement is not required. This final rule allows licensees of nuclear power reactors to use a different method from the one previously prescribed in the NRC's regulations for determining whether certain nuclear power plant workers must be afforded time off from work.
The NRC has determined that the alternative for determining time off does not significantly alter the likelihood that there will be an increase in fatigued workers causing operational problems or a radiological event, or being unable to properly perform their functions. The alternative provides affected licensees with a more-easily implemented approach for determining when subject individuals must be afforded the time off. The NRC recognizes that there are unusual potential circumstances in which the alternative requirement could be met and the schedule could be fatiguing. Such schedules include having only one in every nine days off or consistently working the maximum
The primary alternative to this action is the no-action alternative. The no-action alternative could result in a greater administrative burden on nuclear power plant licensees in complying with the minimum days off requirements, as compared with the alternative to the minimum days off requirements under the final rule. In addition, individuals subject to minimum days off requirements could personally believe that their quality of life and work conditions are less favorable under the no-action alternative, as compared with the alternative maximum average work hours requirements that could be selected under the final rule.
The no-action alternative provides little or no environmental benefit. In addition, the no-action alternative has led nuclear power plant licensees to use work scheduling approaches that, for example, reduce their capability to use the most knowledgeable workers in responding to plant events and conditions. This may provide less safety and greater risk as compared with the less burdensome scheduling approaches that licensees are allowed to use under the alternative to the minimum days off requirements under the final rule.
For these reasons, the NRC concludes that this rulemaking does not have a significant adverse impact on the environment. This discussion constitutes the environmental assessment for this final rule. The NRC received no comments on the draft environmental assessment in the proposed rule's SOC.
This final rule increases the burden on licensees that implement the alternate method of managing cumulative fatigue. These licensees will incur a one-time burden to revise FFD procedures, modify their work hour tracking systems and individual work scheduling systems, and state in their FFD policies and procedures the cumulative fatigue management requirements and work hour counting system being used. The public burden for this information collection is estimated to average 11.7 hours per recordkeeper. Because the burden for this information collection is insignificant, Office of Management and Budget (OMB) clearance is not required. Existing requirements were approved by the OMB Control Number 3150–0146.
Send comments on any aspect of these information collections to the Information Services Branch (T–5 F53), U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, or by Internet electronic mail to
The NRC may not conduct or sponsor, and a person is not required to respond to, a request for information or an information collection unless the requesting document displays a currently valid OMB control number.
The NRC has not prepared a full regulatory analysis for this final rulemaking. The NRC has determined that the maximum average work hours requirement provides reasonable assurance that subject individuals are not impaired due to cumulative fatigue caused by excessive work hours. As such, adequate implementation of the alternative approach maintains reasonable assurance that persons subject to work hour controls can safely and competently perform their assigned duties and therefore meets the intent of the minimum days off requirement. The 2008 10 CFR Part 26 final rule contained a regulatory analysis to support the minimum days off requirement. Because the alternative approach offers licensees an option that is comparable to the minimum days off requirements in managing cumulative fatigue, the 2008 final rule regulatory analysis also supports this final rule.
Furthermore, both nuclear power plant licensees and individuals subject to the NRC's requirements in 10 CFR 26.205(d)(3) governing minimum days off derive substantial benefits by the NRC's adoption of the alternative approach for controlling cumulative fatigue through maximum average work hours that can be adopted by those licensees. In addition, the NRC concludes that providing an alternative maintains the ability of those licensees to continue using scheduling practices that have a positive safety benefit. The NRC's conclusions in this regard are based upon: (1) Information presented by two petitioners for rulemaking seeking changes to the work hour controls in 10 CFR 26.205; (2) NEI's request for enforcement discretion of those same regulatory provisions in 10 CFR 26.205; (3) evidence gathered from stakeholders at the three public meetings; (4) analysis performed by the NRC staff and explained to the Commission in memoranda dated January 4, 2011, and February 28, 2011; and (5) comments received on the proposed rule. In the memoranda to the Commission, the NRC staff documented its evaluation of the options available to the Commission to address the concerns raised in the petitions for rulemaking and request for enforcement discretion. At the February 8, 2011, Commission briefing on the implementation of 10 CFR part 26, stakeholders appeared to support the use of an expedited rulemaking process to address the issues presented by the industry. In view of all of this information, the NRC finds no added value in preparing a more detailed regulatory analysis for this final rule.
Under the Regulatory Flexibility Act (5 U.S.C. 605(b)), the NRC certifies that this final rule will not have a significant economic impact on a substantial number of small entities. This final rule affects only licensees that do not fall within the scope of the definition of “small entities” set forth in the Regulatory Flexibility Act or the size standards established by the NRC (10 CFR 2.810).
The NRC has determined that the Backfit Rule, 10 CFR 50.109, does not apply to this final rule, nor is the final rule inconsistent with any of the finality provisions in 10 CFR part 52. The final rule, in 10 CFR 26.205(d)(7), provides nuclear power plant licensees with an alternative for compliance with the controls in 10 CFR 26.205(d)(3) governing minimum days off for certain nuclear power plant workers. Licensees are free to comply with either the requirements governing minimum days off or with the alternative requirements in 10 CFR 26.205(d)(7). The NRC
The final rule is not inconsistent with any finality provisions in 10 CFR part 52. No standard design certification rule or standard design approval issued under 10 CFR part 52, or currently being considered by the NRC, addresses FFD requirements in 10 CFR part 26. Accordingly, there are no issues resolved in those design certification rules or design approvals that would be within the scope of the cumulative fatigue controls in this final rule. In addition, the NRC has not issued any combined licenses under 10 CFR part 52. Hence, there are currently no holders of combined licenses who would be protected by applicable issue finality provisions. The NRC concludes that this final rule does not contain any provisions that would be inconsistent with any of the finality provisions in 10 CFR part 52
In accordance with the Congressional Review Act of 1996, the NRC has determined that this action is not a major rule and has verified this determination with the Office of Information and Regulatory Affairs of OMB.
Alcohol abuse, Alcohol testing, Appeals, Chemical testing, Drug abuse, Drug testing, Employee assistance programs, Fitness for duty, Management actions, Nuclear power reactors, Protection of information, Reporting and recordkeeping requirements.
For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 552 and 553, the NRC is adopting the following amendments to 10 CFR part 26.
Secs. 53, 81, 103, 104, 107, 161, 68 Stat. 930, 935, 936, 937, 948, as amended, sec. 1701, 106 Stat. 2951, 2952, 2953 (42 U.S.C. 2073, 2111, 2112, 2133, 2134, 2137, 2201, 2297f); secs. 201, 202, 206, 88 Stat. 1242, 1244, 1246, as amended (42 U.S.C. 5841, 5842, 5846).
(d) * * *
(2) For licensees implementing the requirements of § 26.205(d)(3), records of shift schedules and shift cycles, or, for licensees implementing the requirements of § 26.205(d)(7), records of shift schedules and records showing the beginning and end times and dates of all averaging periods, of individuals who are subject to the work hour controls in § 26.205;
(e) * * *
(1) A summary for each nuclear power plant site of all instances during the previous calendar year when the licensee waived one or more of the work hour controls specified in § 26.205(d)(1) through (d)(5)(i) and (d)(7) for individuals described in § 26.4(a). The summary must include only those waivers under which work was performed. If it was necessary to waive more than one work hour control during any single extended work period, the summary of instances must include each of the work hour controls that were waived during the period. For each category of individuals specified in § 26.4(a), the licensee shall report:
(i) The number of instances when each applicable work hour control specified in § 26.205(d)(1)(i) through (d)(1)(iii), (d)(2)(i) and (d)(2)(ii), (d)(3)(i) through (d)(3)(v), and (d)(7) was waived for individuals not working on outage activities;
(ii) The number of instances when each applicable work hour control specified in § 26.205(d)(1)(i) through (d)(1)(iii), (d)(2)(i) and (d)(2)(ii), (d)(3)(i) through (d)(3)(v), (d)(4) and (d)(5)(i), and (d)(7) was waived for individuals working on outage activities; and
(b) * * *
(5) Incidental duties performed off site. Licensees may exclude from the calculation of an individual's work hours unscheduled work performed off site (e.g., technical assistance provided by telephone from an individual's home), provided the total duration of the work does not exceed a nominal 30 minutes during any single break period. For the purposes of compliance with the minimum break requirements of § 26.205(d)(2), and the minimum days off requirements of § 26.205(d)(3) through (d)(5) or the maximum average work hours requirements of § 26.205(d)(7), such duties do not constitute work periods, work shifts, or hours worked.
(d) * * *
(3) Licensees shall either ensure that individuals have, at a minimum, the number of days off specified in this paragraph, or comply with the requirements for maximum average workhours in § 26.205(d)(7). For the purposes of this section, a day off is defined as a calendar day during which an individual does not start a work shift. For the purposes of calculating the average number of days off required in this paragraph, the duration of the shift cycle may not exceed 6 weeks.
(4) During the first 60 days of a unit outage, licensees need not meet the requirements of § 26.205(d)(3) or (d)(7) for individuals specified in § 26.4(a)(1) through (a)(4), while those individuals are working on outage activities. However, the licensee shall ensure that the individuals specified in § 26.4(a)(1) through (a)(3) have at least 3 days off in each successive (i.e., non-rolling) 15-day period and that the individuals specified in § 26.4(a)(4) have at least 1 day off in any 7-day period;
(5) * * *
(i) During the first 60 days of a unit outage or a planned security system outage, licensees need not meet the requirements of § 26.205(d)(3) or (d)(7). However, licensees shall ensure that these individuals have at least 4 days off in each successive (i.e., non-rolling) 15-day period; and
(ii) During the first 60 days of an unplanned security system outage or increased threat condition, licensees need not meet the requirements of § 26.205(d)(3), (d)(5)(i), or (d)(7).
(7) Licensees may, as an alternative to complying with the minimum days off requirements in § 26.205(d)(3), comply with the requirements for maximum average work hours in this paragraph.
(i) Individuals may not work more than a weekly average of 54 hours, calculated using an averaging period of up to six (6) weeks, which advances by 7 consecutive calendar days at the finish of every averaging period.
(ii) For purposes of this section, when an individual's work shift starts at the end of a calendar day and concludes during the next calendar day, the licensee shall either consider the hours worked during that entire shift as if they
(iii) Each licensee shall state, in its FFD policy and procedures required by § 26.27 and § 26.203(a) and (b), the work hour counting system in § 26.205(d)(7)(ii) the licensee is using.
(8) Each licensee shall state, in its FFD policy and procedures required by § 26.27 and § 26.203(a) and (b), the requirements with which the licensee is complying: the minimum days off requirements in § 26.205(d)(3) or maximum average work hours requirements in § 26.205(d)(7).
(e) * * *
(1) * * *
(i) Individuals whose actual hours worked during the review period exceeded an average of 54 hours per week in any shift cycle while the individuals' work hours are subject to the requirements of § 26.205(d)(3) or in any averaging period of up to 6 weeks, using the same averaging period durations that the licensee uses to control the individuals' work hours, while the individuals' work hours are subject to the requirements of § 26.205(d)(7);
(a)
(b)
(a) If an individual is performing, or being assessed for, work under a waiver of one or more of the requirements contained in § 26.205(d)(1) through (d)(5)(i) and (d)(7) and declares that, due to fatigue, he or she is unable to safely and competently perform his or her duties, the licensee shall immediately stop the individual from performing any duties listed in § 26.4(a), except if the individual is required to continue performing those duties under other requirements of this chapter. If the subject individual must continue performing the duties listed in § 26.4(a) until relieved, the licensee shall immediately take action to relieve the individual.
(b) * * *
(2) * * *
(iii) Evaluated or approved a waiver of one or more of the limits specified in § 26.205(d)(1) through (d)(5)(i) and (d)(7) for any of the individuals who were performing or directing (on site) the work activities during which the event occurred, if the event occurred while such individuals were performing work under that waiver.
(d) The licensee may not conclude that fatigue has not or will not degrade the individual's ability to safely and competently perform his or her duties solely on the basis that the individual's work hours have not exceeded any of the limits specified in § 26.205(d)(1), the individual has had the minimum breaks required in § 26.205(d)(2) or minimum days off required in § 26.205(d)(3) through (d)(5), as applicable, or the individual's hours worked have not exceeded the maximum average number of hours worked in § 26.205(d)(7).
For the Nuclear Regulatory Commission.
Office of the Comptroller of the Currency, Treasury.
Final rule.
The Office of the Comptroller of the Currency (OCC) is adopting amendments to its regulations governing organization and functions, availability and release of information, post-employment restrictions for senior examiners, and assessment of fees to incorporate the transfer of certain functions of the Office of Thrift Supervision (OTS) to the OCC pursuant to Title III of the Dodd-Frank Wall Street Reform and Consumer Protection Act. The OCC also is amending its rules pertaining to preemption and visitorial powers to implement various sections of the Act; change in control of credit card banks and trust banks to implement section 603 of the Act; and deposit-taking by uninsured Federal branches to implement section 335 of the Act.
July 21, 2011, except for the amendments to 12 CFR 4.73 in amendatory instruction 21, 12 CFR 4.74 in amendatory instruction 23, 12 CFR 4.75 in amendatory instruction 25, 12 CFR 4.76 in amendatory instruction 27, which are effective July 21, 2012; the amendment to 12 CFR 5.50 in amendatory instruction 31, which is effective July 21, 2013; and the amendment to 12 CFR 8.6 in amendatory instruction 43, which is effective December 31, 2011.
Andra Shuster, Senior Counsel, Heidi Thomas, Special Counsel, Michele Meyer (preemption), Assistant Director, or Stuart Feldstein, Director, Legislative and Regulatory Activities Division, (202) 874–5090; Mitchell Plave (assessments), Special Assistant to the Deputy Chief Counsels, Office of the Chief Counsel, 202–874–5200; Timothy Ward, Deputy Comptroller for Thrift Supervision, (202) 874–4468; or Frank Vance, Manager, Disclosure Services and Administrative Operations, Communications Division, (202) 874–5378, Office of the Comptroller of the Currency, 250 E Street, SW., Washington, DC 20219.
On May 26, 2011, the OCC published in the
Specifically, the Dodd-Frank Act transfers to the OCC all functions of the OTS and the Director of the OTS relating to Federal savings associations. As a result, the OCC will assume responsibility for the ongoing examination, supervision, and regulation of Federal savings associations.
As described in the preamble for the proposed rule, the OCC is undertaking a multi-phased review of its regulations, as well as those of the OTS, to determine what changes are needed to facilitate the transfer of supervisory jurisdiction for Federal saving associations to the OCC. This final rule, described in detail below, is part of the first phase of this review and includes provisions revising OCC rules that will be central to internal agency functions and operations immediately upon the transfer date, such as providing for the OCC's assessment of Federal savings associations and adapting the OCC's rules governing the availability and release of information to cover information pertaining to the supervision of those institutions. This final rule also amends OCC regulations necessary to implement certain revisions to the banking laws that either took effect on the enactment of the Dodd-Frank Act or are effective as of the transfer date.
As part of this first phase of our review of OTS and OCC regulations, the OCC also will issue an interim final rule with a request for comments, effective on publication, that republishes those OTS regulations the OCC has the authority to promulgate and will enforce as of the transfer date, with nomenclature and other technical changes.
In future phases of our regulatory review, the OCC will consider more comprehensive substantive amendments, as necessary, to these regulations. For example, we may propose to repeal or combine provisions in cases where OCC and former OTS rules are substantively identical or substantially overlap. In addition, we may propose to repeal or modify OCC or former OTS rules where differences in regulatory approach are not required by statute or warranted by features unique to either charter. We expect to publish these amendments in one or more notices of proposed rulemaking, the first of which we expect to issue later in 2011. This substantive review also will provide an opportunity for the OCC to ask for comments suggesting revisions to the rules for both national banks and Federal savings associations that would remove provisions that are “outmoded, ineffective, insufficient, or excessively burdensome,” consistent with the goals outlined in an executive order recently issued by the President.
The NPRM contained amendments to OCC rules at 12 CFR part 4 pertaining to its organization and functions, the availability of information under the Freedom of Information Act (FOIA), the release of non-public OCC information, and restrictions on the post-employment activities of senior examiners; and at 12 CFR part 8, pertaining to assessments. This NPRM also proposed to amend 12 CFR parts 5 and 28, pertaining to change in control of credit card banks and trust banks and deposit-taking by uninsured Federal branches, respectively, and 12 CFR parts 5, 7 and 34, pertaining to preemption and visitorial powers, pursuant to the Dodd-Frank Act. The public comment period closed on June 27, 2011, and the OCC received a total of 45, including comments from consumer advocacy groups, government agencies, representatives of Congress, associations of state officials, industry trade groups, Federal and state banks and thrifts, and law firms. Set forth below is a detailed description of these comments and the resulting final rule.
The NPRM contained a number of amendments to part 4 to incorporate the supervision of Federal savings associations within the OCC. We received no substantive comments on the proposed amendments to part 4 and therefore adopt them as proposed, with one technical correction to § 4.14 to include cites to OCC rules applicable to savings associations.
Subpart A describes the organization and functions of the OCC and provides the OCC's principal addresses. The final rule amends subpart A to reflect the organizational and functional changes resulting from the transfer of the powers and duties of the OTS to the OCC on the transfer date. Other changes conform this subpart to additional provisions in the Dodd-Frank Act, including the Comptroller's membership on the Financial Stability Oversight Council.
Subpart B contains the OCC's rules for making requests for agency records and documents under the FOIA. The final rule amends subpart B to apply these rules to FOIA requests relating to Federal savings associations received by the OCC as of the transfer date, ensures
Subpart C contains OCC rules and procedures for requesting access to various types of nonpublic information and the OCC's process for reviewing and responding to such requests. It also clarifies the persons and entities with which the OCC can share non-public information. The final rule amends subpart C to cover OTS nonpublic information transferred to the OCC and, going forward, OCC nonpublic information related to Federal savings associations. The final rule also provides that nonpublic information in the possession of former employees or officials of the OTS will remain subject to confidentiality safeguards and procedures for requesting access to such information. As with FOIA requests, the final rule provides that the OTS's former rules will continue to govern requests for nonpublic information received by the OTS prior to the transfer date.
Subpart E sets forth the employment restrictions placed on senior examiners for one year after these individuals leave the employment of the OCC. During this period, a former senior examiner of a national bank is prohibited from accepting compensation from the bank or from an entity that controls the bank. The OTS adopted nearly identical rules. The final rule amends subpart E to include senior examiners of savings associations.
This final rule contains amendments to 12 CFR part 5 to implement section 603 of the Dodd-Frank Act. Section 603 provides for a three-year moratorium (with certain exceptions) on the approval of a change in control of credit card banks, industrial banks and trust banks, if the change in control would result in a commercial firm controlling (directly or indirectly) such a bank. The moratorium took effect on the date of enactment of the Act,
Section 6 of the International Banking Act, 12 U.S.C. 3104(b), provides that uninsured Federal branches of foreign banks may not accept deposits in an amount of less than the standard maximum deposit insurance amount (SMDIA). The SMDIA is defined in 12 U.S.C. 1821(a)(1)(E) to mean $100,000, subject to certain adjustments provided for in the statute. Section 335 of the Dodd-Frank Act, which takes effect on the transfer date, amends 12 U.S.C. 1821(a)(1)(E) to change the amount from $100,000 to $250,000. Section 28.16(b) of the OCC's regulations states that an uninsured Federal branch may accept initial deposits of less than $100,000 only from certain persons. In order to conform this section of the OCC's regulations to the statutory changes and to prevent the need to continually amend this section for changes in the SMDIA, the proposal amended 12 CFR 28.16(b) to refer to 12 U.S.C. 1821(a)(1)(E), rather than the obsolete reference to $100,000. We received no comments on this amendment and adopt it as proposed.
The Dodd-Frank Act contains provisions, effective as of the transfer date (July 21, 2011), that affect the scope of preemption for operating subsidiaries, Federal savings associations, and national banks.
The Act precludes preemption of state law for national bank subsidiaries, agents and affiliates.
The Act further provides that “state consumer financial laws”
The Dodd-Frank Act imposes new procedures and consultation requirements with respect to how the OCC may reach certain future preemption determinations and clarifies the criteria for judicial review of these determinations. Specifically, the Act requires that the OCC make preemption determinations with regard to state consumer financial laws under the
The Dodd-Frank Act also requires there to be substantial evidence, made on the record of the proceeding, to support an OCC order or regulation that declares inapplicable a state consumer financial law under the
Other features of the Dodd-Frank Act address the authority of state attorneys general to enforce applicable Federal and state laws. The National Bank Act, at 12 U.S.C. 484, vests in the OCC exclusive visitorial powers with respect to national banks, subject to certain express exceptions.
The request for information [by the Attorney General] in the present case was stated to be “in lieu of” other action; implicit was the threat that if the request was not voluntarily honored, that other action would be taken. All parties have assumed, and we agree, that if the threatened action would have been unlawful the request-cum-threat could be enjoined. Here the threatened action was not the bringing of a civil suit, or the obtaining of a judicial search warrant based on probable cause, but rather the Attorney General's issuance of subpoena on his own authority under New York Executive Law, which permits such subpoenas in connection with his investigation of “repeated fraudulent or illegal acts * * * in the carrying on, conducting or transaction of business.”
Accordingly, the injunction below is affirmed as applied to the threatened issuance of executive subpoenas by the Attorney General for the State of New York, but vacated insofar as it prohibits the Attorney General from bringing
The Dodd-Frank Act codifies the Supreme Court's decision in
In addition, the Act provides that these visitorial powers provisions shall apply to Federal savings associations and their subsidiaries to the same extent and in the same manner as if they were national banks or national bank subsidiaries.
The proposal amended provisions of the OCC's regulations relating to preemption (12 CFR 7.4007, 7.4008, 7.4009, and 34.4) (2004 preemption rules), operating subsidiaries (12 CFR 5.34 and 7.4006), and visitorial powers (12 CFR 7.4000) to implement the provisions of the Dodd-Frank Act that affect the scope of national bank and Federal thrift preemption and codify
First, we proposed rescission of 12 CFR 7.4006, which is the OCC's regulation concerning the application of state laws to national bank operating subsidiaries. The proposal also made conforming revisions to the OCC's operating subsidiary rules at 12 CFR 5.34(a) and paragraph (e)(3) to refer to new 12 U.S.C. 25b, which includes the codification of the Dodd-Frank Act preclusion of operating subsidiary preemption.
To implement the Act's changes to the preemption standards under the HOLA to conform to those applicable to national banks, we proposed adding new §§ 7.4010(a) and 34.6 to our regulations. The new sections provide that state laws apply to Federal savings associations and their subsidiaries to the same extent and in the same manner as those laws apply to national banks and their subsidiaries, respectively. The proposal also added § 7.4010(b) to similarly subject Federal savings associations and their subsidiaries to the same visitorial powers provisions in the Dodd-Frank Act that apply to national banks and their subsidiaries.
In addition, the proposal made conforming changes to the 2004 preemption rules at 12 CFR 7.4007 (concerning deposit-taking), 7.4008 (non-real estate lending), and 34.4 (real estate lending) to reflect the Act's provisions concerning preemption of state consumer financial laws. Those rules had provided that “state laws that obstruct, impair, or condition a national bank's ability to fully exercise its Federally authorized * * * powers are not applicable to national banks.” The proposal noted that, while the phrase “obstruct, impair or condition” had been drawn from and was intended to be consistent with the standards cited by the Supreme Court in
Finally, the proposal made several changes to the OCC's visitorial powers regulation, 12 CFR 7.4000, to conform the regulations to the Supreme Court's decision in the
Commenters who disagreed with the preemption provisions of the proposal generally relied on several principal arguments:
○ First, that the
○ Second, that the “obstruct, impair, or condition” language introduced in the 2004 preemption rules, which the OCC proposed to delete, is inconsistent with
○ Third, by retaining, rather than repealing, rules that preempt categories of state laws, that the proposal would circumvent the Dodd-Frank Act procedural and consultation requirements. These commenters asserted that the preemption of categories and/or terms of state laws is equivalent to “occupation of the field,” rather than conflict, preemption. These commenters also believe that the Dodd-Frank Act procedural requirements apply to, and therefore (retroactively) invalidate, certain precedents, including the 2004 preemption rules, adopted prior to the Dodd-Frank Act.
In addition, some of these commenters objected to preemption of state and local laws on grounds that preemption is bad public policy and asserted that preemption had resulted in predatory lending to vulnerable consumers and the financial and subprime mortgage lending crises. A few commenters also asserted that the Dodd-Frank Act limits the OCC's preemption authority to state consumer financial laws only.
Some of these commenters further asserted that the proposed visitorial powers amendments:
○ Could be construed as prohibiting all types of investigative activities by state officials, including collecting complaints from consumers or researching public records.
○ Do not reflect the authority of state attorneys general to enforce compliance with certain Federal laws and regulations to be issued by the CFPB.
○ Incorrectly narrow the definition of visitorial powers to the investigation and enforcement of “non-preempted,” rather than “applicable” law.
Commenters who supported the preemption and visitorial powers portions of the proposal expressed agreement with the analysis of the Dodd-Frank Act preemption provisions and legislative history set out in the preamble to the proposal. In the view of these commenters, the
In addition, supporting commenters argued that a contrary position would also have negative consequences for national banks because it would eliminate legal certainty concerning which laws apply to their operations. These commenters asserted that consumer loans and deposit products are subject to comprehensive regulation, and preemption has served to provide clarity and certainty as to which regulatory requirements and standards apply to national banks. These commenters opined that preemption of multiple, differing, and sometimes conflicting, state and local laws and regulations is crucial to the ability of banks and thrifts to conduct multi-state operations in a safe and sound manner to the benefit of consumers, small businesses, and the United States economy as a whole. They voiced concern that the imposition of an overlay of potentially 50 state and an indeterminate number of local government rules on top of myriad Federal requirements would have a costly consequence that could materially affect banks and their ability to serve consumers efficiently and effectively across the nation and could deter future product innovation and modernized, more effective consumer disclosures.
Bank and thrift commenters described the scope of their operations and provided examples of the burdens the application of state and local laws and regulations would impose. According to these institutions, the burdens of having to comply with multiple state and local laws would impair their efficiency in offering core banking products, such as checking accounts, credit cards, mortgage loans, and deposit products. Some commenters also voiced concern that their ability to prudently underwrite loans, offer borrowers needed flexibility, and provide effective consumer disclosures would be compromised by application of various state laws.
Finally, commenters also disputed the contention that preemption encouraged lenders to engage in predatory lending practices that contributed to the subprime mortgage crisis. Some
The OCC has carefully considered all of the points raised by all of the commenters. As described in detail in the next section and for the reasons next discussed, the OCC is issuing a final rule that is substantially the same as the proposal with additional instructive commentary and certain modifications to the visitorial powers provisions to address specific concerns that commenters raised and a clarifying change to §§ 7.4010(a) and 34.6 regarding the applicability of state law to Federal savings associations.
As noted above, in addition to comments on specific aspects of the proposed rule, some commenters urged general disfavor of the concept of Federal preemption as applied to the powers of national banks, and some also contended that preemption in the context of national banks contributed to predatory lending practices, which, in turn contributed to the recent financial crisis. Both of these concerns are important to address as threshold matters.
When Congress established the fundamental structure of the U.S. banking system in 1863, it created national banks and a national banking system to operate in parallel with the existing state banking system—a “dual banking system.” Congress did not abolish state banking, but it did include explicit protections in the new framework so that national banks would be governed by Federal standards administered by a new Federal agency—the Office of the Comptroller of the Currency—and not by state authority.
Perhaps not surprisingly, the independence of national banks from state authority over their banking business has produced tensions and disputes over the years. Yet, a long series of Supreme Court decisions beginning in the earliest years of the national banking system have confirmed the fundamental principle of Federal preemption as applied to national banks: that the Federally-granted banking powers of national banks are governed by national standards set at the Federal level, subject to supervision and oversight by the OCC. These characteristics are fundamental to the duality of the “dual banking system.” Thus established, the twin pillars of the national and state banking systems have been fundamental to the structure—and success—of the U.S. banking system for nearly 150 years. The Supreme Court's
With this design, the state and national banking systems have grown up around each other in this “dual banking system.” Encompassing both large institutions that market products and services regionally, nationally and globally, and smaller institutions that focus their business on their immediate communities, this dual system is diverse, with complex linkages and interdependencies. In this context, and over time, a benefit has been that the “national” part of the dual banking system, the part that has allowed large and small banks to operate under uniform national rules across state lines, has helped to foster the growth of national products and services and multi-state markets. And the system also has supported the contributions of the state systems, allowing states to serve as a “laboratory” for new approaches applicable to their state-supervised institutions.
Throughout our history, uniform national standards have proved to be a powerful engine for prosperity and growth. National standards for national banks have been very much a part of this history, benefiting individuals, business and the national economy. In the 21st Century, the Internet and the advent of technological innovations in the creation and delivery of financial products and services has accentuated the geographic seamlessness of financial services markets, highlighting the importance of uniform standards that attach based on the product or service being provided, applying wherever and however the product or service is provided. However, the premise that Federally-chartered institutions would be subject to standards set at the Federal, rather than state-by-state level, does not and should never mean that those institutions are subject to lax standards. National banks are subject to extensive regulation at the Federal level—which is being considerably enhanced by many provisions of the Dodd-Frank Act—and to regular, and in some cases, continuous examination of their operations.
Because of the degree of regulation and supervision to which national banks are subject, national banks—and other Federally-regulated depository institutions—had limited involvement in subprime lending and the worst subprime loans were originated by nonbank lenders and brokers
With respect to the specifics of the proposal, the OCC concludes that the Dodd-Frank Act does not create a new, stand-alone “prevents or significantly interferes” preemption standard, but rather, incorporates the conflict preemption legal standard and the reasoning that supports it in the Supreme Court's
As described in the preamble to the proposal, the language of the
Senator Carper: Mr. President, I am very pleased to see that the conference committee * * * retained my amendment regarding the preemption standard for State consumer financial laws with only minor modifications. I very much appreciate the effort of Chairman Dodd in fighting to retain the amendment in conference.
Senator Dodd: I thank the Senator. As the Senator knows, his amendment received strong bipartisan support on the Senate floor and passed by a vote of 80 to 18. It was therefore a Senate priority to retain his provision in our negotiations with the House of Representatives.
Senator Carper: One change made by the conference committee was to restate the preemption standard in a slightly different way, but my reading of the language indicates that the conference report still maintains the Barnett standard for determining when a State law is preempted.
Senator Dodd: The Senator is correct. That is why the conference report specifically cites the
Senator Carper: I again thank the Senator. This will provide certainty to everyone—those who offer consumers financial products and to consumer[s] themselves.
156 Cong. Rec. S5902 (daily ed. July 15, 2010) (colloquy between Senator Carper and Chairman Dodd).
Some commenters assert, however, that the
Therefore, in order to apply the
This result is supported by other portions of the Dodd-Frank Act and relevant precedent.
Other textual support is found in the Dodd-Frank Act section providing that Federal savings associations are to be subject to the same preemption standards applicable to national banks. Subsection (a) of section 1046 states that preemption determinations for Federal savings associations under the Home Owners' Loan Act “shall be made in accordance with the laws and legal standards applicable to national banks regarding preemption of state law.” The heading of subsection (b), which immediately follows, is “Principles of Conflict Preemption Applicable,” which can only refer to the national bank preemption standards to which Federal savings associations are made subject by subsection (a).
The
Accordingly, because we conclude that the Dodd-Frank Act preserves the
Some commenters asserted that the “obstruct, impair, or condition” phrasing in the 2004 preemption rules was not only inconsistent with
For these reasons, the OCC is deleting the phrase in the final rule.
Some commenters also asserted that the preemption rules promulgated by the OCC in 2004 are not consistent with the Dodd-Frank Act, or with
The essence of the
The types and terms of laws that are set out in the 2004 preemption rules were based on the OCC's experience with the potential impact of such laws on national bank powers and operations.
Similarly, disclosure laws that impose requirements that predicate the exercise of national banks' deposit-taking or lending powers on compliance with state-dictated disclosure requirements clearly present a significant interference, within the meaning of
And state laws that would alter standards of a national bank's depository business—setting standards for permissible types and terms of accounts and for funds availability, similarly would significantly interfere with management of a core banking business. Moreover, the imposition of state-based standards on national banks' depository activities implicates aspects of a bank's overall risk management and funding strategies, including liquidity, interest rate risk exposure, funding management, and fraud prevention. State and local law directives or instructions affecting these areas are significant, within the meaning of
Several commenters identified particular types of laws in the foregoing categories and explained how they impaired or otherwise burdened their operations. Those commenters also emphasized that to the extent that multiple states' requirements may be asserted, the significance of the interference is magnified. Based upon the OCC's supervisory experience, these concerns are valid.
Some commenters asserted that maintaining any of the preemption rules contravenes the new Dodd-Frank Act preemption procedures. These commenters contend that OCC can preempt only on a “case-by-case basis” if a “particular” state law, or an equivalent one, prevents or significantly interferes with the exercise of bank powers, after consultation with the CFPB. However, these provisions clearly apply to determinations made under the
As explained above, some commenters voiced concern about the proposed revision to the definition of visitorial powers at § 7.4000(a)(2)(iv) to include “
Commenters also opined that the proposed definition does not reflect the authority of state attorneys general to
Finally, some commenters asserted that the phrase “non-preempted state law” used in the proposal could be interpreted more narrowly than the “applicable law” phrasing used in the Dodd-Frank Act. We intended the authority addressed in current § 7.4000(a)(3) in combination with the phrase “non-preempted state law” to have the result sought by these commenters, but we understand the commenters' concern regarding the clarity of this result. Accordingly, we have changed the language of the final rule to simply use the term “applicable law.” We note, however, that this is an exception from a prohibition of certain visitorial actions by an attorney general (or other chief state law enforcement officer), not an authorization. In the case of both non-preempted state law and Federal law, the law in question still must provide authority for the attorney general to enforce and seek relief as authorized under that applicable law.
For the reasons set forth in this preamble, the final rule amends provisions of the OCC's regulations relating to preemption (12 CFR 7.4007, 7.4008, 7.4009, and 34.4), operating subsidiaries (12 CFR 5.34 and 7.4006), and visitorial powers (12 CFR 7.4000) as follows:
• The final rule adds §§ 7.4010(a) and 34.6 to provide that Federal savings associations and their subsidiaries are subject to the same laws and legal standards, including OCC regulations, as are applicable to national banks and their subsidiaries regarding the preemption of state law. The final rule also adds § 7.4010(b) to subject Federal savings associations and their subsidiaries to the same visitorial powers provisions in the Dodd-Frank Act that apply to national banks and their subsidiaries.
• The final rule makes conforming changes to §§ 7.4007, 7.4008, and 34.4. It revises paragraphs (b) in § 7.4007, (d) in § 7.4008, and (a) in § 34.4 by removing “state laws that obstruct, impair, or condition a national bank's ability to fully exercise its Federally authorized * * * powers are not applicable to national banks.” The final rule further clarifies that a state law is
• The final rule deletes § 7.4009.
• The final rule deletes § 7.4006, which governs applicability of state laws to national bank operating subsidiaries. The final rule also makes conforming revisions to 12 CFR 5.34(a) and paragraph (e)(3) by expressly referencing the new section 12 U.S.C. 25b adopted by the Dodd-Frank Act.
• The final rule makes a number of changes to § 7.4000 to conform the regulations to the Supreme Court's decision in the
We did not propose changes to 12 CFR 7.4002, 34.21, and 37.1 and therefore make no changes to these provisions in this final rule. However, we agree with commenters that these rules remain in effect.
The Dodd-Frank Act transfers authority to collect assessments for Federal savings associations from the OTS to the OCC.
Prior to the transfer date, the OCC and the OTS assessed banks and savings associations, respectively, using different methodologies, although the agencies' methodologies generally resulted in similar levels of assessments. Under the OTS assessment system, assessments were due each year on January 31 and July 31, and were calculated based on an institution's asset size, condition, and complexity.
The condition component in the OTS's regulation applied to savings associations with Uniform Financial Institutions Rating System (UFIRS) ratings of 3, 4, or 5. The condition surcharge is determined by multiplying a savings association's size component by 50%, in the case of any association that receives a composite UFIRS rating of 3, and 100% in the case of any association that receives a composite UFIRS rating of 4 or 5. Under the OTS regulation, there was no cap on the condition surcharge.
The assessment for complexity was based on a savings association's trust assets and on certain non-trust assets. The OTS charged a complexity component for trust assets if a savings association had more than $1 billion in one of three components: trust assets managed by the savings association, the outstanding principal balance of assets that are covered by recourse obligations or direct credit substitutes, and the principal amount of loans that the institution services for others. The OTS charged the complexity component for these categories of assets above $1 billion under tiers and rates set out in a Thrift Bulletin.
If a savings association administers trust assets of $1 billion or less, the OTS could assess fees for its examinations and investigations of those institutions. The OTS also could assess a savings association for examination or investigation of its affiliates. Again, these fees were set in a Thrift Bulletin.
Under the OCC's assessment regulation, set forth at 12 CFR part 8, assessments for each national bank are due on March 31 and September 30 of each year.
In addition to the semiannual assessment, the OCC applies a separate assessment for its examination of “independent credit card banks” and “independent trust banks.”
An “independent trust bank” is a national bank with trust powers that has fiduciary and related assets, does not primarily offer full-service banking, and is not affiliated with a full-service national bank.
The OCC applies a condition-based surcharge to the semiannual assessment of national banks.
The OCC received two comments concerning the proposed changes to part 8 and the assessment of savings association, both supporting the proposal's approach to integrating savings associations into the OCC's assessment structure. The OCC is adopting the final rule as proposed.
The final rule amends part 8 to assess Federal savings associations using the same methodologies, rates, fees, and payment due dates that apply currently to national banks. The OTS's existing assessment regulation is no longer in effect and will be repealed at a later date. As a result, the next assessment for savings associations will occur in September 2011, and not July 2011.
Under the OCC's assessment system, some savings associations will pay marginally more assessments than in the past, while others will pay lower assessments. However, during the first two assessment cycles after the transfer date, the OCC will base savings association assessments on either the OCC's assessment regulation (as amended to include Federal savings associations) or the former OTS assessment structure, whichever yields the lower assessment for that savings association. After the March 2012 assessment, all national banks and Federal savings associations will be assessed using the OCC's assessment structure. The OCC intends to implement this phase-in through an amended Notice of Fees. The OCC believes that this phase-in will allow savings associations sufficient time to adjust to the OCC's assessment program.
One commenter suggested that the OCC add the phase-in period for Federal savings associations to the regulatory text. The OCC believes that the amended Notice of Fees discussed above, as well as the discussion of the phase-in included in the proposed rule and this preamble, provide sufficient guidance to Federal savings associations concerning the OCC's intention to delay application of higher assessments for affected Federal savings associations for two assessment cycles. Given the temporary nature of the phase-in, we decline to include a reference to the phase-in period in the regulatory text.
This commenter also suggested that the OCC provide an alternate assessment statement to Federal savings associations to show savings associations what the assessment would have been under the OCC's assessment structure, had it been applied. The commenter stated that this will assist those Federal savings associations that will pay marginally more under the OCC's assessment structure better prepare for the shift to OCC assessments in 2012. We agree that such notice would be helpful and plan to notify those Federal savings associations that will pay a lower assessment during the phase-in of the amount their assessments would have been under the OCC's assessment structure.
The final rule also implements section 605(a) of the Dodd-Frank Act, which provides the OCC (and other appropriate Federal banking agencies) with authority to conduct examinations of depository-institution permissible activities of nondepository institution subsidiaries of depository institution holding companies. Section 605 provides specific authority for the OCC and other regulators to assess such nondepository institution subsidiaries for the costs of examination. The final rule implements this new statutory assessment authority.
This final rule is effective on July 21, 2011, except as noted in the
Section 302 of the Riegle Community Development and Regulatory Improvement Act of 1994 (12 U.S.C. 4802) (RCDRIA) requires that regulations imposing additional reporting, disclosure, or other requirements on insured depository institutions take effect on the first day of the calendar quarter after publication of the final rule, unless, among other things, the agency determines for good cause that the regulations should become effective before such time. The RCDRIA does not apply to the amendments to parts 4, 5, 7, 8, 28 and 34 of this final rule because these amendments do not impose any additional reporting, disclosure, or other requirements.
Pursuant to section 605(b) of the Regulatory Flexibility Act, 5 U.S.C. 605(b) (RFA), the regulatory flexibility analysis otherwise required under section 604 of the RFA is not required if the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities and publishes its certification and a short, explanatory statement in the
The rule contains several currently approved collections of information under the Paperwork Reduction Act (44 U.S.C. 3501–3520).
Section 202 of the Unfunded Mandates Reform Act of 1995, Public Law 104–4 (2 U.S.C. 1532) (Unfunded Mandates Act), requires that an agency prepare a budgetary impact statement before promulgating any rule likely to result in a Federal mandate that may result in the expenditure by state, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year. If a budgetary impact statement is required, section 205 of the Unfunded Mandates Act also requires an agency to identify and consider a reasonable number of regulatory alternatives before promulgating a rule. The OCC has determined that this final rule will not result in expenditures by state, local, and Tribal governments, or by the private sector, of $100 million or more in any one year. Accordingly, this final rule is not subject to section 202 of the Unfunded Mandates Act.
National banks, Savings associations, Organization and functions, Reporting and recordkeeping requirements, Administrative practice and procedure, Freedom of Information Act, Records, Non-public information, Post-employment activities.
Administrative practice and procedure, National banks, Reporting and recordkeeping requirements, Securities.
Computer technology, Credit, Insurance, Investments, National banks, Savings associations, reporting and recordkeeping requirements, Securities, Surety bonds.
National banks, Savings associations, Reporting and recordkeeping requirements.
Foreign banking, National banks, Reporting and recordkeeping requirements.
Mortgages, National banks, Savings associations, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, chapter I of title 12 of the Code of Federal Regulations is amended as follows:
12 U.S.C. 1, 12 U.S.C. 93a, 12 U.S.C. 5321, 12 U.S.C. 5412, and 12 U.S.C. 5414. Subpart A also issued under 5 U.S.C. 552. Subpart B also issued under 5 U.S.C. 552; E.O. 12600 (3 CFR 1987 Comp., p. 235). Subpart C also issued under 5 U.S.C. 301, 552; 12 U.S.C. 161, 481, 482, 484(a), 1442, 1462a, 1463, 1464 1817(a)(2) and (3), 1818(u) and (v), 1820(d)(6), 1820(k), 1821(c), 1821(o), 1821(t), 1831m, 1831p–1, 1831o, 1867, 1951
The OCC is charged with assuring the safety and soundness of, and compliance with laws and regulations, fair access to financial services, and fair treatment of customers by, the institutions and other persons subject to its jurisdiction. The OCC examines, supervises, and regulates national banks, Federal branches and agencies of foreign banks, and Federal savings associations to carry out this mission. The OCC also issues rules and regulations applicable to state savings associations.
The Washington office of the OCC is the main office and headquarters of the OCC. The Washington office directs OCC policy, oversees OCC operations, and is responsible for the direct supervision of certain national banks and Federal savings associations, including the largest national banks and the largest Federal savings associations (through the Large Bank Supervision Department); other national banks and Federal savings associations requiring special supervision; and Federal branches and agencies of foreign banks (through the Large Bank Supervision Department). The Washington office is located at 250 E Street, SW., Washington, DC 20219. The OCC's Web site is at
The revision reads as follows:
(a)
The revisions read as follows:
(b) * * *
(3) * * *
(i) The bank or Federal savings association was assigned a rating of 1 or 2 for management as part of the bank's or association's rating under the Uniform Financial Institutions Rating System; and
(ii) The bank or Federal savings association was assigned a composite rating of 1 or 2 under the Uniform Financial Institutions Rating System.
The addition reads as follows:
(b) * * *
(4) This subpart does not apply to FOIA requests filed with the Office of Thrift Supervision (OTS) before July 21, 2011. These requests are subject to the rules of the OTS in effect on July 20, 2011.
The addition reads as follows:
(b) * * *
(10) Any OTS information similar to that listed in paragraphs (b)(1) through (9) of this section, to the extent this information is in the possession of the OCC.
The additions and revision read as follows:
(a) * * *
(12) Any OTS information similar to that listed in paragraphs (a)(1) through (a)(12) of this section, to the extent this information is in the possession of the OCC.
(c)
(a)
(2)
(b)
The addition reads as follows:
(b) * * *
(5) This subpart does not apply to requests for non-public information filed with the Office of Thrift Supervision (OTS) before July 21, 2011. These requests are subject to the rules of the OTS in effect on July 20, 2011.
The revisions read as follows:
(b) * * *
(1) * * *
(i) A record created or obtained:
(A) By the OCC in connection with the OCC's performance of its responsibilities, such as a record concerning supervision, licensing, regulation, and examination of a national bank, a Federal savings
(B) By the OTS in connection with the OTS's performance of its responsibilities, such as a record concerning supervision, licensing, regulation, and examination of a Federal savings association, a savings and loan holding company, or an affiliate;
(v) Testimony from, or an interview with, a current or former OCC employee, officer, or agent or a former OTS employee, officer, or agent concerning information acquired by that person in the course of his or her performance of official duties with the OCC or OTS or due to that person's official status at the OCC or OTS; and
(e)
(a) * * *
(5)
The revision reads as follows:
(b) * * *
(2)
The additions and revision read as follows:
(1) The officer or employee has been authorized by the OCC to conduct examinations on behalf of the OCC or had been authorized by the Office of Thrift Supervision (OTS) to conduct examinations on behalf of the OTS;
(2) The officer or employee has been assigned continuing, broad, and lead responsibility for examining the national bank or savings association; and
(3) The officer's or employee's responsibilities for examining the national bank or savings association—
(i) Represent a substantial portion of the officer's or employee's assigned responsibilities; and
(ii) Require the officer or employee to interact routinely with officers or employees of the national bank or savings association, or its affiliates.
(1) The officer or employee has been authorized by the OCC to conduct examinations on behalf of the OCC;
(2) The officer or employee has been assigned continuing, broad, and lead responsibility for examining the national bank or savings association; and
(3) The officer's or employee's responsibilities for examining the national bank or savings association—
(i) Represent a substantial portion of the officer's or employee's assigned responsibilities; and
(ii) Require the officer or employee to interact routinely with officers or employees of the national bank or savings association, or its affiliates.”
An officer or employee of the OCC who serves, or former officer or employee of the OTS who served, as the senior examiner of a national bank or savings association for two or more months during the last twelve months of such individual's employment with the OCC or OTS may not, within one year after leaving the employment of the OCC or OTS, knowingly accept compensation as an employee, officer, director or consultant from the national bank, savings association, or any company (including a bank holding company or savings and loan holding company) that controls the national bank or savings association.
An officer or employee of the OCC who serves as the senior examiner of a national bank or savings association for two or more months during the last twelve months of such individual's employment with the OCC may not, within one year after leaving the employment of the OCC, knowingly accept compensation as an employee, officer, director or consultant from the national bank, savings association, or any company (including a bank holding company or savings and loan holding company) that controls the national bank or savings association.
The post-employment restrictions set forth in section 10(k) of the FDI Act (12 U.S.C. 1820(k)) and § 4.74 do not apply to any officer or employee of the OCC, or any former officer or employee of the OCC or OTS, if the Comptroller of the Currency certifies, in writing and on a case-by-case basis, that granting the individual a waiver of the restrictions would not affect the integrity of the OCC's supervisory program.
The post-employment restrictions set forth in section 10(k) of the FDI Act (12 U.S.C. 1820(k)) and § 4.74 do not apply to any officer or employee of the OCC, or any former officer or employee of the OCC, if the Comptroller of the Currency certifies, in writing and on a case-by-case basis, that granting the individual a waiver of the restrictions would not affect the integrity of the OCC's supervisory program.
(a)
(1) An order—
(i) Removing the individual from office or prohibiting the individual from further participation in the affairs of the relevant national bank, savings association, bank holding company, savings and loan holding company, or other company that controls such institution for a period of up to five years; and
(ii) Prohibiting the individual from participating in the affairs of any insured depository institution for a period of up to five years; or
(2) A civil monetary penalty of not more than $250,000.
(a)
(1) An order—
(i) Removing the individual from office or prohibiting the individual from further participation in the affairs of the relevant national bank, savings association, bank holding company, savings and loan holding company, or other company that controls such institution for a period of up to five years; and
(ii) Prohibiting the individual from participating in the affairs of any insured depository institution for a period of up to five years; or
(2) A civil monetary penalty of not more than $250,000.
12 U.S.C. 1
(a) * * *
12 U.S.C. 24 (Seventh), 24a, 25b, 93a, 3101
(e) * * *
(3)
(f) * * *
(6)
(ii)
(A)(
(
(
(B) Has obtained all regulatory approvals otherwise required for such change of control under any applicable Federal or state law, including review pursuant to section 7(j) of the Federal Deposit Insurance Act (12 U.S.C. 1817(j)) and 12 CFR 5.50.
12 U.S.C. 1
The additions and revisions read as follows:
(a) * * *
(1) Under 12 U.S.C. 484, only the OCC or an authorized representative of the OCC may exercise visitorial powers with respect to national banks. * * *
(2) * * *
(iv) Enforcing compliance with any applicable Federal or state laws concerning those activities, including through investigations that seek to ascertain compliance through production of non-public information by the bank, except as otherwise provided in paragraphs (a), (b), and (c) of this section.
(b)
(c) * * *
(2)
The revisions read as follows:
(c)
(3) Criminal law;
(8) Any other law that the OCC determines to be applicable to national banks in accordance with the decision of the Supreme Court in
The revisions read as follows:
(e)
(3) Criminal law;
(8) Any other law that the OCC determines to be applicable to national banks in accordance with the decision of the Supreme Court in
(a) In accordance with section 1046 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (12 U.S.C. 25b), Federal savings associations and their subsidiaries shall be subject to the same laws and legal standards, including regulations of the OCC, as are applicable to national banks and their subsidiaries, regarding the preemption of state law.
(b) In accordance with section 1047 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (12 U.S.C. 1465), the provisions of section 5136C(i) of the Revised Statutes regarding visitorial powers apply to Federal savings associations and their subsidiaries to the same extent and in the same manner as if they were national banks or national bank subsidiaries.
12 U.S.C. 16, 93a, 481, 482, 1467, 1831c, 1867, 3102, 3108, and 5412(b)(1)(B); and 15 U.S.C. 78c and 78
The assessments contained in this part are made pursuant to the authority contained in 12 U.S.C. 16, 93a, 481, 482, 1467, 1831c, 1867, 3102, and 3108; and 15 U.S.C. 78c and 78
(a) Each national bank and each Federal savings association shall pay to the Comptroller of the Currency a semiannual assessment fee, due by March 31 and September 30 of each year, for the six month period beginning on January 1 and July 1 before each payment date. The Comptroller of the Currency will calculate the amount due under this section and provide a notice of assessments to each national bank and each Federal savings association no later than 7 business days prior to March 31 and September 30 of each year. The semiannual assessment will be calculated as follows:
(1) Every national bank and every Federal savings association falls into one of the asset-size brackets denoted by Columns A and B. A bank's or Federal savings association's semiannual assessment is composed of two parts. The first part is the calculation of a base amount of the assessment, which is computed on the assets of the bank or Federal savings association up to the lower endpoint (Column A) of the bracket in which it falls. This base amount of the assessment is calculated by the OCC in Column C.
(2) The second part is the calculation of assessments due on the remaining assets of the bank or Federal savings association in excess of Column E. The excess is assessed at the marginal rate shown in Column D.
(3) The total semiannual assessment is the amount in Column C, plus the amount of the bank's or Federal savings association's assets in excess of Column E times the marginal rate in Column D: Assessments = C+[(Assets−E) × D].
(4) Each year, the OCC may index the marginal rates in Column D to adjust for the percent change in the level of prices, as measured by changes in the Gross Domestic Product Implicit Price Deflator (GDPIPD) for each June-to-June period. The OCC may at its discretion adjust marginal rates by amounts less than the percentage change in the GDPIPD. The OCC will also adjust the amounts in Column C to reflect any change made to the marginal rate.
(5) The specific marginal rates and complete assessment schedule will be published in the “Notice of Comptroller of the Currency Fees,” provided for at § 8.8 of this part. Each semiannual assessment is based upon the total assets shown in the national bank's or Federal savings association's most recent “Consolidated Reports of Condition and Income” (Call Report) or “Thrift Financial Report,” as appropriate, preceding the payment date. Each bank or Federal savings association subject to the jurisdiction of the Comptroller of the Currency on the date of the second or fourth quarterly Call Report or Thrift Financial Report, as appropriate, required by the Office under 12 U.S.C. 161 and 12 U.S.C. 1464(v) is subject to the full assessment for the next six month period.
(6)(i) Notwithstanding any other provision of this part, the OCC may reduce the semiannual assessment for each non-lead bank or non-lead Federal savings association by a percentage that it will specify in the “Notice of Comptroller of the Currency Fees” described in § 8.8.
(ii) For purposes of this paragraph (a)(6):
(A)
(B)
(C)
(D)
(b)(1) Each Federal branch and each Federal agency shall pay to the Comptroller of the Currency a semiannual assessment fee, due by March 31 and September 30 of each year, for the six month period beginning on January 1 and July 1 before each payment date. The Comptroller of the Currency will calculate the amount due under this section and provide a notice of assessments to each national bank no later than 7 business days prior to March 31 and September 30 of each year.
(2) The amount of the semiannual assessment paid by each Federal branch and Federal agency shall be computed at the same rate as provided in the Table in 12 CFR 8.2(a); however, only the total domestic assets of the Federal branch or agency shall be subject to assessment.
(3) Each semiannual assessment of each Federal branch or agency is based upon the total assets shown in the Federal branch's or agency's Call Report most recently preceding the payment date. Each Federal branch or agency subject to the jurisdiction of the OCC on the date of the second and fourth Call Reports is subject to the full assessment for the next six-month period.
(4)(i) Notwithstanding any other provision of this part, the OCC may reduce the semiannual assessment for each non-lead Federal branch or agency by an amount that it will specify in the “Notice of Comptroller of the Currency Fees” described in § 8.8.
(ii) For purposes of this paragraph (b)(4):
(A)
(B)
(c)
(2)
(3)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(4)
(d)
(1) 1.5, in the case of any bank or Federal savings association that receives a composite rating of 3 under the Uniform Financial Institutions Rating System (UFIRS) and any Federal branch or agency that receives a composite rating of 3 under the ROCA rating system (which rates risk management, operational controls, compliance, and
(2) 2.0, in the case of any bank or Federal savings association that receives a composite UFIRS rating of 4 or 5 and any Federal branch or agency that receives a composite rating of 4 or 5 under the ROCA rating system at its most recent examination.
(a)
(1) Examining the fiduciary activities of national banks and Federal savings associations and related entities;
(2) Conducting special examinations and investigations of national banks, Federal branches or agencies of foreign banks, and Federal savings associations;
(3) Conducting special examinations and investigations of an entity with respect to its performance of activities described in section 7(c) of the Bank Service Company Act (12 U.S.C. 1867(c)) if the OCC determines that assessment of the fee is warranted with regard to a particular bank or Federal savings association because of the high risk or unusual nature of the activities performed; the significance to the bank's or Federal saving association's operations and income of the activities performed; or the extent to which the bank or Federal savings association has sufficient systems, controls, and personnel to adequately monitor, measure, and control risks arising from such activities;
(4) Conducting special examinations and investigations of affiliates of national banks, Federal savings associations, and Federal branches or agencies of foreign banks;
(5) Conducting examinations and investigations made pursuant to 12 CFR part 5, Rules, Policies, and Procedures for Corporate Activities; and
(6) Conducting examinations of depository-institution permissible activities of nondepository institution subsidiaries of depository institution holding companies pursuant to section 605(a) of the Dodd-Frank Wall Street Reform and Consumer Protection Act (12 U.S.C. 1831c).
(b)
(c)
(i)
(ii)
(iii)
(2)
(3)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
The revision reads as follows:
(c) * * *
(3) * * *
(vii)
12 U.S.C. 1
12 U.S.C. 1
The revisions read as follows:
(a) A national bank may make real estate loans under 12 U.S.C. 371 and § 34.3, without regard to state law limitations concerning:
(b) State laws on the following subjects are not inconsistent with the real estate lending powers of national banks and apply to national banks to the extent consistent with the decision of the Supreme Court in
(3) Criminal law;
(9) Any other law that the OCC determines to be applicable to national banks in accordance with the decision of the Supreme Court in
In accordance with section 1046 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (12 U.S.C. 25b), Federal savings associations and their subsidiaries shall be subject to the same laws and legal standards, including regulations of the OCC, as are applicable to national banks and their subsidiaries, regarding the preemption of state law.
Bureau of Consumer Financial Protection.
Final list.
Section 1063(i) of the Consumer Financial Protection Act of 2010 (“Act”)
Monica Jackson, Office of the Executive Secretary, Bureau of Consumer Financial Protection, 1801 L Street, NW., Washington, DC 20036, 202–435–7275.
Under the Act, on the designated transfer date, July 21, 2011,
Section 1063(i) of the Act provides that, not later than the designated transfer date, the CFPB “(1) shall, after consultation with the head of each transferor agency, identify the rules and orders that will be enforced by the [CFPB]; and (2) shall publish a list of such rules and orders in the
Because the list under section 1063(i) reflects the CFPB's interpretation of its authority under the Act and relates to agency organization, procedure, or practice, the list is not subject to the notice-and-comment requirements of the Administrative Procedure Act (“APA”) (5 U.S.C. 551
As noted in the May 31 Notice, the CFPB's authority is defined by the Act and other applicable law. As a result, the CFPB's publication of the list called for by section 1063(i) will not have a substantive effect on any rules or orders or the parties who may be subject to them; it merely provides a convenient reference source. Accordingly, the inclusion or exclusion of any rule or order does not alter the CFPB's authority.
In response to the May 31 Notice, the CFPB received 12 comments from regulated entities, trade associations, and consumer groups, among others. None of the comments recommended that any items be added to or removed from the list. The list contained in this document is identical to the list published in the May 31 Notice, except that the final list contains a technical correction to the ordering of the Department of Housing and Urban Development (“HUD”) rules and reflects the addition of two rules issued after the May 31 Notice: the FTC's Mortgage Acts and Practices—Advertising rule, and HUD's rule implementing the Secure and Fair Enforcement for Mortgage Licensing Act of 2008.
Some comments inquired about the CFPB's application of guidance issued by the transferor agencies in connection with the rules contained on the list. The CFPB does not consider guidance or similar documents as falling within the meaning of enforceable “rules and orders” that are required to be listed pursuant to section 1063(i). However, by way of clarification, the CFPB notes that for laws with respect to which rulemaking authority will transfer to the CFPB, the official commentary, guidance, and policy statements issued prior to July 21, 2011, by a transferor agency with exclusive rulemaking authority for the law in question (or similar documents that were jointly agreed to by all relevant agencies in the case of shared rulemaking authority) will be applied by the CFPB pending further CFPB action. The CFPB will give due consideration to the application of other written guidance, interpretations, and policy statements issued prior to July 21, 2011, by a transferor agency in light of all relevant factors, including: whether the agency had rulemaking authority for the law in question; the formality of the document in question and the weight afforded it by the issuing agency; the persuasiveness of the document; and whether the document conflicts with guidance or interpretations issued by another agency. The CFPB will seek over time to improve the clarity and uniformity of guidance regarding the laws it will administer as necessary in order to facilitate compliance with the Federal consumer financial laws.
Several other comments addressed policy issues that are outside the scope of the list called for by section 1063(i), such as specific recommendations regarding the CFPB's exercise of its rulemaking authority.
Finally, it bears noting that, later this year, the CFPB intends to publish in chapter X of title 12 of the Code of Federal Regulations the rules for which rulemaking authority transfers to the CFPB. These rules will contain conforming amendments to reflect both the transfer of authority to the CFPB under the Act and certain other changes made by the Act to the underlying statutes.
Accordingly, pursuant to section 1063(i) of the Act, the CFPB sets forth the following list of rules that will be enforceable by the CFPB subject to the limitations and other provisions of the Act:
U.S. Small Business Administration.
Interim final rule with request for comments.
This interim final rule amends the U.S. Small Business Administration's regulations pertaining to the Historically Underutilized Business Zone (HUBZone Program). Specifically, this interim final rule allows a declined or decertified HUBZone small business to reapply ninety (90) calendar days after the decline or decertification decision is rendered, rather than wait one year to reapply, provided that it meets the eligibility requirements at that time of application.
You may submit comments, identified by RIN 3245–AG45 by any of the following methods:
•
•
•
Mariana Pardo, Deputy Director, HUBZone Program, (202) 205–2985 or by e-mail at
The Small Business Act (Act) and implementing regulations require that, with the exception of certain specified entities, qualified HUBZone small business concerns (SBCs) have a principal office located in a HUBZone. 15 U.S.C. 632(p)(5)(A)(i)(I)(aa); 13 CFR 126.103. The Act and the implementing regulations also require that at least 35% of the HUBZone small business concern's employees reside in a HUBZone.
The Act and SBA's regulations define a QCT by referring to the Internal Revenue Code of 1987, which in turn defines a QCT as any census tract which is designated by the Secretary of Housing and Urban Development (HUD) and, for the most recent year for which census data are available on household income in such tract, either in which 50 percent or more of the households have an income which is less than 60 percent of the area median gross income.
The Act and regulations also define a QNMC as any county that was not located in a metropolitan statistical area and in which: (1) The median household income is less than 80 percent of the nonmetropolitan State median household income, based on the most recent data available from the Census Bureau; (2) the unemployment rate is not less than 140 percent of the average unemployment rate for the United States or for the State in which such county is located, whichever is less, based on the most recent data available from the Department of Labor (DOL); or (3) there is located a difficult development area, as designated by HUD within Alaska, Hawaii, or any territory or possession of the United States outside the 48 contiguous States. 15 U.S.C. 632(p)(4)(B).
In sum, the HUBZone areas are designated by statute and draw upon determinations and information obtained by other agencies. The SBA takes these designations and depicts them on an easy-to-use HUBZone map, available at
With respect to both QCTs and QNMCs, the SBA relies on data from HUD, Census Bureau and DOL in order to determine which areas are HUBZones. With respect to the census tracts, HUD reviews census tracts as new data from the Census Bureau become available or when metropolitan area definitions change. HUD's current designations of census tracts are based on data from the 2000 Census because in the past, tract-level data was only available from a Decennial Census. However, due to changes in collection of income data at the tract level by the Census Bureau, HUD will now be relying on data from the American Community Survey (ACS). Although the ACS is an annual survey, tract-level data from the ACS will be released as five-year averages. The first release of this data will cover the 2005 through 2009 period and the Census Bureau expects to make this data available sometime soon. HUD will review this new data during 2012 and make census tract determinations. Census tracts will be subsequently reviewed based on new data every 5 years. SBA relies on these HUD designations for purposes of its program.
However, before HUD can designate a census tract, it must rely on the Census Bureau to define the census tract's boundaries. With respect to the census tracts, the Census Bureau defines the boundaries in cooperation with local authorities every ten years and, following a public comment period, has recently completed defining tract boundaries for the 2010 Census. Once census tract boundaries are set, they remain unchanged for the next decade. Thus, tract boundaries will not be changed again until the 2020 Decennial Census.
Therefore, with respect to HUBZone QCTs, SBA relies on designations from HUD and boundary designations from the Census Bureau.
With respect to nonmetropolitan counties, SBA receives unemployment data from DOL yearly. Further, designations based on the HUD defined Difficult Development Areas (DDAs) are updated annually. Thus, for QNMCs, the SBA relies on DOL data and HUD definitions for DDAs.
When the HUBZone Program first started, the receipt of such data or designations, especially the annual data, meant that in some cases certain HUBZone areas could be affected every year by the release of certain data,
A few years later, the SBA encountered additional problems once the Census Bureau released the 2000 Decennial Census results as a large number of areas ceased to be considered HUBZones. In response, Congress amended the Act in 2004 to redefine a redesignated area to mean any QCT or QNMC that ceases to be qualified may be a redesignated area until the later of: (1) The date on which the Census Bureau publicly releases the first results from the 2010 Decennial Census that affects the eligibility of the HUBZone; or (2) three years after the date on which the census tract or nonmetropolitan county ceased to be so qualified. 15 U.S.C. 632(p)(4)(C). The purpose of extending the redesignated status until the 2010 Decennial Census or three years after the date the QCT or QNMC ceases to be a qualified HUBZone (whichever is later) was to provide adequate time for HUBZone SBCs to recoup a return on investment and assist the Federal government in meeting its statutory prime contracting HUBZone goal of 3 percent.
This year, the Census Bureau will publicly release the first results of the 2010 Decennial Census that affect the eligibility of the HUBZones. The Census Bureau uses the ACS to collect socioeconomic and housing information continuously from a national sample of housing units and people living in group quarters, and tabulates these data on a calendar year basis. Agencies will utilize the evaluated data from the ACS to make QCT and QNMC determinations. The first set of evaluated data using ACS numbers that affect HUBZone eligibility are expected
The following provides examples of how the statutory redesignated areas are affected or not affected by the release of the 2010 Decennial Census:
A QCT ceased to be a HUBZone in 2004 and therefore became a redesignated HUBZone in 2004. The area may remain a HUBZone until the release of the 2010 Decennial Census data that affects its eligibility or three years from the date of redesignation, whichever is later. In this case, the area will cease to be a HUBZone on the release of the 2010 Decennial Census data that affects its eligibility.
A QNMC ceased to be a HUBZone in 2009 because the unemployment ratio disqualified it and therefore became a redesignated HUBZone in 2009. The area may remain a HUBZone until the release of the 2010 Decennial Census data that affects its eligibility or three years from the date of redesignation, whichever is later. In this case, the area will cease to be a HUBZone three years from the date of redesignation—2012.
A QNMC ceased to be a HUBZone in 2008 because HUD determined the area was no longer a difficult development area and therefore it became a redesignated HUBZone in 2008. The area may remain a HUBZone until the release of the 2010 Decennial Census data that affects its eligibility or three years from the date of redesignation, whichever is greater. In this case, the area will cease to be a HUBZone three years from the date of redesignation—2011.
When the Census Bureau releases the data, the SBA will publish information and later update its current maps to show the public those areas that are no longer qualified HUBZones because they are no longer redesignated areas. Any current qualified HUBZone SBC with a principal office in one of those areas will be proposed for decertification. The SBA will also publish information and update its maps to show any areas that may become new HUBZones. In some cases, a redesignated area could remain a HUBZone by becoming a QNMC or QCT. The SBA does not have any information at this time to identify areas that will be designated as new HUBZones.
We note that the HUBZone Program was established in 1997, and all the redesignated areas have been allowed to stay in the program or reinstated since December 2004. Since then, no SBC has been decertified because of an expired redesignation. In general, SBA believes that many SBCs in these redesignated areas have been given ample time to recoup a return on their investment. However, we understand that many of these SBCs in the redesignated areas that are getting ready to expire may want to continue to utilize the HUBZone Program and could do so by moving their business into a HUBZone.
Specifically, the HUBZone Program has an average of 8,500 participating firms, and about 40% of the firms will be affected by the expiring redesignations based on principal office location. In addition there will be another set of small businesses that will be ineligible because they no longer meet the HUBZone 35% residency requirement. Further, the HUBZone Program receives approximately 4,000 applications per year. Of the 1,089 applications that where declined in FY10, 62% where declined due to the applicant not meeting the 35% employee HUBZone residence requirement and 46% because of not meeting the principal office requirement. Also, of the 742 firms that voluntarily decertified in FY09 and FY10, 23% did so because they were not meeting the 35% employee HUBZone residence requirement and 22% because of not meeting the principal office requirement.
Under the current regulations, once declined or decertified, these small businesses must wait one year to reapply. At the time it promulgated that rule, the SBA believed that a one year wait was sufficient time for a small business to come back into compliance. However, in many cases, the small business only has to hire a few additional HUBZone residents. In other cases, such as those small businesses with principal offices in HUBZone areas that are about to expire, the SBA has provided several years warning about the expiration. In preparation, some businesses may be planning to move to HUBZone areas. It would not serve the purposes of the program to make such small businesses wait one year to reapply.
The SBA believes that reducing the one year wait period to ninety (90) calendar days would encourage the businesses to move into newly designated HUBZones and hire HUBZone residents, which are the two purposes of the statute. It would also create an incentive for small businesses that no longer meet the HUBZone program requirements to voluntarily decertify and then seek eligibility when they come back into compliance. Because so many small businesses will be affected by the expiration of the redesignated areas—whether as a result of its principal office no longer being located in a HUBZone or employees no longer residing in a HUBZone—the SBA believes it is best to reduce the one year wait period, so that no small business is subject to this lengthy wait.
The SBA does not believe that reducing of the one year wait would increase fraud, waste, and abuse on the program. The business concern must meet all HUBZone eligibility requirements when it reapplies. In fact decreasing the one year wait to ninety (90) calendar days will incentivize small businesses to voluntarily decertify knowing that they do not need to wait a year before reapplying.
As a result of the foregoing, with this interim final rule, the SBA is reducing the one year wait period set forth in 13 CFR 126.309. Accordingly, 13 CFR 126.309 would simply state that a concern that SBA has declined or decertified may seek certification ninety (90) calendar days after the date of decline or decertification if it believes that it has overcome all reasons for decline or decertification through changed circumstances and is currently eligible.
In general, SBA publishes a rule for public comment before issuing a final rule in accordance with the Administrative Procedure Act (APA) and SBA regulations. 5 U.S.C. 553 and 13 CFR 101.108. The APA provides an exception to this standard rulemaking process where an agency finds good cause to adopt a rule without prior public participation. 5 U.S.C. 553(b)(3)(B). The good cause requirement is satisfied when prior public participation is impracticable, unnecessary, or contrary to the public interest. Under such circumstances, an agency may publish an interim final rule without soliciting public comment.
The purpose of the HUBZone program is job creation and capital investment in Historically Underutilized Business Zones. In the present case, the SBA believes that up to half of the currently certified HUBZone SBCs may be affected by the results of the 2010 Decennial Census, whether as a result of the company's principal office losing HUBZone status or the company's employees no longer residing in a HUBZone. Approximately 47.5% of current QNMCs will be removed from HZ qualification, 30% of the current DDAs will be removed and 27% of
This rule will help the communities that qualify as HUBZones under the criteria established by the Act. In allowing concerns to apply for certification after ninety (90) calendar days from being declined or decertified, such qualified HUBZone communities would boost their capital investment and job opportunities for its residents, since these declined or decertified small businesses will need to either locate to HUBZone communities and/or hire HUBZone residents, giving them an increased prospect of positively impacting jobs and investment in historically underutilized areas.
In addition, we have been notifying small businesses whose principal office is located in a redesignated area that is expiring with the release of 2010 Census data but the SBA cannot easily notify other small businesses who have a principal office in a continuing HUBZone but who have employees who live in expiring areas, and must meet the 35% HZ residency requirement. Reducing the one-year wait will encourage such small businesses to voluntarily decertify from the program because they know they will be able to reapply immediately when they are eligible.
We note that the public will still have the opportunity to offer comments, which will be reviewed by the SBA. Accordingly, SBA finds that good cause exists to publish this rule as an interim final rule as quickly as possible.
The APA requires that “publication or service of a substantive rule shall be made not less than 30 days before its effective date, except * * * as otherwise provided by the agency for good cause found and published with the rule.” 5 U.S.C. 553(d)(3). SBA finds that good cause exists to make this final rule effective the same day it is published in the
The purpose of the APA provision is to provide interested and affected members of the public sufficient time to adjust their behavior before the rule takes effect. For the reasons set forth above in Section III, “Justification for Publication as Interim Final Status Rule”, SBA finds that good cause exists for making this interim final rule effective immediately, instead of observing the 30-day period between publication and effective date. Nonetheless, the public may provide comments to SBA by the deadline for comments. SBA will review any comments received.
The Office of Management and Budget (OMB) has determined that this rule does not constitute a significant regulatory action under E.O. 12866. This is not a major rule under the Congressional Review Act, 5 U.S.C. 800.
This action meets applicable standards set forth in Sections 3(a) and 3(b)(2) E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. The action does not have retroactive or preemptive effect.
For the purpose of E.O. 13132, SBA has determined that the rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, this final rule has no federalism implications warranting preparation of a federalism assessment.
SBA has determined that this rule does not impose additional reporting or recordkeeping requirements under the Paperwork Reduction Act, 44 U.S.C., Chapter 35.
Because this rule is an interim final rule, there is no requirement for SBA to prepare an Initial Regulatory Flexibility Act analysis. The RFA requires administrative agencies to consider the effect of their actions on small entities, small non-profit businesses, and small local governments. Pursuant to the RFA, when an agency issues a rule the agency must prepare analysis that describes whether the impact of the rule will have a significant economic impact on a substantial number of small entities. However, the RFA requires such analysis only where notice and comment rulemaking is required.
Administrative practice and procedure, Government procurement, Reporting and recordkeeping requirements, Small businesses.
For the reasons stated in the preamble, the Small Business Administration amends 13 CFR part 126 as follows:
15 U.S.C. 632(a), 632(j), 632(p) and 657a.
A concern that SBA has declined or decertified may seek certification after ninety (90) calendar days from the date of decline or decertification if it believes that it has overcome all reasons for decline or decertification through changed circumstances and is currently eligible. A concern found to be ineligible during a HUBZone status protest is precluded from applying for HUBZone certification for ninety (90) calendar days from the date of the final agency decision (the D/HUB's decision if no appeal is filed or the decision of the AA/GCBD) pursuant to 13 CFR 126.803(d)(5).
(d) * * *
(5) A concern found to be ineligible is precluded from applying for HUBZone certification for ninety (90) calendar days from the date of the final agency decision (the D/HUB's decision if no appeal is filed or the decision of the AA/GCBD).
Federal Aviation Administration (FAA), DOT.
Final rule.
This action amends Class E surface airspace extending upward from 700 feet above the surface at Shenandoah Valley Regional Airport, Staunton, VA. The Bridgewater Non-Directional Beacon (NDB) has been decommissioned and new Standard Instrument Approach Procedures have been developed for the airport. This action enhances the safety and airspace management of Instrument Flight Rules (IFR) operations at the airport.
Effective 0901 UTC, October 20, 2011. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305–6364.
On March 18, 2011, the FAA published in the
Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9U dated August 18, 2010, and effective September 15, 2010, which is incorporated by reference in 14 CFR part 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.
This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 amends Class E airspace extending upward from 700 feet above the surface to support new SIAPs developed at Shenandoah Valley Regional Airport, Staunton, VA. Airspace reconfiguration is necessary due to the decommissioning of the Bridgewater NDB and cancellation of the NDB approach.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore, (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.
This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends Class E airspace at Staunton, VA.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Comp., p. 389.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action amends Class E airspace for Grand Marais, MN, to accommodate new Area Navigation (RNAV) Standard Instrument Approach Procedures at Grand Marais/Cook County Airport. The FAA is taking this action to enhance the safety and management of Instrument Flight Rule (IFR) operations at the airport.
Scott Enander, Central Service Center, Operations Support Group, Federal Aviation Administration, Southwest Region, 2601 Meacham Blvd., Fort Worth, TX 76137; telephone (817) 321–7716.
On May 18, 2011, the FAA published in the
This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by creating additional Class E airspace extending upward from 700 feet above the surface for new standard instrument approach procedures at Grand Marais/Cook County Airport, Grand Marais, MN. This action is necessary for the safety and management of IFR operations at the airport.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends controlled airspace for Grand Marais/Cook County Airport, Grand Marais, MN.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.4-mile radius of Grand Marais/Cook County Airport, and within 2 miles each side of the 275° bearing from the airport extending from the 6.4-mile radius to 8.3 miles west of the airport, and within 2.2 miles each side of the 104° bearing from the Cook County NDB extending from the 6.4-mile radius to 7 miles east of the airport, excluding that airspace which overlies P–204.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action amends Class E airspace for Hannibal, MO. Decommissioning of the Hannibal non-directional beacon (NDB) at Hannibal Regional Airport, Hannibal, MO, has made this action necessary to enhance the safety and management of Instrument Flight Rule (IFR) operations at the airport. This action also changes the airport name and updates the geographic coordinates of the airport.
Scott Enander, Central Service Center, Operations Support Group, Federal Aviation Administration, Southwest Region, 2601 Meacham Blvd., Fort Worth, TX 76137; telephone (817) 321–7716.
On May 18, 2011, the FAA published in the
This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by amending Class E airspace extending upward from 700 feet above the surface for the Hannibal, MO area. Decommissioning of the Hannibal NDB and cancellation of the NDB approach at Hannibal Regional Airport has made reconfiguration of the airspace necessary for the safety and management of IFR operations at the airport. This action also updates the airport name from “Hannibal Municipal Airport” to “Hannibal Regional Airport” and adjusts the geographic coordinates to coincide with the FAA's aeronautical database.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends controlled airspace at Hannibal Regional Airport, Hannibal, MO.
Airspace, Incorporation by reference, Navigation (Air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of Hannibal Regional Airport.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action amends Class E airspace for Fulton, MO. Decommissioning of the Guthrie non-directional beacon (NDB) at Elton Hensley Memorial Airport, Fulton, MO, has made this action necessary to enhance the safety and management of Instrument Flight Rule (IFR) operations at the airport.
Scott Enander, Central Service Center, Operations Support Group, Federal Aviation Administration, Southwest Region, 2601 Meacham Blvd., Fort Worth, TX 76137; telephone (817) 321–7716.
On April 19, 2011, the FAA published in the
This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by amending Class E airspace extending upward from 700 feet above the surface for the Fulton, MO area. Decommissioning of the Guthrie NDB and cancellation of the NDB approach at Elton Hensley Memorial Airport has made reconfiguration of the airspace necessary for the safety and management of IFR operations at the airport.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends controlled airspace at Elton Hensley Memorial Airport, Fulton, MO.
Airspace, Incorporation by reference, Navigation (Air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of Elton Hensley Memorial Airport.
Federal Aviation Administration (FAA), DOT.
Final rule.
This rule establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective July 21, 2011. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of July 21, 2011.
Availability of matter incorporated by reference in the amendment is as follows:
1. FAA Rules Docket, FAA Headquarters Building, 800 Independence Avenue, SW., Washington, DC 20591;
2. The FAA Regional Office of the region in which the affected airport is located;
3. The National Flight Procedures Office, 6500 South MacArthur Blvd., Oklahoma City, OK 73169; or
4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to:
1. FAA Public Inquiry Center (APA–200), FAA Headquarters Building, 800 Independence Avenue, SW., Washington, DC 20591; or
2. The FAA Regional Office of the region in which the affected airport is located.
Harry J. Hodges, Flight Procedure Standards Branch (AFS–420) Flight Technologies and Programs Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (
This rule amends Title 14, Code of Federal Regulations, part 97 (14 CFR part 97) by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (FDC)/Permanent Notice to Airmen (P–NOTAM), and is incorporated by reference in the amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of Title 14 of the Code of Federal Regulations.
The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the
This amendment to 14 CFR part 97 is effective upon publication of each
The SIAPs, as modified by FDC P–NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for all these SIAP amendments requires making them effective in less than 30 days.
Because of the close and immediate relationship between these SIAPs and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making these SIAPs effective in less than 30 days.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air traffic control, Airports, Incorporation by reference, and Navigation (Air).
Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal regulations, part 97, 14 CFR part 97, is amended by amending Standard Instrument Approach Procedures, effective at 0901 UTC on the dates specified, as follows:
49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721–44722.
By amending: § 97.23 VOR, VOR/DME, VOR or TACAN, and VOR/DME or TACAN; § 97.25 LOC, LOC/DME, LDA, LDA/DME, SDF, SDF/DME; § 97.27 NDB, NDB/DME; § 97.29 ILS, ILS/DME, MLS, MLS/DME, MLS/RNAV; § 97.31 RADAR SIAPs; § 97.33 RNAV SIAPs; and § 97.35 COPTER SIAPs, Identified as follows:
Federal Aviation Administration (FAA), DOT.
Final rule.
This establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective July 21, 2011. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of July 21, 2011.
Availability of matters incorporated by reference in the amendment is as follows:
For Examination—
1. FAA Rules Docket, FAA Headquarters Building, 800 Independence Avenue, SW., Washington, DC 20591;
2. The FAA Regional Office of the region in which the affected airport is located;
3. The National Flight Procedures Office, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or
4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to:
1. FAA Public Inquiry Center (APA–200), FAA Headquarters Building, 800 Independence Avenue, SW., Washington, DC 20591; or
2. The FAA Regional Office of the region in which the affected airport is located.
Harry J. Hodges, Flight Procedure Standards Branch (AFS–420), Flight Technologies and Programs Divisions, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd. Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082, Oklahoma City, OK 73125) Telephone: (405) 954–4164.
This rule amends Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), by establishing, amending, suspending, or revoking SIAPS, Takeoff Minimums and/or ODPS. The complete regulators description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part 97.20. The applicable FAA Forms are FAA Forms 8260–3, 8260–4, 8260 –5, 8260–15A, and 8260–15B when required by an entry on 8260–15A.
The large number of SIAPs, Takeoff Minimums and ODPs, in addition to their complex nature and the need for a special format make publication in the
This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as contained in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPS and Takeoff Minimums and ODPS, an effective date at least 30 days after publication is provided.
Further, the SIAPs and Takeoff Minimums and ODPS contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPS and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedures before adopting these SIAPS, Takeoff Minimums and ODPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making some SIAPs effective in less than 30 days.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule ” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26,1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air traffic control, Airports, Incorporation by reference, and Navigation (air).
Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or revoking Standard Instrument Approach Procedures and/or Takeoff Minimums and/or Obstacle Departure Procedures effective at 0902 UTC on the dates specified, as follows:
49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721–44722.
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA) is classifying the electrocardiograph electrode, intended to acquire and transmit the electrical signal at the body surface to a processor that produces an electrocardiogram (ECG) or vectorcardiogram, into class II (special controls). FDA is also exempting this device from the premarket notification requirement.
This rule is effective August 22, 2011.
Sharon Lappalainen, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, rm. 1238, Silver Spring, MD 20993, 301–796–6322.
The Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 301
Under section 513 of the FD&C Act, FDA refers to devices that were in commercial distribution before May 28, 1976 (the date of enactment of the 1976 amendments), as “preamendments devices.” FDA classifies these devices after it takes the following steps: (1) Receives a recommendation from a device classification panel (an FDA advisory committee); (2) publishes the panel's recommendation for comment, along with a proposed regulation classifying the device; and (3) publishes a final regulation classifying the device. FDA has classified most preamendments devices under these procedures.
Devices that were not in commercial distribution before May 28, 1976, generally referred to as postamendments devices, are classified automatically under section 513(f) of the FD&C Act into class III without any FDA rulemaking process. Those devices remain in class III until FDA does the following: (1) Reclassifies the device into class I or II; (2) issues an order classifying the device into class I or II in accordance with section 513(f)(2) of the FD&C Act; or (3) issues an order finding the device to be substantially equivalent, in accordance with section 513(i) of the FD&C Act, to a legally marketed device that has been classified into class I or class II.
The Agency determines whether new devices are substantially equivalent to previously marketed devices by means of premarket notification procedures in section 510(k) of the FD&C Act (21 U.S.C. 360(k)) and 21 CFR part 807 of the regulations. FDAMA added a new section 510(m) to the FD&C Act. New section 510(m) provides that a class II device may be exempted from the premarket notification requirements under section 510(k) of the FD&C Act, if the Agency determines that premarket notification is not necessary to assure the safety and effectiveness of the device. FDA has determined that premarket notification is not necessary to assure the safety and effectiveness of electrocardiograph electrodes.
Under the 1976 amendments, class II devices were defined as devices for which there was insufficient information to show that general controls themselves would provide reasonable assurance of safety and effectiveness, but for which there was sufficient information to establish performance standards to provide such assurance. SMDA broadened the definition of class II devices to mean those devices for which the general controls by themselves are insufficient to provide reasonable assurance of safety and effectiveness, but for which there is sufficient information to establish special controls to provide such assurance, including performance standards, postmarket surveillance, patient registries, development and dissemination of guidelines, recommendations, and any other appropriate actions FDA deems necessary (section 513(a)(1)(B) of the FD&C Act). Elsewhere in this issue of the
In the
FDA is amending the classification regulation for electrocardiograph electrodes into class II, by making this device exempt from 510(k) premarket notification requirements and subject to the new special controls described in the special controls guidance document entitled “Guidance for Industry and Food and Drug Administration Staff: Class II Special Controls Guidance Document: Electrocardiograph Electrodes.”
As described in that special controls guidance document, the special controls include the following:
• Documentation of device description, which includes compliance with 21 CFR 820.181(a) to maintain a device master record;
• Documentation of performance characteristics, which includes documentation on biocompatibility, electrical performance, adhesive performance, shelf life, reuse, electrodes intended for use in specified procedures, sterility, and, with respect to electrode lead wires and patient cables, compliance with 21 CFR part 898; and
• Specific labeling, including indications for use, cautions, precautions, and adverse reactions.
The public comments received in response to the proposed rule addressed issues pertaining to labeling, the scope of the devices subject to the classification rule, and testing as follows:
Regarding labeling, the comments requested the mandatory product labeling of all adhesive coated disposable electrocardiograph electrodes and the establishment of template labeling with which electrocardiograph electrodes should comply. In response, FDA has revised the labeling section of the special controls guidance document; however, FDA has not established template labeling.
Regarding the scope of the devices subject to the notice, the comments requested a products-based definition or listing of examples to flesh out the “type” of devices that are consistent with Agency intent, requested a clarification of the type of sensor that is included in the scope of the classification, and requested a clarification if the list of environmental conditions is intended to be an exclusive list. In response, FDA has revised the special controls guidance document to clarify what the scope of this classification rule includes and excludes and to clarify what labeling should be reported regarding conditions of use.
Regarding testing, the comments requested clarification of the shelf life, storage condition testing, and human clinical testing required to establish sensitivity and irritation for all adhesives. In response, FDA has revised the special controls guidance document to clarify testing for shelf life and has clarified the testing for biocompatibility.
FDA is adopting in final form the assessment of the risks to public health stated in the proposed rule published on October 4, 2007, and agrees that the risk of electrical shock should also be taken
The Agency has determined under 21 CFR 25.34(b) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
FDA has examined the impacts of the final rule under Executive Order 12866, Executive Order 13563, the Regulatory Flexibility Act (5 U.S.C. 601–612), and the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4). Executive Orders 12866 and 13563 direct Agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The Agency believes that this final rule is not a significant regulatory action under the Executive Order 12866.
The Regulatory Flexibility Act requires Agencies to analyze regulatory options that would minimize any significant impact of a rule on small entities. Because manufacturers are already substantially in compliance with the recommendations in the guidance document and exemption from the premarket notification requirements for the devices following the specific measures recommended in the special control will simplify the entry to market for other manufacturers, the Agency certifies that the final rule will not have a significant economic impact on a substantial number of small entities. In addition, this final rule will not impose costs of $100 million or more on either the private sector or state, local, and tribal governments in the aggregate, and therefore a written statement under section 202(a) of the Unfunded Mandates Reform Act of 1995 is not required.
Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires that Agencies prepare a written statement, which includes an assessment of anticipated costs and benefits, before proposing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $136 million, using the most current (2010) Implicit Price Deflator for the Gross Domestic Product. FDA does not expect this final rule to result in any 1-year expenditure that would meet or exceed this amount.
The specific measures recommended largely reflect current practices. With most manufacturers complying with most of the recommendations in the guidance document, any additional burden brought about by the final rule and guidance will likely be small.
FDA has analyzed this final rule in accordance with the principles set forth in Executive Order 13132. Section 4(a) of the Executive order requires Agencies to “construe* * * a Federal statute to preempt State law only where the statute contains an express preemption provision or there is some other clear evidence that the Congress intended preemption of State law, or where the exercise of State authority conflicts with the exercise of Federal authority under the Federal statute.” Federal law includes an express preemption provision that preempts certain state requirements “different from or in addition to” certain Federal requirements applicable to devices. 21 U.S.C. 360k. See
FDA concludes that this final rule contains no new collections of information. Therefore, clearance by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (the PRA) (44 U.S.C. 3501–3520) is not required.
This final rule designates a guidance document as a special control. FDA also concludes that the special control guidance document does not contain new information collection provisions that are subject to review and clearance by OMB under the PRA.
For access to the docket to read references or the public comments received, go to
The following references have been placed on display in the Division of Dockets Management (see section IX of this document) and may be seen by interested persons between 9 a.m. and 4 p.m., Monday through Friday, or can be obtained in hardcopy by submitting a Freedom of Information Act request to the Division of Freedom of Information (see section IX of this document). (FDA has verified the Web site address, but we are not responsible for any subsequent changes to the Web site after this document publishes in the
Medical devices.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 870 is amended as follows:
21 U.S.C. 351, 360, 360c, 360e, 360j, 371.
(b)
Treasury Department, Financial Crimes Enforcement Network (FinCEN).
Final rule.
The Financial Crimes Enforcement Network (“FinCEN”), a bureau of the Department of the Treasury (“Treasury”), is revising the regulations implementing the Bank Secrecy Act (“BSA”) regarding money services businesses (“MSBs”) to clarify which entities are covered by the definitions.
The changes more clearly delineate the scope of entities regulated as MSBs, so that determining which entities are obligated to comply is more straightforward and predictable. This rulemaking amends the current MSB regulations by: ensuring that certain foreign-located persons engaging in MSB activities within the United States are subject to the BSA rules; updating the MSB definitions to reflect past guidance and rulings, current business operations, evolving technologies, and merging lines of business; and separating the provisions dealing with stored value from those dealing with issuers, sellers, and redeemers of traveler's checks and money orders.
The FinCEN regulatory helpline at (800) 949–2732 and select Option 1.
The BSA, Titles I and II of Public Law 91–508, as amended, codified at 12 U.S.C. 1829b, 12 U.S.C. 1951–1959, and 31 U.S.C. 5311–5314 and 5316–5332, authorizes the Secretary of the Treasury (the “Secretary”) to issue regulations requiring financial institutions to keep records and file reports that the Secretary determines “have a high degree of usefulness in criminal, tax, or regulatory investigations or proceedings, or in the conduct of intelligence or counterintelligence matters, including analysis, to protect against international terrorism.”
The BSA defines the term “financial institution” to include, in part: a currency exchange; an issuer, redeemer, or cashier of travelers' checks, checks, money orders, or similar instruments; the United States Postal Service; a person who engages as a business in the transmission of funds; and any business or agency which engages in any activity determined by regulation to be an activity similar to, related to, or a substitute for these activities.
FinCEN has issued regulations under the BSA implementing the recordkeeping, reporting, and other requirements of the BSA with respect to these types of financial institutions. These regulations refer to these types of financial institutions as “money services businesses” (“MSBs”).
In 1997, FinCEN held public meetings to give members of the financial services industry an opportunity to discuss the proposed MSB regulations and any impact they might have on operations.
On March 8, 2005, FinCEN held a fact-finding meeting in Washington, DC on the provision of banking services to MSBs.
More than ten years have passed since FinCEN issued the BSA regulations defining the categories of MSBs.
With respect to check cashers and money transmitters in particular, FinCEN has developed a large body of guidance in the years since the issuance of the final MSB regulations in 1999.
The final rule contained in this document is based on the Notice of Proposed Rulemaking “Definitions and Other Regulations Relating to Money Services Businesses” published in the Federal Register on May 12, 2009 (the “Notice”).
The comment period for the Notice ended on September 9, 2009. FinCEN received a total of 25 comment letters.
Approximately half of the comments received in response to the Notice addressed stored value-related issues that responded to questions and requests for comment posed in the Notice. The questions were intended to elicit responses that would assist FinCEN's effort to regulate stored value.
On May 22, 2009, shortly after the Notice was published, the Credit Card Accountability, Responsibility and Disclosure Act of 2009 (“Credit CARD Act”)
In furtherance of that mandate, FinCEN has separately published a notice of proposed rulemaking specific to stored value, which FinCEN has proposed to rename “prepaid access” (the “Prepaid Access NPRM”).
In the Notice, FinCEN proposed to revise several portions of the current definition of “money transmitter” to clarify which activities are covered by or excluded from the definition. Most commenters generally supported the proposed changes. All commenters supported excluding from the definition of “money transmitter” persons that have only a “custodial interest” in currency they are transporting.
In the Notice, FinCEN proposed to make several changes to the definition of “currency dealer or exchanger” (to be called “dealers in foreign exchange” under this rulemaking) to more accurately reflect the actual underlying activity of the industry. Eight commenters addressed various issues related to this definition. Most commenters supported the proposed changes. As a result, the proposal was adopted without change. These comments are further discussed in the Section-by-Section Analysis below.
FinCEN received a comment letter from the Commodity Futures Trading Commission (“CFTC”) regarding certain amendments recently made to the Commodity Exchange Act (“CEA”), which, among other things, adds a new registration category for dealers in off-exchange retail foreign exchange known as “retail foreign exchange dealers” (“RFEDs”).
Prior to this rulemaking, the regulatory definition of MSB covered “[e]ach agent, agency, branch or office within the United States of any person
One commenter argued that removing the phrase “doing business” from the regulations would cause the definition of MSB to include persons who were not in fact doing business as MSBs, and asserted that expanding the category to this extent would be beyond FinCEN's powers under the BSA, which specifically refers to several types of financial institutions as “businesses” in several places.
FinCEN will not remove the phrase “doing business” from the definition of MSB in this final rule. Instead, the definition will be rephrased to state that an MSB is “[a] person wherever located doing business,
FinCEN wishes to emphasize that whether a person is subject to regulation as an MSB does not depend on factors such as whether the person is licensed as a business by any state; whether the person has employees; or whether the person is engaged in a for-profit venture. Although the final rule continues to use the phrase “doing business,” it is a person's activities, rather than formal business status, that would cause the person to be categorized as an MSB.
Another commenter suggested that the change proposed by the Notice might expand the definition of MSB to
Currently, the MSB regulations apply to persons engaged in specified activities that exceed $1,000 for any person in any day (“activity threshold”). The activity threshold applies to all MSB categories
FinCEN also sought specific comments from the public regarding whether transactions involving multiple MSB services should be aggregated together for purposes of determining whether the activity threshold has been met. The comments received on this proposal stressed the logistical complications of compliance with an aggregation requirement on the part of retailers that sell multiple MSB products and act as agents for multiple MSBs. All comments received regarding this proposal were opposed to it.
FinCEN will continue to study these issues and consider the need for a separate rulemaking to adjust the MSB activity thresholds.
FinCEN proposed to amend 31 CFR 1010.100(ff) to provide that foreign-located persons engaging in MSB activities in the United States are subject to the BSA rules. Specifically, FinCEN proposed to revise 31 CFR 1010.100(ff) so that an entity qualifies as an MSB based on its activity within the United States, not the physical presence of one or more of its agents, agencies, branches, or offices in the United States. This proposal arose out of the recognition that the Internet and other technological advances make it increasingly possible for persons to offer MSB services in the United States from foreign locations. FinCEN seeks to ensure that the BSA rules apply to all persons engaging in covered activities within the United States, regardless of each person's physical location. To permit foreign-located persons to engage in MSB activities within the United States and not subject such persons to the BSA would be unfair to MSBs physically located in the United States and would also undermine FinCEN's efforts to protect the U.S. financial system from abuse.
Of the seven comments received on the issue of extending the BSA regulations to cover foreign-located MSBs conducting activities in the United States, five commenters supported it, including two government and three industry commenters. The two commenters opposed were from industry.
Two commenters argued that a foreign-located person's mere maintenance of a bank account in the United States should not cause that person to be defined as an MSB. FinCEN agrees with that position.
A commenter also noted that foreign banks, broker dealers, and possibly other financial institutions might be subject to the MSB regulations. FinCEN does not intend to include these institutions in the MSB definition. FinCEN, therefore, has expanded the limitations to the MSB definition to cover foreign banks, as well as other foreign financial agencies that engage in financial activities that, if conducted in the United States, would require the foreign financial agency to be registered with the Securities and Exchange Commission (“SEC”) or CFTC. These provisions parallel the existing limitations covering domestic banks and entities registered with the SEC or CFTC.
Two commenters expressed general concerns regarding the practicality of
Under the final rule, foreign-located MSBs will have the same reporting and recordkeeping and other requirements as MSBs with a physical presence in the United States, with respect to their activities in the United States. Foreign-located MSBs will be subject to the same civil and criminal penalties as MSBs with a physical presence in the United States, with respect to their failure to comply with regulatory requirements.
For clarity, FinCEN proposed to add 31 CFR 1010.100(ff)(8) to create a new section providing limitations to the definition of MSB. FinCEN proposed to move the first two limitations, excluding (1) Banks and (2) persons registered or required to register with, and functionally regulated or examined by, the SEC or the CFTC, from the definition of MSB at 31 CFR 1010.100(ff) for clarity. Also, as noted above, foreign banks and certain foreign financial agencies have been included in the limitations in the final rule to address issues raised by commenters with regard to foreign-located MSBs. The third limitation, as discussed above, clarifies the scope of the definition of MSB, excluding individuals engaging in infrequent activity as an accommodation. There were no comments on moving the first two limitations to a separate section. The addition of the third limitation regarding natural persons and the extension of the first two limitations to include foreign institutions, while not proposed, do not alter any obligations but merely clarify the scope of 31 CFR 1010.100(ff).
FinCEN proposed several changes to 31 CFR 1010.100(ff)(1) (formerly 31 CFR 103.11(uu)(1)), which defines “currency dealer or exchanger” as a category of MSB. Comments regarding proposed changes, while noting a few concerns (discussed below), were largely supportive, and the final rule adopts all of the proposed changes.
The final rule replaces the phrase “currency dealer or exchanger” with “dealer in foreign exchange.” Removal of the term “currency” from the category's name is designed to clarify that persons meet the definition by not only exchanging currency, but also by exchanging other monetary instruments, funds, or other instruments denominated in currency. Although the BSA uses the term “currency exchange,” FinCEN interprets this language as having been intended to capture the underlying activity involved in foreign exchange services, which includes the exchange of instruments other than currency. The proposed change is consistent with current industry practice, which commonly involves exchanging instruments other than currency.
The final rule inserts the term “foreign” into the category's name to clarify FinCEN's longstanding policy that any exchange that occurs in the United States is covered by the definition, even if the exchange consists of currency, other monetary instruments, funds, or other instruments denominated exclusively in non-U.S. currencies. Therefore, if all other requirements are fulfilled, and a person exchanges currency, other monetary instruments, funds, or other instruments denominated in one non-U.S. currency for those in another non-U.S. currency, the person is a dealer in foreign exchange for BSA purposes. Though such transactions may not involve U.S. dollars, the potential use of a dealer in foreign exchange in this manner to launder money, finance terrorism, or carry out other illicit activity nevertheless would impact the U.S. financial system and should be subject to regulation. Failure to capture exchanges within the United States of two foreign currencies (or of payment instruments denominated in two foreign currencies) would leave a significant and unnecessary gap in the BSA rules. This change also underscores the international nature of money laundering and terrorist financing.
By inserting the phrase “currency, or other monetary instruments, funds or other instruments” the final rule clarifies that dealing in foreign exchange is not limited to the physical exchange of the
One commenter expressed concern that the inclusion of “other instruments denominated in currency” in addition to “currency” would cover persons offering foreign exchange transactions that involve stored value or other products in a manner that would implicate a wide range of retailers and other entities not generally understood to be dealers in foreign exchange. FinCEN does not consider this to be the case however, because payment devices such as debit cards, credit cards, and stored value do not involve currency exchanges at a point of sale. The point of sale transaction, from the perspective of the buyer and the seller (including the U.S.-located merchant hypothesized by the commenter), is only denominated in U.S. dollars. Any exchange of currency involved in such a transaction occurs in the back office processing of the financial institution issuing the device. A merchant's acceptance of foreign issued stored value to purchase U.S. issued stored value or U.S. currency, other monetary instruments, funds, or other instruments does not make that merchant a dealer in foreign exchange. On the other hand, there are transactions involving stored value that FinCEN would deem foreign exchange, including scenarios where a merchant either accepts or pays out foreign currency in exchange for stored value. For example, a person is a dealer in foreign exchange if the person:
The final rule includes the phrase “of one or more other countries”
FinCEN received one comment in support of this proposal, and two comments in opposition. One commenter argued that when a person accepts instruments denominated in the currency of one country in exchange for currency of the same country, where the currency is not U.S. dollars, the exchange may technically require an intermediate transaction involving U.S. dollars. FinCEN, however, is concerned with the customer transaction and what currency the customer begins with and ends with, not any exchanges or recording that take place in the back office of the merchant. The other commenter opposing the proposal argued that the activity of exchanging bills within the same currency should be covered under the MSB rules because certain criminals convert denominations of cash exclusively within the currency of one country. Both of these comments, however, in essence propose to include activities within the category that are not commonly understood to be “foreign exchange.” Therefore, FinCEN believes the proposed change better comports with the common understanding of the foreign exchange business.
The final rule includes the phrase “for any other person” to explicitly reflect FinCEN's longstanding position that a person is not a dealer in foreign exchange to the extent the person exchanges their own money on their own behalf.
The final rule includes the phrase “whether or not for same-day delivery” to account for the potential time difference between the date on which the exchange rate is agreed and the date of the exchange. Common settlement terms in foreign exchange markets include: (1) Same-day or cash—where the parties both agree to an exchange of currency and conclude the exchange on the same working day; (2) spot—where the parties agree to an exchange of currency on one date, with the exchange taking place two working days thereafter; (3) cash forward—where the parties agree to an exchange of currency on one date, with the exchange of currency deferred until an agreed-upon date in the future; and (4) future—where the parties agree to an exchange of currency on one date, with settlement to occur in an agreed upon delivery period in the future, typically by payment of an amount reflecting the change in the foreign currency rate between the time of the agreement and delivery. A contract for future delivery of currency may also be settled with the delivery of currency, resulting in the exchange of the currencies underlying the futures contract.
One commenter expressed concern that this change will create confusion regarding the $1,000 threshold where the dealer in foreign exchange is instructed to make multiple disbursements of exchanged currency over time. The use of the phrase “whether or not for same day delivery” is intended to capture such activity and to make clear that the date of the payment by the customer to the dealer in foreign exchange, not the date of any subsequent disbursements, is the date relevant to the calculation of the $1,000 threshold.
Persons registered with and functionally regulated or examined by the CFTC including retail foreign exchange dealers are excluded from the definition of dealer in foreign exchange. As noted above, FinCEN is consulting with the CFTC regarding retail foreign exchange dealers.
FinCEN proposed to amend 31 CFR 1010.100(ff)(2) (formerly 31 CFR 103.11(uu)(2)) to clarify the meaning of the term “check cashing” by splitting the existing regulatory definition into two paragraphs: one paragraph to define check cashing activity; another paragraph to exclude certain activity from that definition.
In the Notice, FinCEN proposed several changes to the definition of “check casher” to more accurately describe which activities are covered by or excluded from the definition. Nine commenters addressed various issues related to the definition of “check casher.” Most commenters generally supported the proposed changes. As a result, the final rule adopts most of them without change with one exception, related to stored value, discussed below regarding activities not subject to the “check casher” definition.
“In return” was added to the definition to more accurately describe the activity that occurs when cashing a check or redeeming a monetary instrument. The Uniform Commercial Code references were added to provide a clear definition of “check.” A reference to the definition of “monetary instruments” was also provided. “Other instruments” is intended to capture those types of payment instruments that do not fall precisely into one of the other categories. The term “other instruments” is meant to capture those instruments that are readily recognizable as payment instruments without capturing goods or services that may be purchased with a check or monetary instrument.
The definition incorporates the redeeming of monetary instruments into the definition of “check casher.” Given its similarity to check cashing, it is unnecessary to treat this activity separately from check cashing.
One commenter requested clarification regarding the cashing of checks or other instruments in exchange for both goods and services and currency. Entities that accept payment for goods or services with a check and return more than $1,000 in currency or a combination of currency and other monetary instruments fall under the definition of “check casher” regardless of the value of the goods or services.
The revision also clarifies what activities are
The definition also exempts persons who cash checks for the verified maker of a check otherwise buying goods and services. One commenter was in favor of this proposal and one opposed. The commenter opposed to this proposal was concerned that retailers would not be able to verify the maker of a check. FinCEN does not believe that this will be a problem, however, because retailers can verify the identity of the maker of the check in any manner that comports with their internal policies. Retailers can verify the maker of a check by, for example, checking a driver's license or other form of identification at the time of purchase against the name of the maker of the check, already a common practice of some retailers who accept personal checks. The Notice asked for comment on other types of low risk check cashing that should be exempt, such as government or payroll checks. Several commenters agreed that cashing such low risk checks should be exempt, but two commenters disagreed, noting that fraud exists in such low risk checks as well and that such exemptions unnecessarily complicate due diligence. FinCEN may address other types of low risk check cashing in a future rulemaking after further study.
Finally, under the previous regulations, redeemers of traveler's checks and money orders had SAR obligations while check cashers did not. As these two categories of MSB have been combined, we will seek comment in a future rulemaking on whether or not to require check cashers to report suspicious activity to FinCEN under the BSA. Commenters to this rulemaking were largely in favor of a SAR requirement for check cashers, though two commenters disagreed, noting the high number of reports that would be generated and the burden on check cashing businesses. Issuers of traveler's checks and money orders will continue to have SAR reporting requirements with respect to the instruments that they issue.
This rule combines prior sections 1010.100(ff)(3) (formerly 103.11(uu)(3)), “issuer of traveler's checks, money orders, or stored value,” and 1010.100(ff)(4) (formerly 103.11(uu)(4)), “seller or redeemer of traveler's checks, money orders, or stored value,” into new section 1010.100(ff)(3), “issuer or seller of traveler's checks or money orders.” Issuance and sale of traveler's checks and money orders are similar activities in that they can be covered by a single definition. A new, separate category relating to stored value, renamed “Issuer, seller, or redeemer of stored value,” replaces 1010.100(ff)(4) and is discussed subsequently.
In the Notice, FinCEN proposed to clarify the definitions regarding activities related to traveler's checks and money orders by removing redundant language and specifying how to calculate the activity threshold for such activities. Five commenters addressed various issues related to the definition of “issuer or seller of traveler's checks or money orders.”
The rule eliminates the “redeemer” language that is contained in the previous definitions. Although the previous rules included those who “redeem” traveler's checks and money orders, traveler's checks typically are redeemed by their issuers, making a separate redemption category redundant in such circumstances. Moreover, redeeming a traveler's check or money order by a non-issuer has been incorporated into the definition of a check casher.
The rule defines an “issuer” by virtue of the amount at which its monetary instruments or traveler's checks are sold, as opposed to the amounts at which they are issued. For example, the amount of the sale includes the face value of the monetary instruments plus any fees. Because money orders are not issued in round dollar increments like traveler's checks, but are rather sold either directly by the issuer or by its agent to a customer who specifies the exact amount, a business must look at this activity to determine whether its transactions exceed the activity threshold per person per day. Similarly, although traveler's checks are usually issued in large round amounts (
Under the prior rules, FinCEN addressed traveler's checks, money orders, and stored value under two separate definitions of providers of those products: (1) Issuers and (2) sellers or redeemers. The Notice proposed to group providers of stored
Several commenters noted that stored value is empirically similar to activity engaged in by persons defined as “money transmitters,” but the mechanisms for directing that the money be transmitted are different. Most commenters on this issue recommended treating stored value as a separate category of MSB. FinCEN agrees, and is therefore treating stored value as a distinct MSB activity, keeping it separate from the category established for money transmitters, while at the same time acknowledging that stored value should have more comprehensive anti-money laundering regulation.
In 1999, FinCEN issued a final rulemaking deferring certain requirements for the stored value industry based on the complexity of the industry and the desire to avoid unintended consequences with respect to an industry then in its infancy. In 2009, Congress passed the Credit CARD Act, which required FinCEN to issue regulations relating to stored value. On June 28, 2010, FinCEN issued Notice of Proposed Rule Making, Amendment to the Bank Secrecy Act Regulations—Definitions and Other Regulations Relating to Prepaid Access.
This rule revises the regulation interpreting 31 U.S.C. 5312(a)(2)(R), which includes money transmitters within the definition of “financial institution” under the BSA. The prior regulation contained a facts and circumstances limitation that excluded from the “money transmitter” definition persons that are engaged in the business of money transmission as an integral part of the execution and settlement of the transaction. The “integral” exception includes entities that could
This rule's definition of “money transmitter” is “a person who provides money transmission services.” This language is consistent with existing language in the BSA.
The definition also removes the phrase “whether or not licensed or required to be licensed.” While this phrase reflects language in 31 U.S.C. 5312, FinCEN finds the phrase to be unnecessary because it does not add substantive value to the meaning of money transmitter.
The regulatory definition of “money transmission services” includes the phrase “or other value that substitutes for currency” to state that businesses that accept stored value or currency equivalents as a funding source and transmit that value are providing money transmission services. FinCEN has modified the final rule so that both references to “value” in the regulation are expressed as “value that substitutes for currency” to maintain consistency in the rule's language. The word “such” has also been removed from the final rule to eliminate the possibility of any misinterpretation that a person must receive and transmit the exact same currency, funds, or other value to be covered under the definition of “money transmitter.”
By including the transmission of value, the prior and current regulatory definitions of “money transmitter” are worded to include persons engaged in informal value transfer systems, including hawalas.
The regulatory definition of “money transmission services” also adds the phrase “to another location or person.” Although this phrase is not in the statutory definition of money transmitting service, it is implicit in the statutory definition's use of the word “transmitting.” Transactions involving the acceptance of currency from one person at one location and the return of that currency to that same person at the same location would not be considered a money transmission service. The addition of the phrase “to another location or person,” explicitly conveys this interpretation.
One commenter suggested that the phrase “the acceptance of currency * * * from one person AND the transmission * * * to another location or person,” indicated that acceptance by the money transmitter of funds had to precede any transmission to satisfy the definition. If this were the case, however, it would be easy—particularly in an electronic environment—to circumvent this definition by the simple expedient of transmitting funds a fraction of a second before accepting them. The activity of money transmitting, for the purposes of FinCEN regulations, involves both acceptance and transmission, but not necessarily in that order. FinCEN is concerned about the ability to circumvent regulation if it were to require that the acceptance of currency must always precede transmission. The final rule adopts the phrase without change.
The phrase “any means” is defined in the prior rule to include transmission “through a financial agency or institution; a Federal Reserve Bank or other facility of one or more Federal Reserve Banks, the Board of Governors of the Federal Reserve System, or both; or an electronic funds transfer network.” The final rule moves the phrase “any means” to a different part of the definition only to increase reader comprehension, and the change in placement of the phrase has no substantive effect on the meaning of the definition. The definition of “any
The prior regulations also include in the definition, “(B) Any other person engaged as a business in the transfer of funds.”
As mentioned above, the prior regulation contained limitations regarding the definition of a “money transmitter.”
“(A) Provides the delivery, communication, or network access services used by a money transmitter to support money transmission services. * * *” Institutions that are used by money transmitters solely for the purpose of providing a medium of communication or transportation of information between money services businesses and their agents, financial institutions, or service providers are not deemed “money transmitters.” No commenters addressed this issue, and the final rule adopts this proposal without change.
“(B) Acts as a payment processor to facilitate the purchase or payment of a bill for a good or service through a clearance and settlement system by agreement with the creditor or seller. * * *” Although payment processors may provide a money transmission service, the service is ancillary to their primary business of coordinating payments either from a debtor to a creditor or, if operating at the point of sale, from a purchaser to a merchant.
“(C) Operates a clearance and settlement system or otherwise acts as an intermediary solely between BSA regulated institutions. This includes but would not be limited to the Fedwire system, electronic funds transfer networks, certain registered clearing agencies regulated by the SEC, and derivatives clearing organizations, or other clearinghouse arrangements established by a financial agency or institution. * * *” Persons who solely provide a clearance and settlement system or act as intermediaries between BSA regulated institutions and do not provide other types of money transmission services are mere instrumentalities that the financial institutions use to process their transfers. Therefore, these instrumentalities, such as the credit card networks, are not included in the definition of “money transmitter.” The final rule adopts this proposal without change.
“(D) Physically transports currency, other monetary instruments, other commercial paper, or other value that substitutes for currency as a person engaged in such business from one person to the same person at another location or to an account belonging to the same person at a financial institution, provided that the person engaged in physical transportation has no more than a custodial interest in the currency, other monetary instruments, other commercial papers, or other value at any point during the transportation.”
This limitation encompasses past armored car rulings. The final rule slightly modifies the proposed language to make this connection explicit, by including a specific reference to armored cars, and by limiting the applicability of the limitation to persons that, like the armored car companies that requested rulings from FinCEN, were primarily engaged in providing armored car services. FinCEN previously ruled that although armored car services may fall within the definition of a “money transmitter,” to the extent that they transport currency on behalf of BSA regulated institutions, they should not be treated as money transmitters.
To take advantage of this limitation, the person engaged in physical transportation cannot have more than a custodial interest in what is being moved at any point during the transportation.
One commenter suggested adding “a bailment” as an example of “no more than a custodial interest.” FinCEN does not believe that it is necessary to add this example in the text of the regulation, but does agree that such a status may not confer more than a custodial interest. Another commenter suggested clarifying “custodial interest” by adding the phrase “without beneficial ownership.” While the addition of “without beneficial ownership” might clarify some cases, FinCEN believes that it could lead to confusion given its meaning and use in other money laundering contexts. Our intent with “custodial interest” is to convey that such an entity has no economic stake (beyond payment for its
This exclusion applies to transport initiated by any person other than certain BSA-regulated institutions. Specifically, when transport is initiated by a bank, a broker-dealer or other SEC-regulated financial institution, or a futures commission merchant or other CFTC-regulated institution, a transport business such as an armored car is not a money transmitter, regardless of whether the transport is to another location or person.
Except as indicated above, the final rule adopts this proposal without change.
“(E) Provides stored value.” A person who provides stored value is also excluded from the definition of “money transmitter,” whether the stored value is open or closed loop. Furthermore, by “provides” FinCEN intends that both entities involved in the sale and management of stored value programs be excluded. For example, a department store that offers gift cards that only may be used at that department store, a convenience store that sells network branded cards that may be used anywhere like a credit card, or a program manager who organizes a stored value program and facilitates loading the stored value device are not subject to the MSB rules as money transmitters.
FinCEN previously determined that a person solely issuing, selling, or redeeming closed loop stored value is not an “issuer, seller or redeemer of stored value” and was therefore not subject to BSA regulation as an MSB under that MSB category.
Many of the commenters to the Notice regarding stored value were in favor of treating open and closed loop stored value differently under the regulations. While FinCEN agrees that the two forms of stored value have different risks and vulnerabilities, we believe it is appropriate to exclude both forms from the definition of “money transmission.” These issues are further addressed by the Prepaid Access NPRM. Additionally, one commenter noted that the distinctions between open and closed loop stored value are being removed as some closed loop systems can now be international, involve multiple retailers, and be reloadable. The commenter argued that the distinction should be based on whether the stored value product has cash access or not. FinCEN agrees that cash access is one aspect of a stored value product that is significant in assessing the product's risk, along with reloadability, the breadth of retailer acceptance of the product, and whether the product can be used internationally. These issues were addressed in the Prepaid Access NPRM.
“(F) Accepts and transmits funds only integral to the sale of goods or the provision of services, other than money transmission services, by the person who is accepting and transmitting the funds.”
Similar to circumstance (B), persons that sell goods or provide services other than money transmission services, and only transmit funds as an integral part of that sale of goods or provision of services, are not money transmitters. For example, brokering the sale of securities, commodity contracts, or similar instruments is not money transmission notwithstanding the fact that the person brokering the sale may move funds back and forth between the buyer and seller to effect the transaction. Similarly, this limitation would apply to a debt management company that made payments to creditors as the conduit for a negotiated schedule of payments from the debtor to its creditors.
There currently is no provision within 31 CFR Chapter X that requires foreign-located MSBs to designate an agent to accept service of legal process in the United States. To enhance the ability of U.S. law enforcement and regulatory agencies to reach these MSB registrants, FinCEN proposed to add the following language to 31 CFR 1022.380 (formerly 31 CFR 103.41): “(a)(2) Foreign-located Money Services Business. Each foreign-located person engaged in activities in the United States as a money services business shall designate the name and address of a person who resides in the United States and is authorized, and has agreed, to be an agent to accept service of legal process with respect to compliance with this part and shall identify the address of the location within the United States for records pertaining to paragraph (b)(1)(iii) of this section.” FinCEN received three supportive comments on this issue. Accordingly, FinCEN adopts the proposal without change, except insofar as the language was changed slightly to reflect the corresponding language in the definition of MSB, which was changed from the Notice, discussed above.
Compliance with the designation of an agent for service of process provision, however, will require a change to FinCEN Form 107, Registration of Money Services Business. The current form does not contain a field in which such an agent can be designated. FinCEN will soon publish a new proposed form for notice and comment which makes a number of conforming changes to reflect this final rule, including adding a checkbox to indicate whether an MSB is foreign located and allowing for designation of an agent for service of process. Accordingly, this rule provides that compliance with 31 CFR 1022.380 is not required until six months after the date of publication of this final rule in the
Pursuant to the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
In large part, the rule updates the MSB definitions to integrate past guidance and rulings into the regulatory text. Incorporating existing interpretations into the regulatory text would have no impact on small entities that have been aware of these interpretations for years. Even if an MSB was unfamiliar with the existing guidance and rulings, these regulatory changes will not impose a significant economic impact. First, this final rule is limited to revising the MSB definitions to make clearer what activities subject a person to the BSA rules pertaining to MSBs. This change provides additional certainty without adding additional burden. Second, as previously stated, the rule clarifies that certain foreign-located MSBs with a U.S. presence, such as having U.S. customers or recipients, are subject to the BSA rules. Finally, the rule makes minimal nomenclature changes with respect to certain MSB categories to help clarify distinctions.
In addition, the rulemaking combines all of stored value into one category, without substantively changing the existing definition. This structural change will not affect small entities. Accordingly, a regulatory flexibility analysis is not required.
The collection of information contained in this final rule has been approved by the Office of Management and Budget in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) under control numbers 1506–0004, 1506–0013, 1506–0015, 1506–0020, 1506–0052. Based on comments received, the clarification of the definitions in 31 CFR 1010.100(ff) (formerly 31 CFR 103.11(uu)) will likely reduce the reporting burden for most MSBs. Certain foreign-located MSBs conducting business in the United States may see an increase in their obligation to collect and report information. However, any such potential must be weighed against the reduction in burden to be achieved by clarifying the exceptions we have made explicit regarding the type of business activity that would make a business an MSB. With the exception of foreign-located MSBs, this rulemaking does not impose any new reporting or recordkeeping requirements. Instead, it merely clarifies the current scope of the existing MSB definitions and related rules. To the extent that we have eliminated any uncertainty or ambiguities with this rule and to the extent that we have narrowed the scope of businesses subject to reporting or recordkeeping requirements, we have not in the aggregate expanded, and may in fact have in the aggregate reduced, regulatory obligations.
In the Notice, FinCEN invited comment on: Whether the proposed collection of information was necessary for the proper performance of FinCEN's mission; the accuracy of the estimated burden associated with the proposed collection of information; how the quality, utility, and clarity of the information to be collected may be enhanced; and how the burden of complying with the proposed collection of information may be minimized, including through the application of automated collection techniques or other forms of information technology.
Under the Paperwork Reduction Act, an agency may not conduct or sponsor a collection of information, and a person is not required to respond to a collection of information, unless it displays a valid OMB control number.
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been designated a “significant regulatory action” although not economically significant, under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget.
Section 202 of the Unfunded Mandates Reform Act of 1995 (“Unfunded Mandates Act”), Public Law 104–4 (March 22, 1995), requires that an agency prepare a budgetary impact statement before promulgating a rule that may result in expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. If a budgetary impact statement is required, section 202 of the Unfunded Mandates Act also requires an agency to identify and consider a reasonable number of regulatory alternatives before promulgating a rule. FinCEN has determined that it is not required to prepare a written statement under section 202 and has concluded that on balance this rulemaking provides the most cost-effective and least burdensome alternative to achieve the objectives of the rule.
Authority delegations (Government agencies), Banks and banking, Currency, Investigations, Law enforcement, Reporting and recordkeeping requirements.
For the reasons set forth above, FinCEN is amending 31 CFR Parts 1010, 1021 and 1022 as follows:
12 U.S.C. 1829b and 1951–1959; 31 U.S.C. 5311–5314, 5316–5332; title
(ff)
(1)
(2)
(ii)
(A) A person that sells stored value in exchange for a check (as defined in the Uniform Commercial Code), monetary instrument or other instrument;
(B) A person that solely accepts monetary instruments as payment for goods or services other than check cashing services;
(C) A person that engages in check cashing for the verified maker of the check who is a customer otherwise buying goods and services;
(D) A person that redeems its own checks; or
(E) A person that only holds a customer's check as collateral for repayment by the customer of a loan.
(3)
(i) Issues traveler's checks or money orders that are sold in an amount greater than $1,000 to any person on any day in one or more transactions; or
(ii) Sells traveler's checks or money orders in an amount greater than $1,000 to any person on any day in one or more transactions.
(4)
(i) Issues stored value (other than a person that does not issue such stored value in an amount greater than $1,000 to any person on any day in one or more transactions); or
(ii) Sells or redeems stored value (other than a person that does not sell or redeem stored value for an amount greater than $1,000 from any person on any day in one or more transactions).
(5)
(A) A person that provides money transmission services. The term “money transmission services” means the acceptance of currency, funds, or other value that substitutes for currency from one person
(B) Any other person engaged in the transfer of funds.
(ii)
(A) Provides the delivery, communication, or network access services used by a money transmitter to support money transmission services;
(B) Acts as a payment processor to facilitate the purchase of, or payment of a bill for, a good or service through a clearance and settlement system by agreement with the creditor or seller;
(C) Operates a clearance and settlement system or otherwise acts as an intermediary solely between BSA regulated institutions. This includes but is not limited to the Fedwire system, electronic funds transfer networks, certain registered clearing agencies regulated by the Securities and Exchange Commission (“SEC”), and derivatives clearing organizations, or other clearinghouse arrangements established by a financial agency or institution;
(D) Physically transports currency, other monetary instruments, other commercial paper, or other value that substitutes for currency as a person primarily engaged in such business, such as an armored car, from one person to the same person at another location or to an account belonging to the same person at a financial institution, provided that the person engaged in physical transportation has no more than a custodial interest in the currency, other monetary instruments, other commercial paper, or other value at any point during the transportation;
(E) Provides stored value; or
(F) Accepts and transmits funds only integral to the sale of goods or the provision of services, other than money transmission services, by the person who is accepting and transmitting the funds.
(7) [Reserved].
(8)
(i) A bank or foreign bank;
(ii) A person registered with, and functionally regulated or examined by, the SEC or the CFTC, or a foreign financial agency that engages in financial activities that, if conducted in the United States, would require the foreign financial agency to be registered with the SEC or CFTC; or
(iii) A natural person who engages in an activity identified in paragraphs (ff)(1) through (ff)(5) of this section on an infrequent basis and not for gain or profit.
(f) * * *
(1) * * *
(iv) Any person organized under foreign law (other than a branch or office of such person in the United States) that is engaged in the business of, and is readily identifiable as:
(A) A dealer in foreign exchange; or
(2) For purposes of paragraph (f)(1)(iv) of this section, a person is not “engaged
12 U.S.C. 1829b and 1951–1959; 31 U.S.C. 5311–5314 and 5316–5332; title III, sec. 314, Public 107–56, 115 Stat. 307.
(c) * * *
(1) Transactions between a casino and a dealer in foreign exchange, or between a casino and a check casher, as those terms are defined in § 1010.100(ff) of this Chapter, so long as such transactions are conducted pursuant to a contractual or other arrangement with a casino covering the financial services in paragraphs (a)(8), (b)(7), and (b)(8) of this section;
12 U.S.C. 1829b and 1951–1959; 31 U.S.C. 5311–5314 and 5316–5332; title III, sec. 314, Public Law 107–56, 115 Stat. 307.
(d) * * *
(1) * * *
(iii) A person that is a money services business solely because it is an agent for another money services business as set forth in § 1022.380(a)(3), and the money services business for which it serves as agent, may by agreement allocate between them responsibility for development of policies, procedures, and internal controls required by this paragraph (d)(1). * * *
(a)
(2)
(b) * * *
(3)
(a)(1) After July 7, 1987, each dealer in foreign exchange shall secure and maintain a record of the taxpayer identification number of each person for whom a transaction account is opened or a line of credit is extended within 30 days after such account is opened or credit line extended. Where a person is a non-resident alien, the dealer in foreign exchange shall also record the person's passport number or a description of some other government document used to verify his identity. Where the account or credit line is in the names of two or more persons, the dealer in foreign exchange shall secure the taxpayer identification number of a person having a financial interest in the account or credit line. In the event that a dealer in foreign exchange has been unable to secure the identification required within the 30-day period specified, it shall nevertheless not be deemed to be in violation of this section if:
(2) The 30-day period provided for in paragraph (a)(1) of this section shall be extended where the person opening the account or credit line has applied for a taxpayer identification or social security number on Form SS–4 or SS–5, until such time as the person maintaining the account or credit line has had a reasonable opportunity to secure such number and furnish it to the dealer in foreign exchange.
(b) Each dealer in foreign exchange shall retain either the original or a microfilm or other copy or reproduction of each of the following:
(9) A system of books and records that will enable the dealer in foreign exchange to prepare an accurate balance sheet and income statement.
Coast Guard, DHS.
Notice of temporary deviation from regulations.
The Commander, Eighth Coast Guard District, has issued a temporary deviation from the regulation in 33 CFR 117.478(b) governing the operation of the LA 77 bridge across the
This deviation is effective from 7 a.m. through 5 p.m. on Wednesday July 20, 2011.
Documents mentioned in this preamble as being available in the docket are part of docket USCG–2011–0630 and are available online by going to
If you have questions on this rule, call or e-mail David Frank, Bridge Administration Branch, Coast Guard; telephone 504–671–2128, e-mail
The LA 77 bridge across the Lower Grand River, mile 47.0 (Alternate Route) at Grosse Tete, Iberville Parish, Louisiana, has a vertical clearance of 2 feet above high water in the closed-to-navigation position and unlimited clearance in the open-to-navigation position. Navigation on the waterway consists mainly of tows with barges and some recreational craft. Coastal Bridge Company, on behalf of the Louisiana Department of Transportation and Development requested a temporary deviation from the normal operation of the bridge in order to effect repairs to the bridge.
This deviation allows the draw of the LA 77 swing drawbridge across the Lower Grand River, mile 47.0 (Alternate Route), at Grosse Tete, Iberville Parish, Louisiana, to remain in the closed-to-navigation position from 7 a.m. until 5 p.m. on Wednesday, July 20, 2011. Presently, the draw of the LA 77 bridge, mile 47.0 (Alternate Route) at Grosse Tete, shall open on signal; except that, from about August 15 to about June 5 (the school year), the draw need not be opened from 6 a.m. to 8 a.m. and from 2:30 p.m. to 4:30 p.m., Monday through Friday except Federal holidays. The draw shall open on signal at any time for an emergency aboard a vessel.
The closure is necessary in order to install angles on the main girder and weld a crack on the bridge. The contractor has indicated that they may be able to operate the bridge during the closure and may be able to move their equipment out of the channel but the movement of the equipment may require several hours to complete immediate work and move equipment. This maintenance is essential for the continued operation of the bridge. Notices will be published in the Eighth Coast Guard District Local Notice to Mariners and will be broadcast via the Coast Guard Broadcast Notice to Mariners System.
No alternate routes are available for the passage of vessels; however, the closure was coordinated with waterway interests who have indicated that they will be able to adjust their operations around the proposed work schedule.
Due to prior experience and coordination with waterway users, it has been determined that this closure will not have a significant effect on vessels that use the waterway.
In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Environmental Protection Agency (EPA).
Direct final rule.
EPA is approving an April 20, 2011, request from the State of Missouri to exempt sources of Nitrogen Oxides (NO
This direct final rule will be effective September 19, 2011 without further notice unless EPA receives adverse comments by August 22, 2011. If adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the
Submit your comments identified by Docket ID No. EPA–R07–OAR–2011–0451, by one of the following methods:
1.
2.
3.
Lachala Kemp, Air Planning and Development Branch, U.S. Environmental Protection Agency, Region 7, 901 N. 5th Street, Kansas City, Kansas 66101 at 913–551–7214, or by e-mail at
Throughout this document “we,” “us,” or “our” refer to EPA. This section provides additional information by addressing the following questions:
EPA is approving an April 20, 2011, request from the State of Missouri to exempt sources of NO
EPA is publishing this rule without prior proposal because we view this as a noncontroversial action and anticipate no relevant adverse comments. EPA notes that the technical basis for this rule was its previous final determination on June 9, 2011 (76 FR 33647) that the St. Louis (MO-IL) metropolitan 1997 8-hour ozone nonattainment area has attained the 1997 8-hour ozone NAAQS. EPA received no comments during that particular rulemaking. However, in the proposed rules section of this
On April 20, 2011, Missouri Department of Natural Resources (MDNR) submitted a request for a NO
An area may be considered in attainment with the 1997 8-hour ozone NAAQS if there are no violations of the NAAQS, as determined in accordance with 40 CFR 50.10 and appendix I, based on the most recent three years of complete, quality-assured air quality monitoring data. To attain this standard, the average of the annual fourth-highest daily maximum 8-hour average ozone concentrations are measured and recorded at each monitoring site over the most recent 3-year period (the monitoring site's ozone design value) must not exceed the ozone standard. Based on an ozone data rounding convention described in 40 CFR part 50, appendix I, the 1997 8-hour ozone standard is attained if the area's ozone design value is 0.084 parts per million (ppm) or less. The data must be collected and quality-assured in accordance with 40 CFR part 58, and must be recorded in EPA's Air Quality System. The monitoring network collecting the data must meet the applicable requirements of 40 CFR part 58. The data supporting attainment of the standard must meet the minimum data completeness requirements in 40 CFR part 50, appendix I.
The monitors and design values are displayed in Table 1. The table summarizes the annual fourth-highest daily maximum 8-hour ozone concentrations and their 3-year (2008–2010) averages for all monitors in the St. Louis (MO-IL) metropolitan area. These data reflect peak ozone concentrations quality assured and reported by the States of Illinois and Missouri.
Review of the 2008–2010 ozone concentrations and site-specific ozone design values (3-year averages) shows that all of the monitoring sites were attaining the 1997 8-hour ozone NAAQS during this period. Therefore, based on the most recent three years of complete, quality assured ozone monitoring data, the 1997 8-hour ozone standard has been attained in the area. Review of preliminary data from the 2011 ozone season indicates that the area continues to attain the 8-hour ozone NAAQS.
EPA's guidance document, “Guidance on Limiting Nitrogen Oxides (NO
EPA's review of the ozone monitoring data and Missouri's NO
The section 182(f) NO
While EPA is waiving the requirements to control NO
In addition, EPA notes that an approval of this waiver request is solely for purposes of the CAA requirements to meet the 1997 8-hour ozone NAAQS. The waiver would not apply for purposes of the ozone NAAQS promulgated in 2008 (March 27, 2008, 73 FR 16435) or for purposes of any future ozone NAAQS EPA may promulgate. To the extent that section 182(f) may apply to the St. Louis area for purposes of the 2008 or any future ozone NAAQS, the State would need to submit a NO
EPA is approving Missouri's request to exempt the Missouri portion of the St. Louis 8-hour ozone nonattainment area
In reviewing a request from the State to exempt sources of NO
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this exemption does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 16, 2009. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(a)
(b)
Federal Emergency Management Agency, DHS.
Interim rule.
This interim rule lists communities where modification of the Base (1% annual-chance) Flood Elevations (BFEs) is appropriate because of new scientific or technical data. New flood insurance premium rates will be calculated from the modified BFEs for new buildings and their contents.
These modified BFEs are currently in effect on the dates listed in the table below and revise the Flood Insurance Rate Maps (FIRMs) in effect prior to this determination for the listed communities.
From the date of the second publication of these changes in a
The modified BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below.
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646–4064, or (e-mail)
The modified BFEs are not listed for each community in this interim rule. However, the address of the Chief Executive Officer of the community where the modified BFE determinations are available for inspection is provided.
Any request for reconsideration must be based on knowledge of changed conditions or new scientific or technical data.
The modifications are made pursuant to section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.
The modified BFEs are the basis for the floodplain management measures that the community is required either to adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).
These modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. The changes in BFEs are in accordance with 44 CFR 65.4.
Flood insurance, Floodplains, Reporting and recordkeeping requirements.
Accordingly, 44 CFR part 65 is amended to read as follows:
42 U.S.C. 4001
Federal Emergency Management Agency, DHS.
Final rule.
Modified Base (1% annual-chance) Flood Elevations (BFEs) are finalized for the communities listed below. These modified BFEs will be used to calculate flood insurance premium rates for new buildings and their contents.
The effective dates for these modified BFEs are indicated on the following table and revise the Flood Insurance Rate Maps (FIRMs) in effect for the listed communities prior to this date.
The modified BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below.
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646–4064, or (e-mail)
The Federal Emergency Management Agency (FEMA) makes the final determinations listed below of the modified BFEs for each community listed. These modified BFEs have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Deputy Federal Insurance and Mitigation Administrator has resolved any appeals resulting from this notification.
The modified BFEs are not listed for each community in this notice. However, this final rule includes the address of the Chief Executive Officer of the community where the modified BFE determinations are available for inspection.
The modified BFEs are made pursuant to section 206 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.
The modified BFEs are the basis for the floodplain management measures that the community is required either to adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).
These modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities.
These modified BFEs are used to meet the floodplain management requirements of the NFIP and also are used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in those buildings. The changes in BFEs are in accordance with 44 CFR 65.4.
Flood insurance, Floodplains, Reporting and recordkeeping requirements.
Accordingly, 44 CFR part 65 is amended to read as follows:
42 U.S.C. 4001
Pipeline and Hazardous Materials Safety Administration (PHMSA); DOT.
Final rule; correction.
PHMSA is correcting a final rule that appeared in the
This correction takes effect on October 1, 2011.
For technical information contact Mike Israni by phone at 202–366–4571 or by e-mail at
In FR Doc. 2011–10778, published in the
In FR Doc. 2011–10778 appearing on page 25576 in the
Federal Crop Insurance Corporation, USDA.
Proposed rule.
The Federal Crop Insurance Corporation (FCIC) proposes to amend the Common Crop Insurance Regulations, Onion Crop Insurance Provisions. The intended effect of this action is to provide policy changes, to clarify existing policy provisions to better meet the needs of insured producers, and to reduce vulnerability to program fraud, waste, and abuse. The proposed changes will be effective for the 2013 and succeeding crop years.
Written comments and opinions on this proposed rule will be accepted until close of business September 19, 2011 and will be considered when the rule is to be made final.
FCIC prefers that comments be submitted electronically through the Federal eRulemaking Portal. You may submit comments, identified by Docket ID No. FCIC–11–0004, by any of the following methods:
•
•
All comments received, including those received by mail, will be posted without change to
Director, Product Administration and Standards Division, Risk Management Agency, United States Department of Agriculture, Beacon Facility, Stop 0812, Room 421, P.O. Box 419205, Kansas City, MO 64141–6205, telephone (816) 926–7730.
This rule has been determined to be non-significant for the purposes of Executive Order 12866 and, therefore, it has not been reviewed by the Office of Management and Budget.
Pursuant to the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the collections of information in this rule have been approved by OMB under control number 0563–0053.
FCIC is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. This rule contains no Federal mandates (under the regulatory provisions of title II of the UMRA) for State, local, and tribal governments or the private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of UMRA.
It has been determined under section 1(a) of Executive Order 13132, Federalism, that this rule does not have sufficient implications to warrant consultation with the States. The provisions contained in this rule will not have a substantial direct effect on States, or 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 rule has been reviewed in accordance with the requirements of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. The review reveals that this regulation will not have substantial and direct effects on Tribal governments and will not have significant Tribal implications.
FCIC certifies that this regulation will not have a significant economic impact on a substantial number of small entities. Program requirements for the Federal crop insurance program are the same for all producers regardless of the size of their farming operation. For instance, all producers are required to submit an application and acreage report to establish their insurance guarantees and compute premium amounts, and all producers are required to submit a notice of loss and production information to determine the amount of an indemnity payment in the event of an insured cause of crop loss. Whether a producer has 10 acres or 1000 acres, there is no difference in the kind of information collected. To ensure crop insurance is available to small
This program is listed in the Catalog of Federal Domestic Assistance under No. 10.450.
This program is not subject to the provisions of Executive Order 12372, which require intergovernmental consultation with State and local officials. See the Notice related to 7 CFR part 3015, subpart V, published at 48 FR 29115, June 24, 1983.
This proposed rule has been reviewed in accordance with Executive Order 12988 on civil justice reform. The provisions of this rule will not have a retroactive effect. The provisions of this rule will preempt State and local laws to the extent such State and local laws are inconsistent herewith. With respect to any direct action taken by FCIC or to require the insurance provider to take specific action under the terms of the crop insurance policy, the administrative appeal provisions published at 7 CFR part 11 or 7 CFR part 400, subpart J for the informal administrative review process of good farming practices as applicable, must be exhausted before any action against FCIC for judicial review may be brought.
This action is not expected to have a significant economic impact on the quality of the human environment, health, or safety. Therefore, neither an Environmental Assessment nor an Environmental Impact Statement is needed.
FCIC proposes to amend the Common Crop Insurance Regulations (7 CFR part 457) by revising § 457.135, Onion Crop Insurance Provisions, to be effective for the 2013 and succeeding crop years. Several requests have been made for changes to improve the insurance coverage offered, address program integrity issues, simplify program administration, and improve clarity of the policy provisions.
The proposed changes are as follows:
1. FCIC proposes to remove all section titles of the Basic Provisions. This information is currently contained in parenthesis following references to section numbers of the Basic Provisions throughout the Crop Provisions.
2. Section 1—FCIC proposes to revise the definitions of “direct seeded” and “transplanted” by adding the phrase “onions planted by” to the beginning of both definitions. This revision will further clarify that these terms are a planting method.
FCIC proposes to revise the definition of “non-storage onions” by removing the term generally in both places it is used, since this term is vague and ambiguous. The characteristics listed are those considered for non-storage onions.
FCIC proposes to revise the definition of “onion production” by removing the language regarding recoverable size and condition, since these terms are vague and ambiguous.
FCIC proposes to add the definitions of “processor” and “processor contract” because the terms are used in the definition of “storage onions.”
FCIC proposes to revise paragraph (a) of the definition of “production guarantee (per acre)” by changing the first stage production guarantee for direct seeded and transplanted storage and non-storage onions from thirty-five percent to forty-five percent of the final stage production guarantee. The Special Provisions already establish a higher first stage production guarantee for most onion producing areas. Also, a contracted onion crop insurance evaluation found that a first stage loss incurs more production costs than a prevented planting loss and, therefore, should have a higher production guarantee compared to prevented planting. This change will coincide with the lowering of the prevented planting guarantee in section 15 from forty-five percent to thirty-five percent of the final stage guarantee. FCIC also proposes to revise paragraph (b) by adding “60%” in parenthesis following the written phrase “60 percent” for consistency.
FCIC proposes to add the definition “sets” to specify they are onion bulbs that are planted by hand or by machine.
FCIC proposes to revise the definition of “storage onions” by removing the terms generally and normally, since these terms are vague and ambiguous. The characteristics listed are those considered for storage onions. The definition is also being revised to include varieties grown for a processor under the requirements of a processor contract.
FCIC proposes to revise the definition of “topping” by replacing the term “bent over” with the term “broken.”
FCIC proposes to remove the definition of “type” as onion types will be designated in the Special Provisions.
3. Section 2—FCIC proposes to revise section 2 by removing the language indicating section 2 is to be used in place of the provisions regarding establishing optional units in section 34 of the Basic Provisions. The provisions in section 2 of the Onion Crop Provisions are to be used in addition to the provisions in section 34 of the Basic Provisions.
4. Section 3—FCIC proposes to revise section 3(b)(2) to add language consistent with section 3(b)(1) designating the end of the second stage production guarantee. The first stage ends at the emergence of the fourth leaf for direct seeded or 30 days after planting for transplanted, and the second stage ends when the onions are eligible for the final stage. This makes the second stage consistent with the first and final stage production guarantees.
FCIC proposes to revise section 3(b)(3) by deleting duplicative language that provides the calculation for “production guarantee (per acre)” that is already contained in paragraph (c) of the definition in section 1.
FCIC proposes to revise section 3(c) to clarify that the production guarantee, for indemnity purposes, will be based on the stage in which damage occurred for any acreage of onions damaged in the first or second stage when a majority of producers in the area would not normally continue to care for the crop, even if the producer elects to continue such care. FCIC also proposes to delete the phrase “deemed to be destroyed” to clarify that if the producer continues to care for the damaged onion acreage, then any later appraised unharvested production or harvested production will be used as production to count.
5. Section 4—FCIC proposes to revise this section to list the contract change dates because it has added coverage to more states, which have different contract change dates based on the cancellation and termination dates. FCIC also proposes to add language that other contract change dates may be designated in the Special Provisions.
6. Section 5—FCIC proposes to add language to the introductory text to allow other or changes to the cancellation and termination dates if designated in the Special Provisions.
FCIC proposes to add Arizona to the states with a cancellation and termination date of August 31.
FCIC proposes to add the cancellation date of September 30 and termination date of November 30 for Hawaii.
FCIC proposes to add the cancellation and termination date of November 30 for all California counties except Lassen, Modoc, Shasta and Siskiyou.
7. Section 6—FCIC proposes to add a new section 6 to require the producer to provide a copy of all processor contracts by the acreage reporting date, if the Special Provisions specify a processor contract is required to insure processing onions. This is consistent with other Crop Provisions in regards to processing crops.
8. Redesignated section 8—FCIC proposes to revise the introductory text in redesignated section 8 to include shallots on the list of onions that are excluded as an insured crop, since shallots are not insurable under these Crop Provisions.
9. Redesignated section 10—FCIC proposes to revise redesignated section 10(b) by adding language that the provisions in 10(b) are to be used in accordance with the provisions in section 11 of the Basic Provisions.
FCIC proposes to revise redesignated section 10(b)(1) by redesignating section 10(b)(1)(i) as 10(b)(1)(ii) and adding a new section 10(b)(1)(i) for the end of insurance date of May 20 for 1015 Super Sweets, and any other non-storage onions in Cameron, Hidalgo, Starr, and Willacy Counties, Texas; adding a new section 10(b)(1)(iii) to specify the end of insurance date in Arizona is June 30 for all storage and non-storage onions; adding a new section 10(b)(1)(iv) to specify the end of insurance date is July 15 for 1015 Super Sweets, and other non-storage onions for all Texas counties except Cameron, Hidalgo, Starr, and Willacy; revising new section 10(b)(1)(v) by adding the phrase “fall planted” and deleting the phrase “and any other non-storage onions” to specify the end of insurance date is July 31 for fall planted Walla Walla Sweets, in the states of Oregon and Washington; adding a new subsection 10(b)(1)(vi) to specify the end of insurance date is August 31 for all non-storage onions not otherwise specified; and adding a new section 10(b)(1)(vii) to specify the end of insurance date is October 15 for all storage onions not otherwise specified. This change will make the end of insurance period more consistent with the actual growing season for a specified area.
FCIC proposes to revise redesignated 10(b)(2)(i) by removing the phrase “removal of the onions from the field” because the language regarding removal is used in the definition of “harvest” and harvest is already a basis for the end of the insurance period in section 11(b) of the Basic Provisions.
10. Redesignated section 13—FCIC proposes to revise redesignated section 13(a) to clarify any required representative samples of the unharvested crop cannot be topped, lifted or dug. Since onions placed in bags and boxes but not yet removed from the field are considered unharvested, the added language clarifies the representative sample must be comprised of a crop area undisturbed by the pre-harvest processes of topping and lifting or digging.
11. Redesignated section 14—FCIC proposes to add an example for settlement of claim immediately following section 14(b)(7).
FCIC proposes to revise redesignated section 14(c)(iv) to clarify that appraised production for acreage that does not qualify for the final stage guarantee is reduced by the difference between the first or second stage production guarantee (as applicable) and the final stage production guarantee to determine the total production to count for production lost on any acreage prior to the final stage. FCIC also proposes to add an example regarding the calculation for total production to count in a production stage loss immediately following section 14(c)(1)(iv).
12. Redesignated section 15—FCIC proposes to revise redesignated section 15 to decrease the prevented planting coverage from 45 percent to 35 percent of the final stage production guarantee. Prevented planting coverage was reduced to reflect the lower input costs compared to the first stage production guarantee, which has input costs for planting. This change will coincide with increasing the first stage production guarantee for direct seeded storage and non-storage onions from 35 percent to 45 percent of the final stage guarantee in the definition of “production guarantee (per acre)” in section 1.
Crop insurance, Onion, Reporting and recordkeeping requirements.
Accordingly, as set forth in the preamble, the Federal Crop Insurance Corporation proposes to amend 7 CFR part 457 effective for the 2013 and succeeding crop years as follows:
1. The authority citation for 7 CFR part 457 continues to read as follows:
7 U.S.C. 1506(l), 1506(o).
2. Amend § 457.135 as follows:
a. Revise the introductory text;
b. Add definitions in section 1 for “Processor”, “Processor contract”, and “Sets”; amend the definition of “Non-storage onions” by removing the phrase “generally” everywhere it appears; and revise the definitions of “Direct seeded”, “Onion production”, “Production guarantee (per acre)”, “Storage onions”, “Topping”, “Transplanted”; and remove the definition of “Type”;
c. Remove the first section 2 heading and revise section 2;
d. Amend section 3(a) by removing the phrase “(Insurance Guarantees, Coverage Levels, and Prices for Determining Indemnities)”;
e. Revise sections 3(b)(2)(i) and 3(b)(2)(ii);
f. Revise section 3(b)(3);
g. Revise section 3(c);
h. Revise section 4;
i. Revise section 5;
j. Redesignate sections 6 through 14 as sections 7 through 15, respectively, and add a new section 6;
k. Amend newly redesignated section 7 by removing the phrase “(Annual Premium)”;
l. Revise newly redesignated section 8 introductory text;
m. Amend newly redesignated section 9 introductory text by removing the phrase “(Insurable Acreage)”;
n. Amend newly redesignated section 10(a) by removing the phrase “(Insurance Period)”;
o. Revise newly redesignated section 10(b);
p. Amend newly redesignated sections 11(a) and 11(b) by removing the phrase “(Causes of Loss)”;
q. Amend newly redesignated section 12(a) by removing the phrase “(Replanting Payment)”;
r. Revise newly redesignated section 13(a);
s. Amend newly redesignated section 14 by removing the phrase “section 13” and adding the phrase “section 14” in its place everywhere it appears;
t. Add an example after newly designated section 14(b)(7);
u. Amend newly redesignated section 14(c)(1)(i)(B) by removing the phrase “section 12” and adding the phrase “section 13” in its place;
v. Revise newly redesignated section 14(c)(1)(iv);
w. Add an example after newly redesignated section 14(c)(1)(iv); and
x. Revise newly redesignated section 15.
The revised and added text reads as follows:
The onion crop insurance provisions for the 2013 and succeeding crop years are as follows:
1. Definitions.
(a) The producer's commitment to plant and grow onions of the types designated in the Special Provisions and to deliver the onion production to the processor;
(b) The processor's commitment to purchase all the production from a specified number of acres or the specified quantity of onion production stated in the processor contract; and
(c) The price that will be paid for the production.
(a) First stage production guarantee—Forty-five percent (45%) of the final stage production guarantee for direct seeded and transplanted storage and non-storage onions, unless otherwise specified in the Special Provisions.
(b) Second stage production guarantee—Seventy percent (70%) of the final stage production guarantee for direct seeded storage onions and 60 percent (60%) of the final stage production guarantee for transplanted storage onions and all non-storage onions, unless otherwise specified in the Special Provisions.
(c) Final stage production guarantee—The quantity of onions (in hundredweight) determined by multiplying the approved yield per acre by the coverage level percentage you elect.
2. Unit Division.
In addition to the requirements of section 34 of the Basic Provisions, optional units may be established by type, if separate types are designated in the Special Provisions.
3. * * *
(b) * * *
(2) * * *
(i) For direct seeded storage and non-storage onions, from the emergence of the fourth leaf until eligible for the final stage; and
(ii) For transplanted storage and non-storage onions, from the 31st day after transplanting of onion plants or sets until eligible for the final stage.
(3) Final stage extends from the completion of topping and lifting or digging on the acreage until the end of the insurance period.
(c) The indemnity payable for any acreage of onions will be based on the stage the plants had achieved when damage occurred. Any acreage of onions damaged in the first or second stage, to the extent that the majority of producers in the area would not normally further care for the onions, will have a production guarantee, for indemnity purposes, based on the stage in which the damage occurred, even if you continue to care for the damaged onions.
4. Contract Changes.
In accordance with section 4 of the Basic Provisions, the contract change date is:
(a) June 30 preceding the cancellation date for counties with an August 31, September 30, or November 30 cancellation date;
(b) November 30 preceding the cancellation date for counties with a February 1 cancellation date; or
(c) As designated in the Special Provisions.
5. Cancellation and Termination Dates.
In accordance with section 2 of the Basic Provisions, the cancellation and termination dates are as follows, unless otherwise designated in the Special Provisions:
6. Report of Acreage.
In addition to the provisions of section 6 of the Basic Provisions, if the Special Provisions require a processor contract to insure your onions, you must provide a copy of all your processor contracts to us on or before the acreage reporting date.
8. * * *
In accordance with section 8 of the Basic Provisions, the crop insured will be all the storage and non-storage onions (excluding green (bunch) or seed onions, chives, garlic, leeks, shallots, and scallions) in the county for which a premium rate is provided by the actuarial documents:
10. * * *
(b) In accordance with the provisions of section 11 of the Basic Provisions,
(1) The calendar date for the end of the insurance period as follows:
(i) May 20 for 1015 Super Sweets, and any other non-storage onions in Cameron, Hidalgo, Starr, and Willacy Counties, Texas;
(ii) June 1 for Vidalia, and any other non-storage onions planted in the state of Georgia;
(iii) June 30 for all storage and non-storage onions in Arizona;
(iv) July 15 for 1015 Super Sweets, and any other non-storage onions for all Texas counties except Cameron, Hidalgo, Starr, and Willacy;
(v) July 31 for fall planted Walla Walla Sweets, in the states of Oregon and Washington;
(vi) August 31 for all non-storage onions not otherwise specified; and
(vii) October 15 for all storage onions not otherwise specified; or
(2) In addition to the requirements of section 11(b) of the Basic Provision, fourteen days after lifting or digging.
13. * * *
(a) In accordance with the requirements of section 14 of the Basic Provisions, any representative samples of the unharvested crop that may be required cannot be topped, lifted, or dug and must be at least 10 feet wide and extend the entire length of each field in the unit. The samples must not be harvested or destroyed until the earlier of our inspection or 15 days after harvest of the balance of the unit is completed.
14. * * *
(b) * * *
(7) * * *
For Example:
You have a 100 percent share in 100 acres of a unit of transplanted storage onions with a production guarantee of 200 hundredweight per acre, and you select 100 percent of the price election of $8.00 per hundredweight. You suffer a covered cause of loss on 25 acres during the second stage which has a second stage production guarantee of 60 percent of the final stage production guarantee which equals 120 hundredweight per acre. The appraised production on the 25 acres was 2,500 hundredweight of onion production. Your harvested onion production on the remaining 75 acres is 16,000 hundredweight total production to count. Your indemnity will be calculated as follows:
(1) 25 acres × 120 hundredweight (200 × .60) second stage production guarantee = 3,000 hundredweight, and
75 acres × 200 hundredweight final stage production guarantee = 15,000 hundredweight;
(2) 3,000 hundredweight second stage production guarantee × $8.00 price election = $24,000 value of second stage production guarantee, and
15,000 hundredweight final stage production guarantee × $8.00 price election = $120,000 value of final stage production guarantee;
(3) $24,000 value of second stage production + $120,000 value of final stage production guarantee = $144,000 total value of production guarantee;
(4) 500 hundredweight second stage total production to count (from section 14(c)(1)(iv) example) × $8.00 price election = $4,000 value of second stage total production to count, and
16,000 hundredweight final stage total production to count × 8.00 price election = $128,000 value of final stage production to count;
(5) $4,000 value of second stage total production to count + $128,000 value of final stage total production to count = $132,000 total value of production to count;
(6) $144,000 total value of production guarantee − $132,000 total value of production to count = $12,000 value of loss; and
(7) $12,000 × 100 percent share = $12,000 indemnity payment.
(c) * * *
(1) * * *
(iv) For acreage that does not qualify for the final stage production guarantee, and is not subject to section 14 (c)(1)(i) and (ii), the appraised production is reduced by the difference between the first or second stage (as applicable) and the final stage production guarantee; and
For Example:
You have 100 acres of a unit of transplanted storage onions with a production guarantee of 200 hundredweight per acre. You suffer a covered cause of loss on 25 acres during the second stage which has a second stage production guarantee of 60 percent of the final stage production guarantee. The appraised production on the 25 acres was 2,500 hundredweight of onion production. Your second stage total production to count on the 25 acres will be calculated as follows:
25 acres × 200 hundredweight final stage production guarantee = 5,000 hundredweight final stage production guarantee,
5,000 hundredweight final stage production guarantee × 60 percent second stage production guarantee = 3,000 hundredweight second stage production guarantee,
5,000 hundredweight final stage production guarantee − 3,000 hundredweight second stage production guarantee = 2,000 hundredweight difference between second stage and final stage production guarantee, and
2,500 hundredweight appraised − 2,000 hundredweight difference = 500 hundredweight second stage total production to count (for section 14(b) example).
15. Prevented Planting.
Your prevented planting coverage will be 35 percent of your final stage production guarantee for timely planted acreage. Additional prevented planting coverage levels are not available for onions.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to amend Class E airspace at Spearfish, SD. Additional controlled airspace is necessary to accommodate new Standard Instrument Approach Procedures (SIAP) at Black Hills Airport-Clyde Ice Field. The geographic coordinates of the airport also would be updated. The FAA is taking this action to enhance the safety and management of Instrument Flight Rules (IFR) operations for SIAPs at the airport.
0901 UTC. Comments must be received on or before September 6, 2011.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12–140, Washington, DC 20590–0001. You must identify the docket number FAA–2011–0431/Airspace Docket No. 11–AGL–11, at the beginning of your comments. You
Scott Enander, Central Service Center, Operations Support Group, Federal Aviation Administration, Southwest Region, 2601 Meacham Blvd, Fort Worth, TX 76137;
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA–2011–0431/Airspace Docket No. 11–AGL–11.” The postcard will be date/time stamped and returned to the commenter.
An electronic copy of this document may be downloaded through the Internet at
You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see
Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking (202) 267–9677, to request a copy of Advisory Circular No. 11–2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.
This action proposes to amend Title 14, Code of Federal Regulations (14 CFR), Part 71 by amending Class E airspace extending upward from 700 feet above the surface to accommodate new standard instrument approach procedures at Black Hills Airport-Clyde Ice Field, Spearfish, SD. Controlled airspace is needed for the safety and management of IFR operations at the airport. The geographic coordinates of the airport would also be updated to coincide with the FAA's aeronautical database.
Class E airspace areas are published in Paragraph 6005 of FAA Order 7400.9U, dated August 18, 2010 and effective September 15, 2010, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document would be published subsequently in the Order.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend controlled airspace at Black Hills Airport-Clyde Ice Field, Spearfish, SD.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR Part 71 as follows:
1. The authority citation for part 71 continues to read as follows:
49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Comp., p. 389.
2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.9U, Airspace Designations and Reporting Points, dated August 18, 2010, and effective September 15, 2010, is amended as follows:
That airspace extending upward from 700 feet above the surface within a 7-mile radius of Black Hills Airport—Clyde Ice Field, and within 2.1 miles each side of the 305° bearing from the airport extending from the 7-mile radius to 8.3 miles northwest of the airport, and within 2 miles each side of the 135° bearing from the airport extending from the 7-mile radius to 18.3 miles southeast of the airport; and that airspace extending upward from 1,200 feet above the surface within an area bounded by a line beginning at lat. 44°29′50″ N, long. 103°56′17″ W; to lat. 44°13′37″ N, long. 104°14′00″ W; to lat. 44°18′41″ N, long. 104°23′24″ W; to lat. 44°44′11″ N, long. 103°57′49″ W; to lat. 44°50′13″ N, long. 103°28′11″ W; to lat. 44°47′27″ N, long. 102°57′40″ W; to lat. 44°39′31″ N, long. 102°56′34″ W; to lat. 44°38′27″ N, long. 103°12′26″ W; to lat. 44°25′51″ N, long. 103°37′45″ W; thence clockwise via the 7-mile radius of the airport to the point of beginning.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to amend Class E airspace at Sturgis, SD. Additional controlled airspace is necessary to accommodate new Standard Instrument Approach Procedures (SIAP) at Sturgis Municipal Airport. The FAA is taking this action to enhance the safety and management of Instrument Flight Rules (IFR) operations for SIAPs at the airport.
0901 UTC. Comments must be received on or before September 6, 2011.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12–140, Washington, DC 20590–0001. You must identify the docket number FAA–2011–0430/Airspace Docket No. 11–AGL–10, at the beginning of your comments. You may also submit comments through the Internet at
Scott Enander, Central Service Center, Operations Support Group, Federal Aviation Administration, Southwest Region, 2601 Meacham Blvd., Fort Worth, TX 76137;
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA–2011–0430/Airspace Docket No. 11–AGL–10.” The postcard will be date/time stamped and returned to the commenter.
An electronic copy of this document may be downloaded through the Internet at
You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see
Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking (202) 267–9677, to request a copy of Advisory Circular No. 11–2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.
This action proposes to amend Title 14, Code of Federal Regulations (14 CFR), Part 71 by amending Class E airspace extending upward from 700 feet above the surface to accommodate new standard instrument approach procedures at Sturgis Municipal Airport, Sturgis, SD. Controlled airspace is needed for the safety and management of IFR operations at the airport.
Class E airspace areas are published in Paragraph 6005 of FAA Order 7400.9U, dated August 18, 2010 and effective September 15, 2010, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document would be published subsequently in the Order.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in subtitle VII, part A, subpart I, section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend controlled airspace at Sturgis Municipal Airport, Sturgis, SD.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
1. The authority citation for part 71 continues to read as follows:
49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Comp., p. 389.
2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.9U, Airspace Designations and Reporting Points, dated August 18, 2010, and
That airspace extending upward from 700 feet above the surface within a 7-mile radius of Sturgis Municipal Airport, and within 1.7 miles each side of the 302° bearing from the airport extending from the 7-mile radius to 9 miles northwest of the airport.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to amend Class E airspace at Valley City, ND. Decommissioning of the Valley City non-directional beacon (NDB) at Barnes County Municipal Airport, Valley City, ND, has made this action necessary for the safety and management of Instrument Flight Rules (IFR) operations at the airport.
0901 UTC. Comments must be received on or before September 6, 2011.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12–140, Washington, DC 20590–0001. You must identify the docket number FAA–2011–0605/Airspace Docket No. 11–AGL–13, at the beginning of your comments. You may also submit comments through the Internet at
Scott Enander, Central Service Center, Operations Support Group, Federal Aviation Administration, Southwest Region, 2601 Meacham Blvd., Fort Worth, TX 76137;
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA–2011–0605/Airspace Docket No. 11–AGL–13.” The postcard will be date/time stamped and returned to the commenter.
An electronic copy of this document may be downloaded through the Internet at
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see
Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking (202) 267–9677, to request a copy of Advisory Circular No. 11–2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.
This action proposes to amend Title 14, Code of Federal Regulations (14 CFR), part 71 by modifying Class E airspace extending upward from 700 feet above the surface for standard instrument approach procedures at Barnes County Municipal Airport, Valley City, ND. Airspace reconfiguration is necessary due to the decommissioning of the Valley City NDB and cancellation of the NDB approach. Controlled airspace is necessary for the safety and management of IFR operations at the airport. Geographic coordinates would also be updated to coincide with the FAA's aeronautical database.
Class E airspace areas are published in Paragraph 6005 of FAA Order 7400.9U, dated August 18, 2010, and effective September 15, 2010, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document would be published subsequently in the Order.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in subtitle VII, part A, subpart I, section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would modify controlled
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
1. The authority citation for part 71 continues to read as follows:
49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Comp., p. 389.
2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.9U, Airspace Designations and Reporting Points, dated August 18, 2010, and effective September 15, 2010, is amended as follows:
That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of Barnes County Municipal Airport, and that airspace extending upward from 1,200 feet above the surface within a 7.9-mile radius of the airport, and within 4 miles southwest and 8.3 miles northeast of the 133° bearing from the airport extending from the 7.9-mile radius to 21.8 miles southeast of the airport.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to amend Class E airspace at Bryan, OH. Decommissioning of the Bryan non-directional beacon (NDB) at Williams County Airport, Bryan, OH, has made this action necessary for the safety and management of Instrument Flight Rules (IFR) operations at Williams County Airport.
0901 UTC. Comments must be received on or before September 6, 2011.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12–140, Washington, DC 20590–0001. You must identify the docket number FAA–2011–0606/Airspace Docket No. 11–AGL–14, at the beginning of your comments. You may also submit comments through the Internet at
Scott Enander, Central Service Center, Operations Support Group, Federal Aviation Administration, Southwest Region, 2601 Meacham Blvd., Fort Worth, TX 76137;
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA–2011–0606/Airspace Docket No. 11–AGL–14.” The postcard will be date/time stamped and returned to the commenter.
An electronic copy of this document may be downloaded through the Internet at
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see
Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking (202) 267–9677, to request a copy of Advisory Circular No. 11–2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.
This action proposes to amend Title 14, Code of Federal Regulations (14 CFR), Part 71 by modifying Class E airspace extending upward from 700 feet above the surface for standard instrument approach procedures at Williams County Airport, Bryan, OH. Airspace reconfiguration is necessary due to the decommissioning of the Bryan NDB and the cancellation of the NDB approach. Controlled airspace is necessary for the safety and management of IFR operations at the airport.
Class E airspace areas are published in Paragraph 6005 of FAA Order 7400.9U, dated August 18, 2010, and effective September 15, 2010, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document would be published subsequently in the Order.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in subtitle VII, part A, subpart I, section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would modify controlled airspace at Williams County Airport Airport, Bryan, OH.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
1. The authority citation for part 71 continues to read as follows:
49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Comp., p. 389.
2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.9U, Airspace Designations and Reporting Points, dated August 18, 2010, and effective September 15, 2010, is amended as follows:
That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of Williams County Airport, and within a 6-mile radius of the Point in Space serving Community Hospital of Williams County Heliport.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to amend Class E airspace at Evansville, IN. Additional controlled airspace is necessary to accommodate new Standard Instrument Approach Procedures at Evansville Regional Airport. The FAA is taking this action to enhance the safety and management of Instrument Flight Rules (IFR) operations for SIAPs at the airport.
0901 UTC. Comments must be received on or before September 6, 2011.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12–140, Washington, DC 20590–0001. You must identify the docket number FAA–2011–0429/Airspace Docket No. 11–AGL–9, at the beginning of your comments. You may also submit comments through the Internet at
Scott Enander, Central Service Center, Operations Support Group, Federal Aviation Administration, Southwest Region, 2601 Meacham Blvd., Fort Worth, TX 76137;
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA–2011–0429/Airspace Docket No. 11–AGL–9.” The postcard will be date/time stamped and returned to the commenter.
An electronic copy of this document may be downloaded through the Internet at
You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see
Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking (202) 267–9677, to request a copy of Advisory Circular No. 11–2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.
This action proposes to amend Title 14, Code of Federal Regulations (14 CFR), Part 71 by amending Class E airspace extending upward from 700
Class E airspace areas are published in Paragraph 6005 of FAA Order 7400.9U, dated August 18, 2010 and effective September 15, 2010, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document would be published subsequently in the Order.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend controlled airspace at Evansville Regional Airport, Evansville, IN.
Airspace, Incorporation by reference, Navigation (Air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR Part 71 as follows:
1. The authority citation for part 71 continues to read as follows:
49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Comp., p. 389.
2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.9U, Airspace Designations and Reporting Points, dated August 18, 2010, and effective September 15, 2010, is amended as follows:
That airspace extending upward from 700 feet above the surface within a 6.8-mile radius of Evansville Regional Airport, and within 2.2 miles each side of the 001° bearing from the airport extending from the 6.8-mile radius to 11.2 miles north of the airport, and within 2.2 miles each side of the 181° bearing from the airport extending from the 6.8-mile radius to 11.3 miles south of the airport, and within 4 miles each side of the Pocket City VORTAC 060° radial extending from the 6.8-mile radius to the VORTAC.
National Aeronautics and Space Administration.
Notice of proposed rulemaking.
The National Aeronautics and Space Administration (NASA) hereby gives notice that it is proposing revised policy and procedures for implementing the National Environmental Policy Act of 1969 (NEPA) and the Council on Environmental Quality's (CEQ) Code of Federal Regulations (CFR). This proposed rule would replace procedures contained in NASA's current regulation,
Submit comments on or before September 19, 2011.
Comments can be submitted by one of the following methods:
1.
2.
For general information about NASA's NEPA process, readers are directed to the NASA NEPA Portal and NEPA Library at
This proposed rule revises policies and responsibilities for assessing the effects of NASA's actions in accordance with NEPA (revising the current regulation at 14 CFR 1216.3). The last major revision of this regulation was
NASA is amending its procedures for implementing the requirements of NEPA, 42 U.S.C. 4321–4347. The proposed amendments include: (1) Consolidating and standardizing the procedural provisions of the Agency's environmental review process under NEPA; (2) clarifying the general procedures associated with categorical exclusions (CatExs), consolidating the categories of actions subject to categorical exclusion, and amending existing and adding new CatExs; (3) adding extraordinary circumstances as factors which limit the applicability of CatExs; (4) consolidating and amending the actions that generally require an EIS or Environmental Assessment (EA); and (5) incorporating other proposed revisions consistent with the CEQ regulations.
These proposed regulations, like NASA's existing NEPA regulations, are a supplement to the CEQ regulations implementing NEPA. These proposed regulations were drafted with the objective of minimizing repetition of requirements already contained in the CEQ regulations and with the understanding that these NASA-specific regulations would be applied with (and be bounded by) the CEQ regulations. The terminology used in this Preamble and the proposed regulations include many words and phrases that are specifically defined in either NEPA or the CEQ regulations. Many of these definitions can be found in part 1508 of the CEQ regulations (40 CFR part 1508).
As part of this rulemaking, NASA is amending existing and adding new categories of actions that are eligible for categorical exclusion and proposing to add generally applicable extraordinary circumstances to bound the use of all NASA categorical exclusions. Consistent with CEQ regulations, § 1216.304 of the proposed rule defines “categorical exclusion” to mean “categories of agency actions with no individually or cumulatively significant effect on the human environment.” Some of the new CatExs are similar to the CatExs of other Federal agencies and reflect NASA's experience with similar factual circumstances. Other new CatExs are more specific to NASA and reflect NASA's past experience with similar factual circumstances, which were considered by NASA's environmental professionals when applying NASA's current NEPA process, and which have been found, through monitoring, to have no significant impacts on the “human environment” (as that term is broadly defined in CEQ regulations at 40 CFR 1508.4).
The rationale supporting the amended and new CatExs and extraordinary circumstances is summarized herein. The CEQ regulations state that Federal agencies must implement NEPA procedures, in part to “reduce paperwork and the accumulation of extraneous background data and to emphasize real environmental issues and alternatives.” (40 CFR 1500.2(b)). NASA believes that amending current and identifying new CatExs meets the intent of this NEPA policy. For ease of comparison, the current NASA CatExs (adopted in 1988) are as follows:
(1) Research and Development (R&D) or Space Flight, Control, and Data Communications (SFCDC) activities in space science (
(2) R&D activities in space and terrestrial applications (
(3) R&D activities in aeronautics and space technology and energy technology applications (
(4) R&D (or SFCDC) activities in space transportation systems engineering and scientific and technical support operations, routine transportation operations, and advanced studies.
(5) R&D (or SFCDC) activities in space tracking and data systems.
(6) Facility planning and design (funding).
(7) Minor construction of new facilities, including rehabilitation, modification, and repair.
(8) Continuing operations of a NASA installation at a level of effort, or altered operations, provided the alterations induce only social and/or economic effects, but no natural or physical environmental effects.
For proposed Agency actions that do not clearly require an EIS or EA, NASA uses a Record of Environmental Consideration (REC) to record: (1) The fact that a proposed action has been reviewed for environmental impacts and (2) the level of NEPA documentation required for the proposed action. RECs typically cite an applicable CatEx. The RECs cited in this preamble provide examples of past NASA activities that support the proposed CatEx in that the activities were monitored and did not create environmental effects.
Where a new CatEx is proposed and NASA relies on previous RECs, these RECs are available for review in the NASA NEPA Library on the NASA NEPA Web site at
The NASA NEPA Web site also provides the full name and location of all ten NASA Centers and five Component Facilities.
The applicability of any CatEx to Agency actions is limited by the extraordinary- circumstances analysis required by this proposed regulation and described in detail following the discussion of the proposed CatExs. The following paragraphs review the 23 CatExs included in the proposed rule. Where CatExs are amended or consolidated, the reasons are provided. For new CatExs, the supporting rationale is explained.
NASA provides specific instructions pertaining to implementation of NEPA program responsibilities internally through NASA Procedural Requirements (NPR), 8580.1. NASA has identified that the 13 proposed CatExs under the heading “Administrative Activities” and “Operations and Management Activities” do not result in individually or cumulatively significant environmental impacts. As a result, the NPR will be updated to reflect that no environmental checklist is required. A REC will be required for the remaining ten CatExs.
(i) Personnel actions, organizational changes, and procurement of routine goods and services.
(ii) Issuance of procedural rules, manuals, directives, and requirements.
(iii) Program budget proposals, disbursements, and transfer or reprogramming of funds.
(iv) Preparation of documents, including design and feasibility studies, analytical supply and demand studies, reports and recommendations, master and strategic plans, and other advisory documents.
(v) Information-gathering exercises such as inventories, audits, studies, and field studies, including water sampling, cultural resources surveys, biological surveys, geologic surveys, modeling or simulations, and routine data collection and analysis activities.
(vi) Preparation and dissemination of information, including document mailings, publications, classroom materials, conferences, speaking engagements, Web sites, and other educational/informational activities.
(vii) Software development, data analysis, and/or testing, including computer modeling.
(viii) Interpretations, amendments, and modifications to contracts, grants, or other awards.
Under the heading “Administrative Activities,” NASA is proposing eight new CatExs. Based on NASA's experience with these types of actions, as documented in the following examples of NASA RECs and other environmental documentation which have been completed and monitored by NASA environmental professional staff, these actions do not result in individually or cumulatively significant environmental impacts.
In addition, based on a review of the activities covered by other agencies' CatExs, NASA has determined that it would be conducting similar activities, under similar circumstances, and with similar environmental impacts. Examples of other agencies' CatExs include:
1. Army, 32 CFR, Appendix B, Section II(b)(1–14) Administrative/Operation Activities.
2. Environmental Protection Agency, 40 CFR 6.204(a)(2)(I). Procedural, ministerial, administrative, financial, personnel, and management actions necessary to support the normal conduct of EPA business.
3. Navy, 32 CFR 775.6(f)(1), (2), (4), (5), and (10) Routine final and administrative activities.
Accordingly, based on its own experience and that of other agencies, NASA has concluded that its activities under this CatEx would not result in significant environmental impacts and are, therefore, eligible for categorical exclusion.
(i) Routine maintenance, minor construction or rehabilitation, minor demolition, minor modification, minor repair, and continuing or altered operations at, or of, existing NASA or NASA-funded or -approved facilities and equipment such as buildings, roads, grounds, utilities, communication systems, and ground support systems, such as space tracking and data systems.
(ii) Installation or removal of equipment, including component parts, at existing Government or private facilities.
(iii) Contribution of equipment, software, technical advice, exchange of data, and consultation to other agencies and public and private entities, where such assistance does not control a receiving entity's program, project, or activity.
(iv) NASA ceremonies, commemorative events, and memorial services.
(v) Routine packaging, labeling, storage, and transportation of hazardous materials and wastes in accordance with applicable Federal, federally recognized Indian tribe, State, and/or local law or requirements.
Under the heading “Operations and Management Activities,” NASA is proposing five CatExs. The first one is “Routine maintenance, minor construction or rehabilitation, minor demolition, minor modification, minor repair, and continuing or altered operations at, or of, existing NASA or NASA-funded or -approved facilities and equipment such as buildings, roads, grounds, utilities, communication systems, and ground support systems, such as space tracking and data systems.” This proposed CatEx consolidates two existing NASA CatExs. For years, NASA has relied on the existing CatExs for routine maintenance and repair activities at facilities it owns and operates. Based on NASA's experience with these types of actions, as documented in the following examples of NASA RECs and other environmental documentation which have been completed and monitored by NASA's environmental professional staff, these actions do not result in individually or cumulatively significant environmental impacts.
In addition, based on a review of the activities covered by other agencies' CatExs, NASA has determined that it would be conducting similar activities, under similar circumstances, and with similar environmental impacts. Examples include:
1. Army, 32 CFR part 651, Appendix B, Section II(g)(1)(2)(3). Routine repair and maintenance building equipment, roads, vehicles, and grounds.
2. EPA, 40 CFR 6.204(a)(1)(i). Actions at EPA facilities involving routine facility maintenance, repair, grounds keeping; minor rehabilitation, restoration, renovation.
3. Navy, 32 CFR 775.6(f)(8). Routine repair and maintenance of buildings, facilities, vessels, aircraft, and equipment.
4. Department of Energy (DoE), 10 CFR part 1021, Subpart D, Appendix B, B1.3. Routine maintenance/custodial service for buildings, structures, infrastructure, and equipment. DoE has proposed new NEPA regulations; see Web site
Accordingly, based on its own experience and that of other agencies, NASA has concluded that its activities under this CatEx would not result in significant environmental impacts and are, therefore, eligible for categorical exclusion. The second CatEx proposed under “Operations and Management Activities” is “Installation or removal of equipment, including component parts, at existing government or private facilities.” This is a new CatEx, which NASA is proposing to further clarify the existing “minor construction” CatEx with respect to equipment at NASA facilities. Cost and size of equipment can vary dramatically, but normally, equipment is installed within a new or existing building or facility, or outside on the walls, roof, or surrounding grounds. Examples of minor construction include, but are not limited to, replacement of boilers and chillers and installation of a nitrogen storage system outside on a small concrete pad in a grassy area adjacent to a building. As is always the case with CatExs, this CatEx would not apply when the proposed action is connected to another action that has the potential, by itself or in conjunction with the equipment action, to cause significant environmental impacts. Based on NASA's experience with these types of actions, as documented in the following NASA RECs and other environmental documentation which have been completed and monitored by NASA's environmental professional staff, these actions do not result in individually or cumulatively significant environmental impacts.
The third proposed CatEx under “Operations and Management Activities” is “Contribution of equipment, software, technical advice, exchange of data, and consultation to other agencies and public and private entities, where such assistance does not control the receiving entity's program, project, or activity.” This is a new CatEx. Examples of activities that would fall under this CatEx include technical advice on implementing a science education activity or on the design or operation of a space launch facility where the advice does not control the design and implementation. Based on NASA's experience with these types of actions, as documented in the following NASA REC supported by a CatEx, which has been completed and monitored by NASA's environmental professional staff, these actions do not result in individually or cumulatively significant environmental impacts.
Based on a review of the activities covered by other agencies' CatExs, NASA has determined that it would be conducting similar activities, under similar circumstances, and with similar environmental impacts. Examples include:
1. EPA, 40 CFR 6.204(a)(2)(vii). Actions involving providing the provision of providing technical advice to Federal agencies, State and local governments, federally recognized Indian tribes, foreign governments, or public and private entities.
2. Department of Agriculture, 7 CFR 1 b.3(a)(6). Activities which are advisory and consultative to other agencies and public and private entities, such as legal counseling and representation.
3. Federal Highway Administration, 23 CFR 771.117(c)(16). Program administration, technical assistance activities, and operating assistance to transit authorities to continue existing service or increase service to meet routine change in demand.
4. DoE, 10 CFR part 1021, Subpart D, Appendix A, A11. Technical advice and planning assistance to international, national, State, and local organizations. DoE has proposed new NEPA regulations; see Web site
Accordingly, based on its own experience and that of other agencies, NASA has concluded that its activity under this CatEx would not result in significant environmental impacts and is, therefore, eligible for categorical exclusion.
The fourth proposed CatEx under “Operations and Management Activities” is “NASA ceremonies, commemorative events, and memorial services.” NASA enjoys celebrating America's space history. NASA celebrated its 50th Anniversary in 2008 with numerous events for employees
In addition, based on a review of the activities covered by other agencies' CatExs, NASA has determined that it would be conducting similar activities, under similar circumstances, and with similar environmental impacts. Examples include:
1. Army, 32 CFR part 651, Appendix B, Section II, (b)(11). Ceremonies, funerals, and concerts, including flyovers.
2. Navy, 32 CFR 775.6(f)(6). Military ceremonies.
3. Air Force, 32 CFR part 989, Appendix B, A 2.3.38. Conducting Air Force “open houses” and similar events, including air shows, golf tournaments, and horse shows.
Accordingly, based on its own experience and that of other agencies, NASA has concluded that its activity under this CatEx would not result in significant environmental impacts and is, therefore, eligible for categorical exclusion.
The final proposed CatEx under “Operations and Management Activities” is “Routine packaging, labeling, storage, and transportation of hazardous materials and waste in accordance with applicable Federal, federally recognized Indian tribe, State, or local law or requirement.” This is a new CatEx. NASA currently packages, labels, stores and transports hazardous material and waste in accordance with all applicable Federal, State, tribal, and local statutes and regulations. Based on this experience, NASA has determined that these actions do not result in a significant impact to the environment.
Based on a review of the activities covered by other agencies' CatExs, NASA has determined that it would be conducting similar activities, under similar circumstances, and with similar environmental impacts. Examples include:
1. Army, 32 CFR part 651, Appendix B, Section II (h)(4). Routine management, to include transportation, distribution, use, storage, treatment, and disposal of solid waste and/or hazardous waste.
2. Navy, 32 CFR 775.6(f)(16). Routine movement, handling, and distribution of materials, including hazardous materials/wastes.
3. Air Force, 32 CFR part 989, Appendix B, A 2.3.28. Routine transporting of hazardous materials and waste in accordance with applicable Federal, State, interstate, and local laws.
4. DoE, 10 CFR part 1021, Subpart D, Appendix B, B 3.4. Transport packaging for radioactive/hazardous material. DoE has proposed new NEPA regulations, see Web site
Accordingly, based on its own experience and that of other agencies, NASA has concluded that its activity under this CatEx would not result in significant environmental impacts and is, therefore, eligible for categorical exclusion.
(i) Research, development, and testing in compliance with all applicable Federal, federally recognized Indian tribe, State, and/or local law or requirements, and Executive orders.
(ii) Use of small quantities of radioactive materials in a laboratory or in the field. Uses include material for instrument detectors, calibration, and other purposes. Materials must be licensed, as required, and properly contained and shielded.
(iii) Use of lasers for research and development, scientific instruments and measurements, and distance and ranging, where such use meets all applicable Federal, federally recognized Indian tribe, State, and/or local law or requirements, and Executive orders. This applies to lasers used in spacecraft, aircraft, laboratories, watercraft, or outdoor activities.
Under the heading “Research and Development (R&D) Activities,” NASA is proposing three CatExs. The first one is “Research, development, and testing in compliance with all applicable Federal, federally recognized Indian tribe, State, and/or local law or requirements, and Executive orders.” This proposed CatEx consolidates five existing R&D CatExs and ensures applicability to the broad range of NASA R&D activities that have minimal or no impact on the environment. Based on NASA's experience with these types of actions, as documented in the following NASA RECs and other environmental documentation which have been completed and monitored by NASA's environmental professional staff, these actions do not result in individually or cumulatively significant environmental impacts.
In addition, NASA has reviewed activities covered by R&D CatExs used by other Federal agencies, and these other agency activities are similar to some of NASA's R&D activities and thus provide additional support for this proposed NASA CatEx. Examples include:
1. Army, 32 CFR part 651, Appendix B, Section ii(h)(5). Research, testing, and operations conducted at existing closed facilities.
2. EPA, 40 CFR 6.204(a)(2)(iv). Actions relating to or conducted completely within a permanent, existing contained facility such as a laboratory.
3. Air Force, 32 CFR part 989, Appendix B, A 2.3.27. Normal or routine basic and applied scientific research.
NASA recognizes that these other agency examples are generally bounded to existing facilities; however, the nature of NASA's R&D activities is such that it is not practical for NASA to bound its R&D CatExs to existing facilities or even existing ranges. Instead, NASA has proposed its new “Extraordinary Circumstances” to bound this R&D CatEx, as well as its other CatExs. NASA has performed numerous R&D activities outside existing facilities and ranges, located both on its Centers and off its Centers, with no significant environmental impacts. The broad variety and geographic diversity of NASA's environmentally benign research activities is illustrated by the seven examples of past NASA R&D activities listed in this preamble and by the additional 24 examples included in the NASA NEPA Library on the previously mentioned NASA NEPA Web site at
Based on a review of NASA's own R&D experience and the activities covered by other agencies' R&D CatExs, NASA's has determined that its R&D activity under this CatEx, as bounded by the proposed Extraordinary Circumstances, would not result in significant environmental impacts and is, therefore, eligible for categorical exclusion.
The second proposed CatEx under “Research and Development (R&D) Activities” is “Use of small quantities of radioactive materials in a laboratory or in the field. Uses include material for instrument detectors, calibration, and other purposes. Materials must be licensed, as required, and properly contained and shielded.” This is a new CatEx. Based on NASA's experience with these types of actions, as documented in the following NASA RECs and other environmental documentation which have been completed and monitored by NASA environmental professional staff, these actions do not result in individually or cumulatively significant environmental impacts.
The third proposed CatEx under “Research and Development (R&D) Activities” is “Use of lasers for research and development, scientific instruments and measurements, and distance and ranging, which meet all applicable Federal, federally recognized Indian tribe, State, and/or local law or requirements, and Executive orders. This applies to lasers in spacecraft, aircraft, laboratories, watercraft, or outdoor activities.” This is a new CatEx. Based on NASA's experience with these types of actions, as documented in the following NASA RECs and other environmental documentation, which have been completed and monitored by NASA environmental professional staff, these actions do not result in individually or cumulatively significant environmental impacts. Examples include:
(i) Acquisition, transfer, or disposal of any personal property, or personal property rights or interests.
(ii) Granting or acceptance of easements, leases, licenses, rights-of-entry, and permits to use NASA-controlled property or any other real property for activities which, if conducted by NASA, would be categorically excluded in accordance with this section. This assumes NASA has included any terms and conditions necessary and any required notices in the transfer documentation, as applicable, to ensure protection of the environment.
(iii) Transfer or disposal of real property or real property rights or interests if the change in use is one which, if conducted by NASA, would be categorically excluded in accordance with this section.
(iv) Transfer of real property administrative control to another Federal agency, including the return of public domain lands to the Department of the Interior (DoI) or other Federal agencies, and reporting of property as excess and surplus to the General Services Administration (GSA) for disposal, when the agency receiving administrative control (or GSA, following receipt of a report of excess) will complete any necessary NEPA review prior to any change in land use.
(v) Acquisition of real property (including facilities) where the land use will not change substantially.
Under the heading “Real and Personal Property Activities,” NASA is proposing five CatExs. The first is “Acquisition, transfer, or disposal of any personal property, or personal property rights or interests.” This is a new CatEx. Changes in ownership of personal property (such as furnishings, vehicles, office, laboratory, or field supplies and equipment), or interests in personal property do not normally have the potential to significantly affect the environment. Based on past experience with similar actions, NASA has determined that its activity under this proposed CatEx would not result in
The second proposed CatEx under “Real and Personal Property Activities” is “Granting or acceptance of easements, leases, licenses, rights-of-entry, and permits to use NASA-controlled property or any other real property for activities which, if conducted by NASA, would be categorically excluded in accordance with this section. This assumes that NASA has included any terms and conditions necessary to ensure protection of the environment and any required notices in the transfer documentation, as applicable.” This is a new CatEx. Based on NASA's experience with these types of actions, as documented in the following NASA RECs and other environmental documentation, which has been completed and monitored by NASA's environmental professional staff, these actions do not result in individually or cumulatively significant environmental impacts.
In addition, based on a review of the activities covered by other agencies' CatExs, NASA has determined that it would be conducting similar activities, under similar circumstances, and with similar environmental impacts. Examples include:
1. Army, 32 CFR part 651, Appendix B, Section II (f)(1). Grants or acquisition of leases, licenses, easements, and permits for use of real property or facilities.
2. Navy, 32 CFR 775.6(f)(33). Grants of license, easement, or similar arrangements for the use of existing right-of-way. Air Force, 32 CFR part 989, Appendix B, A 2.3.19. Granting easements, leases, licenses, rights of entry, and permits to use Air Force-controlled property for activities that, if conducted by the Air Force, would be categorically excluded.
Accordingly, based on its own experience and that of other agencies, NASA has concluded that its activity under this CatEx would not result in significant environmental impacts and is, therefore, eligible for categorical exclusion.
The third proposed CatEx under “Real and Personal Property Activities” is “Transfer or disposal of real property or real property rights or interests if the change in use is one which, if conducted by NASA, would be categorically excluded in accordance with this section.” This is a new CatEx. Although NASA does not have project-specific NEPA documentation to include as support for this CatEx, NASA has conducted these types of activities without any significant environmental impact. For example, Goddard Space Flight Center transferred property to a county as part of a road project which was analyzed in the Goddard Master Plan EA and Finding of No Significant Impact (FONSI).
In addition, based on a review of the activities covered by other agencies' CatExs, NASA has determined that it would be conducting similar activities, under similar circumstances, and with similar environmental impacts. Examples include:
1. Army, 32 CFR part 651, Appendix B, Section II (f)(6). Disposal of real property (including facilities) by the Army where the reasonably foreseeable use will not change significantly.
2. Navy, 32 CFR 775.6(f)(26)(28). Transfer of real property from the Department of the Navy to another military department or to another Federal agency. Minor land acquisition or disposal.
3. DOE, 10 CFR part 1021, Subpart D, Appendix A, A7. Transfer, lease, disposition, or acquisition of interests in personal property or real property, if property use is to remain unchanged. DOE has proposed new NEPA regulations, see Web site
Accordingly, based on its own experience and that of other agencies, NASA has concluded that its activity under this CatEx would not result in significant environmental impacts and is, therefore, eligible for categorical exclusion.
The fourth proposed CatEx under “Real and Personal Property Activities” is “Transfer of real property administrative control to another Federal agency, including the return of public domain lands to the Department of the Interior (DoI) or other Federal agencies, and reporting of property as excess and surplus to the General Services Administration (GSA) for disposal, when the agency receiving administrative control (or GSA, following receipt of a report of excess) will complete any necessary NEPA review prior to any change in land use.” This is a new CatEx. Within the Federal real property inventory, NASA is a small land management agency. At numerous NASA Centers, NASA is collocated within or adjacent to, or is a tenant on, a DoD base with no land-expansion capacity. Excess land is typically transferred back to the landowner. Any such land no longer needed by NASA would likely be transferred to DoD. In the rare case that NASA has land to be excessed, as the Federal agent, NASA is required to declare the property excess to GSA. In such situations, NASA's action with regard to the United States' real property interest is merely an administrative action, and GSA and/or any receiving agency would conduct a NEPA review for any potential change in use. NASA has one example of a declaration of excess property that was reviewed by NASA and was determined not to require further NEPA action. The following example of NASA's activity supports this new CatEx because the activity did not have any environmental impacts.
In addition, based on a review of the activities covered by other agencies' CatExs, NASA has determined that it would be conducting similar activities, under similar circumstances, and with similar environmental impacts. Examples include:
1. Army, 32 CFR part 651, Appendix B, Section II (f)(3). Transfer of real property to another military department or to another Federal agency and reporting that property as excess to the GSA.
2. Navy, 32 CFR 775.6(f)(26). Transfer of real property from the Department of the Navy to another military department or to another Federal agency.
3. Air Force, 32 CFR part 989, Appendix B, A 2.3.18. Transfer of administrative control of real property within the Air Force to another military department or to another Federal agency.
4. DoE, 10 CFR part 1021, Subpart D, Appendix A, A7. Transfer, lease, disposition, or acquisition of interests in personal property or real property, if property use is to remain unchanged. DoE has proposed new NEPA regulations, see Web site
Accordingly, based on its own experience and that of other agencies, NASA has concluded that its activity under this CatEx would not result in significant environmental impacts and is, therefore, eligible for categorical exclusion.
The fifth proposed CatEx under “Real and Personal Property Activities” is “Acquisition of real property (including facilities) where the land use will not change substantially.” This is a new CatEx. Although NASA does not have specific NEPA documentation to include as support for this CatEx, NASA has reviewed activities covered by CatExs used by other Federal agencies for similar actions. Based on a review of the activities covered by other agencies' CatExs, NASA has determined that it would be conducting similar activities, under similar circumstances, and with similar environmental impacts. Accordingly, NASA has concluded that its activity under this CatEx would not result in significant environmental impacts and is, therefore, eligible for categorical exclusion. Examples of other agencies' CatExs include:
1. Army, 32 CFR part 651, Appendix B, Section II (f)(5). Acquisition of real property where the land use will not change substantially.
2. Navy, 32 CFR 775.6(f)(28). Minor land acquisition or disposal where anticipated or proposed land use is similar to existing land use and zoning, both in type and intensity.
3. DOE, 10 CFR part 1021, Subpart D, Appendix A, A7. Transfer, lease, disposition, or acquisition of interests in personal property or real property, if property use is to remain unchanged. DOE has proposed new NEPA regulations, see Web site
(i) Periodic aircraft flight activities, including training and research and development, which are routine and comply with applicable Federal, federally recognized Indian tribe, State, and/or local law or requirements, and Executive orders.
(ii) Relocation of similar aircraft not resulting in a substantial increase in total flying hours, number of aircraft operations, operational parameters (
Under the heading “Aircraft and Airfield Activities,” NASA is proposing two CatExs. The first proposed CatEx is “Periodic aircraft flight activities, including training and research and development, which are routine and comply with applicable Federal, federally recognized Indian tribe, State and/or local laws or requirements and Executive orders.” This is a new CatEx. Based on NASA's experience with these types of actions, as documented in the following NASA RECs and other environmental documentation, which have been completed and monitored by NASA's environmental staff, these actions do not result in individually or cumulatively significant environmental impacts.
In addition, based on a review of the activities covered by the Army's CatEx (32 CFR part 651, Appendix B, Section II (i)(2) “Flying activities in compliance with FAA regulations and in accordance with normal flight patterns.”), NASA has determined that it would be conducting similar activities, under similar circumstances, and with similar environmental impacts. Accordingly, based on its own experience and that of the Army, NASA has concluded that its activity under this CatEx would not result in significant environmental impacts and is, therefore, eligible for categorical exclusion.
The second proposed CatEx under this heading is “Relocation of similar aircraft not resulting in a substantial increase in total flying hours, number of aircraft operations, operational parameters (
In addition, based on a review of the activities covered by the Air Force's CatEx (32 CFR part 989, Appendix B, A 2.3.31 “Relocating a small number of aircraft to an installation with similar aircraft that does not result in a significant increase of total flying hours or aircraft operations.”), NASA has determined that it would be conducting similar activities, under similar circumstances, and with similar environmental impacts. Accordingly, based on its own experience and that of the Air Force, NASA has concluded that its activity under this CatEx would not result in significant environmental impacts and is, therefore, eligible for categorical exclusion.
NASA is proposing “extraordinary circumstances” to mean “those circumstances * * * that may cause a significant environmental effect such that an action that otherwise meets the requirements of a categorical exclusion may not be categorically excluded.” This meaning is consistent with CEQ regulations at § 1508.4.
NASA has identified the following extraordinary circumstances which must be considered as part of the environmental review process. NASA will prepare an EA or an EIS when a proposed action involves unmitigated extraordinary circumstances. All seven of the extraordinary circumstances are new to NASA's NEPA regulations. They identify criteria which normally require either an EA or an EIS. Extraordinary circumstances precluding the use of CatExs occur when the proposed action:
1. Has a reasonable likelihood of having individually or cumulatively significant effects on public health, safety, or the environment.
2. Imposes uncertain or unique environmental risks.
3. Is of significantly greater scope or size than is normal for this category of action.
4. Has a reasonable likelihood of violating Federal, federally recognized Indian tribe, State, or local law or requirements imposed for the protection of the environment.
5. Involves effects on the quality of the environment that are likely to be environmentally controversial.
6. May adversely affect environmentally sensitive resources, such as, but not limited to, federally listed threatened species, their designated critical habitat, wilderness areas, floodplains, wetlands, aquifer recharge areas, coastal zones, wild and scenic rivers, and significant fish or wildlife habitat, unless the impact has been resolved through another environmental review process;
7. May adversely affect known national natural landmarks or cultural or historic resources, including, but not limited to, property listed on or eligible for the National Register of Historic Places, unless the impact has been resolved through another environmental review process;
NASA believes there is a relationship between the extraordinary circumstances and the criteria for actions that generally require EAs or EISs. The intent is to standardize the essential concepts and combine the criteria into a consolidated set of extraordinary circumstances applicable to all NASA actions subject to NEPA. The extraordinary circumstances are not intended to be a listing of requirements for preparing EAs or EISs. Rather, they are to be used to determine whether a categorical exclusion applies to a proposed action. What constitutes a “unique” environmental risk in the second extraordinary circumstance can apply to a wide range of situations. For example, it could be a small construction project that would normally be categorically excluded, but a threatened bird species has been known to nest in the general area. In such a situation, the Center may decide that preparation of an EA is warranted. Similarly, what could be “environmentally controversial” under paragraph 5 of the extraordinary circumstances can also apply to a wide range of actions. An example could be that a proposed action involves science, which is not conclusive as to its impacts or effects, and, as a result, is considered environmentally controversial by the public. If initial evaluation concludes that a categorical exclusion cannot be applied due to an extraordinary circumstance, the NASA Responsible Official may prepare an EA to determine whether a FONSI or an EIS is the appropriate NEPA document for the project, or the Responsible Official may proceed directly with preparing an EIS.
NASA has identified five categories of Agency actions that typically require an EIS. These actions, under the existing regulation, are found at § 1216.305 (c)(1)(2) and (3) which is currently titled,
1. Development and operation of new launch vehicles or space transportation systems.
2. Development and operation of a space flight project/program which would launch and operate a nuclear reactor or radioisotope power systems and devices using a total quantity of radioactive material greater than the quantity for which the NASA Nuclear Flight Safety Assurance Manager may grant nuclear safety launch approval (i.e., a total quantity of radioactive material for which the A2 Mission Multiple (see definitions in Appendix A) is greater than 10)).
3. Development and operation of a space flight project/program which would return samples to Earth from solar system bodies (such as asteroids, comets, planets, dwarf planets, planetary moons, etc.), which would likely receive a Restricted Earth Return categorization (as defined in Appendix A) from the NASA Planetary Protection Office or the NASA Planetary Protection Subcommittee.
4. Substantial modification of a NASA facility's master plan in a manner expected to result in significant effect(s) on the quality of the human environment.
5. Substantial construction projects expected to result in significant effect(s) on the quality of the human environment, when such construction and its effects are not within the scope of an existing master plan and EIS.
NASA is amending its procedures for implementing the requirements of
The proposed rule includes a number of additional modifications, deletions, and additions that consolidate, streamline, and clarify NASA's procedures for the implementation of NEPA. These include the following:
1. Section 1216.300, Scope, adds the express adoption by NASA of the CEQ regulations implementing NEPA.
2. The definition of key terms has been moved to Appendix A of 14 CFR 1216.3.
3. Section 1216.303, NEPA Process in NASA Planning and Decision-Making, has been updated and streamlined.
4. Section 1216.304, Categorical Exclusions, NASA has added the requirement that CatExs be reviewed every seven years, as specified in the CEQ's November 2010 guidance on categorical exclusion under NEPA.
5. Section 1216.305, Criteria for Actions Requiring Environmental Assessments, has been expanded from the previous rule and is now specifically for EAs only. It identifies five specific actions that normally require an EA.
6. Section 1216.308, Supplemental EAs and EISs have been added to recognize the potential requirement for supplemental NEPA documentation in accordance with CEQ regulations.
7. Section 1216.310, Classified Actions, has been modified to reflect current NASA policy.
8. Section 1216.311, Emergency Responses, is a new section which recognizes appropriate NEPA response in an emergency situation.
NASA's proposed rule complies with and addresses the following procedural requirements and policies as described in more detail below:
The Regulatory Flexibility Act, 5 United States Code (U.S.C.) 601
NASA has considered the impact of the proposed rule under the Regulatory Flexibility Act and certifies that the proposed rule will not have a significant economic impact on a substantial number of small entities.
This proposed rule does not require information collection as defined under the Paperwork Reduction Act. Therefore, this rule does not constitute a new information collection system requiring Office of Management and Budget (OMB) approval under the Paperwork Reduction Act (44 U.S.C. 3501
This proposed rule does not have significant Federalism effects or implications; therefore, a Federalism assessment under Executive Order 13132 is not required. The policies and procedures will not have substantial direct effects on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of Government. No intrusion on State policy or administration is expected if roles or responsibilities of Federal or State governments will not change and fiscal capacity will not be substantially affected.
This proposed rule will not significantly or uniquely affect small governments. Therefore, a Small Government Agency Plan is not required under the Unfunded Mandates Reform Act (2 U.S.C. 1501,
This proposed rule does not impose non-statutory unfunded mandates on small governments and is not subject to the requirements of Executive Order 12875.
Executive Order 12898 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/or low-income populations. In developing this proposed rule in compliance with Executive Order 12898, NASA determined that the proposed rule did not raise any environmental justice concerns.
Executive Order 13175 requires NASA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This proposed rule does not have Indian tribal implications, as specified in Executive Order 13175.
NASA's proposed rule imposes no new regulatory obligations on tribes. It will not have substantial direct effects on tribes, on the relationship between the national Government and tribes, or on the distribution of power and responsibilities between the national Government and tribes. These proposed regulations do not preempt tribal law. Thus, Executive Order 13175 does not apply to this proposed rule.
NASA has analyzed this proposed rule in accordance with Section 305 (b) of the Magnuson-Stevens Fishery Conservation and Management Act (18 U.S.C. 1855) and determined that the proposed rule will not affect the essential fish habitat of federally managed species; and, therefore, an essential fish habitat consultation on this rule is not required.
Executive Order 13045 applies to any rule that is determined to be “economically significant,” as defined
This proposed rule is not a “significant energy action” as defined in Executive Order 13211 because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The proposed rule does not impose new regulatory obligations related to energy supply, distribution, or use of energy on NASA, State or local governments, tribes, or individuals. Therefore, NASA has concluded that this proposed rule is not likely to have any adverse energy effects.
Executive Order 13212 requires agencies to expedite energy-related projects by streamlining internal processes while maintaining safety, public health, and environmental protections. The proposed rule is in conformance with this requirement as it promotes the streamlining of the existing NEPA process within NASA.
This proposed rule is issued with respect to NEPA and, therefore, establishes NASA's responsibilities for early integration of environmental consideration into planning and decision making. This proposed rule is not expected to impact the provisions of Executive Order 12630.
Executive Order 13423 requires agencies to implement environmental management systems and improve energy efficiency. NASA is developing environmental management systems and energy efficiency programs in compliance with this Executive order. The proposed rule furthers these objectives and goals by ensuring that NEPA compliance is done in accordance with the policy set forth in the Executive order.
Executive Order 13514 requires agencies to prepare and annually update an integrated Strategic Sustainability Performance Plan, which will prioritize Agency actions based on life-cycle return on investment. In addition, it requires agencies to establish greenhouse gas emission reduction targets and report annually on their progress in achieving these goals. The Executive order also requires agencies to improve water use efficiency and management and promote pollution prevention and elimination of waste. Sustainable building design, construction, operation, and management are also required for future Federal buildings. The proposed rule furthers the objectives and goals by ensuring that NEPA compliance is done in accordance with the policy set forth in the Executive order.
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). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been designated as a “significant regulatory action,” although not economically significant, under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget.
For the reasons given in the preamble, NASA proposes to amend 14 CFR part 1216 by revising subpart 1216.3 to read as follows:
This subpart implements NEPA, setting forth NASA's policies and procedures for the early integration of environmental considerations into planning and decision making. Through this subpart, NASA adopts the CEQ regulations implementing NEPA (40 CFR parts 1500–1508) and supplements those regulations with this subpart 1216.3, for actions proposed by NASA that are subject to NEPA requirements. This regulation is to be used in conjunction with the CEQ regulations. Consistent with the CEQ regulations at 40 CFR 1500.3, no trivial violation of this part shall give rise to any independent cause of action.
This subpart applies to all organizational elements of NASA.
(a) The NASA Senior Environmental Official (SEO) (as defined in Appendix A to this subpart) is responsible for overseeing and guiding NASA's integration of NEPA into the Agency's planning and decision making. The SEO, with the assistance of the Office of the General Counsel (OGC), is responsible for developing NASA NEPA regulations and maintaining up-to-date Agency-wide NEPA guidance that fully integrates NEPA analysis into Agency planning and decision-making processes. The SEO shall monitor this process to ensure that these regulations and the associated Agency guidance are achieving their purposes. In addition, the NASA SEO is responsible for coordinating with other Federal agencies and the CEQ and consolidating and transmitting NASA's comments on
(1) The NASA Headquarters/Environmental Management Division (HQ/EMD) has delegated the SEO's overall responsibility of implementing NEPA functions and guiding NASA's integration of NEPA into the Agency's planning and decision making for all NASA activities. The HQ/EMD provides advice and consultation to all NASA entities in implementing their assigned responsibilities under NEPA.
(2) Each NASA Center has an environmental management office that guides and supports the working-level functions of the NEPA process, such as evaluating proposed actions; developing, reviewing, and approving required documentation; and advising project managers.
(b) The Responsible Official shall ensure that planning and decision making for each proposed Agency action complies with these regulations and with Agency NEPA policy and guidance provided by the SEO, HQ/EMD, and the Center's environmental management office. For facility programs and projects, the Responsible Official is the individual responsible for establishing, developing, and maintaining the institutional capabilities required for the execution of programs and projects (
(c) NASA must comply with this regulation when considering issuance of a permit, lease, easement, or grant to a non-Federal party and may seek such non-Federal party's assistance in obtaining necessary information and completing the NEPA process. The Responsible Official(s) for such action(s), in consultation with HQ/EMD and/or the Center's environmental management office, will determine the type of environmental information needed from the non-Federal party and the extent of the non-Federal party's participation in the necessary NEPA process.
(a) NEPA requires the systematic examination of the environmental consequences of implementing a proposed Agency action. Full integration of the NEPA process with NASA project and program planning improves Agency decisions and ensures that:
(1) Planning and decision making support NASA's strategic plan commitment to sustainability and environmental stewardship and comply with applicable environmental statutes, regulations, and policies.
(2) The public is appropriately engaged in the decision-making process.
(3) Procedural risks and delays are minimized.
(b) Determining the appropriate level of NEPA review and documentation for a proposed NASA action will depend upon the scope of the action and the context and intensity of the reasonably foreseeable environmental impacts.
(c) The environmental impacts of a proposed Agency action must be considered, along with technical, economic, and other factors that are reasonably foreseeable, beginning in the early planning stage of a proposed action. NASA will take no action which would have an adverse environmental impact or limit the choice of reasonable alternatives prior to completion of its NEPA review.
(a) Categorical Exclusions (CatExs) are categories of Agency actions with no individually or cumulatively significant impact on the human environment and for which neither an EA nor an EIS is required. The use of a CatEx is intended to reduce paperwork, improve Government efficiency, and eliminate delays in the initiation and completion of proposed actions having no significant impact.
(b) A proposed action may be categorically excluded if the action fits within a category of actions eligible for exclusion (such categories are listed in paragraph (d) of this section), and the proposed action does not involve any extraordinary circumstances as described in paragraph (c) of this section.
(c) Extraordinary circumstances that may preclude the use of CatExs occur when the proposed action:
(1) Has a reasonable likelihood of having (individually or cumulatively) significant impacts on public health, safety, or the environment;
(2) Imposes uncertain or unique environmental risks;
(3) Is of significantly greater scope or size than is normal for this category of action;
(4) Has a reasonable likelihood of violating Federal, federally recognized Indian tribe, State, and/or local law or requirements imposed for the protection of the environment;
(5) Involves impacts on the quality of the environment that are likely to be environmentally controversial;
(6) May adversely affect environmentally sensitive resources, such as, but not limited to, federally listed threatened or endangered species, their designated critical habitat, wilderness areas, floodplains, wetlands, aquifer recharge areas, coastal zones, wild and scenic rivers, and significant fish or wildlife habitat, unless the impact has been resolved through another environmental review process;
(7) May adversely affect known national natural landmarks, or cultural or historic resources, including, but not limited to, property listed on or eligible for the National Register of Historic Places, unless the impact has been resolved through another environmental review process;
(d) Specific NASA actions meeting the criteria for being categorically excluded from the requirements for EAs and EISs are as follows:
(1) Administrative Activities including:
(i) Personnel actions, organizational changes, and procurement of routine goods and services.
(ii) Issuance of procedural rules, manuals, directives, and requirements.
(iii) Program budget proposals, disbursements, and transfer or reprogramming of funds.
(iv) Preparation of documents, including design and feasibility studies, analytical supply and demand studies, reports and recommendations, master and strategic plans, and other advisory documents.
(v) Information-gathering exercises, such as inventories, audits, studies, and field studies, including water sampling, cultural resources surveys, biological surveys, geologic surveys, modeling or simulations, and routine data collection and analysis activities.
(vi) Preparation and dissemination of information, including document mailings, publications, classroom materials, conferences, speaking engagements, Web sites, and other educational/informational activities.
(vii) Software development, data analysis, and/or testing, including computer modeling.
(viii) Interpretations, amendments, and modifications to contracts, grants, or other awards.
(2) Operations and Management Activities including:
(i) Routine maintenance, minor construction or rehabilitation, minor
(ii) Installation or removal of equipment, including component parts, at existing Government or private facilities.
(iii) Contribution of equipment, software, technical advice, exchange of data, and consultation to other agencies and public and private entities, where such assistance does not control a receiving entity's program, project, or activity.
(iv) NASA ceremonies, commemorative events, and memorial services.
(v) Routine packaging, labeling, storage, and transportation of hazardous materials and wastes, in accordance with applicable Federal, federally recognized Indian tribe, State, and/or local law or requirements.
(3) Research and Development (R&D) Activities including:
(i) Research, development, and testing in compliance with all applicable Federal, federally recognized Indian tribe, State, and/or local law or requirements and Executive orders.
(ii) Use of small quantities of radioactive materials in a laboratory or in the field. Uses include material for instrument detectors, calibration, and other purposes. Materials must be licensed, as required, and properly contained and shielded.
(iii) Use of lasers for research and development, scientific instruments and measurements, and distance and ranging, where such use meets all applicable Federal, federally recognized Indian tribe, State, and/or local law or requirements, and Executive orders. This applies to lasers used in spacecraft, aircraft, laboratories, watercraft, or outdoor activities.
(4) Real and Personal Property Activities including:
(i) Acquisition, transfer, or disposal of any personal property, or personal property rights or interests.
(ii) Granting or acceptance of easements, leases, licenses, rights-of-entry, and permits to use NASA-controlled property, or any other real property, for activities which, if conducted by NASA, would be categorically excluded in accordance with this section. This assumes that NASA has included any required notices in transfer documentation and any terms and conditions necessary to ensure protection of the environment, as applicable.
(iii) Transfer or disposal of real property or real property rights or interests if the change in use is one which, if conducted by NASA, would be categorically excluded in accordance with this section.
(iv) Transfer of real property administrative control to another Federal agency, including the return of public domain lands to the Department of the Interior (DoI) or other Federal agencies, and reporting of property as excess and surplus to the General Services Administration (GSA) for disposal, when the agency receiving administrative control (or GSA, following receipt of a report of excess) will complete any necessary NEPA review prior to any change in land use.
(v) Acquisition of real property (including facilities) where the land use will not change substantially.
(5) Aircraft and Airfield Activities including:
(i) Periodic aircraft flight activities, including training and research and development, which are routine and comply with applicable Federal, federally recognized Indian tribe, State, and/or local law or requirements, and Executive orders.
(ii) Relocation of similar aircraft not resulting in a substantial increase in total flying hours, number of aircraft operations, operational parameters (
(e) The Responsible Official shall review the proposed action in its early planning stage and will consider the scope of the action and the context and intensity of any environmental impacts to determine whether there are extraordinary circumstances that could result in environmental impacts. If extraordinary circumstances exist, the Responsible Official will either withdraw the proposed action or initiate an EA or EIS.
(f) The NASA SEO will review the categorical exclusions at least every seven years, in accordance with CEQ guidance, to determine whether modifications, additions, or deletions are appropriate, based upon NASA's experience. Recommendations for modifications, additions, or deletions shall be submitted to the SEO for consideration and informal discussion with the CEQ.
(a) The Responsible Official will prepare an EA when a proposed action cannot be categorically excluded, and the proposed action is not expected to result in impacts that require analysis in an EIS. The Responsible Official will consider the scope of the action and the context and intensity of any environmental impacts when determining whether to prepare an EA.
(b) Typical NASA actions normally requiring an EA include:
(1) Specific spacecraft development and space flight projects/programs (as defined in Appendix A to this subpart).
(2) Actions altering the ongoing operations at a NASA Center which could lead directly, indirectly, or cumulatively to substantial natural or physical environmental impacts.
(3) Construction or modifications of facilities which are not minor.
(4) Proposed actions that are expected to result in significant changes to established land use.
(5) A space flight project/program that would return extraterrestrial samples to Earth from solar system bodies (such as asteroids, comets, planets, dwarf planets, and planetary moons), which would likely receive an Unrestricted Earth Return categorization (as defined in Appendix A) from NASA's Planetary Protection Office (PPO) or the NASA Planetary Protection Subcommittee prior to the return of samples to the Earth.
(a) NASA will prepare an EIS for actions with the potential to significantly impact the quality of the human environment, including actions for which an EA analysis demonstrates that significant impacts will potentially occur which will not be reduced or eliminated by changes to the proposed action or mitigation of its potentially significant impacts.
(b) Typical NASA actions normally requiring an EIS include:
(1) Development and operation of new launch vehicles or space transportation systems.
(2) Development and operation of a space flight project/program which would launch and operate a nuclear reactor or radioisotope power systems and devices using a total quantity of radioactive material greater than the quantity for which the NASA Nuclear Flight Safety Assurance Manager may grant nuclear safety launch approval (i.e., a total quantity of radioactive material for which the A2 Mission Multiple (see definitions in Appendix A) is greater than 10)).
(3) Development and operation of a space flight project/program which would return samples to Earth from solar system bodies (such as asteroids,
(4) Substantial modification of a NASA facility's master plan in a manner expected to result in significant effect(s) on the quality of the human environment.
(5) Substantial construction projects expected to result in significant effect(s) on the quality of the human environment, when such construction and its effects are not within the scope of an existing master plan and EIS.
NASA encourages the analysis of actions at the programmatic level for those programs similar in nature or broad in scope. Programmatic NEPA analyses may take place in the form of an EA or EIS. These documents allow “tiering” of NEPA documentation for subsequent or specific actions.
As detailed in CEQ regulations, supplemental documentation may be required for previous EAs or EISs (see 40 CFR 1502.9). If changed circumstances require preparation of a supplemental EA or EIS, such document will be prepared following the same general process as the original EA or EIS. No new scoping is required for a supplemental EIS; however, NASA may choose to conduct scoping.
When the analysis proceeds to an EA or EIS and mitigation measures are selected to avoid or reduce environmental impacts, such mitigation measures will be identified in the EA/FONSI or the EIS Record of Decision (ROD). NASA will implement mitigation measures (including adaptive management strategies, where appropriate) consistent with applicable FONSIs and/or RODs and will monitor their implementation and effectiveness. The Responsible Official will ensure that funding requests for such mitigation measures are included in the program or project budget.
(a) Classification does not relieve NASA of the requirement to assess, document, and consider the environmental impacts of a proposed action.
(b) When classified information can reasonably be separated from other information and a meaningful environmental analysis can be produced, unclassified documents will be prepared and processed in accordance with these regulations. Classified portions will be kept separate and provided to properly cleared reviewers and decision makers in the form of a properly classified document that meets the requirements of these regulations to the extent permitted, given such classification.
(a) When the Responsible Official determines that an emergency exists that makes it necessary to take urgently needed actions before preparing a NEPA analysis and any required documentation, in accordance with the provisions in sections 305 and 307 of this subpart, then the following provisions apply:
(1) The Responsible Official may take urgently needed actions that are necessary to control the immediate impacts of the emergency needed to mitigate harm to life, property, or resources. When taking such actions, the Responsible Official shall, to the extent practical, mitigate foreseeable adverse environmental impacts.
(2) At the earliest practicable time, the Responsible Official shall also notify the SEO of the emergency situation and the action(s) taken. The SEO will determine the appropriate NEPA action associated with the urgent actions taken as a result of the emergency. If the urgent actions will reasonably result in significant environmental impacts, the SEO will consult with the CEQ to ensure compliance with 40 CFR 1506.11 as soon as is reasonable.
(b) If the Responsible Official proposes emergency actions which continue beyond the urgent actions taken as a result of the emergency, and these actions are not categorically excluded, the Responsible Official will consult with the SEO to determine the appropriate level of NEPA compliance. If continuation of the emergency actions will reasonably result in significant environmental impacts, the SEO will consult with the CEQ to ensure compliance with 40 CFR 1506.11 as soon as is reasonable.
1. A2 Mission Multiple—The A2 Mission Multiple is a calculated value based on the total amount of radioactive material being launched. This value is used in defining the level of review and approval required for launch.
2. Earth Return Mission (also known as a Sample Return)—A subcategory of missions that would collect extraterrestrial materials from solar system bodies and return them to Earth.
3. NASA Senior Environmental Official—The Senior NASA Headquarters Official responsible for providing executive and functional leadership for environmental compliance. As of January 1, 2011, the SEO is the Assistant Administrator for Strategic Infrastructure.
4. Restricted Earth Return—A subcategory of Earth Return Missions which requires additional measures to ensure that any potential indigenous life form would be contained so that it could not impact humans or Earth's environment.
5. Space Flight Projects/Programs—Those NASA actions that develop products intended for use in space and/or that support ground and space operations for products in space.
6. Unrestricted Earth Return—NASA Procedural Requirements define this as a subcategory of Earth Return Missions that would collect extraterrestrial materials from solar system bodies (deemed by scientific opinion to have no indigenous life forms) and return those samples to Earth. No planetary protection measures are required for the inbound (return to Earth) phase of the mission.
Office of the Director of National Intelligence.
Proposed rule.
The Office of the Director of National Intelligence (ODNI) proposes to exempt six new systems of records from certain provisions of the Privacy Act. In addition, the ODNI proposes to invoke a subsection of the Privacy Act
Submit comments on or before August 30, 2011.
You may submit comments by any of the following methods:
Federal eRulemaking Portal:
Mr. John F. Hackett, Director, Information Management Office, (703) 275–2215.
As required by the Privacy Act, 5 U.S.C. 552a(e)(4), the ODNI describes in the notice section of today's
This proposed rule affects the manner in which ODNI collects and maintains information about individuals. ODNI certifies that this rulemaking will not have a significant economic impact on a substantial number of small entities. Accordingly, pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601–612, no regulatory flexibility analysis is required for this rule.
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires the ODNI to comply with small entity requests for information and advice about compliance with statutes and regulations within the ODNI jurisdiction. Any small entity that has a question regarding this document may address it to the information contact listed above. Further information regarding SBREFA is available on the Small Business Administration's Web page at
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the ODNI consider the impact of paperwork and other burdens imposed on the public associated with the collection of information. There are no information collection requirements associated with this proposed rule and therefore no analysis of burden is required.
This proposed rule is not a “significant regulatory action” within the meaning of Executive Order 12866. This rule will not have an annual effect on the economy of $100 million or more or otherwise adversely affect the economy or sector of the economy in a material way; will not create inconsistency with or interfere with other agency action; will not materially alter the budgetary impact of entitlements, grants, fees or loans or the rights and obligations of recipients thereof; or raise legal or policy issues arising out of legal mandates, the President's priorities or the principles set forth in the Executive Order. Accordingly, further regulatory evaluation is not required.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104–4, 109 Stat. 48 (Mar. 22, 1995), requires Federal agencies to assess the effects of certain regulatory actions on State, local, and tribal governments, and the private sector. This proposed rule imposes no Federal mandate on any State, local, or tribal government or on the private sector. Accordingly, no UMRA analysis of economic and regulatory alternatives is required.
Executive Order 13132 requires ODNI to examine the implications for the distribution of power and responsibilities among the various levels of government resulting from this proposed rule. ODNI concludes that the proposed rule does not affect the rights, roles and responsibilities of the States, involves no preemption of State law and does not limit State policymaking discretion. This rule has no federalism implications as defined by the Executive Order.
The ODNI has reviewed this action for purposes of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321–4347, and has determined that this action will not have a significant effect on the human environment.
The energy impact of this action has been assessed in accordance with the Energy Policy and Conservation Act (EPCA), Public Law 94–163, as amended, 42 U.S.C. 6362. This rulemaking is not a major regulatory action under the provisions of the EPCA.
Records and Privacy Act.
For the reasons set forth above, ODNI proposes to amend 32 CFR part 1701 as follows:
1. The authority citation for part 1701 continues to read as follows:
50 U.S.C. 401–441; 5 U.S.C. 552a.
2. Amend § 1701.24 by revising paragraph (a) introductory text, and adding paragraphs (a)(15) through (a)(20), and (b)(7) through (b)(12), to read as follows:
(a) The ODNI may invoke its authority to exempt the following systems of records from the requirements of subsections (c)(3); (d)(1), (2), (3) and (4); (e)(1); (e)(4)(G), (H), (I); and (f) of the Privacy Act to the extent that information in the system is subject to exemption pursuant subsections (k)(1), (k)(2) or (k)(5) of the Act as noted in the individual new systems notices and in the existing system notice entitled Office of Inspector General Investigation and Interview Records (ODNI/OIG–003), published at 72 FR 37902 (December 28, 2007).
(15) Human Resources Records (ODNI–16).
(16) Personnel Security Records (ODNI–17).
(17) Freedom of Information Act, Privacy Act and Mandatory Declassification Review Requests Records (ODNI–18).
(18) IT Systems Activity and Access Records (ODNI–19).
(19) Security Clearance Reciprocity Hotline Records (ODNI–20).
(20) IT Network Support, Administration and Analysis Records (ODNI–21) .
(b) * * *
(7) From subsection (c)(3) (accounting of disclosures) because an accounting of disclosures from records concerning the record subject would specifically reveal an intelligence or investigative interest on the part of the ODNI or recipient agency and could result in release of properly classified national security or foreign policy information.
(8) From subsections (d)(1), (2), (3) and (4) (record subject's right to access and amend records) because affording access and amendment rights could alert the record subject to the investigative interest of intelligence or law enforcement agencies or compromise sensitive information classified in the interest of national security. In the absence of a national security basis for exemption, records in this system may be exempted from access and amendment to the extent necessary to honor promises of confidentiality to persons providing information concerning a candidate for position. Inability to maintain such confidentiality would restrict the free flow of information vital to a determination of a candidate's qualifications and suitability.
(9) From subsection (e)(1) (maintain only relevant and necessary records) because it is not always possible to establish relevance and necessity before all information is considered and evaluated in relation to an intelligence concern. In the absence of a national security basis for exemption under subsection (k)(1), records in this system may be exempted from the relevance requirement pursuant to subsection (k)(5) because it is not possible to determine in advance what exact information may assist in determining the qualifications and suitability of a candidate for position. Seemingly irrelevant details, when combined with other data, can provide a useful composite for determining whether a candidate should be appointed.
(10) From subsections (e)(4)(G) and (H) (publication of procedures for notifying subjects of the existence of records about them and how they may access records and contest contents) because the system is exempted from subsection (d) provisions regarding access and amendment, and from the subsection (f) requirement to promulgate agency rules. Nevertheless, the ODNI has published notice concerning notification, access, and contest procedures because it may in certain circumstances determine it appropriate to provide subjects access to all or a portion of the records about them in a system of records.
(11) From subsection (e)(4)(I) (identifying sources of records in the system of records) because identifying sources could result in disclosure of properly classified national defense or foreign policy information, intelligence sources and methods, and investigatory techniques and procedures. Notwithstanding its proposed exemption from this requirement, ODNI identifies record sources in broad categories sufficient to provide general notice of the origins of the information it maintains in its systems of records.
(12) From subsection (f) (agency rules for notifying subjects to the existence of records about them, for accessing and amending records, and for assessing fees) because the system is exempt from subsection (d) provisions regarding access and amendment of records by record subjects. Nevertheless, the ODNI has published agency rules concerning notification of a subject in response to his request if any system of records named by the subject contains a record pertaining to him and procedures by which the subject may access or amend the records. Notwithstanding exemption, the ODNI may determine it appropriate to satisfy a record subject's access request.
United States Patent and Trademark Office, Commerce.
Notice of proposed rulemaking.
The United States Patent and Trademark Office (Office or PTO) is proposing to revise the standard for materiality for the duty to disclose information in patent applications and reexamination proceedings in light of the decision by the U.S. Court of Appeals for the Federal Circuit (Federal Circuit or Court) in
The Office solicits comments from the public on this proposed rule change. Written comments must be received on or before September 19, 2011 to ensure consideration. No public hearing will be held.
Comments concerning this notice should be sent by electronic mail message over the Internet addressed to
Comments may also be sent by electronic mail message over the Internet via the Federal eRulemaking Portal. See the Federal eRulemaking Portal Web site (
Hiram H. Bernstein, Senior Legal Advisor; Kenneth M. Schor, Senior Legal Advisor; or Nicole D. Haines, Legal Advisor, Office of Patent Legal Administration, Office of the Associate Commissioner for Patent Examination Policy, by telephone at (571) 272–7707, (571) 272–7710, or (571) 272–7717, respectively, or by mail addressed to: Mail Stop Comments-Patents, Commissioner for Patents, P.O. Box 1450, Alexandria, VA 22313–1450, marked to the attention of Hiram H. Bernstein.
The Office is proposing to revise the materiality standard for the duty to disclose information to the Office in patent applications and reexamination proceedings set forth in §§ 1.56(b) and 1.555(b) in light of the Federal Circuit's decision in
In
Historically, the Federal Circuit connected the materiality standard for inequitable conduct with the PTO's materiality standard for the duty of disclosure. That is, the Court has invoked the materiality standard for the duty of disclosure to measure materiality in cases raising claims of inequitable conduct. In doing so, the Court has utilized both the “reasonable examiner” standard set forth in the 1977 version of § 1.56(b) and current § 1.56(b) promulgated in 1992.
While not as inclusive as current § 1.56(b), the Office expects that the “but-for-plus” standard from
The Office also believes that a unitary materiality standard is simpler for the patent bar to implement. Under the single “but-for-plus” standard of materiality, patent applicants will not be put in the position of having to meet one standard for materiality as defined in
The Office recognizes that it previously considered, and rejected, a “but-for” standard for the duty of disclosure in 1992 when it promulgated current § 1.56(b). Duty of Disclosure, 57 FR 2021, 2024 (Jan. 17, 1992). The affirmative egregious misconduct exception set forth in
Although the Office is proposing to revise §§ 1.56(b) and 1.555(b) to match the “but-for-plus” materiality standard announced in
Additionally, the Office is considering further actions that may provide an incentive for applicants to assist the Office by explaining/clarifying the relationship of prior art to the claimed invention. While this form of information would not implicate the standard of materiality as that term has been defined in
Title 37 of the Code of Federal Regulations, Part 1, is proposed to be amended as follows:
The Office notes that, under the “but-for-plus” standard of
Section 1.933 is directed to the duty of disclosure in
This notice proposes to harmonize the standard for materiality under §§ 1.56 and 1.555 with the standard for materiality required to establish inequitable conduct. Additionally, the single harmonized materiality standard should reduce the incentives to submit information of marginal relevance. This notice does not propose any additional fees or requirements on patent applicants or patentees. Therefore, the changes proposed in this notice will not have a significant economic impact on a substantial number of small entities.
Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB control number.
Administrative practice and procedure, Courts, Freedom of Information, Inventions and patents, Reporting and record keeping requirements, Small businesses.
For the reasons set forth in the preamble, 37 CFR Part 1 is proposed to be amended as follows:
1. The authority citation for 37 CFR Part 1 continues to read as follows:
35 U.S.C. 2(b)(2).
2. Section 1.56 is amended by revising paragraph (b) to read as follows:
(b) Information is material to patentability if it is material under the standard set forth in
(1) The Office would not allow a claim if it were aware of the information, applying the preponderance of the evidence standard and giving the claim its broadest reasonable construction; or
(2) The applicant engages in affirmative egregious misconduct before the Office as to the information.
3. Section 1.555 is amended by revising paragraph (b) to read as follows:
(b) Information is material to patentability if it is material under the standard set forth in
(1) The Office would not find a claim patentable if it were aware of the information, applying the preponderance of the evidence standard and giving the claim its broadest reasonable construction; or
(2) The patent owner engages in affirmative egregious misconduct before the Office as to the information.
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to make a determination that the Parkersburg-Marietta, West Virginia-Ohio (WV-OH) nonattainment area and the Wheeling, WV-OH fine particle (PM
Written comments must be received on or before August 22, 2011.
Submit your comments, identified by Docket ID Number EPA–R03–OAR–2011–0469 by one of the following methods:
A.
B.
C.
D.
Region 3, Irene Shandruk, Office of Air Program Planning (3AP30), Environmental Protection Agency, Region 3, 1650 Arch Street, Philadelphia, PA 19103–2029, (215) 814–2166,
Throughout this document, whenever “we,” “us,” or “our” is used, we mean EPA.
This
In accordance with section 179(c)(1) of the CAA, EPA is proposing to determine that the Parkersburg-Marietta, WV-OH PM
On July 18, 1997 (62 FR 36852), EPA established a health-based PM
On October 17, 2006 (71 FR 61144), EPA retained the 1997 annual PM
In response to legal challenges of the annual standard promulgated in 2006, the U.S. Court of Appeals for the District of Columbia Circuit (DC Circuit) remanded this standard to EPA for further consideration.
EPA previously made clean data determinations related to the 1997 annual PM
Under CAA section 179(c), EPA is required to make a determination that a nonattainment area has attained by its attainment date, and publish that determination in the
Complete, quality-assured, and certified PM
EPA has reviewed the ambient air monitoring data for PM
Under EPA regulations at 40 CFR 50.7, the annual primary and secondary PM
Table 1 shows the PM
If EPA's proposed determination that the Parkersburg-Marietta, WV-OH and Wheeling, WV-OH nonattainment areas have attained the 1997 annual PM
Finalizing this proposed action would not constitute a redesignation of the Areas to attainment of the 1997 annual PM
EPA is soliciting comment on the action discussed in this document. These comments will be considered before EPA takes final action. Please note that if EPA receives adverse comment on either of the proposed determinations described above and if that determination may be severed from the remainder of the final agency action, EPA may adopt as final these provisions of the final agency action that are not the subject of an adverse comment.
This action proposes to make attainment determinations based on air quality data and would not, if finalized, result in the suspension of certain Federal requirements and would not impose any additional requirements. 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, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, these proposed PM
Environmental protection, Air pollution control, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to approve an April 20, 2011, request from the State of Missouri to exempt sources of Nitrogen Oxides (NO
Comments on this proposed action must be received in writing by August 22, 2011.
Submit your comments, identified by Docket ID No. EPA–R07–OAR–2011–0451, by mail to Ms. Lachala Kemp, Air Planning and Development Branch, U.S. EPA Region 7, 901 North 5th Street, Kansas City, Kansas 66101. Comments may also be submitted electronically or through hand delivery/courier by following the detailed instructions in the
Lachala Kemp, Air Planning and Development Branch, 901 N. 5th Street, Kansas City, Kansas 66101 at 913 551 7214, or by e-mail at
In the final rules section of this
For additional information, see the direct final rule, which is located in the rules section of this
Federal Emergency Management Agency, DHS.
Proposed rule; correction.
On March 25, 2009, FEMA published in the
Comments are to be submitted on or before October 19, 2011.
You may submit comments, identified by Docket No. FEMA–B–1038, to Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646–4064 or (e-mail)
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646–4064 or (e-mail)
The Federal Emergency Management Agency (FEMA) publishes proposed determinations of Base (1% annual-chance) Flood Elevations (BFEs) and modified BFEs for communities
These proposed BFEs and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are minimum requirements. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and also are used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in those buildings.
In the proposed rule published at 74 FR 12799 in the March 25, 2009, issue of the
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed incidental harassment authorization; request for comments.
NMFS has received an application from Tetra Tech EC, Inc., on behalf of the Northeast Gateway® Energy Bridge
Comments and information must be received no later than August 22, 2011.
Comments should be addressed to P. Michael Payne, Chief, Permits, Conservation and Education Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910. The mailbox address for providing e-mail comments on this action is
Instructions: All comments received are a part of the public record and will generally be posted to
The Maritime Administration (MARAD) and U.S. Coast Guard (USCG) Final Environmental Impact Statement (Final EIS) on the Northeast Gateway Energy Bridge LNG Deepwater Port license application is available for viewing at
Shane Guan, Office of Protected Resources, NMFS, (301) 427–8401.
Sections 101(a)(5)(A)–(D) of the MMPA (16 U.S.C. 1361
Authorization shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such taking are set forth.
NMFS has defined “negligible impact” in 50 CFR 216.103 as:
Section 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the U.S. can apply for an authorization to incidentally take small numbers of marine mammals by harassment. Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as:
Section 101(a)(5)(D) establishes a 45-day time limit for NMFS review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of marine mammals. Within 45 days of the close of the comment period, NMFS must either issue or deny issuance of the authorization.
On April 8, 2011, NMFS received an application from Excelerate Energy, L.P. (Excelerate) and Tetra Tech EC, Inc., on behalf of Northeast Gateway for an authorization to take 13 species of marine mammals by Level B harassment incidental to operations of an LNG port facility in Massachusetts Bay. They are: North Atlantic right whale, humpback whale, fin whale, minke whale, long-finned pilot whale, Atlantic white-sided dolphin, bottlenose dolphin, common dolphin, killer whale, Risso's dolphin, harbor porpoise, harbor seal, and gray seal. Since LNG Port operation activities have the potential to take marine mammals, a marine mammal take authorization under the MMPA is warranted. On May 7, 2007, NMFS issued an IHA to Northeast Gateway and Algonquin Gas Transmission, L.L.C. (Algonquin) to allow for the incidental harassment of small numbers of marine mammals resulting from the construction and operation of the NEG Port and the Algonquin Pipeline Lateral (72 FR 27077; May 14, 2007). Subsequently, NMFS issued three one-year IHAs for the take of marine mammals incidental to the operation of the NEG Port activity pursuant to section 101(a)(5)(D) of the MMPA (73 FR 29485; May 21, 2008; 74 FR 45613; September 3, 2009, and 75 FR 53672; September 1, 2010). The current IHA expires on August 30, 2011. Therefore, the company is seeking a new IHA, because it is believed that marine mammals could be affected by noise generated by operating the dynamic positioning system during the docking of LNG vessels at the NEG Port.
The Northeast Gateway Port is located in Massachusetts Bay and consists of a submerged buoy system to dock specially designed LNG carriers approximately 13 mi (21 km) offshore of Massachusetts in Federal waters approximately 270 to 290 ft (82 to 88 m) in depth. This facility delivers regasified LNG to onshore markets via the Algonquin Pipeline Lateral (Pipeline Lateral). The Pipeline Lateral consists of a 16.1-mile (25.8-kilometer) long, 24-inch (61-centimeter) outside diameter natural gas pipeline which interconnects the Port to an offshore natural gas pipeline known as the HubLine.
The Northeast Gateway Port consists of two subsea Submerged Turret Loading
The proposed activity of operation of the Northeast Gateway LNG Port is described next.
During NEG Port operations, EBRVs servicing the Northeast Gateway Port will utilize the newly configured and International Maritime Organization (IMO)-approved Boston Traffic Separation Scheme (TSS) on their approach to and departure from the Northeast Gateway Port at the earliest practicable point of transit. EBRVs will maintain speeds of 12 knots or less while in the TSS, unless transiting the Off Race Point Seasonal Management Area (SMA) between the dates of March 1 and April 30, or the Great South Channel SMA between the dates of April 1 and July 31, or when there have been active right whale sightings, active acoustic detections, or both, within 24 hours of each scheduled data review period, in the vicinity of the transiting EBRV in the TSS or at the NEG Port whereby the vessels must slow their speeds to 10 knots or less. Appendix A of the IHA application contains the Marine Mammal Detection, Monitoring, and Response Plan for Operation of the Northeast Gateway Energy Bridge Deepwater Port and Algonquin Pipeline Lateral, which describes in detail the measures required for EBRVs transiting in the TSS or within the NEG Port area.
As an EBRV makes its final approach to the Northeast Gateway Port, vessel speed will gradually be reduced to 3 knots when the vessel is within 1.86 mi (3 km) out of the Northeast Gateway Port to less than 1 knot at a distance of 1,640 ft (500 m) from the Northeast Gateway Port. When an EBRV arrives at the Northeast Gateway Port, it would retrieve one of the two permanently anchored submerged STL buoys and make final connection to the buoy through a series of engine and bow thruster actions. The EBRV would require the use of thrusters for dynamic positioning during docking procedure. Typically, the docking procedure is completed over a 10- to 30-minute period, with the thrusters activated as necessary for short periods of time in bursts, not a continuous sound source. Once connected to the buoy, the EBRV will begin vaporizing the LNG into its natural gas state using the onboard regasification system. As the LNG is regasified, natural gas will be transferred at pipeline pressures off the EBRV through the STL buoy and flexible riser via a steel flowline leading to the connecting Pipeline Lateral. When the LNG vessel is on the buoy, the vessel would be allowed to “weathervane” by wind and currents on the single-point mooring system; therefore, thrusters will not be used to maintain a stationary position.
It is estimated that the NEG Port could receive approximately 65 cargo deliveries a year. During this time period, thrusters would be engaged in use for docking at the NEG Port approximately 10 to 30 minutes for each vessel arrival and departure.
Detailed information on the operation activities can be found in the MARAD/USCG Final EIS on the Northeast Gateway Project (see
Marine mammal species that potentially occur in the vicinity of the Northeast Gateway facility include several species of cetaceans and pinnipeds:
North Atlantic right whale (
humpback whale (
fin whale (
minke whale (
long-finned pilot whale (
Atlantic white-sided dolphin (
bottlenose dolphin (
common dolphin (
killer whale (
Risso's dolphin (
harbor porpoise (
harbor seal (
gray seal (
Information on those species that may be affected by this activity is discussed in detail in the USCG Final EIS on the Northeast Gateway LNG proposal. Please refer to that document for more information on these species and potential impacts from construction and operation of this LNG facility. In addition, general information on these marine mammal species can also be found in Würsig
The highest abundance for humpback whales is distributed primarily along a relatively narrow corridor following the 100-m (328 ft) isobath across the southern Gulf of Maine from the northwestern slope of Georges Bank, south to the Great South Channel, and northward alongside Cape Cod to Stellwagen Bank and Jeffreys Ledge. The relative abundance of whales increases in the spring with the highest occurrence along the slope waters (between the 40- and 140-m, or 131- and 459-ft, isobaths) off Cape Cod and Davis Bank, Stellwagen Basin and Tillies Basin and between the 50- and 200-m (164- and 656-ft) isobaths along the inner slope of Georges Bank. High abundance is also estimated for the waters around Platts Bank. In the
Spatial patterns of habitat utilization by fin whales are very similar to those of humpback whales. Spring and summer high-use areas follow the 100-m (328 ft) isobath along the northern edge of Georges Bank (between the 50- and 200-m (164- and 656-ft) isobaths), and northward from the Great South Channel (between the 50- and 160-m, or 164- and 525-ft, isobaths). Waters around Cashes Ledge, Platts Bank, and Jeffreys Ledge are all high-use areas in the summer months. Stellwagen Bank is a high-use area for fin whales in all seasons, with highest abundance occurring over the southern Stellwagen Bank in the summer months. In fact, the southern portion of the Stellwagen Bank National Marine Sanctuary (SBNMS) is used more frequently than the northern portion in all months except winter, when high abundance is recorded over the northern tip of Stellwagen Bank. In addition to Stellwagen Bank, high abundance in winter is estimated for Jeffreys Ledge and the adjacent Porpoise Basin (100- to 160-m, 328- to 656-ft, isobaths), as well as Georges Basin and northern Georges Bank. The best estimate of abundance for the western North Atlantic stock of fin whales is 2,269 (Waring
Like other piscivorous baleen whales, highest abundance for minke whale is strongly associated with regions between the 50- and 100-m (164- and 328-ft) isobaths, but with a slightly stronger preference for the shallower waters along the slopes of Davis Bank, Phelps Bank, Great South Channel and Georges Shoals on Georges Bank. Minke whales are sighted in the SBNMS in all seasons, with highest abundance estimated for the shallow waters (approximately 40 m, or 131 ft) over southern Stellwagen Bank in the summer and fall months. Platts Bank, Cashes Ledge, Jeffreys Ledge, and the adjacent basins (Neddick, Porpoise and Scantium) also support high relative abundance. Very low densities of minke whales remain throughout most of the southern Gulf of Maine in winter. The best estimate of abundance for the Canadian East Coast stock, which occurs from the western half of the Davis Strait to the Gulf of Mexico, of minke whales is 3,312 animals (Waring
North Atlantic right whales are generally distributed widely across the southern Gulf of Maine in spring with highest abundance located over the deeper waters (100- to 160-m, or 328- to 525-ft, isobaths) on the northern edge of the Great South Channel and deep waters (100 B 300 m, 328-984 ft) parallel to the 100-m (328-ft) isobath of northern Georges Bank and Georges Basin. High abundance is also found in the shallowest waters (< 30 m, or <98 ft) of Cape Cod Bay, over Platts Bank and around Cashes Ledge. Lower relative abundance is estimated over deep-water basins including Wilkinson Basin, Rodgers Basin and Franklin Basin. In the summer months, right whales move almost entirely away from the coast to deep waters over basins in the central Gulf of Maine (Wilkinson Basin, Cashes Basin between the 160- and 200-m, or 525- and 656-ft, isobaths) and north of Georges Bank (Rogers, Crowell and Georges Basins). Highest abundance is found north of the 100-m (328-ft) isobath at the Great South Channel and over the deep slope waters and basins along the northern edge of Georges Bank. The waters between Fippennies Ledge and Cashes Ledge are also estimated as high-use areas. In the fall months, right whales are sighted infrequently in the Gulf of Maine, with highest densities over Jeffreys Ledge and over deeper waters near Cashes Ledge and Wilkinson Basin. In winter, Cape Cod Bay, Scantum Basin, Jeffreys Ledge, and Cashes Ledge were the main high-use areas. Although SBNMS does not appear to support the highest abundance of right whales, sightings within SBNMS are reported for all four seasons, albeit at low relative abundance. Highest sighting within SBNMS occurred along the southern edge of the Bank.
The western North Atlantic population size was estimated to be at least 345 individuals in 2005 based on a census of individual whales identified using photo-identification techniques (Waring
The long-finned pilot whale is more generally found along the edge of the continental shelf (a depth of 330 to 3,300 ft, or 100 to 1,000 m), choosing areas of high relief or submerged banks in cold or temperate shoreline waters. This species is split between two subspecies: The Northern and Southern subspecies. The Southern subspecies is circumpolar with northern limits of Brazil and South Africa. The Northern subspecies, which could be encountered during operation of the NEG Port, ranges from North Carolina to Greenland (Reeves
In spring, summer and fall, Atlantic white-sided dolphins are widespread throughout the southern Gulf of Maine, with the high-use areas widely located either side of the 100-m (328-ft) isobath along the northern edge of Georges Bank, and north from the Great South Channel to Stellwagen Bank, Jeffreys Ledge, Platts Bank and Cashes Ledge. In spring, high-use areas exist in the Great South Channel, northern Georges Bank, the steeply sloping edge of Davis Bank and Cape Cod, southern Stellwagen Bank and the waters between Jeffreys Ledge and Platts Bank. In summer, there is a shift and expansion of habitat toward the east and northeast. High-use areas are identified along most of the northern edge of Georges Bank between the 50- and 200-m (164- and 656-ft) isobaths and northward from the Great South Channel along the slopes of Davis Bank and Cape Cod. High numbers of sightings are also recorded over Truxton Swell, Wilkinson Basin, Cashes Ledge and the bathymetrically complex area northeast of Platts Bank. High numbers of sightings of white-sided dolphin are recorded within SBNMS in all seasons, with highest density in summer and most widespread distributions in spring located mainly over the southern end of Stellwagen Bank. In winter, high numbers of sightings are recorded at the northern tip of Stellwagen Bank and Tillies Basin.
A comparison of spatial distribution patterns for all baleen whales (Mysticeti) and all porpoises and dolphins combined show that both groups have very similar spatial patterns of high- and low-use areas. The baleen whales, whether piscivorous or planktivorous, are more concentrated than the dolphins and porpoises. They utilize a corridor that extended broadly along the most linear and steeply sloping edges in the southern Gulf of Maine indicated broadly by the 100 m (328 ft) isobath. Stellwagen Bank and Jeffreys Ledge support a high abundance of baleen whales throughout the year. Species richness maps indicate that high-use areas for individual whales and dolphin species co-occur, resulting in similar patterns of species richness primarily along the southern portion of the 100-m (328-ft) isobath extending northeast and northwest from the Great South Channel. The southern edge of Stellwagen Bank and the waters around the northern tip of Cape Cod are also highlighted as supporting high cetacean species richness. Intermediate to high numbers of species are also calculated for the waters surrounding Jeffreys Ledge, the entire Stellwagen Bank, Platts Bank, Fippennies Ledge and Cashes Ledge. The best estimate of abundance for the western North Atlantic stock of white-sided dolphins is 63,368 (Waring
Although these five species are some of the most widely distributed small cetacean species in the world (Jefferson
In the U.S. waters of the western North Atlantic, both harbor and gray seals are usually found from the coast of Maine south to southern New England and New York (Waring
Along the southern New England and New York coasts, harbor seals occur seasonally from September through late May (Schneider and Payne, 1983). In recent years, their seasonal interval along the southern New England to New Jersey coasts has increased (deHart, 2002). In U.S. waters, harbor seal breeding and pupping normally occur in waters north of the New Hampshire/Maine border, although breeding has occurred as far south as Cape Cod in the early part of the 20th century (Temte
When considering the influence of various kinds of sound on the marine environment, it is necessary to understand that different kinds of marine life are sensitive to different frequencies of sound. Based on available behavioral data, audiograms derived using auditory evoked potential techniques, anatomical modeling, and other data, Southall
• Low frequency cetaceans (13 species of mysticetes): functional
• Mid-frequency cetaceans (32 species of dolphins, six species of larger toothed whales, and 19 species of beaked and bottlenose whales): functional hearing is estimated to occur between approximately 150 Hz and 160 kHz;
• High frequency cetaceans (eight species of true porpoises, six species of river dolphins, Kogia, the franciscana, and four species of cephalorhynchids): functional hearing is estimated to occur between approximately 200 Hz and 180 kHz; and
• Pinnipeds in Water: functional hearing is estimated to occur between approximately 75 Hz and 75 kHz, with the greatest sensitivity between approximately 700 Hz and 20 kHz.
As mentioned previously in this document, 13 marine mammal species (11 cetacean and two pinniped species) are likely to occur in the NEG Port area. Of the 11 cetacean species likely to occur in NEG's project area, four are classified as low frequency cetaceans (
Potential effects of NEG's proposed port operations would most likely be acoustic in nature. LNG port operations introduce sound into the marine environment. The effects of noise on marine mammals are highly variable, and can be categorized as follows (based on Richardson
There are three general categories of sounds recognized by NMFS: continuous (such as shipping sounds), intermittent (such as vibratory pile driving sounds), and impulse. No impulse noise activities, such as blasting or standard pile driving, are associated with this project. The noise sources of potential concern are regasification/offloading (which is a continuous sound) and dynamic positioning of vessels using thrusters (an intermittent sound) from EBRVs during docking at the NEG port facility. Noise generated from regasification/offloading is modeled to be under 120 dB, therefore, no take is expected from this activity. Based on research by Malme
Underwater noise generated at the NEG Port has the potential to result from two distinct actions, including closed-loop regasification of LNG and/or EBRV maneuvering during coupling and decoupling with STL buoys. To evaluate the potential for these activities to result in underwater noise that could harass marine mammals, Excelerate conducted field sound survey studies during periods of March 21 to 25, 2005, and August 6 to 9, 2006, while the EBRV
• Sound levels during closed-loop regasification ranged from 104 to 110 dB. Maximum levels during steady state operations were 108 dB.
• Sound levels during coupling operations were dominated by the periodic use of the bow and stern thrusters and ranged from 160 to 170 dBL.
Figures 1–1 and 1–2 of NEG's IHA application present the net acoustic impact of one EBRV operating at the NEG Port. Thrusters are operated intermittently and only for relatively short durations of time. The resulting area within the 120 dB isopleth is less than 1 km
The potential impacts to marine mammals associated with sound propagation from vessel movements, anchors, chains and LNG regasification/offloading could be the temporary and short-term displacement of seals and whales from within the 120-dB zones ensonified by these noise sources. Animals would be expected to re-occupy the area once the noise ceases.
Approximately 4.8 acres of seafloor has been converted from soft substrate to artificial hard substrate. The soft-bottom benthic community may be replaced with organisms associated with
Daily removal of sea water from EBRV intakes will reduce the food resources available for planktivorous organisms. Water usage would be limited to the standard requirements of NEG's normal support vessel. As with all vessels operating in Massachusetts Bay, sea water uptake and discharge is required to support engine cooling, typically using a once-through system. The rate of seawater uptake varies with the ship's horsepower and activity and therefore will differ between vessels and activity type. For example, the
In conclusion, NMFS has preliminarily determined that NEG's proposed port operations are not expected to have any habitat-related effects that could cause significant or long-term consequences for individual marine mammals or on the food sources that they utilize. Proposed Monitoring and Mitigation Measures.
In order to issue an incidental take authorization (ITA) under the MMPA, NMFS must, where applicable, set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses (where relevant). In addition, NMFS must, where applicable, set forth “requirements pertaining to the monitoring and reporting of such taking”. The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for ITAs must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the action area.
During the construction and operations of the NEG LNG Port facility in prior years, Northeast Gateway submitted reports on marine mammal sightings in the area. While it is difficult to draw biological conclusions from these reports, NMFS can make some general conclusions. Data gathered by MMOs is generally useful to indicate the presence or absence of marine mammals (often to a species level) within the safety zones (and sometimes without) and to document the implementation of mitigation measures. Though it is by no means conclusive, it is worth noting that no instances of obvious behavioral disturbance as a result of Northeast Gateway's activities were observed by the MMOs.
In addition, Northeast Gateway was required to maintain an array of Marine Autonomous Recording Units (MARUs) to monitor calling North Atlantic right whales (humpback, fin, and minke whale calls were also able to be detected).
For the proposed IHA to NEG for LNG port operations, NMFS proposes the following monitoring and mitigation measures.
For activities related to the NEG LNG port operations, all individuals onboard the EBRVs responsible for the navigation and lookout duties on the vessel must receive training prior to assuming navigation and lookout duties, a component of which will be training on marine mammal sighting/reporting and vessel strike avoidance measures. Crew training of EBRV personnel will stress individual responsibility for marine mammal awareness and reporting.
If a marine mammal is sighted by a crew member, an immediate notification will be made to the Person-in-Charge on board the vessel and the Northeast Port Manager, who will ensure that the required vessel strike avoidance measures and reporting procedures are followed.
(1) All EBRVs approaching or departing the port will comply with the Mandatory Ship Reporting (MSR) system to keep apprised of right whale sightings in the vicinity. Vessel operators will also receive active detections from an existing passive acoustic array prior to and during transit through the northern leg of the Boston TSS where the buoys are installed.
(2) In response to active right whale sightings (detected acoustically or reported through other means such as the MSR or Sighting Advisory System (SAS)), and taking into account safety and weather conditions, EBRVs will take appropriate actions to minimize the risk of striking whales, including reducing speed to 10 knots or less and alerting personnel responsible for navigation and lookout duties to concentrate their efforts.
(3) EBRVs will maintain speeds of 12 knots or less while in the TSS until reaching the vicinity of the buoys (except during the seasons and areas defined below, when speed will be limited to 10 knots or less). At 1.86 mi (3 km) from the NEG port, speed will be reduced to 3 knots, and to less than 1 knot at 1,640 ft (500 m) from the buoy.
(4) EBRVs will reduce transit speed to 10 knots or less over ground from March 1–April 30 in all waters bounded by straight lines connecting the following points in the order stated below. This area is known as the Off Race Point SMA and tracks NMFS regulations at 50 CFR 224.105:
42°30′00.0″ N–069°45′00.0″ W; thence to 42°30′00.0″ N–070°30′00.0″ W; thence to 42°12′00.0″ N–070°30′00.0″ W; thence to 42°12′00.0″ N–070°12′00.0″ W; thence to 42°04′56.5″ N–070°12′00.0″ W; thence along charted mean high water line and inshore limits of COLREGS limit to a latitude of 41°40′00.0″ N; thence due east to 41°41′00.0″ N–069°45′00.0″ W; thence back to starting point.
(5) EBRVs will reduce transit speed to 10 knots or less over ground from April 1–July 31 in all waters bounded by straight lines connecting the following points in the order stated below. This area is also known as the Great South Channel SMA and tracks NMFS regulations at 50 CFR 224.105:
(6) LNGRVs are not expected to transit Cape Cod Bay. However, in the event transit through Cape Cod Bay is required, LNGRVs will reduce transit speed to 10 knots or less over ground from January 1–May 15 in all waters in Cape Cod Bay, extending to all shorelines of Cape Cod Bay, with a northern boundary of 42°12′00.0″ N latitude.
(7) A vessel may operate at a speed necessary to maintain safe maneuvering speed instead of the required 10 knots only if justified because the vessel is in an area where oceanographic, hydrographic, and/or meteorological conditions severely restrict the maneuverability of the vessel and the need to operate at such speed is confirmed by the pilot on board or, when a vessel is not carrying a pilot, the master of the vessel. If a deviation from the 10-knot speed limit is necessary, the reasons for the deviation, the speed at which the vessel is operated, the latitude and longitude of the area, and the time and duration of such deviation shall be entered into the logbook of the vessel. The master of the vessel shall attest to the accuracy of the logbook entry by signing and dating it.
Northeast Gateway shall monitor the noise environment in Massachusetts Bay in the vicinity of the NEG Port using an array of 19 MARUs that were deployed initially in April 2007 to collect data during the preconstruction and active construction phases of the NEG Port and Algonquin Pipeline Lateral. A description of the MARUs can be found in Appendix A of the NEG and Algonquin application. These 19 MARUs will remain in the same configuration during full operation of the NEG Port. The MARUs collect archival noise data and are not designed to provide real-time or near-real-time information about vocalizing whales. Rather, the acoustic data collected by the MARUs shall be analyzed to document the seasonal occurrences and overall distributions of whales (primarily fin, humpback, and right whales) within approximately 10 nautical miles (18 km) of the NEG Port and shall measure and document the noise “footprint” of Massachusetts Bay so as to eventually assist in determining whether an overall increase in noise in the Bay associated with the NEG Port might be having a potentially negative impact on marine mammals. The overall intent of this system is to provide better information for both regulators and the general public regarding the acoustic footprint associated with long-term operation of the NEG Port in Massachusetts Bay and the distribution of vocalizing marine mammals during NEG Port activities.
In addition to the 19 MARUs, Northeast Gateway will deploy 10 auto-detection buoys (ABs) within the TSS for the operational life of the NEG Port. A description of the ABs is provided in Appendix A of this NEG and Algonquin's application. The purpose of the ABs shall be to detect a calling North Atlantic right whale an average of 5 nm (9.26 km) from each AB (detection ranges will vary based on ambient underwater conditions). The AB system shall be the primary detection mechanism that alerts the EBRV captains to the occurrence of right whales, heightens EBRV awareness, and triggers necessary mitigation actions as described in the Marine Mammal Detection, Monitoring, and Response Plan included as Appendix A of the NEG application.
Northeast Gateway has engaged representatives from Cornell University's Bioacoustics Research Program and the Woods Hole Oceanographic Institution as the consultants for developing, implementing, collecting, and analyzing the acoustic data; reporting; and maintaining the acoustic monitoring system.
Further information detailing the deployment and operation of arrays of 19 passive seafloor acoustic recording units (MARUs) centered on the terminal site and the 10 ABs that are to be placed at approximately 5-m (8.0-km) intervals within the recently modified TSS can be found in the Marine Mammal Detection, Monitoring, and Response Plan included as Appendix A of the NEG and Algonquin application.
NMFS has carefully evaluated the applicant's proposed mitigation measures in the context of ensuring that NMFS prescribes the means of effecting the least practicable impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another:
• The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals;
• The proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and
• The practicability of the measure for applicant implementation.
Based on our evaluation of the applicant's proposed measures, NMFS has preliminarily determined that the proposed mitigation measures provide the means of effecting the least practicable impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
The Project area is within the Mandatory Ship Reporting Area (MSRA), so all vessels entering and exiting the MSRA will report their activities to WHALESNORTH. During all phases of the Northeast Gateway LNG Port operations, sightings of any injured or dead marine mammals will be reported immediately to the USCG and NMFS, regardless of whether the injury or death is caused by project activities.
An annual report on marine mammal monitoring and mitigation shall be submitted to NMFS Office of Protected Resources and NMFS Northeast
Based on monthly activity reports submitted to NMFS for the period between August 2010 and May 2011, there were no activities at the NEG Port during the period. Therefore, no take of marine mammals occurred or were reported during this period.
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment]. Only take by Level B harassment is anticipated as a result of NEG's operational activities. Anticipated take of marine mammals is associated with operation of dynamic positioning during the docking of the LNG vessels. The regasification process itself is an activity that does not rise to the level of taking, as the modeled source level for this activity is 108 dB. Certain species may have a behavioral reaction to the sound emitted during the activities. Hearing impairment is not anticipated. Additionally, vessel strikes are not anticipated, especially because of the speed restriction measures that are proposed that were described earlier in this document.
Although Northeast Gateway stated that the ensonified area of 120-dB isopleths by EBRV's decoupling would be less than 1 km
The basis for Northeast Gateway and Algonquin's “take” estimate is the number of marine mammals that would be exposed to sound levels in excess of 120 dB, which is the threshold used by NMFS for continuous sounds. For the NEG port facility operations, the take estimates are determined by multiplying the area of the EBRV's ZOI (34 km
NMFS recognizes that baleen whale species other than North Atlantic right whales have been sighted in the project area from May to November. However, the occurrence and abundance of fin, humpback, and minke whales is not well documented within the project area. Nonetheless, NMFS uses the data on cetacean distribution within Massachusetts Bay, such as those published by the National Centers for Coastal Ocean Science (NCCOS, 2006), to estimate potential takes of marine mammals species in the vicinity of project area.
The NCCOS study used cetacean sightings from two sources: (1) The North Atlantic Right Whale Consortium (NARWC) sightings database held at the University of Rhode Island (Kenney, 2001); and (2) the Manomet Bird Observatory (MBO) database, held at NMFS Northeast Fisheries Science Center (NEFSC). The NARWC data contained survey efforts and sightings data from ship and aerial surveys and opportunistic sources between 1970 and 2005. The main data contributors included: Cetacean and Turtles Assessment Program (CETAP), Canadian Department of Fisheries and Oceans, PCCS, International Fund for Animal Welfare, NOAA's NEFSC, New England Aquarium, Woods Hole Oceanographic Institution, and the University of Rhode Island. A total of 653,725 km (406,293 mi) of survey track and 34,589 cetacean observations were provisionally selected for the NCCOS study in order to minimize bias from uneven allocation of survey effort in both time and space. The sightings-per-unit-effort (SPUE) was calculated for all cetacean species by month covering the southern Gulf of Maine study area, which also includes the project area (NCCOS, 2006).
The MBO's Cetacean and Seabird Assessment Program (CSAP) was contracted from 1980 to 1988 by NMFS NEFSC to provide an assessment of the relative abundance and distribution of cetaceans, seabirds, and marine turtles in the shelf waters of the northeastern United States (MBO, 1987). The CSAP program was designed to be completely compatible with NMFS NEFSC databases so that marine mammal data could be compared directly with fisheries data throughout the time series during which both types of information were gathered. A total of 5,210 km (8,383 mi) of survey distance and 636 cetacean observations from the MBO data were included in the NCCOS analysis. Combined valid survey effort for the NCCOS studies included 567,955 km (913,840 mi) of survey track for small cetaceans (dolphins and porpoises) and 658,935 km (1,060,226 mi) for large cetaceans (whales) in the southern Gulf of Maine. The NCCOS study then combined these two data sets by extracting cetacean sighting records, updating database field names to match the NARWC database, creating geometry to represent survey tracklines and applying a set of data selection criteria designed to minimize uncertainty and bias in the data used.
Owing to the comprehensiveness and total coverage of the NCCOS cetacean distribution and abundance study, NMFS calculated the estimated take number of marine mammals based on the most recent NCCOS report published in December 2006. A summary of seasonal cetacean distribution and abundance in the project area is provided above, in the “Description of Marine Mammals in the Area of the Specified Activities” section. For a detailed description and calculation of the cetacean abundance data and SPUE, please refer to the NCCOS study (NCCOS, 2006). These data show that the relative abundance of North Atlantic right, fin, humpback, minke, and pilot whales, and Atlantic white-sided dolphins for all seasons, as calculated by SPUE in number of animals per square kilometer, is 0.0082, 0.0097, 0.0265, 0.0059, 0.0407, and 0.1314 n/km, respectively.
In calculating the area density of these species from these linear density data, NMFS used 1.15 mi (1.85 km) as the strip width (W). This strip width is based on the distance of visibility used in the NARWC data that was part of the NCCOS (2006) study. However, those surveys used a strip transect instead of a line transect methodology. Therefore, in order to obtain a strip width, one must divide the visibility or transect value in half. Since the visibility value used in the NARWC data was 2.3 mi (3.7 km), it thus gives a strip width of 1.15 mi (1.85 km). Based on this information, the area density (D) of these species in the project area can be obtained by the following formula:
Based on this calculation method, the estimated take numbers per year for North Atlantic right, fin, humpback, minke, and pilot whales, and Atlantic white-sided dolphins by the NEG Port facility operations, which is an average of 65 visits by LNG container ships to the project area per year (or approximately 1.25 visits per week), operating the vessels' thrusters for dynamic positioning before offloading natural gas, corrected for 50 percent underwater, are 5, 5, 15, 3, 23, and 73, respectively. These numbers represent maximum of 1.32, 0.24, 1.73, 0.10, 0.08, and 0.11 percent of the populations for these species, respectively. Since it is very likely that individual animals could be “taken” by harassment multiple times, these percentages are the upper boundary of the animal population that could be affected. Therefore, the actual number of individual animals being exposed or taken would be far less. There is no danger of injury, death, or hearing impairment from the exposure to these noise levels.
In addition, bottlenose dolphins, common dolphins, killer whales, Risso's dolphins, harbor porpoises, harbor seals, and gray seals could also be taken by Level B harassment as a result of deepwater LNG port operations. Since these species are less likely to occur in the area, and there are no density estimates specific to this particular area, NMFS based the take estimates on typical group size. Therefore, NMFS estimates that up to approximately 10 bottlenose dolphins, 20 common dolphins, 20 Risso's dolphins, 20 killer whales, 5 harbor porpoises, 15 harbor seals, and 15 gray seals could be exposed to continuous noise at or above 120 dB re 1 μPa rms incidental to operations during the one year period of the IHA, respectively.
Since Massachusetts Bay represents only a small fraction of the western North Atlantic basin where these animals occur NMFS has preliminarily determined that only small numbers of the affected marine mammal species or stocks would be potentially affected by the Northeast Gateway LNG deepwater project. The take estimates presented in this section of the document do not take into consideration the mitigation and monitoring measures that are proposed for inclusion in the IHA (if issued).
NMFS has defined “negligible impact” in 50 CFR 216.103 as “* * * an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.” In making a negligible impact determination, NMFS considers a variety of factors, including but not limited to: (1) The number of anticipated mortalities; (2) the number and nature of anticipated injuries; (3) the number, nature, intensity, and duration of Level B harassment; and (4) the context in which the takes occur.
No injuries or mortalities are anticipated to occur as a result of Northeast Gateway's proposed port operation activities, and none are proposed to be authorized by NMFS. Additionally, animals in the area are not anticipated to incur any hearing impairment (
While some of the species occur in the proposed project area year-round, some species only occur in the area during certain seasons. Humpback and minke whales are not expected in the project area in the winter. During the winter, a large portion of the North Atlantic right whale population occurs in the southeastern U.S. calving grounds (
Many animals perform vital functions, such as feeding, resting, traveling, and socializing, on a diel cycle (24-hr cycle). Behavioral reactions to noise exposure (such as disruption of critical life functions, displacement, or avoidance of important habitat) are more likely to be significant if they last more than one diel cycle or recur on subsequent days (Southall
Of the 13 marine mammal species likely to occur in the area, four are listed as endangered under the ESA: North Atlantic right, humpback, and fin whales. All of these species, as well as the northern coastal stock of bottlenose dolphin, are also considered depleted under the MMPA. There is currently no designated critical habitat or known reproductive areas for any of these species in or near the proposed project area. However, there are several well known North Atlantic right whale feeding grounds in the Cape Cod Bay and Great South Channel. No mortality or injury is expected to occur, and due to the nature, degree, and context of the Level B harassment anticipated, the activity is not expected to impact rates of recruitment or survival.
The population estimates for the species that may be taken by Level B behavioral harassment contained in the most recent U.S. Atlantic Stock Assessment Reports were provided earlier in this document. From the most conservative estimates of both marine mammal densities in the project area and the size of the 120-dB ZOI, the maximum calculated number of individual marine mammals for each species that could potentially be harassed annually is small relative to the overall population sizes (1.73 percent for humpback whales and 1.32 percent for North Atlantic right whales and no more than 1 percent of any other species).
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, NMFS preliminarily finds that the operation activities of the Northeast Gateway LNG Port will result in the incidental take of small numbers of marine mammals, by Level B harassment only, and that the total taking from Northeast Gateway's proposed activities will have a
There are no relevant subsistence uses of marine mammals implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
On February 5, 2007, NMFS concluded consultation with MARAD and the USCG, under section 7 of the ESA, on the proposed construction and operation of the Northeast Gateway LNG facility and issued a biological opinion. The finding of that consultation was that the construction and operation of the Northeast Gateway LNG terminal may adversely affect, but is not likely to jeopardize, the continued existence of northern right, humpback, and fin whales, and is not likely to adversely affect sperm, sei, or blue whales and Kemp's ridley, loggerhead, green or leatherback sea turtles. An incidental take statement (ITS) was issued following NMFS' issuance of the 2007 IHA.
On November 15, 2007, Northeast Gateway and Algonquin submitted a letter to NMFS requesting an extension for the LNG Port construction into December 2007. Upon reviewing Northeast Gateway's weekly marine mammal monitoring reports submitted under the previous IHA, NMFS recognized that the potential take of some marine mammals resulting from the LNG Port and Pipeline Lateral by Level B behavioral harassment likely had exceeded the original take estimates. Therefore, NMFS Northeast Region (NER) reinitiated consultation with MARAD and USCG on the construction and operation of the Northeast Gateway LNG facility. On November 30, 2007, NMFS NER issued a revised biological opinion, reflecting the revised construction time period and including a revised ITS. This revised biological opinion concluded that the construction and operation of the Northeast Gateway LNG terminal may adversely affect, but is not likely to jeopardize, the continued existence of northern right, humpback, and fin whales, and is not likely to adversely affect sperm, sei, or blue whales.
NMFS' Permits, Conservation and Education division has preliminarily determined that the activities described in the proposed IHA are the same as those analyzed in the revised 2007 biological opinion. Therefore, a new consultation is not required for issuance of this IHA. If the IHA is issued, NMFS NER will need to issue a new ITS.
MARAD and the USCG released a Final EIS/Environmental Impact Report (EIR) for the proposed Northeast Gateway Port and Pipeline Lateral. A notice of availability was published by MARAD on October 26, 2006 (71 FR 62657). The Final EIS/EIR provides detailed information on the proposed project facilities, construction methods and analysis of potential impacts on marine mammals.
NMFS was a cooperating agency (as defined by the Council on Environmental Quality (40 CFR 1501.6)) in the preparation of the Draft and Final EISs. NMFS reviewed the Final EIS and adopted it on May 4, 2007. NMFS issued a separate Record of Decision for issuance of authorizations pursuant to section 101(a)(5) of the MMPA for the construction and operation of the Northeast Gateway's LNG Port Facility in Massachusetts Bay.
1. Open session, Tuesday, August 2, 2011,
2. Closed session, Tuesday, August 2, 2011,
Due to security requirements and limited seating, all individuals wishing to attend the open session of the meeting must notify Sarah Conway at (202) 233–8811 or
Animal and Plant Health Inspection Service, USDA.
Extension of approval of an information collection; comment request.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service's intention to request an extension of approval of an information collection associated with regulations for the interstate movement of sheep and goats and an indemnity program to control the spread of scrapie.
We will consider all comments that we receive on or before September 19, 2011.
You may submit comments by either of the following methods:
•
•
Supporting documents and any comments we receive on this docket may be viewed at
For information on domestic regulations to control the spread of scrapie, contact Dr. Diane Sutton, Senior Staff Veterinarian, Ruminant Health Programs, NCAHP, VS, APHIS, 4700 River Road, Unit 43, Riverdale, MD 20737; (301) 734–4913. For copies of more detailed information on the information collection, contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 851–2908.
Scrapie is a progressive, degenerative, and eventually fatal disease affecting the nervous system of sheep and goats. Its control is complicated because the disease has an extremely long incubation period without clinical signs of disease and no known treatment.
APHIS regulations in 9 CFR part 79 restrict the interstate movement of certain sheep and goats to control the spread of scrapie, and 9 CFR part 54 contains regulations for an indemnity program, flock cleanup, testing, and a Scrapie Flock Certification Program (SFCP).
The scrapie disease control program information collection activities include cooperative agreements; grants; memorandums of understanding; APHIS forms for inspection and epidemiology data; applications to participate in the SFCP; flock plans; post-exposure management and monitoring plans; scrapie test records; applications for indemnity payments; certificates, permits, and owner statements for the interstate movement of certain sheep and goats; applications for premises identification numbers; and applications for official APHIS identification, along with other program-related activities.
We are asking the Office of Management and Budget (OMB) to approve our use of these information collection activities for an additional 3 years.
The purpose of this notice is to solicit comments from the public (as well as affected agencies) concerning our information collection. These comments will help us:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the 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
All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Animal and Plant Health Inspection Service, USDA.
Extension of approval of an information collection; comment request.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service's intention to request an extension of approval of an information collection associated with regulations for the payment of indemnity due to infectious salmon anemia.
We will consider all comments that we receive on or before September 19, 2011.
You may submit comments by either of the following methods:
•
•
Supporting documents and any comments we receive on this docket may be viewed at
For information on regulations for the payment of indemnity due to infectious salmon anemia, contact Dr. William G. Smith, Area Veterinarian in Charge, VS, APHIS, USDA, 160 Worcester-Providence Road, Sutton Square Plaza, Suite 20, Sutton, MA 01590–9998; (508) 363–2290. For copies of more detailed information on the information collection, contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 851–2908.
ISA is a foreign animal disease of Atlantic salmon, caused by an orthomyxovirus. The disease affects both wild and farmed Atlantic salmon. ISA poses a substantial threat to the economic viability and sustainability of salmon aquaculture in the United States.
In order to take part in the indemnity program, producers must enroll in the cooperative ISA control program administered by APHIS and the State of Maine. Program participants must inform the ISA Program Veterinarian in writing of the name of their accredited veterinarian; develop biosecurity protocols and a site-specific ISA action plan; submit fish inventory and mortality information; assist APHIS or State officials with onsite disease surveillance, testing, and biosecurity audits; and complete an appraisal and indemnity claim form. Payment is subject to the availability of funding.
We are asking the Office of Management and Budget (OMB) to approve our use of these information collection activities for an additional 3 years.
The purpose of this notice is to solicit comments from the public (as well as affected agencies) concerning our information collection. These comments will help us:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the 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, through use, as appropriate, of automated, electronic, mechanical, and other collection technologies;
All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Forest Service, USDA.
Notice of meeting.
The Forestry Research Advisory Council will meet in Washington DC August 16–17, 2011. The purpose of the meeting is to discuss emerging issues in forestry research.
The meeting will be held August 16–17, 2011. Meetings will be from 8:30 a.m. to 5 p.m, on both days.
The meeting will be held in Suite 5500W, Franklin Court Building, 1099 14th Street, NW., Washington, DC. Individuals who wish to speak at the meeting or to propose agenda items must send their names and proposals by August 1, 2011 to Daina Apple, Designated Federal Officer, Forestry Research Advisory Council, USDA Forest Service Research and Development, 1400 Independence Ave., SW., Washington DC 20250–1120, or fax their names and proposed agenda items to (202) 205–1530.
Daina Apple, Forest Service Office of the Deputy Chief for Research and Development, (202) 205–1665.
The meeting is open to the public. Council discussion is limited to Forest Service, National Institute of Food and Agriculture staff and Council members. However, persons who wish to bring forestry research matters to the attention of the Council may file written statements with the Council staff before or after the meeting.
Forest Service, USDA.
Notice of meeting.
The Saguache County Resource Advisory Committee will meet in Center, Colorado. The committee is meeting as authorized under the Secure Rural Schools and Community Self-Determination Act (Pub. L 110–343) and in compliance with the Federal Advisory Committee Act. The purpose is to review and recommend project proposals to be funded with Title II money.
The meeting will be held on August 10, 2011 and will begin at 10 a.m.
The meeting will be held at the Baca Grande Property Owners Association building, 68575 County Road T, Crestone, Colorado. Written comments should be sent to Mike Blakeman, San Luis Valley Public Lands Center, 1803 West U.S. Highway 160, Monte Vista, CO 81144. Comments may also be sent via e-mail to
All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at the San Luis Valley Public Lands Center, 1803 West U.S. Highway 160, Monte Vista, CO 81144.
Mike Blakeman, RAC coordinator, USDA, San Luis Valley Public Lands Center, 1803 West U.S. Highway 160, Monte Vista, CO 81144; 719–852–6212; E-mail
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339 between 8 a.m. and 8 p.m., Eastern Standard Time, Monday through Friday.
The meeting is open to the public. The following business will be conducted: (1) Update on status of funded projects; (2) Review, evaluate and recommend project proposals to be funded with Title II money; (3) Update on current status of Secure Rural Schools Act reauthorization and schedule the next meeting; and (4) Public Comment. Persons who wish to bring related matters to the attention of the Committee may file written statements with the Committee staff before or after the meeting.
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
The objectives of the National Sea Grant College Program, as stated in the Sea Grant legislation (33 U.S.C. 1121–1131) are to increase the understanding, assessments, development, utilization, and conservation of the Nation's ocean, coastal, and Great Lakes resources. It accomplishes these objectives by conducting research, education, and outreach programs.
Grant monies are available for funding activities that help obtain the objectives of the Sea Grant Program. Both single and multi-project grants are awarded, with the latter representing about 80 percent of the total grant program. In addition to other standard grant application requirements, three forms are required with the grants. These are the Sea Grant Control Form 90–2, used to identify the organizations and personnel who would be involved in the grant; the Project Record Form 90–1,
The National Sea Grant College Program Act (33 U.S.C. 1126) provides for the designation of a public or private institution of higher education, institute, laboratory, or State or local agency as a Sea Grant college or Sea Grant institute. Applications are required for designation of Sea Grant Colleges and Sea Grant Institutes.
Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer, (202) 482–0266, Department of Commerce, Room 6616, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35).
Section 6(b) of Public Law 92–205 requires that persons who engage in weather modification activities (
Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer, (202) 482–0266, Department of Commerce, Room 6616, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35).
The Crab Rationalization Program Arbitration System is established by the contracts required pursuant to 50CF 680.20, including the process by which the Market Report and Non-Binding Price Formula are produced, as well as the negotiation approaches, the Binding Arbitration process, and fee collection.
Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer, (202) 482–0266, Department of Commerce, Room 6616, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Economic Development Administration, Department of Commerce.
Notice and opportunity for public comment.
Pursuant to Section 251 of the Trade Act of 1974, as amended (19 U.S.C. 2341
Any party having a substantial interest in these proceedings may request a public hearing on the matter. A written request for a hearing must be submitted to the Trade Adjustment Assistance for Firms Division, Room 7106, Economic Development Administration, U.S. Department of Commerce, Washington, DC 20230, no later than ten (10) calendar days following publication of this notice.
Please follow the requirements set forth in EDA's regulations at 13 CFR 315.9 for procedures to request a public hearing. The Catalog of Federal Domestic Assistance official number and title for the program under which these petitions are submitted is 11.313, Trade Adjustment Assistance for Firms.
Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a–81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:
Import Administration, International Trade Administration, Department of Commerce.
Bob Palmer or Kathleen Marksberry, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482–9068 or (202) 482–7906, respectively.
On May 28, 2010, Department of Commerce (“Department”) published the notice of the initiation of the antidumping duty administrative review on certain activated carbon from the People's Republic of China (“PRC”), covering the period April 1, 2009, through March 31, 2010.
On October 6, 2010, the Department published a notice extending the time period for issuing the preliminary results by 120 days to April 30, 2011.
Section 751(a)(3)(A) of the Tariff Act of 1930, as amended (“Act”), requires the Department to issue the final results in an administrative review of an antidumping duty order 120 days after the date on which the preliminary results are published. The Department may, however, extend the deadline for completion of the final results of an administrative review to 180 days if it determines it is not practicable to complete the review within the foregoing time period.
The Department requires additional time to complete this review because the Department must fully analyze and consider significant issues raised in the parties' case and rebuttal briefs. Additionally, the Department released information related to the wage rate calculation after publication of the
This notice is published in accordance with section 777(i)(1) of the Act.
International Trade Administration.
Notice.
The United States Department of Commerce, International Trade Administration, U.S. and Foreign Commercial Service (CS) is organizing a Renewable Energy and Energy Efficiency Trade Mission to Turkey on December 4–10, 2011. Led by a senior Department of Commerce official, the mission will include representatives from a variety of U.S. firms specializing in the following product areas:
• Wind Turbines;
• Geothermal Exploration, Drilling and Geophysical Engineering Services;
• Geothermal Power Plant Equipment;
• Biomass Power Generation;
• Hydroelectric Power Plant Equipment Supply;
• Solar Power Generation Systems;
• Cogeneration Systems;
• Energy Efficiency Systems and Solutions;
• Fuel Cells, Heat Pumps Exc.
Mission participants will be introduced to international agents, distributors, and end-users whose capabilities and services are targeted to each participant's needs. This mission will contribute to the National Export Initiative and the Renewable Energy and Energy Efficiency Export Initiative goals through increased sales of U.S. equipment/services in Turkey. The participants will also have a site visit to the Izmir Ataturk Organized Industrial Zone, targeted by the U.S. Department of Energy for a Near-Zero Zone Project (NZZ) to promote industrial energy efficiency and potential U.S. export opportunities. The U.S. Department of Energy (DOE), in coordination with other U.S. agencies, is launching the Near-Zero Zone project. This interagency project has the support of the Turkish government and business organizations, and will help industrial companies operating within the Izmir Ataturk Organized Industrial Zone (IAOSB) reduce their energy usage through a series of cost-effective efficiency upgrades.
One-on-one meetings with NZZ industrial participants will also be included, to follow quickly on an energy efficiency survey to be completed in September 2011. This mission will be an important deliverable for our bilateral Framework for Strategic Economic and Commercial Cooperation mechanism, a new process of engagement with the government of Turkey on economic and trade issues, chaired by Secretary Locke and U.S. Trade Representative, Ron Kirk.
Participants will have an opportunity to meet with major buyers, and potential
Turkey is a country offering significant opportunities for foreign investors and exporters with its geographically favorable position to function as a gateway between Europe, the Middle East and Central Asia. Opportunities exist not only in the dynamic domestic market in Turkey, but also throughout the region.
Hospitality and tolerance being the traditional cornerstones of the Turkish way of life, the country is open to foreign firms. Foreign Direct Investment (FDI) in Turkey slowed to $7.9 billion in 2009 during the height of the world economic crisis, but has reached $20 billion in previous years. There are approximately 24,000 companies with foreign capital in Turkey. Corporate income tax is only 20%, dividends can be transferred, foreign capital companies enjoy the same rights as local companies, international arbitration is possible, and expatriates can be employed.
A treaty between the U.S. and Turkey exists for the protection of foreign investments and another treaty between the U.S. and Turkey exists for the avoidance of double taxation. Turkey has a customs union agreement with the EU that covers trade in all goods, except agriculture goods: the export and import of these industrial goods from the EU have a zero percent customs duty. Turkey has agreed to implement most EU Directives regarding the safety of products and recognizes the CE certification of those types of products.
As announced by the International Monetary Fund, Turkey has the 16th largest economy in the world. In 2010, Turkey's GDP reached $958.3 billion. Turkey has a young, dynamic, well-educated and multi-cultural population of 73 million, the second largest population after Germany in Europe. Sixty percent of the population is under the age of 35.
Turkish imports in 2010 are estimated at $166 billion and Turkish exports about $114 billion for the same period (2010 official results are not announced yet). U.S. exports to Turkey in 2010 will exceed $10 billion and Turkish exports to the U.S. over $4 billion. Total U.S. FDI in Turkey is over $7 billion, a conservative figure given investment by European subsidiaries of U.S. parent corporations.
Turkey is strategically located. Turkey is often referred to as `The Energy Bridge between East and West'. Seventy-three percent of the world's proven oil reserves and seventy-two percent of the world's proven gas reserves are located in the surrounding regions of Turkey: the Middle East, Caspian Region and Russia. This makes Turkey a crucial bridge between energy rich regions and Europe, which spends approximately $300 billion annually for imported energy resources.
Turkey is a manufacturing center with ambitions to become a regional energy hub. The international image of Turkey in terms of a destination for investment is generally shaped by the diverse market opportunities—both domestic and export-oriented—that Turkey offers. The potential of these markets covers over one billion consumers, including a large and growing domestic market (approx. 72 million people); high-income European markets (600 million people); emerging Russian, Caucasian and Central Asian markets (250 million people); and the expanding Middle East and North Africa markets (160 million people). These markets have approximately $25 trillion in combined GDP.
Turkey emerged from the world economic crisis much better than expected. The banking sector was strong and did not suffer any major crisis. Turkey's economy grew by 7–8% in 2010 and unlike the general trend; this was not a jobless recovery. Throughout the crisis Turkey was the only country whose credit rating was upgraded by two grades. Credit rating agencies and financial markets praised the strong performance and healthy state of the Turkish economy and demonstrated confidence in Turkey's economic policies.
In the 2010—2014 Energy Strategy Paper announced recently by the Turkish Minister of Energy and Natural Resources (MENR) Taner Yildiz, Turkey plans to have 20,000 MW of wind energy and 600 MW of geothermal energy capacity by 2023 (100th year anniversary of the Turkish Republic). Turkey plans to have 5,000 MW new hydroelectric power plants, 10,000 MW wind power farms, 300 MW geothermal power plants come into operation by 2015. As part of the energy efficiency programs, the Turkish government plans to decrease the primary energy intensity by 10% before 2015 and 20% before 2023.
Turkey ranks No.1 in Europe and No. 7 in the world in terms of geothermal power potential. Power generation from biomass will become more important as large municipalities are considering more efficient methods of disposing of municipal waste. After Spain, Turkey has the second largest potential for solar power development in Europe.
Turkey also has large hydroelectric potential. Currently 30% of Turkey's installed capacity is from hydroelectric resources. Many Turkish private companies are investing in run of river type of electromechanical equipment which is mostly supplied from China, Austria, Norway and Germany. The US&FCS Turkey receives a considerable amount of inquiries from Turkish companies, asking for hydro electromechanical equipment from the U.S. with U.S. Ex-Im Bank financing.
The Government of Turkey has adopted a new legal framework to increase the feed-in tariff for the electricity to be delivered from different types of renewable energy resources. Over the next five years, Turkey's investments on renewable energy are estimated to expand to $20 billion.
U.S.-Turkish relations focus on areas such as strategic energy cooperation, trade and investment, security ties, regional stability, counterterrorism, and human rights progress. President Barack Obama paid a historic visit to Turkey on April 5–7, 2009, as the first bilateral visit of his presidency. During the visit, he spoke before the Turkish Parliament and outlined his vision of a model U.S.-Turkish partnership based on mutual interests and mutual respect. The inaugural Framework for Strategic Economic and Commercial Cooperation meeting was held in Washington, DC in October 2010. In addition to the new framework, the U.S. and Turkey hold annual meetings of the Trade and Investment Framework Agreement (TIFA) Council, which met in Washington, DC in July 2010, and Economic Partnership Commission (EPC), which last convened in Turkey in June 2010.
On May 14, 2010, Under Secretary of Commerce for International Trade, Francisco Sánchez and Undersecretary for Foreign Trade of Turkey Ahmet Yakici signed the Terms of Reference for the establishment of a newly formed U.S.-Turkey Business Council (Council). The Council will bring together U.S. and Turkish business leaders to provide policy recommendations to both governments jointly on ways to strengthen bilateral economic relations.
The trade mission will assist representatives of U.S. companies in the Renewable Energy and energy efficiency industries responsible for business activity in Europe, Caucasus and Central Asia, the Middle East and North Africa markets with their efforts to identify profitable opportunities and new
In Turkey, mission members will also be presented with a briefing by the U.S. Embassy Country Team, the Commercial Specialist for the renewable energy sector and other key government and corporate officials. Participants will take part in business matchmaking appointments with Turkish private sector companies, which may be potential candidates for agent/representative or distributors. The trade mission will visit: Ankara, the capital of Turkey, a growing industrial base and the seat of government; Istanbul, where headquarters of most private sector companies are located; and Izmir, Turkey's third largest city with strong renewable energy and energy efficiency potential.
U.S. participants will be counseled before and after the mission by the domestic mission coordinator. Participation in the mission will include the following:
• Pre-travel webinars on subjects ranging from industry briefings to business practices in Turkey;
• Pre-scheduled meetings with potential partners, distributors, end users, or local industry contacts;
• Transportation to all mission-organized meetings inside the cities (all air transportation within Turkey is the responsibility of the mission participant);
• Meetings with key government decision makers and private sector firms;
• Participation in networking receptions in Turkey; and
• Meetings with CS Turkey's energy specialists in Ankara, Istanbul and Izmir, Turkey.
Mission participants will arrive in Ankara on December 4, 2011 and the mission program will take place from December 5–9, 2011. Departure to the United States or other onward destinations will be on December 10, 2011.
All parties interested in participating in the Commercial Service Trade Mission must complete and submit an application package for consideration by the Department of Commerce. All applicants will be evaluated on their ability to meet certain conditions and best satisfy the selection criteria as outlined below. A minimum of 15 companies and a maximum of 20 companies will be selected to participate in the mission from the applicant pool. U.S. companies already doing business with Turkey as well as U.S. companies seeking to enter to the Turkish market for the first time may apply.
After a company has been selected to participate on the mission, a payment to the Department of Commerce in the form of a participation fee is required. The participation fee will be $4,055 for large firms and $3,285 for a small or medium-sized enterprise (SME)
The fee for each additional firm representative (large firm or SME) is $500.
Expenses for travel, lodging, most meals, and incidentals will be the responsibility of each mission participant. Delegation members will be able to take advantage of U.S. Mission discounted rates for hotel rooms.
• An applicant must submit in a timely manner a completed and signed mission application and supplemental application materials, including adequate information on the company's products and/or services, primary market objectives, and goals for participation. If the Department of Commerce receives an incomplete application, the Department may reject the application, request additional information, or take the lack of information into account when evaluating the applications.
• Each applicant must also certify that the products and services it seeks to export through the mission are either
• Suitability of the company's products or services to the market.
• Applicant's potential for business in Turkey and in the region, including likelihood of exports resulting from the mission.
• Consistency of the applicant's goals and objectives with the stated scope of the mission.
Referrals from political organizations and any documents containing references to partisan political activities (including political contributions) will be removed from an applicant's submission and not considered during the selection process.
Mission recruitment will be conducted in an open and public manner, including posting on the Commerce Department trade missions calendar—
Recruitment for the mission will begin immediately and conclude no later than October 17, 2011. The U.S. Department of Commerce will review all applications immediately after the deadline. We will inform applicants of selection decisions as soon as possible after the deadline. Applications received after this date will be considered only if space and scheduling constraints permit.
Serdar Cetinkaya, Senior Commercial Specialist, U.S. Embassy—Ankara,
Glen Roberts, Director, U.S. Export Assistance Center Bakersfield,
National Institute of Standards and Technology (NIST).
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 September 19, 2011.
Direct all written comments to Diana Hynek, 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 Dereck Orr, Program Manager for Public Safety Communications, NIST's Office of Law Enforcement Standards, Building 1, Room 2209, Boulder, CO 80305; 303–497–5400 (or via the Internet at
The September 11 attacks and Hurricane Katrina made apparent the need for public safety radio systems to interoperate, regardless of who manufactured the equipment. In response, and per Congressional direction, the National Institute of Standards and Technology (NIST) and the Department of Homeland Security (DHS) developed the Project 25 Compliance Assessment Program (P25 CAP) to improve public safety confidence in purchasing land mobile radio (LMR) equipment built to Project 25 LMR (P25) standards. Especially those P25 standards related to improving interoperability between different manufacturer's radio systems. The NIST/DHS P25 CAP is the system that will improve the conformance, performance and interoperability of LMR used by public safety personnel. The P25 CAP is a voluntary system that provides a mechanism for the recognition of testing laboratories based on internationally accepted standards. It identifies competent laboratories through assessments by trained Laboratory Assessment Teams and promotes the acceptance of compliant test results from these laboratories. Information collected through this process is to establish the suitability of applying laboratories, confirm equipment as meeting P25 standards, and gather basic business information.
The application is available on the DHS SAFECOM program Web site (
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
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.
Notification of fee percentage.
NMFS publishes a notification of a 1.23-percent fee for cost recovery under the Bering Sea and Aleutian Islands Crab Rationalization Program. This action is intended to provide holders of crab allocations with the fee percentage for the 2011/2012 crab fishing year so they can calculate the required payment for cost recovery fees that must be submitted by July 31, 2012.
The Crab Rationalization Program Registered Crab Receiver permit holder is responsible for submitting the fee liability payment to NMFS on or before July 31, 2012.
Gabrielle Aberle or Gretchen Harrington, 907–586–7228.
NMFS Alaska Region administers the Bering Sea and Aleutian Islands Crab Rationalization Program (Program) in the North Pacific. Fishing under the Program began on August 15, 2005. Regulations implementing the Program can be found at 50 CFR part 680.
The Program is a limited access system authorized by section 313(j) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). The Program includes a cost recovery provision to collect fees to recover the actual costs directly related to the management, data collection, and enforcement of the Program. NMFS developed the cost recovery provision to conform to statutory requirements and to partially reimburse the agency for the actual costs directly related to the management, data collection, and enforcement of the Program. Section 313(j) of the Magnuson-Stevens Act provided supplementary authority to section 304(d)(2)(A) and additional detail for cost recovery provisions specific to the Program. The cost recovery provision allows collection of 133 percent of the actual management, data collection, and enforcement costs up to 3 percent of the ex-vessel value of crab harvested under the Program. Additionally, section 313(j) requires the harvesting and processing sectors to each pay half the cost recovery fees. Catcher/processor quota share holders are required to pay the full fee percentage for crab processed at sea.
A crab allocation holder generally incurs a cost recovery fee liability for every pound of crab landed. The crab allocations include Individual Fishing Quota, Crew Individual Fishing Quota, Individual Processing Quota, Community Development Quota, and the Adak community allocation. The Registered Crab Receiver (RCR) permit holder must collect the fee liability from the crab allocation holder who is landing crab. Additionally, the RCR permit holder must collect his or her own fee liability for all crab delivered to the RCR. The RCR permit holder is responsible for submitting this payment to NMFS on or before the due date of July 31, in the year following the crab fishing year in which landings of crab were made.
The dollar amount of the fee due is determined by multiplying the fee percentage (not to exceed three percent) by the ex-vessel value of crab debited from the allocation. Specific details on the Program's cost recovery provision may be found in the implementing regulations at 50 CFR 680.44.
Each year, NMFS calculates and publishes in the
Using this fee percentage formula, the estimated percentage of costs to value for the 2010/2011 fishery was 1.23 percent. Therefore, the fee percentage will be 1.23 percent for the 2011/2012 crab fishing year.
16 U.S.C. 1862; Pub. L. 109–241; Pub. L. 109–479.
Department of Commerce, National Ocean Service, (NOAA).
Notice of open meetings.
Notice is hereby given of two meetings via web conference call of the Marine Protected Areas Federal Advisory Committee (Committee). The web conference calls are open to the public, and participants can dial in to the calls. Participants who choose to use the web conferencing feature in addition to the audio will be able to view the presentations as they are being given. Members of the public wishing to listen in should contact Denise Ellis-Hibbett at the email or telephone number below for the call-in number and passcode.
The meetings will be held on Tuesday, August 16, 2011, from 1 to 3 p.m. E.S.T., and on Tuesday, August 23, from 2 to 4 p.m. E.S.T. These times and the matters to be considered described below are subject to change. Please refer to the web page listed below for the most up-to-date meeting agenda and supporting materials.
The meetings will be held via web conference calls.
Lauren Wenzel, Acting Designated
The Committee, composed of external, knowledgeable representatives of stakeholder groups, was established by the Department of Commerce (DOC) to provide advice to the Secretary of Commerce and the Secretary of the Interior on implementation of Section 4 of Executive Order 13158 on marine protected areas.
Vol. 76, No. 136, Friday, July 15, 2011, page 41769.
Open to Public—2–3 p.m.
For Meeting Open to the Public, 10 a.m.–12 p.m., Matters to be Discussed:
(1) Hearing—Agenda and Priorities for Fiscal Year 2013 Budget—10–11 a.m.;
(2) Decisional Matter: ASTM F963 Notice of Requirements—11 a.m.–12 p.m.
For a recorded message containing the latest agenda information, call (301) 504–7948.
Todd A. Stevenson, Office of the Secretary, 4330 East West Highway, Bethesda, MD 20814, (301) 504–7923.
Wednesday, July 27, 2011, 10–11 a.m.
Room 420, Bethesda Towers, 4330 East West Highway, Bethesda, Maryland.
Commission Meeting—Open to the Public
Decisional Matters: 1. Phthalates Enforcement Policy; 2. Phthalates Notice of Requirements.
A live webcast of the Meeting can be viewed at
For a recorded message containing the latest agenda information, call (301) 504–7948.
Todd A. Stevenson, Office of the Secretary, U.S. Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814, (301) 504–7923.
Wednesday, July 27, 2011; 11 a.m.–12 p.m.
Hearing Room 420, Bethesda Towers, 4330 East West Highway, Bethesda, Maryland.
Closed to the Public.
The Commission staff will brief the Commission on the status of compliance matters.
For a recorded message containing the latest agenda information, call (301) 504–7948.
Todd A. Stevenson, Office of the Secretary, U.S. Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814, (301) 504–7923.
Department of Defense, Defense Security Cooperation Agency.
Notice.
The Department of Defense is publishing the unclassified text of a section 36(b)(1) arms sales notification. This is published to fulfill the requirements of section 155 of Public Law 104–164 dated July 21, 1996.
Ms. B. English, DSCA/DBO/CFM, (703) 601–3740.
The following is a copy of a letter to the Speaker of the House of Representatives, Transmittals 11–28 with attached transmittal, and policy justification.
Defense Security Cooperation Agency, Department of Defense.
Notice.
The Department of Defense is publishing the unclassified text of a section 36(b)(1) arms sales notification. This is published to fulfill the requirements of section 155 of Public Law 104–164 dated July 21, 1996.
Ms. B. English, DSCA/DBO/CFM, (703) 601–3740.
The following is a copy of a letter to the Speaker of the House of Representatives, Transmittals 11–15 with attached transmittal, policy justification, and Sensitivity of Technology.
The Government of India has requested a possible sale of 32 MK–54 All-Up-Round Lightweight Torpedoes, 3 recoverable exercise torpedoes, 1 training shape, containers, spare and repair parts, support and test equipment, publications and technical documentation, personnel training and training equipment, transportation, U.S. Government and contractor representatives' technical assistance,
This proposed sale will contribute to the foreign policy and national security of the United States by helping to strengthen the U.S.-India strategic relationship and to improve the security of a key important partner which continues to be an important force for political stability, peace, and economic progress in South Asia.
India intends to use the torpedoes on its Indian Navy P–8I Neptune maritime patrol aircraft, which will provide enhanced capabilities in effective defense of critical sea lines of communication.
The proposed sale of this equipment and support will not alter the basic military balance in the region.
The prime contractors will be The Boeing Company in St. Louis, Missouri, and a yet to be identified U.S. torpedo contractor. Details of a potential offset agreement in connection with the proposed sale are not known as of the date of this transmittal.
Implementation of this proposed sale will require U.S. Government and contractor representative in-country visits on a temporary basis for technical reviews, support, and oversight.
There will be no adverse impact on U.S. defense readiness as a result of this proposed sale.
1. The MK–54 is a conventional torpedo that can be launched from surface ships, helicopters, and fixed wing aircraft. The MK–54 is an upgrade to the MK–46 torpedo. The upgrade to MK–54 entails replacement of the torpedo's sonar and guidance and control systems with modern technology. The new guidance and control system uses a mixture of commercial-off-the-shelf and custom-built electronics. The warhead, fuel tank and propulsion system from the MK–46 torpedo are re-used in the MK–54 configuration with minor modifications. The MK–54 is highly effective against modern diesel and nuclear submarines. It has advanced logic that allows it to detect and prosecute threat submarines operating in challenging littoral environments. It is also effective in the presence of advanced acoustic countermeasures that may be deployed by threat submarines.
2. The assembled MK–54 torpedo and several of its individual components are classified Confidential. The MK–54 operational software is classified Secret as is any hardware upon which the software has been installed.
3. If a technologically advanced adversary were to obtain knowledge of the specific hardware and software elements, the information could be used to develop countermeasures which might reduce weapon system effectiveness or be used in the development of a system with similar or advanced capabilities.
Office of Economic Adjustment (OEA), Department of Defense (DoD).
Notice.
This notice announces a one-time opportunity to obtain funding from the Office of Economic Adjustment (OEA) for construction of Transportation Infrastructure Improvements associated with medical facilities related to recommendations of the 2005 Defense Base Closure and Realignment Commission. This notice includes proposal requirements, the deadline for submitting proposals, and the criteria that will be used to select proposals. However, because this is a new one-time program, this notice also requests comments on the proposed selection criteria for these grants, as provided in Section V, paragraph 1, of this notice. OEA will consider and respond to comments in a
A pre-proposal teleconference will be held on Tuesday, August 9, 2011, at 3 p.m. EDT to review the goals and objectives of this funding opportunity and answer questions from interested respondents. Comments on the proposal selection criteria provided in Section V, paragraph 1 of this notice must be received by OEA not later than August 19, 2011. All such comments must be in writing. OEA will publish a supplementary notice in the
Comments on the proposal selection criteria must be submitted separately from proposals. Comments and proposals must be submitted by their respective due dates identified in the
For the teleconference number and passcode for the teleconference on August 9, interested respondents should contact OEA at (703) 604–6020 or
David F. Witschi, Associate Director, OEA,
OEA, a DoD Field Activity, is authorized by Section 8110 of Public Law 112–10, the Department of Defense and Full-Year Continuing Appropriations Act, 2011, to provide up to $300 million “for transportation infrastructure improvements associated with medical facilities related to recommendations of the Defense Base Closure and Realignment Commission.”
OEA is accepting proposals for grant awards for construction of
States, local governments, transit agencies, transit authorities, and political subdivisions of State or local governments are eligible to apply for these funds.
For the purposes of this funding, DoD has determined that patient access to medical care is the most important need to be addressed. To be considered, a construction project must address a transportation issue associated with a medical facility at an installation identified as a receiving location for patient care functions in a 2005 Defense Base Closure and Realignment Commission recommendation.
Eligible projects must be designed to construct real property improvements that can include, but are not limited to, highway or road projects, mass transit, pedestrian access, bicycle access, and any other types of public transportation infrastructure related to a recommendation of the 2005 Defense Base Closure and Realignment Commission. Eligible activities include, but are not limited to, project administration, preliminary and final engineering and design, inspection, environmental compliance, land acquisition, construction, utilities, and contingency costs required to implement the project.
Proposals submitted by eligible applicants that meet the aforementioned threshold condition will be ranked by a panel against the selection criteria provided in Section V, paragraph 1 of this notice. The highest ranking proposals will be invited to submit formal applications, and grant awards will be made to successful applicants until the available funds are exhausted.
Each interested respondent must submit a complete proposal not later than the Proposal Deadline date (see
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OEA reserves the right to ask any respondent to supplement the data in its proposal, but expects proposals to be complete upon submission. To the extent practicable, OEA encourages respondents to provide data and evidence of all project merits in a form that is publicly available or verifiable.
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(a) The extent to which the transportation issue impedes the provision of care,
(b) The magnitude (
(c) The applicant's ability to execute the proposed project, including the extent of other funding for the project and the ability to meet project timelines and budgets, acquire site control, permits or concurrences of affected parties, etc. (the greater the demonstration of the applicant's ability, the greater the score), 25%; and
(d) The extent to which the proposed construction project resolves the transportation issue (the more the project does to resolve the transportation issue, the higher the score), 25%.
Comments on the above selection criteria that are received by OEA not later than August 19, 2011, will be considered, and changes to these selection criteria, if any, will be announced in the
2.
OEA will notify each respondent within 30 days of the Proposal Deadline whether the respondent's proposal:
• Was successful and invite the successful respondent to submit a grant application directly to OEA. OEA will assign a Project Manager to advise and assist successful respondents in the completion of the grant application;
• Was unsuccessful and state the reasons why; or
• Remains under consideration pending the receipt of additional information which OEA will identify.
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• A comparison of actual accomplishments to the objectives established for the reporting period;
• Reasons for slippage and proposed plan to mitigate;
• Additional pertinent information when appropriate;
• A comparison of actual and projected expenditures for the period;
• The amount of awarded funds on hand at the beginning and end of the reporting period.
The final performance report must contain a summary of activities for the entire award period. An SF 425, “Financial Status Report,” must be submitted to OEA within ninety (90) days after the end date of the award. Any grant funds actually advanced and not needed for grant purposes shall be returned immediately to the Office of Economic Adjustment.
OEA will provide a schedule for reporting periods and report due dates in the Award Agreement.
For further information, to answer questions, or for help with problems, contact: David F. Witschi, Associate Director, OEA,
The OEA Internet address is
Office of the Secretary of Defense, DoD.
Notice to Alter a System of Records.
The Office of the Secretary of Defense proposes to alter a system of records in its inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended.
This proposed action would be effective without further notice on August 22, 2011 unless comments are received which result in a contrary determination.
You may submit comments, identified by docket number and/Regulatory Information Number (RIN) and title, by any of the following methods:
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Ms. Cindy Allard, Chief, OSD/JS Privacy Office, Freedom of Information Directorate, Washington Headquarters Services, 1155 Defense Pentagon, Washington, DC 20301–1155, or by phone at (703) 588–6830.
The Office of the Secretary of Defense notices for systems of records subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the
The proposed system report, as required by 5 U.S.C. 552a(r) of the Privacy Act of 1974, as amended, was submitted on July 15, 2011, to the House Committee on Oversight and Government Reform, the Senate Committee on Governmental Affairs, and the Office of Management and Budget (OMB) pursuant to paragraph 4c of Appendix I to OMB Circular No. A–130, “Federal Agency Responsibilities for Maintaining Records About Individuals,” dated February 8, 1996 (February 20, 1996, 61 FR 6427).
Defense Enrollment Eligibility Recording System (DEERS) (August 7, 2009, 74 FR 39657).
Delete entry and replace with “Beneficiary's name; Service or Social Security Number (SSN); DoD ID number, enrollment number; relationship of beneficiary to sponsor; residence address of beneficiary or sponsor; date of birth of beneficiary; gender of beneficiary; branch of Service of sponsor; dates of beginning and ending eligibility; number of family members of sponsor; primary unit duty location of sponsor; race and ethnic origin of beneficiary; occupation of sponsor; rank/pay grade of sponsor; disability documentation; wounded, ill and injured identification information; other health information,
Patient registration data for shared DoD/VA beneficiary populations, including VA Integration Control Number (ICN), VA patient type, patient category code and patient category name of sponsor and beneficiary, patient location Defense Medical Information System, patient location date, identity and relationship data, command interest code and name, command security code and name, medical fly status code.
Catastrophic Cap and Deductible (CCD) transactions, including monetary amounts; CHAMPUS/TRICARE claim records containing enrollee, participant and health care facility, provider data such as cause of treatment, amount of payment, name and Social Security or tax identification number of providers or potential providers of care; citizenship data/country of birth; civil service employee employment information (agency and bureau, pay plan and grade, nature of action code and nature of action effective date, occupation series, dates of promotion and expected return from overseas, service computation date); claims data; compensation data; contractor fee payment data; date of separation of former enlisted and officer personnel; third party health insurance information on dependents; demographic data (kept on others beyond beneficiaries) date of birth, home of record state, sex, race, education level; VA disability payment records; digital signatures where appropriate to assert validity of data; e-mail (home/work); emergency contact person information; care giver information; immunization data; Information Assurance (IA) Work Force information; language data; military personnel information (rank, assignment/deployment, length of service, military occupation, education, and benefit usage); pharmacy benefits; reason leaving military service or DoD civilian service; Reserve member's civilian occupation and employment information; education benefit eligibility and usage; special military pay information; SGLI/FGLI; stored documents for proofing identity and association; workforces information (
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act of 1974, as amended, these records may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
1. To the Social Security Administration (SSA) to perform computer data matching against the SSA Wage and Earnings Record file for the purpose of identifying employers of Department of Defense (DoD) beneficiaries eligible for health care. This employer data will in turn be used to identify those employed beneficiaries who have employment-related group health insurance, to coordinate insurance benefits provided by DoD with those provided by the other insurance. This information will also be used to perform computer data matching against the SSA Master Beneficiary Record file for the purpose of identifying DoD beneficiaries eligible for health care who are enrolled in the Medicare program, to coordinate insurance benefits provided by DoD with those provided by Medicare.
2. To the Office of Disability and Insurance Security Programs, for the purpose of expediting disability processing of wounded military service members and veterans.
3. To other Federal agencies and state, local and territorial governments to identify fraud and abuse of the Federal agency's programs and to identify debtors and collect debts and overpayment in the DoD health care programs.
4. To each of the fifty states and the District of Columbia for the purpose of conducting an on-going computer matching program with state Medicaid agencies to determine the extent to which state Medicaid beneficiaries may be eligible for Uniformed Services health care benefits, including CHAMPUS, TRICARE, and to recover Medicaid monies from the CHAMPUS program.
5. To provide dental care providers assurance of treatment.
6. To Federal agencies and/or their contractors, the Transportation Security Administration and other Federal transportation agencies, for purposes of authenticating the identity of
7. To State and local child support enforcement agencies for purposes of providing information, consistent with the requirements of 29 U.S.C. 1169(a), 42 U.S.C. 666(a)(19), and E.O. 12953 and in response to a National Medical Support Notice (NMSN) (or equivalent notice if based upon the statutory authority for the NMSN), regarding the military status of identified individuals and whether, and for what period of time, the children of such individuals are or were eligible for DoD health care coverage. NOTE: Information requested by the States is not disclosed when it would contravene U.S. national policy or security interests (42 U.S.C. 653(e)).
8. To the Department of Health and Human Services (HHS):
a. For purposes of providing information, consistent with the requirements of 42 U.S.C. 653 and in response to an HHS request, regarding the military status of identified individuals and whether, and for what period of time, the children of such individuals are or were eligible for DoD healthcare coverage. NOTE: Information requested by HHS is not disclosed when it would contravene U.S. national policy or security interests (42 U.S.C. 653(e)).
b. For purposes of providing information so that specified Medicare determinations, specifically late enrollment and waiver of penalty, can be made for eligible (1) DoD military retirees and (2) spouses (or former spouses) and/or dependents of either military retirees or active duty military personnel, pursuant to section 625 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2002 (as codified at 42 U.S.C. 1395p and 1395r).
c. To the Office of Child Support Enforcement, Federal Parent Locator Service, pursuant to 42 U.S.C. 653 and 653a; to assist in locating individuals for the purpose of establishing parentage; establishing, setting the amount of, modifying, or enforcing child support obligations; or enforcing child custody or visitation orders; the relationship to a child receiving benefits provided by a third party and the name and SSN of those third party providers who have a legal responsibility. Identifying delinquent obligors will allow state child support enforcement agencies to commence wage withholding or other enforcement actions against the obligors.
d. For purposes of providing information to the Centers for Medicare and Medicaid Services (CMS) to account for the impact of DoD healthcare on local reimbursement rates for the Medicare Advantage program as required in 42 CFR 422.306.
9. To the American Red Cross for purposes of providing emergency notification and assistance to members of the Armed Forces, retirees, family members or survivors.
10. To the Department of Veterans Affairs (DVA):
a. To provide military personnel, pay and wounded, ill and injured identification data for present and former military personnel for the purpose of evaluating use of veterans' benefits, validating benefit eligibility and maintaining the health and well being of veterans and their family members.
b. To provide identifying military personnel data to the DVA and its insurance program contractor for the purpose of notifying separating eligible Reservists of their right to apply for Veteran's Group Life Insurance coverage under the Veterans Benefits Improvement Act of 1996 (38 U.S.C. 1968) and for DVA to administer the Traumatic Servicemember's Group Life Insurance (TSGLI) (Traumatic Injury Protection Rider to Servicemember's Group Life Insurance (TSGLI), 38 CFR part 9.20).
c. To register eligible veterans and their dependents for DVA programs.
d. Providing identification of former military personnel and survivor's financial benefit data to DVA for the purpose of identifying military retired pay and survivor benefit payments for use in the administration of the DVA's Compensation and Pension Program (38 U.S.C. 5106). The information is to be used to process all DVA award actions more efficiently, reduce subsequent overpayment collection actions, and minimize erroneous payments.
e. To conduct computer matching programs regulated by the Privacy Act of 1974, as amended (5 U.S.C. 552a), for the purposes of:
(1) Providing full identification of active duty military personnel, including full time National Guard/Reserve support personnel, for use in the administration of DVA's Compensation and Pension benefit program. The information is used to determine continued eligibility for DVA disability compensation to recipients who have returned to active duty so that benefits can be adjusted or terminated as required and steps taken by DVA to collect any resulting over payment (38 U.S.C. 5304(c)).
(2) Providing military personnel and financial data to the Veterans Benefits Administration, DVA for the purpose of determining initial eligibility and any changes in eligibility status to insure proper payment of benefits for GI Bill education and training benefits by the DVA under the Montgomery GI Bill (10 U.S.C., Chapter 1606—Selected Reserve and 38 U.S.C., Chapter 30—Active Duty), the REAP educational benefit (Title 10 U.S.C, Chapter 1607), and the National Call to Service enlistment educational benefit (10, Chapter 510), the Post 9/11 GI Bill (38 U.S.C., Chapter 33) and The Transferability of Education Assistance to Family Members. The administrative responsibilities designated to both agencies by the law require that data be exchanged in administering the programs.
(3) Providing identification of reserve duty, including full time support National Guard/Reserve military personnel, to the DVA, for the purpose of deducting reserve time served from any DVA disability compensation paid or waiver of VA benefit. The law (10 U.S.C. 12316) prohibits receipt of reserve pay and DVA compensation for the same time period, however, it does permit waiver of DVA compensation to draw reserve pay.
(4) Providing identification of former active duty military personnel who received separation payments to the DVA for the purpose of deducting such repayment from any DVA disability compensation paid. The law requires recoupment of severance payments before DVA disability compensation can be paid (10 U.S.C. 1174).
f. To provide identifying military personnel data to the DVA for the purpose of notifying such personnel of information relating to educational assistance as required by the Veterans Programs Enhancement Act of 1998 (38 U.S.C. 3011 and 3034).
11. To DoD Civilian Contractors and grantees for the purpose of performing research on manpower problems for statistical analyses.
12. To consumer reporting agencies to obtain current addresses of separated military personnel to notify them of potential benefits eligibility.
13. To Defense contractors to monitor the employment of former DoD employees and military members subject to the provisions of 41 U.S.C. 423.
14. To Federal and quasi Federal agencies, territorial, state, and local governments to support personnel functions requiring data on prior military service credit for their employees or for job applications. To determine continued eligibility and help
15. To Federal and quasi Federal agencies, territorial, state and local governments, and contractors and grantees for the purpose of supporting research studies concerned with the health and well being of active duty, reserve, and retired personnel or veterans, to include family members. DMDC will disclose information from this system of records for research purposes when DMDC:
a. Has determined that the use or disclosure does not violate legal or policy limitations under which the record was provided, collected, or obtained;
b. Has determined that the research purpose (1) cannot be reasonably accomplished unless the record is provided in individually identifiable form, and (2) warrants the risk to the privacy of the individual that additional exposure of the record might bring;
c. Has required the recipient to (1) establish reasonable administrative, technical, and physical safeguards to prevent unauthorized use or disclosure of the record, and (2) remove or destroy the information that identifies the individual at the earliest time at which removal or destruction can be accomplished consistent with the purpose of the research project, unless the recipient has presented adequate justification of a research or health nature for retaining such information, and (3) make no further use or disclosure of the record except (A) in emergency circumstances affecting the health or safety of any individual, (B) for use in another research project, under these same conditions, and with written authorization of the Department, (C) for disclosure to a properly identified person for the purpose of an audit related to the research project, if information that would enable research subjects to be identified is removed or destroyed at the earliest opportunity consistent with the purpose of the audit, or (D) when required by law;
d. Has secured a written statement attesting to the recipients' understanding of, and willingness to abide by these provisions.
16. To Federal and State agencies for purposes of obtaining socioeconomic information on Armed Forces personnel so that analytical studies can be conducted with a view to assessing the present needs and future requirements of such personnel.
17. To Federal and State agencies to validate demographic data (
18. To the Bureau of Citizenship and Immigration Services, Department of Homeland Security, for purposes of facilitating the verification of individuals who may be eligible for expedited naturalization (Pub. L. 108–136, Section 1701, and E.O. 13269, Expedited Naturalization).
19. To the Federal voting program to provide unit and e-mail addresses for the purpose of notifying the military members where to obtain absentee ballots.
20. To the Department of Homeland Security for the conduct of studies related to the health and well-being of Coast Guard members and to authenticate and identify Coast Guard personnel.
21. To Coast Guard recruiters in the performance of their assigned duties.
22. To Federal Agencies, to include OPM, Postal Service, Executive Office of the President and Administrative Office of the Courts; to conduct computer matching programs regulated by the Privacy Act of 1974, as amended (5 U.S.C. 552a), for the purpose of:
a. Providing all reserve military members who could be eligible for TRICARE Premium Based programs, such as TRICARE Reserve Select (TRS) and TRICARE Retired Reserve (TRR) to be matched against the Federal agencies for providing those reserve military members that are also Federal civil service employees. This disclosure by the Federal agencies will provide the DoD with the FEHB eligibility and Federal employment information necessary to determine continuing eligibility for the TRS program. Only those reservists not eligible for FEHB are eligible for TRS (10 U.S.C. 1076d).
b. Providing all reserve military members to be matched against the Federal agencies for the purpose of identifying the Reserve Forces who are also employed by the Federal Government in a civilian position, so that reserve status can be terminated if necessary. To accomplish an emergency mobilization, individuals occupying critical civilian positions cannot be mobilized as Reservists.
c. To the Department of Education for the purpose of identifying dependent children of those military members killed in Operation Iraqi Freedom and Operation Enduring Freedom (OIF/OEF), Afghanistan Only, for possible benefits.
23. To Federal and contractor medical personnel at joint DoD/VA health care clinics, for purposes of authenticating the identity of individuals who are registered as patients at the clinic and maintaining, through the correlation of DoD ID number and Integration Control Number (ICN), a shared population of DoD and VA beneficiaries who are users of the clinic.
The DoD “Blanket Routine Uses” published at the beginning of the Office of the Secretary of Defense (OSD) compilation of systems of records notices apply to this system.”
Delete entry and replace with “Hardcopy version of DD Form 1172: Destroy once written to optical disk. Optical disks: Destroy primary and backup copies after 5 years.
The DEERS database is Permanent: Cut off (take a snapshot) at end of Fiscal Year and transfer to the National Archives and Records Administration in accordance with 36 CFR 1228.270 and 36 CFR 1234. (N1–330–03–01)
Output records (electronic or paper summary reports) are deleted or destroyed when no longer needed for operational purposes.
Defense Enrollment Eligibility Recording System (DEERS).
EDS—Service Management Center, 1075 West Entrance Drive, Auburn Hills, MI 48326–2723.
Members, former members, retirees, civilian employees (includes non-appropriated fund) and contractor employees of all of the Uniformed Services; Presidential appointees of all Federal Government agencies; Medal of Honor recipients; U.S. Military
Beneficiary's name; Service or Social Security Number (SSN); DoD ID number, enrollment number; relationship of beneficiary to sponsor; residence address of beneficiary or sponsor; date of birth of beneficiary; gender of beneficiary; branch of Service of sponsor; dates of beginning and ending eligibility; number of family members of sponsor; primary unit duty location of sponsor; race and ethnic origin of beneficiary; occupation of sponsor; rank/pay grade of sponsor; disability documentation; wounded, ill and injured identification information; other health information,
Patient registration data for shared DoD/VA beneficiary populations, including VA Integration Control Number (ICN), VA patient type, patient category code and patient category name of sponsor and beneficiary, patient location Defense Medical Information System, patient location date, identity and relationship data, command interest code and name, command security code and name, medical fly status code.
Catastrophic Cap and Deductible (CCD) transactions, including monetary amounts; CHAMPUS/TRICARE claim records containing enrollee, participant and health care facility, provider data such as cause of treatment, amount of payment, name and Social Security or tax identification number of providers or potential providers of care; citizenship data/country of birth; civil service employee employment information (agency and bureau, pay plan and grade, nature of action code and nature of action effective date, occupation series, dates of promotion and expected return from overseas, service computation date); claims data; compensation data; contractor fee payment data; date of separation of former enlisted and officer personnel; third party health insurance information on dependents; demographic data (kept on others beyond beneficiaries) date of birth, home of record state, sex, race, education level; VA disability payment records; digital signatures where appropriate to assert validity of data; e-mail (home/work); emergency contact person information; care giver information; immunization data; Information Assurance (IA) Work Force information; language data; military personnel information (rank, assignment/deployment, length of service, military occupation, education, and benefit usage); pharmacy benefits; reason leaving military service or DoD civilian service; Reserve member's civilian occupation and employment information; education benefit eligibility and usage; special military pay information; SGLI/FGLI; stored documents for proofing identity and association; workforces information (
5 U.S.C. App. 3, Inspector General Act of 1978; 5 U.S.C. Chapter 90, Federal Long-Term Care Insurance; 10 U.S.C. 136, Under Secretary of Defense for Personnel and Readiness; 10 U.S.C. Chapter 53, Miscellaneous Rights and Benefits; 10 U.S.C. Chapter 54, Commissary and Exchange Benefits; 10 U.S.C. Chapter 55 Medical and Dental Care; 10 U.S.C. Chapter 58, Benefits and Services for Members being Separated or Recently Separated; 10 U.S.C. Chapter 75, Deceased Personnel; 10 U.S.C. § 2358, Research and Development Projects; 20 U.S.C. 1070a (f)(4), Higher Education Opportunity Act; 31 U.S.C. 3512(c), Executive Agency Accounting and Other Financial Management; 42 U.S.C. 1973ff, Federal Responsibilities; 50 U.S.C. Chapter 23, Internal Security; DoD Directive 1000.4, Federal Voting Assistance Program (FVAP); DoD Directive 1341.1, Defense Enrollment/Eligibility Reporting System; DoD Instruction 1341.2, DEERS Procedures; Homeland Security Presidential Directive 12, Policy for a common Identification Standard for Federal Employees and Contractors; 38 CFR part 9.20, Traumatic injury protection; and E.O. 9397 (SSN), as amended.
To provide a database for determining eligibility for DoD entitlements and privileges; to support DoD health care management programs; to provide identification of deceased members; to record the issuance of DoD badges and identification cards,
To authenticate and identify DoD affiliated personnel (
Routine uses of records maintained in the system, including categories of users and the purposes of such uses:
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act of 1974, as amended, these records may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
1. To the Social Security Administration (SSA) to perform computer data matching against the SSA Wage and Earnings Record file for the purpose of identifying employers of Department of Defense (DoD) beneficiaries eligible for health care. This employer data will in turn be used to identify those employed beneficiaries who have employment-related group health insurance, to coordinate insurance benefits provided by DoD with those provided by the other insurance. This information will also be used to perform computer data matching against the SSA Master Beneficiary Record file for the purpose of identifying DoD beneficiaries eligible for health care who are enrolled in the Medicare program, to coordinate insurance benefits provided by DoD with those provided by Medicare.
2. To the Office of Disability and Insurance Security Programs, for the purpose of expediting disability processing of wounded military service members and veterans.
3. To other Federal agencies and state, local and territorial governments to identify fraud and abuse of the Federal agency's programs and to identify debtors and collect debts and overpayment in the DoD health care programs.
4. To each of the fifty states and the District of Columbia for the purpose of conducting an on-going computer matching program with state Medicaid agencies to determine the extent to which state Medicaid beneficiaries may be eligible for Uniformed Services health care benefits, including CHAMPUS, TRICARE, and to recover Medicaid monies from the CHAMPUS program.
5. To provide dental care providers assurance of treatment.
6. To Federal agencies and/or their contractors, the Transportation Security Administration and other Federal transportation agencies, for purposes of authenticating the identity of individuals who, incident to the conduct of official business, present the Common Access Card or similar identification as proof of identity to gain physical or logical access to government and contractor facilities, locations, networks, or systems.
7. To State and local child support enforcement agencies for purposes of providing information, consistent with the requirements of 29 U.S.C. 1169(a), 42 U.S.C. 666(a)(19), and E.O. 12953 and in response to a National Medical Support Notice (NMSN) (or equivalent notice if based upon the statutory authority for the NMSN), regarding the military status of identified individuals and whether, and for what period of time, the children of such individuals are or were eligible for DoD health care coverage.
8. To the Department of Health and Human Services (HHS):
a. For purposes of providing information, consistent with the requirements of 42 U.S.C. 653 and in response to an HHS request, regarding the military status of identified individuals and whether, and for what period of time, the children of such individuals are or were eligible for DoD healthcare coverage.
b. For purposes of providing information so that specified Medicare determinations, specifically late enrollment and waiver of penalty, can be made for eligible (1) DoD military retirees and (2) spouses (or former spouses) and/or dependents of either military retirees or active duty military personnel, pursuant to section 625 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2002 (as codified at 42 U.S.C. 1395p and 1395r).
c. To the Office of Child Support Enforcement, Federal Parent Locator Service, pursuant to 42 U.S.C. 653 and 653a; to assist in locating individuals for the purpose of establishing parentage; establishing, setting the amount of, modifying, or enforcing child support obligations; or enforcing child custody or visitation orders; the relationship to a child receiving benefits provided by a third party and the name and SSN of those third party providers who have a legal responsibility. Identifying delinquent obligors will allow state child support enforcement agencies to commence wage withholding or other enforcement actions against the obligors.
d. For purposes of providing information to the Centers for Medicare and Medicaid Services (CMS) to account for the impact of DoD healthcare on local reimbursement rates for the Medicare Advantage program as required in 42 CFR 422.306.
9. To the American Red Cross for purposes of providing emergency notification and assistance to members of the Armed Forces, retirees, family members or survivors.
10. To the Department of Veterans Affairs (DVA):
a. To provide military personnel, pay and wounded, ill and injured identification data for present and former military personnel for the purpose of evaluating use of veterans' benefits, validating benefit eligibility and maintaining the health and well being of veterans and their family members.
b. To provide identifying military personnel data to the DVA and its insurance program contractor for the purpose of notifying separating eligible Reservists of their right to apply for Veteran's Group Life Insurance coverage under the Veterans Benefits Improvement Act of 1996 (38 U.S.C. 1968) and for DVA to administer the Traumatic Servicemember's Group Life Insurance (TSGLI) (Traumatic Injury Protection Rider to Servicemember's Group Life Insurance (TSGLI), 38 CFR part 9.20).
c. To register eligible veterans and their dependents for DVA programs.
d. Providing identification of former military personnel and survivor's financial benefit data to DVA for the purpose of identifying military retired pay and survivor benefit payments for use in the administration of the DVA's Compensation and Pension Program (38 U.S.C. 5106). The information is to be used to process all DVA award actions more efficiently, reduce subsequent overpayment collection actions, and minimize erroneous payments.
e. To conduct computer matching programs regulated by the Privacy Act of 1974, as amended (5 U.S.C. 552a), for the purposes of:
(1) Providing full identification of active duty military personnel, including full time National Guard/Reserve support personnel, for use in the administration of DVA's Compensation and Pension benefit program. The information is used to determine continued eligibility for DVA disability compensation to recipients who have returned to active duty so that benefits can be adjusted or terminated as required and steps taken by DVA to collect any resulting over payment (38 U.S.C. 5304(c)).
(2) Providing military personnel and financial data to the Veterans Benefits Administration, DVA for the purpose of determining initial eligibility and any changes in eligibility status to insure proper payment of benefits for GI Bill education and training benefits by the DVA under the Montgomery GI Bill (10 U.S.C., Chapter 1606—Selected Reserve and 38 U.S.C., Chapter 30—Active Duty), the REAP educational benefit (Title 10 U.S.C, Chapter 1607), and the National Call to Service enlistment educational benefit (10, Chapter 510), the Post 9/11 GI Bill (38 U.S.C., Chapter 33) and The Transferability of Education Assistance to Family Members. The administrative responsibilities designated to both agencies by the law require that data be exchanged in administering the programs.
(3) Providing identification of reserve duty, including full time support National Guard/Reserve military personnel, to the DVA, for the purpose of deducting reserve time served from any DVA disability compensation paid or waiver of VA benefit. The law (10 U.S.C. 12316) prohibits receipt of reserve pay and DVA compensation for the same time period, however, it does permit waiver of DVA compensation to draw reserve pay.
(4) Providing identification of former active duty military personnel who received separation payments to the DVA for the purpose of deducting such repayment from any DVA disability compensation paid. The law requires recoupment of severance payments before DVA disability compensation can be paid (10 U.S.C. 1174).
f. To provide identifying military personnel data to the DVA for the purpose of notifying such personnel of information relating to educational assistance as required by the Veterans Programs Enhancement Act of 1998 (38 U.S.C. 3011 and 3034).
11. To DoD Civilian Contractors and grantees for the purpose of performing
12. To consumer reporting agencies to obtain current addresses of separated military personnel to notify them of potential benefits eligibility.
13. To Defense contractors to monitor the employment of former DoD employees and military members subject to the provisions of 41 U.S.C. 423.
14. To Federal and quasi Federal agencies, territorial, state, and local governments to support personnel functions requiring data on prior military service credit for their employees or for job applications. To determine continued eligibility and help eliminate fraud and abuse in benefit programs and to collect debts and over payments owed to these programs. Information released includes name, SSN, and military or civilian address of individuals. To detect fraud, waste and abuse pursuant to the authority contained in the Inspector General Act of 1978, as amended (Pub. L. 95–452) for the purpose of determining eligibility for, and/or continued compliance with, any Federal benefit program requirements.
15. To Federal and quasi Federal agencies, territorial, state and local governments, and contractors and grantees for the purpose of supporting research studies concerned with the health and well being of active duty, reserve, and retired personnel or veterans, to include family members. DMDC will disclose information from this system of records for research purposes when DMDC:
a. Has determined that the use or disclosure does not violate legal or policy limitations under which the record was provided, collected, or obtained;
b. Has determined that the research purpose (1) cannot be reasonably accomplished unless the record is provided in individually identifiable form, and (2) warrants the risk to the privacy of the individual that additional exposure of the record might bring;
c. Has required the recipient to (1) establish reasonable administrative, technical, and physical safeguards to prevent unauthorized use or disclosure of the record, and (2) remove or destroy the information that identifies the individual at the earliest time at which removal or destruction can be accomplished consistent with the purpose of the research project, unless the recipient has presented adequate justification of a research or health nature for retaining such information, and (3) make no further use or disclosure of the record except (A) in emergency circumstances affecting the health or safety of any individual, (B) for use in another research project, under these same conditions, and with written authorization of the Department, (C) for disclosure to a properly identified person for the purpose of an audit related to the research project, if information that would enable research subjects to be identified is removed or destroyed at the earliest opportunity consistent with the purpose of the audit, or (D) when required by law;
d. Has secured a written statement attesting to the recipients' understanding of, and willingness to abide by these provisions.
16. To Federal and State agencies for purposes of obtaining socioeconomic information on Armed Forces personnel so that analytical studies can be conducted with a view to assessing the present needs and future requirements of such personnel.
17. To Federal and State agencies to validate demographic data (
18. To the Bureau of Citizenship and Immigration Services, Department of Homeland Security, for purposes of facilitating the verification of individuals who may be eligible for expedited naturalization (Pub. L. 108–136, Section 1701, and E.O. 13269, Expedited Naturalization).
19. To the Federal voting program to provide unit and e-mail addresses for the purpose of notifying the military members where to obtain absentee ballots.
20. To the Department of Homeland Security for the conduct of studies related to the health and well-being of Coast Guard members and to authenticate and identify Coast Guard personnel.
21. To Coast Guard recruiters in the performance of their assigned duties.
22. To Federal Agencies, to include OPM, Postal Service, Executive Office of the President and Administrative Office of the Courts; to conduct computer matching programs regulated by the Privacy Act of 1974, as amended (5 U.S.C. 552a), for the purpose of:
a. Providing all reserve military members who could be eligible for TRICARE Premium Based programs, such as TRICARE Reserve Select (TRS) and TRICARE Retired Reserve (TRR) to be matched against the Federal agencies for providing those reserve military members that are also Federal civil service employees. This disclosure by the Federal agencies will provide the DoD with the FEHB eligibility and Federal employment information necessary to determine continuing eligibility for the TRS program. Only those reservists not eligible for FEHB are eligible for TRS (10 U.S.C. 1076d).
b. Providing all reserve military members to be matched against the Federal agencies for the purpose of identifying the Reserve Forces who are also employed by the Federal Government in a civilian position, so that reserve status can be terminated if necessary. To accomplish an emergency mobilization, individuals occupying critical civilian positions cannot be mobilized as Reservists.
c. To the Department of Education for the purpose of identifying dependent children of those military members killed in Operation Iraq Freedom and Operation Enduring Freedom (OIF/OEF), Afghanistan Only, for possible benefits.
23. To Federal and contractor medical personnel at joint DoD/VA health care clinics, for purposes of authenticating the identity of individuals who are registered as patients at the clinic and maintaining, through the correlation of DoD ID number and Integration Control Number (ICN), a shared population of DoD and VA beneficiaries who are users of the clinic.
The DoD “Blanket Routine Uses” published at the beginning of the Office of the Secretary of Defense (OSD) compilation of systems of records notices apply to this system.
Electronic storage media.
Records about individuals are retrieved by an algorithm which uses name, SSN, date of birth, rank, and duty location as possible inputs. Retrievals are made on summary basis by geographic characteristics and location and demographic characteristics. Information about individuals will not be distinguishable in summary retrievals. Retrievals for the purposes of generating address lists for direct mail distribution may be made using selection criteria based on geographic and demographic keys.
Computerized records are maintained in a controlled area accessible only to authorized personnel. Entry to these areas is restricted to those personnel with a valid requirement and authorization to enter. Physical entry is
Access to personal information is restricted to those who require the records in the performance of their official duties, and to the individuals who are the subjects of the record or their authorized representatives. Access to personal information is further restricted by the use of passwords, which are changed periodically. All individuals granted access to this system of records are to have received Information Assurance and Privacy Act training.
Hardcopy version of DD Form 1172: Destroy once written to optical disk. Optical disks: Destroy primary and backup copies after 5 years.
The DEERS database is Permanent: Cut off (take a snapshot) at end of Fiscal Year and transfer to the National Archives and Record Administration in accordance with 36 CFR 1228.270 and 36 CFR 1234. (N1–330–03–01)
Output records (electronic or paper summary reports) are deleted or destroyed when no longer needed for operational purposes.
Deputy Director, Defense Manpower Data Center, DoD Center Monterey Bay, 400 Gigling Road, Seaside, CA 93955–6771.
Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to the Deputy Director, Defense Manpower Data Center, DoD Center Monterey Bay, 400 Gigling Road, Seaside, CA 93955–6771.
Written requests should contain the full name, SSN, date of birth, and current address and telephone number of the individual.
Individuals seeking access to information about themselves contained in this system should address written inquiries to the Office of the Secretary of Defense/Joint Staff Freedom of Information Act Requester Service Center, 1155 Defense Pentagon, Washington, DC 20301–1155.
Written requests should contain the name and number of this system of records notice along with the full name, SSN, date of birth, and current address and telephone number of the individual and be signed.
The OSD rules for accessing records, for contesting contents and appealing initial agency determinations are published in OSD Administrative Instruction 81; 32 CFR part 311; or may be obtained from the system manager.
Individuals and the personnel, pay, and benefit systems of the military and civilian departments and agencies of the Uniformed Services, VA, and other Federal agencies.
None.
Department of Defense.
Renewal of Federal Advisory Committee.
Under the provisions of 10 U.S.C. 2904, the Federal Advisory Committee Act of 1972, (5 U.S.C. Appendix), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b), and 41 CFR 102–3.50, the Department of Defense (DoD) gives notice that it is renewing the charter for the Strategic Environmental Research and Development Program Scientific Advisory Board (hereafter referred to as the “Board”).
Pursuant to 10 U.S.C. 2904(a), the Secretary of Defense and the Secretary of Energy, in consultation with the Administrator of the Environmental Protection Agency, shall jointly establish the Strategic Environmental Research and Development Program Scientific Advisory Board. The Advisory Board, pursuant to 10 U.S.C. 2904, shall operate and comply with the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C. Appendix), and 41 CFR 102–3.50(a).
Pursuant to 10 U.S.C. 2902 and 2904(e), the Strategic Environmental Research and Development Program Council (hereafter referred to as the Council), shall refer to the Advisory Board, and the Advisory Board shall review, each proposed research project including its estimated cost, for research in and development of technologies related to environmental activities in excess of $1,000,000. The Council, pursuant to its responsibilities under 10 U.S.C. 2902(d)(1) and in an effort to enhance the Advisory Board's review process, has lowered the Advisory Board's dollar threshold to any proposed research projects in excess of $900,000. The Advisory Board shall make any recommendations to the Council that the Advisory Board considers appropriate regarding such project or proposal.
The Advisory Board may make recommendations to the Council regarding technologies, research, projects, programs, activities, and, if appropriate, funding within the scope of the Strategic Environmental Research and Development Program. In addition, the Advisory Board shall assist and advise the Council in identifying the environmental data and analytical assistance activities that should be covered by the policies and procedures prescribed pursuant to 10 U.S.C. 2902(d)(1).
Pursuant to 10 U.S.C. 2904(e), the Advisory Board shall make any recommendations to the Council that the Advisory Board considers appropriate regarding projects or proposals.
The Advisory Board, pursuant to 10 U.S.C. 2904(a), shall be comprised of not more than 14 members. Pursuant to 10 U.S.C. 2904(b), the Advisory Board membership shall be comprised of the following:
a. Permanent members of the Advisory Board are the Science Advisor to the President, the Administrator of the National Oceanic and Atmospheric Administration, or their designees;
b. Non-permanent members of the Advisory Board shall be appointed from among persons eminent in the fields of basic sciences, engineering, ocean and environmental sciences, education, research management, international and security affairs, health physics, health sciences, or social sciences, with due regard given to the equitable representation of scientists and engineers who are women or who represent minority groups. One such member of the Advisory Board shall be a representative of environmental public interest groups, and one such member shall be a representative of the interests of State governments.
Pursuant to 10 U.S.C. 2904(b)(3), the Secretary of Defense and the Secretary of Energy, in consultation with the Administrator of the Environmental
a. Head of the National Academy of Science, in consultation with the head of the National Academy of Engineering and the head of the Institutes of Medicine of the National Academy of Sciences, nominate persons for appointment to the Advisory Board;
b. Council of Environmental Quality nominate for appointment to the Advisory Board at least one person who is a representative of environmental public interest groups; and
c. National Association of Governors nominate for appointment to the Advisory Board at least one person who is a representative of the interests of State governments.
The Advisory Board, pursuant to 10 U.S.C. 2904(d), shall develop procedures for carrying out its responsibilities. Such procedures shall define a quorum as a majority of the members, and shall provide for the annual election of the Advisory Board's chairperson. The permanent Advisory Board members, defined above, shall be appointed as regular government employee members, and their appointments shall be based upon their official position in the Federal government. Both individuals may designate another regular government officer or employee from their offices to represent their interests before the Advisory Board. Advisory Board members appointed by the Secretary of Defense and the Secretary of Energy, who are not full-time or permanent part-time Federal officers or employees, shall be appointed as experts and consultants under the authority of 5 U.S.C 3109, and serve as special government employee members.
While the Council of Environmental Quality and the National Association of Governors nominate individuals to represent certain interests, these individuals are appointed by the Secretary of Defense and, these individuals, along with the other members, to include the regular government employee members, are appointed to provide advice on the basis of their best judgment without representing any particular point of view and in a manner that is free from conflict of interest. Pursuant to 10 U.S.C. 2904(h), each member of the Advisory Board shall be required to file a financial disclosure report under title I of the Ethics in Government Act of 1978 (5 U.S.C. App.).
With the exception of those experts and consultants that are appointed members of the Advisory Board, all others, to include subject matter experts that are invited by the Advisory Board or experts and consultants that are from the general public attending meetings are not authorized to participate in the Advisory Board's deliberations.
The terms of member appointments shall not be less than two but not more than four years, as provided in 10 U.S.C. 2904(b)(4) and approved by the Secretary of Defense. All appointments shall be reviewed by the Secretary of Defense on an annual basis.
With the exception of travel and per diem for official travel, Advisory Board members shall serve without compensation.
With DoD approval, the Advisory Board is authorized to establish subcommittees, as necessary and consistent with its mission, and these subcommittees shall operate under the provisions of the Federal Advisory Committee Act of 1972, the Government in the Sunshine Act of 1976 (5 U.S.C. 552b), and other appropriate Federal regulations.
Such subcommittees shall not work independently of the chartered Advisory Board, and shall report all their recommendations and advice to the Advisory Board for full deliberation and discussion. Subcommittees have no authority to make decisions on behalf of the chartered Advisory Board; nor can they report directly to the Department of Defense or any Federal officers or employees who are not Advisory Board members. Subcommittee members, who are not Advisory Board members, shall be appointed in the same manner as the Advisory Board members. Such individuals, if not full-time or part-time government employees, shall be appointed to serve as experts and consultants under the authority of 5 U.S.C. 3109, and serve as special government employee members, whose appointments must be renewed on an annual basis. With the exception of per diem for official travel, subcommittee members shall serve without compensation.
Jim Freeman, Deputy Advisory Committee Management Officer for the Department of Defense, 703–601–6128.
The Advisory Board shall meet at the call of the Advisory Board's Designated Federal Officer, in consultation with the Chairperson. Pursuant to 10 U.S.C. 2904(d), the minimum number of Advisory Board meetings is four per year. The Designated Federal Officer, pursuant to DoD policy, shall be a full-time or permanent part-time DoD employee, and shall be appointed in accordance with governing DoD policies and procedures. In addition, the Designated Federal Officer is required to be in attendance at all Advisory Board and subcommittee meetings for the entire duration of each and every meeting; however, in the absence of the Designated Federal Officer, the Alternate Designated Federal Officer shall attend the entire duration of the Advisory Board or subcommittee meeting.
Pursuant to 41 CFR 102–3.105(j) and 102–3.140, the public or interested organizations may submit written statements to the Strategic Environmental Research and Development Program Scientific Advisory Board's membership about the Advisory Board's mission and functions. Written statements may be submitted at any time or in response to the stated agenda of planned meeting of Strategic Environmental Research and Development Program Scientific Advisory Board.
All written statements shall be submitted to the Designated Federal Officer for the Strategic Environmental Research and Development Program Scientific Advisory Board, and this individual will ensure that the written statements are provided to the membership for their consideration. Contact information for the Strategic Environmental Research and Development Program Scientific Advisory Board Designated Federal Officer can be obtained from the GSA's FACA Database—
The Designated Federal Officer, pursuant to 41 CFR 102–3.150, will announce planned meetings of the Strategic Environmental Research and Development Program Scientific Advisory Board. The Designated Federal Officer, at that time, may provide additional guidance on the submission of written statements that are in response to the stated agenda for the planned meeting in question.
Department of Defense.
Renewal of Federal Advisory Committee.
Under the provisions of the Federal Advisory Committee Act of 1972, (5 U.S.C. Appendix), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b), and 41 CFR 102–3.50, the Department of Defense (DoD) gives notice that it is renewing the charter for the Department of Defense Audit Advisory Committee (hereafter referred to as the “Committee”).
The Committee is a discretionary federal advisory committee that shall provide the Secretary of Defense, through the Under Secretary of Defense (Comptroller)/Chief Financial Officer, independent advice and recommendations on DoD financial management, to include financial reporting processes, systems of internal controls, audit processes, and processes for monitoring compliance with relevant laws and regulations.
The Under Secretary of Defense (Comptroller)/Chief Financial Officer may act upon the Committee's advice and recommendations.
The Committee shall be comprised of no more than seven members, who are distinguished members of the audit, accounting and financial communities. No Committee members shall be a full-time or part-time DoD employee.
Committee members are appointed to provide advice on behalf of the government on the basis of their best judgment without representing any particular point of view and in a manner that is free from conflict of interest. The Secretary of Defense shall renew their appointments on an annual basis.
With the exception of travel and per diem for official travel, Committee members shall serve without compensation.
Committee members shall not be allowed to serve on the Committee for more than three consecutive terms.
The Under Secretary of Defense (Comptroller)/Chief Financial Officer shall select the Committee's Chairperson from the membership at large.
With DoD approval, the Committee is authorized to establish subcommittees, as necessary and consistent with its mission. These subcommittees shall operate under the provisions of the Federal Advisory Committee Act of 1972, the Government in the Sunshine Act of 1976 (5 U.S.C. 552b), and other governing Federal regulations.
Such subcommittees shall not work independently of the chartered Committee, and shall report all their recommendations and advice to the Committee for full deliberation and discussion. Subcommittees have no authority to make decisions on behalf of the chartered Committee; nor can they report directly to the Department of Defense or any Federal officers or employees who are not Committee members.
Subcommittee members, who are not Committee members, shall be appointed in the same manner as the Committee members. Such individuals, if not full-time or part-time government employees, shall be appointed to serve as experts and consultants under the authority of 5 U.S.C. 3109, and serve as special government employees, whose appointments must be renewed on an annual basis. With the exception of travel, subcommittee members shall serve without compensation.
Jim Freeman, Deputy Advisory Committee Management Officer for the Department of Defense, 703–601–6128.
The Committee shall meet at the call of the Designated Federal Officer, in consultation with the Committee's Chairperson and the estimated number of Committee meetings is four per year.
The Designated Federal Officer, pursuant to DoD policy, shall be a full-time or permanent part-time DoD employee, and shall be appointed in accordance with governing DoD policies and procedures. In addition, the Designated Federal Officer is required to be in attendance at all Committee and subcommittee meetings for the entire duration of each and every meeting. However, in the absence of the Designated Federal Officer, the Alternate Designated Federal Officer shall attend the entire duration of the Committee or subcommittee meeting. The Designated Federal Officer shall, in coordination with the Chairperson approve all meeting agendas and adjourn any meeting when the Designated Federal Officer determines adjournment to be in the public interest.
Pursuant to 41 CFR 102–3.105(j) and 102–3.140, the public or interested organizations may submit written statements to the Department of Defense Audit Advisory Committee's membership about the Committee's mission and functions. Written statements may be submitted at any time or in response to the stated agenda of planned meeting of Department of Defense Audit Advisory Committee.
All written statements shall be submitted to the Designated Federal Officer for the Department of Defense Audit Advisory Committee, and this individual will ensure that the written statements are provided to the membership for their consideration. Contact information for the Department of Defense Audit Advisory Committee Designated Federal Officer can be obtained from the GSA's FACA Database—
The Designated Federal Officer, pursuant to 41 CFR 102–3.150, will announce planned meetings of the Department of Defense Audit Advisory Committee. The Designated Federal Officer, at that time, may provide additional guidance on the submission of written statements that are in response to the stated agenda for the planned meeting in question.
Department of Defense.
Termination of Federal Advisory Committee.
Under the provisions of Section 1082 of Public Law 110–181, the Federal Advisory Committee Act of 1972, (5 U.S.C. Appendix), 41 CFR 102–3.55(a)(1), and the Government in the Sunshine Act of 1976 (5 U.S.C. 552b), effective June 22, 2011 the Department of Defense gives notice that it is terminating the Advisory Panel on DoD Capabilities for Support of Civil Authorities After Certain Incidents.
Jim Freeman, Deputy Advisory Committee Management Officer for the Department of Defense, 703–692–5952.
Office of Postsecondary Education, Department of Education.
Notice.
CFDA No. 84.116J, 84.116M, and 84.116N.
Withdrawal of Notices inviting applications for new awards for Fiscal Year (FY) 2011; European Union-United States Atlantis (Atlantis) Program; U.S.-Brazil Higher Education Consortia (U.S.-Brazil) Program; and the North American Mobility in Higher Education (NAM) Program.
On April 1, 2011 (76 FR 18198) (Atlantis); March 29, 2011 (76 FR 17391) (U.S.-Brazil); and March 25, 2011 (76 FR 16743) (NAM), the Department published in the
20 U.S.C. 1138–1138d.
You may also access documents of the Department published in the
Department of Education.
Notice of arbitration panel decision under the Randolph-Sheppard Act.
The Department of Education (Department) gives notice that on March 18, 2011, an arbitration panel rendered a decision in the matter of
You can obtain a copy of the full text of the arbitration panel decision from Suzette E. Haynes, U.S. Department of Education, 400 Maryland Avenue, SW., Room 5022, Potomac Center Plaza, Washington, DC 20202–2800.
Individuals with disabilities can obtain this document in an accessible format (
Under section 6(c) of the Randolph-Sheppard Act (Act), 20 U.S.C. 107d–2(c), the Secretary publishes in the
Sam Tocco (Complainant) alleged violations by the Michigan Commission for the Blind, the State licensing agency (SLA), under the Act and its implementing regulations in 34 CFR part 395. Complainant alleged that the SLA violated the Act, the implementing regulations, and State rules and regulations by terminating his vending operator's license at the United States Postal Service's Pontiac vending route (Pontiac vending route).
Specifically, Complainant became a Randolph-Sheppard vendor in 2003. Beginning in 2006, he was promoted to the Pontiac vending route. In August and December 2006, the SLA was prepared to revoke Complainant's operating license for a variety of reasons that were not relevant to the subject arbitration. In August 2006, Complainant signed a probationary agreement with the SLA.
However, in the later part of 2007, Complainant again experienced compliance issues and the SLA and Complainant entered into another probationary agreement on September 19, 2007 (2007 probationary agreement), to resolve various outstanding issues. On January 15, 2008, the SLA informed Complainant that he had violated the terms of the 2007 probationary agreement and revoked his operating license, effective January 24, 2008, for failure to pay an annual health license fee.
Complainant then requested a full evidentiary hearing from the SLA on this matter. However, the SLA asserted that Complainant waived his right to an evidentiary hearing and other due process protections by signing the 2007 probationary agreement. Shortly thereafter, Complainant filed another request with the SLA for a full evidentiary hearing. On January 23, 2008, the SLA again denied Complainant's request for an evidentiary hearing.
On March 10, 2008, Complainant's representative filed a request with the Department to convene a Federal arbitration panel. On March 26, 2008, the Department responded to Complainant's request informing Complainant and the SLA that, while Complainant did not qualify for arbitration as he had not been provided
On September 3, 2008, the SLA provided Complainant a full evidentiary hearing conducted before an Administrative Law Judge (ALJ). On October 30, 2008, the ALJ issued her decision finding that Complainant was in compliance with the 2007 probationary agreement and also finding that his failure to pay the health license fee did not constitute a violation. As a remedy, the ALJ recommended that the SLA reinstate Complainant's operating license and that he be assigned a suitable vending location as soon as possible. In noting that Complainant had significant difficulties in the operation of the Pontiac vending route, the ALJ also recommended, without assigning any fault to Complainant or the SLA, that Complainant be assigned a better established and less demanding vending route.
On December 12, 2008, the SLA reviewed the ALJ's decision. The SLA adopted in part and rejected in part the ALJ's recommendations as final agency action. Specifically, the SLA accepted the recommendation to reinstate Complainant's operating license but rejected the ALJ's recommendation to assign Complainant to a suitable site that was a better established or less demanding route. Instead, the SLA required that Complainant bid on a vending location in accordance with existing SLA transfer and promotion rules and regulations.
On February 17, 2009, Complainant's representative again filed a request for Federal arbitration, alleging that the final agency action by the SLA did not provide an adequate remedy for the harm Complainant had incurred from the revocation of his operating license. On April 29, 2010, a Federal arbitration hearing was held.
After reviewing all of the evidence and testimony, the panel unanimously ruled that Complainant was entitled to receive a priority bid. Thus, the panel directed the SLA to waive the existing conditions governing the award of vending facilities and to consider Complainant the successful bidder on any vending facility or vending route for which he would be qualified and certified for a period of 12 months commencing with the date of the panel's decision. This ruling was considered “an extraordinary remedy” by the panel, based upon the specific circumstances of Complainant's case in which he lost his previous vending route as a result of the erroneous license revocation. The panel clearly indicated, however, that this case should not serve as a precedent for future cases because of these unique circumstances. Also, the panel denied the remedies requested by Complainant with respect to compensatory damages, punitive or exemplary damages, and restoration of Complainant's retirement benefits to his program pension plan.
The views and opinions expressed by the panel do not necessarily represent the views and opinions of the Department.
You may also access documents of the Department published in the
Office of Postsecondary Education, Department of Education.
Notice of intent to fund down the grant slate from fiscal year (FY) 2010.
The Secretary intends to use the grant slate developed in FY 2010 for the TRTW Program authorized by Section 872 of the Higher Education Act of 1965, as amended (HEA), 20 U.S.C. 1161s, to make new grant awards in FY 2011. The Secretary takes this action because a significant number of high-quality applications remain on the FY 2010 grant slate and limited funding is available for new grant awards in FY 2011. Specifically, we expect to use an estimated $998,000 for new awards in FY 2011.
Erin McDermott, U.S. Department of Education, 1990 K Street, NW., Room 6161, Washington, DC 20006–8524.
If you use a telecommunications device for the deaf (TDD), call the Federal Relay Service (FRS), toll free, at 1–800–877–8339.
Individuals with disabilities can obtain this document in an accessible format (
On July 2, 2010, we published a notice in the
In response to the FY 2010 NIA, we received a significant number of high-quality applications for grants under the TRTW Program and made four grant awards. Because such a large number of high-quality applications were received, many applications that received high scores by peer reviewers did not receive funding.
To conserve funding that would be required for a peer review of new grant applications submitted under this program and to instead use those funds to support grant activities, we will select grantees in FY 2011 from the existing slate of applicants developed during the FY 2010 competition using the priority, selection criteria, and application requirements referenced in the
20 U.S.C. 1161s.
You may also access documents of the Department published in the
Department of Energy (DOE).
Notice of public scoping meetings and extension of scoping period.
DOE will host public scoping meetings in western Colorado to receive comments on the scope of the DOE Uranium Leasing Program (ULP) Programmatic Environmental Impact Statement (hereinafter referred to as the ULP PEIS). The PEIS will analyze the reasonably foreseeable environmental impacts, including the site-specific impacts, of the range of reasonable alternatives for the management of DOE's ULP.
On June 21, 2011, DOE announced in the
DOE invites comments on the proposed scope of the PEIS from all interested parties. The public scoping period began on June 21, 2011, and will close on September 9, 2011. Comments on the scope of the PEIS should be submitted by September 9, 2011. Comments e-mailed or postmarked after that date will be considered to the extent practicable. DOE also invites all interested parties to participate in public scoping meetings. Dates and locations of the public scoping meetings are listed under
Requests to speak at the public scoping meetings on the proposed scope of the PEIS may be submitted via the ULP PEIS Web site at
• By submitting electronic comments on the PEIS Web site at
• By e-mail to
• By mail to Laura Kilpatrick, Esq., DOE ULP Program Manager, Office of Legacy Management, U.S. Department of Energy, 11025 Dover Street, Suite 1000, Westminster, CO 80021.
For information on DOE's proposed action, contact Laura Kilpatrick, Esq., DOE ULP Program Manager, at the address listed above.
For general information on the DOE National Environmental Policy Act (NEPA) process, contact Carol Borgstrom, Director, Office of NEPA Policy and Compliance (GC–54), U.S. Department of Energy, 1000 Independence Avenue, SW., Washington, DC 20585; telephone (202–586–4600); fax (202–586–7031); or leave a toll-free message (1–800–472–2756).
On June 21, 2011, DOE published a notice in the
Four public scoping meetings will be held as follows:
• August 8, 2011—Montrose Pavilion, 1800 Pavilion Dr., Montrose, CO 81401, from 6:30 to 9 p.m.
• August 9, 2011—Sheridan Opera House, 110 North Oak St., Telluride, CO 81435, from 6:30 to 9 p.m.
• August 10, 2011—Naturita Community Building, 411 W. 2nd St., Naturita, CO 81422, from 6:30 to 9 p.m.
• August 11, 2011—San Juan County Courthouse, Commission Chambers, 117 South Main St., Monticello, UT 84535, from 6:30 to 9 p.m.
At each of the public scoping meetings, registration to speak will be held starting at 6:30 pm. The formal commenting session will begin at 7 p.m. with a DOE presentation providing an overview of the DOE ULP, the proposed action for the ULP PEIS, and a description of the NEPA process for the ULP PEIS. Public comments will be received starting at 7:15 p.m. until the end of each meeting. The formal commenting session will be transcribed by a court stenographer. The presiding officer will establish the order of the speakers and procedures to ensure that everyone who wishes to speak has an opportunity to do so. Depending on the number of speakers, the presiding officer may limit all speakers to a set amount of time initially and provide additional opportunities to speak as time permits. Individuals may also provide written materials in lieu of, or supplemental to, their presentations, and such additional information may be submitted in writing by the date listed in the
Take notice that the Commission has added to its list of acceptable file formats the four-character file extensions for Microsoft Office 2007/2010, specifically MS Word (.docx), MS Excel (.xlsx), and MS PowerPoint (.pptx). It is no longer necessary to save files from Office 2007 or Office 2010 in an Office 2003 format prior to submission.
Take notice that the following hydroelectric applications have been filed with the Commission and are available for public inspection.
a.
b.
c.
d.
e.
f.
g.
h.
For Project No. 2662: John Whitfield, Senior Project Engineer, FirstLight Hydro Generating Company, 20 Church Street, Hartford, CT 06103.
For Project No. 12968: John F. Bilda, General Manager, Norwich Public Utilities, 16 South Golden Street, Norwich, CT 06360.
i.
j. Deadline for filing motions to intervene and protests, comments, recommendations, preliminary terms and conditions, and preliminary prescriptions: 60 days from the issuance date of this notice; reply comments are due 105 days from the issuance date of this notice.
Motions to intervene, protests, comments, recommendations, preliminary terms and conditions, and preliminary fishway prescriptions may be filed electronically via the Internet. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site
The Commission's Rules of Practice require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
k. The applications have been accepted for filing and are now ready for environmental analysis (EA).
l.
The existing Scotland Project operates in a run-of-river mode during high flow periods and in a store-and-release mode, with ponding, during low-flow periods.
Both applicants propose to increase capacity by installing an additional turbine and generator in the existing powerhouse. FirstLight's proposal would increase capacity by 1.026 MW. Norwich Public Utilities' proposal would increase capacity by 3.0 MW. Both applicants propose to operate the project as run-of-river at all times.
m. Copies of the applications are available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Register online at
n. Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.
All filings must (1) Bear in all capital letters the title “PROTEST”, “MOTION TO INTERVENE”, “COMMENTS,” “REPLY COMMENTS,” “RECOMMENDATIONS,”
o.
The applications will be processed according to the following revised Hydro Licensing Schedule. Revisions to the schedule may be made as appropriate.
p. Final amendments to the applications must be filed with the Commission no later than 30 days from the issuance date of this notice.
q. A license applicant must file no later than 60 days following the date of issuance of the notice of acceptance and ready for environmental analysis provided for in 5.22: (1) A copy of the water quality certification; (2) a copy of the request for certification, including proof of the date on which the certifying agency received the request; or (3) evidence of waiver of water quality certification.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j. Deadline for filing motions to intervene and protests, comments, recommendations, and preliminary terms and conditions, is 60 days from the issuance date of this notice; reply comments are due 105 days from the issuance date of this notice. All documents (original and eight copies) should be filed with: Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Please include the project number (P–2985) on any comments or motions filed.
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. A copy of any motion to intervene must also be served upon each representative of the applicant specified in a particular application.
k.
l.
m.
n.
o.
p.
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following land acquisition reports:
Any person desiring to intervene or to protest in any of the above proceedings 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) on or before 5 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. 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. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant.
As it relates to any qualifying facility filings, the notices of self-certification [or self-recertification] listed above, do not institute a proceeding regarding qualifying facility status. A notice of self-certification [or self-recertification] simply provides notification that the entity making the filing has determined the facility named in the notice meets the applicable criteria to be a qualifying facility. Intervention and/or protest do not lie in dockets that are qualifying facility self-certifications or self-recertifications. Any person seeking to challenge such qualifying facility status may do so by filing a motion pursuant to 18 CFR 292.207(d)(iii). Intervention and protests may be filed in response to notices of qualifying facility dockets other than self-certifications and self-recertifications.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St., NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please e-mail
Take notice that on July 15, 2011, pursuant to sections 206, 306, and 309 of the Federal Power Act (FPA), 16 U.S.C. 824e, 825e, and 825h, and Rules 206 and 212 of the Federal Energy Regulatory Commission's (Commission) Rules of Practice and Procedure, 18 CFR 385.206 and 385.212 (2010), Shetek Wind Inc., Jeffers South, LLC, and Allco Renewable Energy Limited (collectively Complainants) filed a formal complaint against the Midwest Independent Transmission System Operator (Midwest ISO or Respondent), and the applicable Midwest ISO Tariff on file with the Commission, alleging that Midwest ISO has not properly implemented the interconnection procedures contained in its Tariff, and, therefore, has engaged in practices that are contrary to the Tariff on file with the Commission and are unjust and unreasonable in violation of the Federal Power Act.
The Complainants certify that copies of the complaint were served on the contacts for Midwest ISO and other potentially interested entities 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, 385.214). Protests will be considered by the Commission in determining the
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
This is a supplemental notice in the above-referenced proceeding of Alamosa, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is August 3, 2011.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed dockets(s). For assistance with any FERC Online service, please e-mail
This is a supplemental notice in the above-referenced proceeding of Gratiot County Wind II, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR Part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR Part 34, of future issuances of securities and assumptions of liability, is August 3, 2011.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please e-mail
This is a supplemental notice in the above-referenced proceeding of Gratiot County Wind, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR Part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR Part 34, of future issuances of securities and assumptions of liability, is August 3, 2011.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please e-mail
This is a supplemental notice in the above-referenced proceeding of Verde Energy USA Trading, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is August 3, 2011.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please e-mail
Environmental Protection Agency (EPA).
Notice of final action.
This document announces that the EPA Administrator has responded to a citizen petition asking EPA to object to an operating permit issued by the Colorado Department of Public Health and Environment (CDPHE). Specifically, the Administrator has partially granted and partially denied the February, 2010, Petition, submitted by WildEarth Guardians (Petitioner), to object to CDPHE's January 1, 2010, title V permit issued to Public Service Company of Colorado dba Xcel Energy (Xcel)—Pawnee Power Station.
Pursuant to section 505(b)(2) of the Clean Air Act (Act or CAA), Petitioners may seek judicial review of those portions of the petition that EPA denied in the United States Court of Appeals for the appropriate circuit. Any petition for review shall be filed within 60 days from the date this notice appears in the
You may review copies of the Final Order, the Petition, and other supporting information at the EPA Region 8 Office, 1595 Wynkoop Street, Denver, Colorado 80202–1129. EPA requests that if at all possible, you
Christopher Razzazian, Air Program (8P–AR), EPA Region 8, 1595 Wynkoop Street, Denver, Colorado 80202–1129. Phone: (303) 312–6648. E-mail:
The Act affords EPA a 45-day period to review and object to, as appropriate, a title V operating permit proposed by State permitting authorities. Section 505(b)(2) of the Act authorizes any person to petition the EPA Administrator, within 60 days after the expiration of this review period, to object to a title V operating permit if EPA has not done so. Petitions must be based only on objections to the permit that were raised with reasonable specificity during the public comment period provided by the State, unless the petitioner demonstrates that it was impracticable to raise these issues during the comment period or the grounds for the issues arose after this period. EPA received a petition from WildEarth Guardians dated February 26, 2010, requesting that EPA object to the issuance of the title V operating permit to Public Service Company of Colorado for the operation of the Pawnee Power Station. The Petition alleges that the Permit does not comply with 40 CFR Part 70 in that it fails to assure compliance with: (I) Prevention of Significant Deterioration (PSD) requirements; (II) particulate matter (PM) limits applicable to the coal-fired boiler; (III) other applicable PM emission limits (and fails to require the facility to sufficiently monitor fugitive PM emissions); (IV) the 20-percent opacity limit under the New Source Performance Standards, Subpart Y, which applies to coal unloaded to storage activities; (V) PM emission limits applicable to specified point sources (and fails to require the facility to sufficiently monitor PM from those point sources); (VI) CAA § 112(j) for air toxics; and (VII) PSD requirements in regard to carbon dioxide emissions.
On June 30, 2011, the Administrator issued an Administrative Order partially granting and partially denying the Petition. The Order explains the reasons behind EPA's conclusions.
Region 6, U.S. Environmental Protection Agency (EPA).
Notice of intent to prepare an Environmental Impact Statement (EIS) for the designation of an ODMDS in the Gulf of Mexico off the mouth of the Atchafalaya River, St. Mary Parish, LA.
The U.S. EPA, Region 6, in accordance with EPA's October 29, 1998 Notice of Policy and Procedures for Voluntary Preparation of National Environmental Policy Act (NEPA) Documents (63 FR 58045), and in cooperation with the U.S. Army Corps of Engineers, New Orleans District (the Corps), will prepare an EIS for the designation of an ODMDS in the Gulf of Mexico off the mouth of the Atchafalaya River, St. Mary Parish, Louisiana. An EIS is needed to provide the information necessary to designate an ODMDS. This Notice of Intent is issued Pursuant to Section 102(c) of the Marine Protection, Research and Sanctuaries Act of 1972 (MPRSA), and 40 CFR Part 228 (Criteria for the Management of Disposal Sites for Ocean Dumping).
Comments or names for the project mailing list must be submitted in writing on or before August 22, 2011.
Comments and/or names to be placed on the project mailing list should be sent to Jessica Franks, PhD, U. S. Environmental Protection Agency, Region 6, 1445 Ross Avenue, Dallas, Texas 75202–2733, telephone (214) 665–8335 or
Jessica Franks, PhD at (214) 665–8335 or Mr. John Fiorentino at (504) 862–1318.
The Atchafalaya River and the Atchafalaya River Bar Channel (ARBC), located within the Federally-authorized and maintained Atchafalaya River and Bayous Chene, Boeuf, and Black, Louisiana project, provide vessel access to Morgan City, the Gulf Intracoastal Waterway (GIWW), and Bayous Chene, Boeuf, and Black from the Gulf of Mexico.
The ARBC is located in an area of heavy sedimentation. The bed load fraction of the sediment carried by the Atchafalaya River is deposited mainly in Atchafalaya Bay, resulting in delta accretion and progradation. The ARBC must receive periodic maintenance dredging to ensure safe navigation. Shoal material that could not be used beneficially has been placed (prior to 2002) at an existing MPRSA Section 102(c) ODMDS on the east side of the channel (the ODMDS-East). Concern has been expressed, and Corps studies have shown, that maintenance-dredged material—especially fluid mud, or “fluff”—placed on the east side of the ARBC (particularly at the ODMDS-East) is rapidly transported back into the navigation channel by prevailing littoral currents.
Since 2002, shoal material from the ARBC not suitable for beneficial use has been placed at a temporary (
Following the MPRSA Section 103(b) designation of the ODMDS-West in 2002, the Corps Engineering Research and Development Center, performed monitoring studies to determine if placing maintenance-dredged material on the west side of the ARBC was more effective at reducing shoaling in the channel, thus, reducing the dredging frequency and costs. These studies found that while placing material on the west side of the ARBC did not eliminate shoaling, it did reduce the rate of shoal material runback into the channel, when compared to placing material on the east
The Commission hereby gives notice of the filing of the following agreements under the Shipping Act of 1984. Interested parties may submit comments on the agreements to the Secretary, Federal Maritime Commission, Washington, DC 20573, within ten days of the date this notice appears in the
By order of the Federal Maritime Commission.
Board of Governors of the Federal Reserve System, 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), as per 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 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.
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 performance of the Federal Reserve's functions; including whether the information has practical utility;
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; and
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.
Comments must be submitted on or before September 19, 2011.
You may submit comments, identified by
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•
Additionally, commenters should send a copy of their comments to the OMB Desk Officer by mail to the Office of Information and Regulatory Affairs, U.S. 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:
The Federal Reserve System needs the information collected to fulfill their obligations under the CRA to evaluate and assign ratings to the performance of institutions in connection with helping to meet the credit needs of their communities, including low- and moderate-income neighborhoods, consistent with safe and sound banking practices. The Federal Reserve System uses the information in the examination process and in evaluating applications for mergers, branches, and certain other corporate activities. Financial institutions maintain and provide the information to the Federal Reserve System.
In accordance with Section 271.25 of its rules regarding availability of information (12 CFR Part 271), there is set forth below the domestic policy directive issued by the Federal Open Market Committee at its meeting held on June 21–22, 2011.
The Federal Open Market Committee seeks monetary and financial conditions that will foster price stability and promote sustainable growth in output. To further its long-run objectives, the Committee seeks conditions in reserve markets consistent with Federal funds trading in a range from 0 to
Administration for Native Americans, ACF, HHS.
Notice to 10 Expansion Supplement Awards to implement the First Lady's
CFDA#: 93.612.
The awards will be made pursuant to Section 803 of the Native American Programs Act of 1974.
The Administration for Children and Families (ACF), Administration for Native Americans (ANA), announces the award of ten expansion supplement awards to Native American Tribes that are currently combating the epidemic of health issues in Native America. Expansion supplement funds will support activities associated with the First Lady's initiative,
The following projects will be supported by the expansion supplement awards:
• Native Village of Afognak, Kodiak, AK ($20,000). The project will include
• Pueblo of Tesuque, Santa Fe, NM ($20,025). The project will include
• Riverside-San Bernardino County Indian Health, Inc., Banning, CA ($20,000). The project will include healthy living and healthy lifestyles of the
• Yerington Paiute Tribe, Yerington, NV ($19,034). This project will include
• Cornerstone Ministries, Inc., Crownpoint, NM ($20,001). This project will implement
• Eastern Shawnee Tribe of Oklahoma, Wyandotte, OK ($17,490). This project will include
• Leech Lake, Cass Lake, MN ($19,999). This project will include
• Chickaloon Native Village, Chickaloon, AK ($16,948). This project will include
• White Earth Band of Chippewa, White Earth, MN ($19,940). This project will include
• The American Indian Child Resource Center, Oakland, CA ($20,000). This project will include
Lillian A. Sparks, Commissioner, Administration for Native Americans, 370 L'Enfant Promenade, SW., Washington, DC 20047.
President's Committee for People With Intellectual Disabilities (PCPID).
Notice.
Tuesday, August 16, 2011, from 1 p.m. to 2:30 pm E.S.T. This meeting, to be held via audio conference call, is open to the public.
Details for accessing the full Committee Conference Call are cited below:
Toll Free Dial-In Number: 800–779–1436.
Pass Code: PCPID.
Individuals who will need accommodations for a disability in order to participate in the PCPID Meeting via audio conferencing (assistive listening devices, materials in alternative format such as large print or Braille) should notify Genevieve Swift, PCPID Executive Administrative Assistant, at
PCPID acts in an advisory capacity to the
President and the Secretary of Health and Human Services, through the Administration on Developmental Disabilities, on a broad range of topics relating to programs, services and supports for persons with intellectual disabilities. The PCPID Executive Order stipulates that the Committee shall: (1) Provide such advice concerning intellectual disabilities as the President or the Secretary of Health and Human Services may request; and (2) provide
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of the draft guidance entitled “Mobile Medical Applications.” FDA is issuing this draft guidance to inform manufacturers, distributors, and other entities about how the FDA intends to apply its regulatory authorities to select software applications intended for use on mobile platforms (mobile applications or “mobile apps”). At this time, FDA intends to apply its regulatory requirements solely to a subset of mobile apps that the Agency is calling mobile medical applications (mobile medical apps). This draft guidance is not final nor is it in effect at this time.
Although you can comment on any guidance at any time (see 21 CFR 10.115(g)(5)), to ensure that the agency considers your comment on this draft guidance before it begins work on the final version of the guidance, submit either electronic or written comments on the draft guidance by October 19, 2011
Submit written requests for single copies of the draft guidance document entitled “Mobile Medical Applications” to the Division of Small Manufacturers, International, and Consumer Assistance, Center for Devices and Radiological Health (CDRH), Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 4613, Silver Spring, MD 20993–0002; or to the Office of Communication, Outreach and Development (HFM–40), Center for Biologics Evaluation and Research (CBER), Food and Drug Administration, 1401 Rockville Pike, Rockville, MD 20852–1448. Send one self-addressed adhesive label to assist that office in processing your request, or fax your request to 301–847–8149. See the
Submit electronic comments on the draft guidance to
Given the rapid expansion and broad applicability of mobile apps, FDA is issuing this draft guidance to clarify the types of mobile apps to which FDA intends to apply its authority. At this time, FDA intends to apply its regulatory requirements to a subset of mobile apps that the Agency is calling mobile medical apps. For purposes of this guidance, a “mobile medical app” is defined as a mobile app that meets the definition of “device” in section 201(h) of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. 321);
• Is used as an accessory to a regulated medical device or
• Transforms a mobile platform into a regulated medical device.
This narrowly-tailored approach focuses on a subset of mobile apps that either have traditionally been considered medical devices or affect the performance or functionality of a currently regulated medical device.
Although some mobile apps that do not meet the definition of mobile medical app may meet the FD&C Act's definition of a device, the FDA intends to exercise enforcement discretion
We welcome comments on all aspects of this guidance as well as the following specific issues:
1. FDA generally considers extensions of medical devices as accessories to those medical devices. Accessories have been typically regulated under the same classification as the connected medical device. However, we recognize potential limitations to this policy for mobile medical apps. FDA seeks comments on how the Agency should approach accessories and particularly mobile medical apps that are accessories to other medical devices so safety and effectiveness can be reasonably assured. For example, one possible approach could be the following:
• An accessory that does not change the intended use of the connected device, but aids in the use of the connected medical device could be regulated as class I. For example, such an accessory would be similar to an infusion pump stand, which is currently classified as a class I device because it supports the intended use of an infusion pump (class II medical device). A mobile medical app that simply supports the intended use of a regulated medical device could be classified as class I with design controls as part of the quality systems requirements.
• An accessory that extends the intended use of the connected medical device could be classified with the connected device. For example, if a mobile medical app that performs more detailed analysis than the connected medical device while maintaining the original intended use, which is data analysis, could be classified in the same classification as the connected medical device.
• An accessory that creates a new intended use from that of the connected
2. FDA has not addressed in this guidance stand-alone software (mobile or traditional workstation) that analyzes, processes, or interprets medical device data (collected electronically or through manual entry of the device data) for purposes of automatically assessing patient specific data or for providing support in making clinical decisions. FDA plans to address such stand-alone software in a separate guidance. In order to provide a reasonable assurance of the safety and effectiveness of such software, and to ensure consistency between this guidance and the planned guidance on stand-alone software that provides clinical decision support (CDS), FDA is seeking comments on the following issues:
• What factors should FDA consider in determining the risk classification of different types of software that provide CDS functionality? Please provide examples of how those factors would be applied for such software that you believe should be in class I, class II, and class III.
• How should FDA assess stand-alone software that provides CDS functionality, to assure reasonable safety and effectiveness? For example, to what extent can FDA rely on a manufacturer's demonstration that it has a robust quality system with appropriate quality assurance and design controls? Under what circumstances should the submission of clinical data be required?
• Are there specific controls that manufacturers should implement that could change the risk classification or reduce the premarket data requirements for particular types of stand-alone software that provide CDS functionality?
This draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the Agency's current thinking on mobile medical applications. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statute and regulations.
Persons interested in obtaining a copy of the draft guidance may do so by using the Internet. A search capability for all CDRH guidance documents is available at
This draft guidance refers to previously approved information collections found in FDA regulations. The collections of information in 21 CFR part 801 are approved under OMB control number 0910–0485; the collection of information in 21 CFR part 803 are approved under OMB control number 0910–0437; the collections of information in 21 CFR part 806 are approved under OMB control number 0910–0359; the collections of information in 21 CFR part 807, subpart B, are approved under OMB control number 0910–0387; the collections of information in 21 CFR part 807, subpart E, are approved under OMB control number 0910–0120; and the collections of information in 21 CFR part 820 are approved under OMB control number 0910–0073.
Interested persons may submit to the Division of Dockets Management (see
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of the guidance entitled “Class II Special Controls Guidance Document: Electrocardiograph Electrodes.” The special controls identify the following risks to health associated with electrocardiograph electrodes: Adverse tissue reaction to the skin-contacting electrode materials and misdiagnosis. The guidance document provides information on how to mitigate these risks and recommends testing and labeling for these devices. This guidance document describes a means by which electrocardiograph electrodes may comply with the requirement of special controls for class II devices.
Submit either electronic or written comments on this guidance at any time. General comments on agency guidance documents are welcome at any time.
Submit written requests for single copies of the guidance document entitled “Class II Special Controls Guidance Document: Electrocardiograph Electrodes” to the Division of Small Manufacturers, International, and Consumer Assistance, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 4613, Silver Spring, MD 20993–0002. Send one self-addressed adhesive label to assist that office in processing your request, or fax your request to 301–847–8149.
Submit electronic comments on the guidance to
Sharon Lappalainen, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, rm. 1238, Silver Spring, MD 20993–0002, 301–796–6322.
The guidance describes a means by which electrocardiograph electrodes may comply with the requirement of special controls for class II devices. In the
FDA believes that adherence to the recommendations described in this guidance document, in addition to the general controls, will provide reasonable assurance of the safety and effectiveness of electrocardiograph electrodes classified under § 870.2360 (21 CFR 870.2360). In order to be classified as a class II device under § 870.2360, an electrocardiograph electrode must comply with the requirements of special controls; manufacturers must address the issues requiring special controls as identified in the guidance document, either by following the recommendations in the guidance document or by some other means that provides equivalent assurances of safety and effectiveness.
Persons interested in obtaining a copy of the guidance may do so by using the Internet. A search capability for all CDRH guidance documents is available at
To receive “Class II Special Controls Guidance Document: Electrocardiograph Electrodes,” you may either send an e-mail request to
This guidance refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520). The collections of information in 21 CFR part 807 subpart E have been approved under OMB control number 0910–0120; the collections of information in 21 CFR parts 50 and 56 have been approved under OMB control number 0910–0130; the collections of information in 21 CFR part 812 have been approved under OMB control number 0910–0078; and the collections of information in 21 CFR part 801 have been approved under OMB control number 0910–0485.
Interested persons may submit to the Division of Dockets Management (see
Food and Drug Administration, HHS.
Notice of public workshop; request for comments.
The Food and Drug Administration (FDA) is announcing a public workshop on the adoption, implementation, and use of unique device identifiers (UDIs) in various health-related electronic data systems. The purpose of this workshop is to engage multiple stakeholders to obtain information and comments on issues confronting the effective and efficient incorporation of UDIs into appropriate data sets, to identify barriers and incentives to their adoption and use, and to understand the best solutions and practices to resolve open issues.
Hotel reservations can be made by calling the hotel and requesting the group rate for the “FDA UDI Public Workshop” room block.
If you need special accommodations due to a disability, please contact Jay Crowley (
The meeting will also be Web cast. Persons interested in participating by Web cast must register online by 5 p.m. on September 5, 2011. Web cast participants will be sent connection requirements. More information on the Web cast can be found on our Web site at
By August 12, 2011, and then as available, FDA will post the workshop agenda and discussion topics, registration information, information about lodging, and other relevant information on the Internet at
Section 226 of the Food and Drug Administration Amendments Act of 2007 (FDAAA) directs FDA to issue regulations establishing a UDI system for medical devices. FDA is developing proposed regulations to establish this UDI system to strengthen and improve FDA's enforcement of other statutory authorities and improve the identification of devices through distribution and use. This workshop will not address the FDA's UDI regulatory framework. However, UDI systems have been under development for some years by the U.S. and global device industry and some device manufacturers have been incorporating UDI into their product labeling and packaging. See
FDA is also leading an effort to develop and implement a national strategy for the best public health use of health-related electronic data related to devices that incorporates UDIs, including registries, and leverages existing processes and systems. Health-related data (from large data sources such as health insurers and integrated health systems, and others) contains a wealth of public health information that could be harnessed to contribute to understanding device safety and effectiveness. Currently, however, these data generally cannot be used to identify specific device exposures in patients. This is not the case for drug exposure, where the regular documentation of NDC numbers allows for robust analysis of pharmaceutical safety and effectiveness. Absent such information for devices, a vast amount of potentially useful data regarding patient safety and outcomes remains untapped.
The incorporation of UDI into various health-related databases will greatly facilitate many important public health-related activities including:
• Reducing medical errors,
• Reporting and assessing device-related adverse events and product problems,
• Tracking of recalls,
• Assessing patient-centered outcomes and the risk/benefit profile of medical devices in large segments of the U.S. population,
• Providing an easily accessible source of device identification information to patients and health care professionals.
The incorporation of UDI into various health-related databases would also greatly expand Sentinel Initiative capabilities to conduct active device surveillance given that Sentinel device data sources are currently limited to a few registries capturing short-term patient outcomes. FDA's Sentinel Initiative, on the Internet at
This public workshop is intended to engage multiple stakeholders to inform FDA's efforts to promote and facilitate incorporation of UDIs into healthcare systems, obtain actionable information on the issues surrounding effective and efficient incorporation of UDIs into health-related electronic records, and understand best solutions and practices. To that end, we will focus on the following issues:
1. The current state of documentation of device use in health-related databases, including EHRs.
2. The barriers to, and various possible incentives for, the development, implementation and use of UDI in EHR systems.
3. The possible roles and activities of various government stakeholders (including FDA, CMS, ONC, and NLM) necessary to drive the adoption and use of UDIs in EHRs and other health-related databases.
4. Any other issues or concerns that would affect the efficient and effective incorporation of UDIs in EHRs and other health-related data.
5. The current state of documentation of device use in registries.
6. The future vision for device registries using UDI.
7. How EHRs and other, similar population-based databases can be used to provide registries or registry-like data.
8. Any technical issues confronting the effective and efficient incorporation of UDIs into appropriate data sets.
9. The current state of Health IT data standards in EHRs.
10. The future vision for use of standards in EHRs to improve data quality and data exchange.
11. The activities of the Health IT Standards Panel and its relationship to Meaningful Use.
12. The relationship of data standards to UDI integration in hospital systems.
13. The particular issues associated with networked devices that need to be considered.
14. The issues and challenges with device interoperability.
15. The current and future state of MMIS and RTLS systems to support safe device use.
16. How other information systems are adopting and implementing UDI and how these systems are integrating with other clinical information systems to transmit the appropriate data.
17. How we can use UDIs in health-related electronic data systems to improve post-approval studies.
18. How the documentation of UDIs can be used to improve the conduct of recalls.
19. The issues associated with the use of UDI in claims data sources.
20. How adverse event reporting can be improved.
21. Other postmarket surveillance and enforcement activities that can be improved through the documentation of UDIs in these databases.
22. The device information currently being transmitted from the EHR to a patient's PHR.
23. Any lessons learned that can be applied from documenting medication use.
24. How the documentation of UDI in patients' PHRs can be used for postmarket surveillance, enforcement activities and to improve device use.
25. Any differences in documentation and tracking of device use needed for different care settings (
Please be advised that as soon as a transcript is available, it will be accessible at
Food and Drug Administration, HHS.
Notice; request for comments.
The Food and Drug Administration (FDA) is announcing the availability of the standard operating procedure (SOP) for “Notice to Industry” Letters. The SOP describes the Center for Devices and Radiological Health's (CDRH) process to clarify and more quickly inform stakeholders when CDRH has changed its expectations relating to, or otherwise has new scientific information that could affect, data submitted as part of an Investigational Device Exemption (IDE) or premarket submission that needs to be disseminated in a timely manner.
The Agency encourages interested parties to submit information and either electronic or written comments by September 19, 2011.
Submit electronic comments or information to
Angela Krueger, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 1666, Silver Spring, MD 20993, 301–796–6380,
The Task Force on the Utilization of Science in Regulatory Decision Making (the Task Force) published a Preliminary Report and Recommendations in August 2010. In the report, the Task Force noted that when new scientific information changes CDRH's regulatory thinking, it has been challenging for the Center to communicate the change and its basis to all affected parties in a meaningful and timely manner. The Task Force recommended that the Center make use of more rapid tools for broad communication on regulatory matters, including establishing a standard practice for sending “Notice to Industry” Letters to all manufacturers of a particular group of devices for which the Center has changed its expectations for data submitted as part of an IDE or premarket application on the basis of new scientific information.
Currently, manufacturers typically learn of changes CDRH implements at the time of or soon after a decision is made through individual engagement with the Center, often not until after they have prepared a premarket submission. Reviewers may implement these changes, such as requesting new clinical data or using a new test method, on a case by case basis, with immediate supervisory concurrence when it is necessary to protect the public health. For example, a reviewer may request that sponsors test their implantable device for durability because new data demonstrates that this type of device is prone to failure due to premature wear and tear of the technology. Although CDRH may issue a detailed guidance document, the document may not be published until a year or more after a branch- or division-level decision has been made to request the information because of the resource constraints in developing guidance documents.
Therefore, CDRH believes that timely communication with industry about changes in regulatory expectations or new scientific information is important. The Task Force recommended that CDRH use “Notice to Industry” Letters in these circumstances, although not required, and adopt a uniform template and terminology for such letters, including clear and consistent language to indicate that the Center has changed its regulatory expectations, the general nature of the change, and the rationale for the change. The Task Force contemplated that CDRH could potentially issue “Notice to Industry” Letters, if such letters constitute guidance, as “Level 1—Immediately in Effect” guidance documents under 21 CFR 10.115(g)(2), and would open a public docket upon their issuance through a notice of availability in the
This SOP was developed to address this recommendation from the Task Force. Where appropriate, CDRH will communicate new expectations as “Notice to Industry” Guidance Letters, which will comply with Good Guidance Practices, or CDRH will communicate other new scientific information as “Notice to Industry” Advisory Letters. The Center will post both types of “Notice to Industry” Letters on its Web site, and will also use additional methods for distributing the Letters to identified stakeholders. When CDRH issues a “Notice to Industry” Guidance Letter concerning a change in premarket expectations that will affect pending
Interested persons may submit to the Division of Dockets Management (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 meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
The Diabetes Mellitus Interagency Coordinating Committee (DMICC) will hold a meeting on August 1, 2011, from 8:30 a.m. to 11:30 p.m. at the Bethesda Marriott Suites, 6711 Democracy Blvd, Bethesda, MD 20817. The meeting is open to the public but attendance is limited to space available. Non-Federal individuals planning to attend the meeting should notify the Contact Person listed on this notice at least 2 days prior to the meeting. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should inform the Contact Person listed below at least 10 days in advance of the meeting.
The DMICC facilitates cooperation, communication, and collaboration on diabetes among government entities. DMICC meetings, held several times a year, provide an opportunity for members to learn about and discuss current and future diabetes programs in DMICC member organizations and to identify opportunities for collaboration. The August 1, 2011, DMICC meeting will discuss “Guides and Guidelines.”
Any member of the public interested in presenting oral comments to the Committee should notify the Contact Person listed on this notice at least 10
A registration link and information about the DMICC meeting will be available on the DMICC Web site:
For further information concerning this meeting contact Dr. Sanford Garfield, Executive Secretary of the Diabetes Mellitus Interagency Coordinating Committee, National Institute of Diabetes and Digestive and Kidney Diseases, 6707 Democracy Boulevard, Room 654, MSC 5460, Bethesda, MD 20892–5460,
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 concerning opportunity for public comment on proposed collections of information, the Substance Abuse and Mental Health Services Administration (SAMHSA) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the information collection plans, call the SAMHSA Reports Clearance Officer on (240) 276–1243.
Comments are invited on: (a) Whether the proposed collections of information are necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
This proposed project is a new data collection that builds on previously approved data collection activities [Evaluation of Networking Suicide Prevention Hotlines Follow-Up Assessment (OMB No. 0930–0274) and Call Monitoring of National Suicide Prevention Lifeline Form (OMB No. 0930–0275)]. This new data collection is an effort to advance the understanding of crisis hotline utilization and its impact. The Substance Abuse and Mental Health Services Administration's (SAMHSA), Center for Mental Health Services (CMHS) funds a National Suicide Prevention Lifeline Network (“Lifeline”), consisting of a toll-free telephone number that routes calls from anywhere in the United States to a network of local crisis centers. In turn, the local centers link callers to local emergency, mental health, and social service resources.
The overarching purpose of the proposed Evaluation of the Lifeline Policies for Helping Callers at Imminent Risk is to implement data collection to evaluate hotline counselors' management of imminent risk callers and third party callers concerned about persons at imminent risk, and counselor adherence to
Clearance is being requested for
Crisis counselors at eight participating centers will record information discussed with imminent risk callers on the Imminent Risk Form, which does not require direct data collection from callers. As with previously approved evaluations, callers will maintain anonymity. Counselors will be asked to complete the form for 100% of imminent risk callers to the eight centers participating in the evaluation. This form requests information in 14 content areas, each with multiple sub-items and response options. Response options include open-ended, yes/no, Likert-type ratings, and multiple choice/check all that apply. The form also requests demographic information on the caller, the identification of the center and counselor submitting the form, and the date of the call. Specifically, the form is divided into the following sections: (1) Call type, (2) gender, (3) age, (4) suicidal desire, (5) suicidal intent, (6) suicidal capability, (7) buffers to suicide, (8) interventions agreed to by caller or implemented by counselor without consent, (9) whether imminent risk was reduced enough such that active rescue was not needed, (10) interventions for third party callers calling about a person at imminent risk,
The estimated response burden to collect this information is annualized over the requested two-year clearance period and is presented below:
Send comments to Summer King, SAMHSA Reports Clearance Officer, Room 8–1099, One Choke Cherry Road, Rockville, MD 20857
National Protection and Programs Directorate, DHS.
30-day notice and request for comments; New Information Collection Request.
The Department of Homeland Security (DHS), National Protection and Programs Directorate (NPPD), Office of Cybersecurity and Communications (CS&C), National Cyber Security Division (NCSD), Cyber Security Evaluation Program (CSEP), will submit the following Information Collection Request (ICR) to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104–13, 44 U.S.C. Chapter 35): New Information Collection Request, Nationwide Cyber Security Review (NCSR) Assessment. DHS previously published this ICR in the
Comments are encouraged and will be accepted until August 22, 2011. This process is conducted in accordance with 5 CFR 1320.10.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, OMB. Comments should be addressed to OMB Desk Officer, Department of Homeland Security, Office of Civil Rights and Civil Liberties. Comments must be identified by DHS–2011–0012 and may be submitted by
•
•
•
OMB is particularly interested in comments that:
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,
Michael Leking, DHS/NPPD/CS&C/NCSD/CSEP,
Per House Report 111–298 and Senate Report 111–31,
Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE), Interior.
Notice of extension of an information collection.
To comply with the Paperwork Reduction Act of 1995 (PRA), we are notifying the public that we have submitted to OMB an information collection request (ICR) to renew approval of the paperwork requirements that address the BOEMRE's Coastal Impact Assistance Program (CIAP), which is a grant program. This notice also provides the public a second opportunity to comment on the paperwork burden of these requirements.
Submit written comments by August 22, 2011.
Submit comments by either fax (202) 395–5806 or e-mail (
•
•
Cheryl Blundon, Regulations and Standards Branch, (703) 787–1607. To see a copy of the entire ICR submitted to OMB, go to
“(d) AUTHORIZED USES.—
(1) IN GENERAL.—A producing State or coastal political subdivision shall use all amounts received under this section, including any amount deposited in a trust fund that is administered by the State or coastal political subdivision and dedicated to uses consistent with this section, in accordance with all applicable Federal and State law, only for 1 or more of the following purposes:
(A) Projects and activities for the conservation, protection, or restoration of coastal areas, including wetland.
(B) Mitigation of damage to fish, wildlife, or natural resources.
(C) Planning assistance and the administrative costs of complying with this section.
(D) Implementation of a federally-approved marine, coastal, or comprehensive conservation management plan.
(E) Mitigation of the impact of outer Continental Shelf activities through funding of onshore infrastructure projects and public service needs.
(2) COMPLIANCE WITH AUTHORIZED USES.—If the Secretary determines that any expenditure made by a producing State or coastal political subdivision is not consistent with this subsection, the Secretary shall not disburse any additional amount under this section to the producing State or the coastal political subdivision until such time as all amounts obligated for unauthorized uses have been repaid or reobligated for authorized uses.
(3) LIMITATION.—Not more than 23 percent of amounts received by a producing State or coastal political subdivision for any 1 fiscal year shall be used for the purposes described * * *”
Information needs to be submitted by the government jurisdictions to meet all the requirements of the CIAP State Plan Guidelines as well as requirements on the procurement contracts. Responses are mostly required to obtain or retain a benefit. No questions of a “sensitive” nature are asked. BOEMRE protects information considered proprietary according to the Freedom of Information Act (5 U.S.C. 552) and its implementing regulations (43 CFR 2).
According to the EPAct, in order to receive funds, the states must submit CIAP State Plans that contain required components including an implementation plan of the state's program and identification of the proposed use of CIAP funds. The identification will be provided in the Plan as brief descriptions of the proposed projects. Upon approval of a Plan, recipients will be able to submit grant applications for a project. Applicants submit proposals for funding in response to a Notice of Funding Availability that we publish on Grants.gov and on our program web pages. Proposals are submitted through Grants.gov. An application consists of OMB required forms for grants; a detailed project description or narrative to demonstrate that the project has maintained the integrity of the brief description in the Plan and still meets EPAct criteria; and documentation such as Federal, State, or local government required permits with which the recipient is stating it has met Federal, State, or local laws.
Once an application for a project is approved, BOEMRE is required to monitor the projects to determine that the CIAP funds are being used for appropriate expenses. The monitoring will be achieved through the grant regulations that require, at a minimum, a recipient to provide an annual progress and financial status reports. Recipients are evaluated by contracting officers via Grants.gov application efforts. The recipients that are determined by the evaluations to likely have difficulties in implementing and managing the CIAP funded projects will be required to submit semi-annual reports. Once the recipient has demonstrated the ability to implement and manage their projects, the requirement can be returned to annual reports.
BOEMRE needs the information required so that technical experts can determine how well it addresses the requirements identified in the authorizing EPAct legislation and monitor the projects to meet specific requirements.
To comply with the public consultation process, on January 28, 2011, we published a
If you wish to comment in response to this notice, you may send your comments to the offices listed under the
Fish and Wildlife Service, Interior.
Notice of meeting.
We, the U.S. Fish and Wildlife Service (Service), announce a meeting of the Lake Champlain Sea Lamprey Control Alternatives Workgroup (Workgroup). The Workgroup's purpose is to provide, in an advisory capacity, recommendations
The Workgroup will meet on Monday, August 22, 2011, 10 a.m. to 1 p.m. Any member of the public who wants to find out whether the meeting has been postponed may contact Ms. Stefi Flanders at 802–872–0629, extension 10 (telephone), or
The meeting will be held at the Essex Town Hall, 2313 Main Street/Lakeshore Road, Essex, NY 12936; 518–963–4287 (telephone).
Dave Tilton, Designated Federal Officer, Lake Champlain Sea Lamprey Control Alternatives Workgroup, Lake Champlain Fish and Wildlife Resources Office, U.S. Fish and Wildlife Service, 11 Lincoln Street, Essex Junction, VT 05452 (U.S. mail); 802- 872–0629 (telephone);
On April 10, 2006, the Department of the Interior published a notice of establishment of the Workgroup in the
• Review of any proposals received and discussion of which, if any, to forward to the Fisheries Technical Committee of the Lake Champlain Fish and Wildlife Management Cooperative for funding.
• A presentation by William Ardren, Senior Fish Biologist, Lake Champlain Fish and Wildlife Resources Office, on potential for using Genetically Modified Organism (GMO) technology to control sea lamprey population size in Lake Champlain.
The meeting location is accessible to wheelchair users. If you require additional accommodations, please notify us at least 1 week in advance of the meeting.
All Committee meetings are open to the public. The public has an opportunity to comment at all Committee meetings.
We publish this notice under section 10(a)(2) of the Federal Advisory Committee Act (5 U.S.C. App.).
Bureau of Indian Affairs, Interior.
Notice.
This notice lists additional allotments or interest therein on the White Earth Chippewa Reservation in Minnesota which have been determined to fall within the scope of sections 4(a), 4(b), or 5(c) of the White Earth Reservation Land Settlement Act of 1985 (the Act). This notice is required by section 7(e) of the Act, as amended.
Robert Lintelmann, Acting Superintendent, Minnesota Agency, Bureau of Indian Affairs, 522 Minnesota Ave., NW., Bemidji, Minnesota 56601, Telephone (218) 751–2011.
The White Earth Reservation Land Settlement Act of 1985, Public Law 99–264 (100 Stat. 61) as amended by Public Law 100–153 (101 Stat. 886), Public Law 100–212 (101 Stat. 1433), and Public Law 101–301 (104 Stat. 210), provides for alternative methods of resolving disputes relative to the title to certain allotments for which trust patents were issued to White Earth Chippewa Indians. Sections 4(a) and 4(b) of the Act define circumstances by which the title to an allotment may have been taken or transferred through a questionable means during the trust period. The Act authorizes the Secretary of the Interior to: (1) Identify the allotments or interest therein which were taken or transferred under identified circumstances, (2) determine the individuals entitled to compensation pursuant to the Act, and (3) ascertain the amount of compensation to which each such individual is entitled. In addition, section 5(c) of the Act provides that the White Earth Band of Chippewa Indians shall be compensated for allotments which were granted to individuals who had died prior to the selection dates of their respective allotments.
Under section 8(a) of the Act, the compensation for the taking or transfer of an allotment or interest is to be based on the fair market value of the allotment or interest therein as of the date of such taking or transfer, less any consideration actually received at the time. The compensation to be paid under the Act shall include interest compounded annually at 5 percent from the date of the questionable taking or transfer, until March 24, 1986, and at the general rate of interest earned by Department of the Interior funds thereafter. The Secretary is authorized to issue written notices of compensation determination to the allottees or heirs entitled thereto. Such notice shall describe the basis for the Secretary's determination, the process by which such compensation was determined, the method of payment, and the applicable time limits for judicial review of the determination. Any individual who has already elected to file suit in the Federal District Court for the District of Minnesota to seek the recovery of title to an allotment or interest therein, or damages, is barred under section 6(c) from receiving any compensation under the Act.
The Secretary was authorized, pursuant to section 7(a) of the Act, to publish a first list of allotments or interests that fall within the provisions of sections 4(a), 4(b), or 5(c) of the Act. The first list of allotments and interests affected by the Act was published in the
The Secretary is also authorized, at any time, pursuant to section 7(e)(1) of the Act, as amended, to add allotments or interests to the second list if the Secretary determined that the additional allotments or interests fall within the provisions of sections 4(a), 4(b), or 5(c). The first list of such additions was published in the
The list describes additional allotments and interests whether the takings or transfers apply to the allottees or the heirs of inherited interests. The lists characterized in the September 19, 1986, and March 10, 1989, publications as those of Partial Interests are no longer being published. All allotments and interests determined by the Secretary to be affected by sections 4(a), 4(b), or 5(c) of the Act are contained in what had been characterized as the Master List in previous publications and in this addition. Some of the allotments contained on the list included herein may represent partial interests only.
The inclusion of an allotment or interest on this list may be judicially reviewed pursuant to the provisions of the Administrative Procedure Act, 5 U.S.C. 701,
This notice is published in the exercise of authority delegated by the Secretary of the Interior to the Assistant Secretary—Indian Affairs by 209 DM 8.
Each questionable taking or transfer has been assigned a 10-, 11-, or 12-character Issue Number. In every instance, the first six characters, F53408, are identical and denote the Midwest Regional Office, Minnesota Agency and White Earth Indian Reservation. The last four, five or six characters identify the specific taking or transfer. The list contains information regarding allotments and inherited interests, in addition to those listed in previous publications, affected by the Act, including the following subheadings:
Tracts which fall within the provisions of section 5(c) of the Act where the claimant is the White Earth Band appear on the list with the White Earth Band listed under the sub-heading of English Name.
Three tracts listed separately were published in the January 13, 2005, list with incorrect legal descriptions. They are now listed with corrected legal descriptions.
If you wish further information about allotments or interests therein which are contained in this list, call or write the WELSA Project office in care of the Bureau of Indian Affairs. The address and telephone number are indicated in the
Bureau of Indian Affairs, Interior.
Notice of request for comments.
In compliance with the Paperwork Reduction Act of 1995, the Bureau of Indian Affairs (BIA) is seeking comments on renewal of Office of Management and Budget (OMB) approval for the collection of information for the Class III Tribal State Gaming Compact Process. The information collection is currently authorized by OMB Control Number 1076–0172, which expires November 30, 2011.
Interested persons are invited to submit comments on or before
You may submit comments on the information collection to Paula L. Hart, Director, Office of Indian Gaming, 1849 C Street, NW., MS 3657, Washington, DC 20240, Fax No. 202–273–3153.
Paula L. Hart at 202–219–4066.
The BIA is seeking renewal of the approval for the information collection conducted under 25 CFR 293, Class III Tribal State Gaming Compact Process and the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. 2710(d)(8)(A), (B) and (C), which authorizes the Secretary to approve, disapprove or “consider approved” (
BIA requests that you send your comments on this collection to the location listed in the
Please note that an agency may not sponsor or conduct, and an individual need not respond to, a collection of information unless it has a valid OMB Control Number. This information collection expires November 30, 2011.
It is our policy to make all comments available to the public for review at the location listed in the
Bureau of Indian Affairs, Interior.
Notice of request for comments.
The Bureau of Indian Affairs (BIA) is proposing to submit the information collection titled “Tribal Probate Codes, 25 CFR 18” to the Office of Management and Budget (OMB) for renewal pursuant to the Paperwork Reduction Act. The information collection is currently authorized by OMB Control Number 1076–0168, which expires November 30, 2011. The information collection requires Indian tribes to submit their tribal probate codes to the Secretary of the Interior for approval in accordance with the American Indian Probate Reform Act of 2004.
Interested persons are invited to submit comments on or before
You may submit comments on the information collection to Charlene Toledo, Bureau of Indian Affairs, Director, Special Projects, BIA Division of Probate Services, 2600 N Central Ave., STE MS102, Phoenix, AZ 85004;
You may request further information or obtain copies of the information collection request submission from Charlene Toledo, Bureau of Indian Affairs, Director, Special Projects. Telephone (505) 563–3371.
As sovereignties, federally recognized tribes have the right to establish their own probate codes. When those probate codes govern the descent and distribution of trust or restricted property, they must be approved by the Secretary of the Department of the Interior. The American Indian Probate Reform Act of 2004 (AIPRA) amendments to the Indian Land Consolidation Act, 25 U.S.C. 2201
The BIA requests that you send your comments on this collection to the location listed in the
Please note that an agency may not sponsor or conduct, and an individual need not respond to, a collection of information unless it has a valid OMB Control Number. Approval for this collection expires November 30, 2011. Response to the information collection is required to obtain a benefit.
It is our policy to make all comments available to the public for review at the location listed in the
Bureau of Indian Affairs, Interior.
Notice of request for comments.
The Bureau of Indian Affairs (BIA) is proposing to submit the information collection titled “Probate of Indian Estates, Except for Members of the Osage Nation and the Five Civilized Tribes, 25 CFR 15” to the Office of Management and Budget (OMB) for renewal pursuant to the Paperwork Reduction Act. The information collection is currently authorized by OMB Control Number 1076–0169, which expires November 30, 2011. The information collection addresses information that individuals and tribes provide to allow administration of the trust estates of Indian individuals in accordance with the American Indian Probate Reform Act of 2004.
Interested persons are invited to submit comments on or before
You may submit comments on the information collection to Charlene Toledo, Bureau of Indian Affairs, Director, Special Projects, BIA Division of Probate Services, 2600 N Central Ave., STE MS102, Phoenix, AZ 85004;
You may request further information or obtain copies of the information collection request submission from Charlene Toledo, Bureau of Indian Affairs, Director, Special Projects. Telephone (505) 563–3371.
The Secretary of the Interior probates those assets held by individuals in trust or restricted status, in accordance with the American Indian Probate Reform Act of 2004 (AIPRA) amendments to the Indian Land Consolidation Act, 25 U.S.C. 2201
The BIA requests that you send your comments on this collection to the location listed in the
Please note that an agency may not sponsor or conduct, and an individual need not respond to, a collection of information unless it has a valid OMB Control Number. Approval for this collection expires November 30, 2011. Response to the information collection is required to obtain a benefit.
It is our policy to make all comments available to the public for review at the location listed in the
Bureau of Indian Affairs, Interior.
Notice of submission to the Office of Management and Budget.
As required by the Paperwork Reduction Act, the Bureau of Indian Affairs (BIA) is submitting a request for renewal of OMB approval to collect information for the BIA Housing Improvement Program. The information collection is currently authorized by
Submit comments on or before August 22, 2011.
You may submit comments on the information collection to the Desk Officer for the Department of the Interior at the Office of Management and Budget, by facsimile to (202) 395–5806 or you may send an e-mail to:
Les Jensen (907) 586–7397. To see a copy of the entire collection submitted to OMB, go to
BIA is seeking renewal of the approval for the information collection conducted under 25 CFR 256, Housing Improvement Program, to determine applicant eligibility for housing improvement program services and to determine priority order in which eligible applicants may receive the program services. Approval for this collection expires on August 31, 2011. This information includes an application form. No changes are being made to the form or to the approved burden hours for this information collection.
BIA requests your comments on this collection concerning: (a) The necessity of this information collection for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) The accuracy of the agency's estimate of the burden (hours and cost) of the collection of information, including the validity of the methodology and assumptions used; (c) Ways we could enhance the quality, utility and clarity of the information to be collected; and (d) Ways we could minimize the burden of the collection of the information on the respondents, such as through the use of automated collection techniques or other forms of information technology.
Please note that an agency may not conduct or sponsor, and an individual need not respond to, a collection of information unless it has a valid OMB Control Number.
It is our policy to make all comments available to the public for review at the location listed in the
A. Applicant Information including: Name, current address, telephone number, date of birth, social security number, tribe, roll number, reservation, marital status, name of spouse, date of birth of spouse, tribe of spouse, and roll number of spouse.
B. Family Information including: Name, date of birth, relationship to applicant, and tribe/roll number.
C. Income Information: Earned and unearned income.
D. Housing Information including: Location of the house to be repaired, constructed, or purchased; description of housing assistance for which applying; knowledge of receipt of prior Housing Improvement Program assistance, amount to whom and when; ownership or rental; availability of electricity and name of electric company; type of sewer system; water source; number of bedrooms; size of house, and bathroom facilities.
E. Land Information including: Landowner; legal status of land; or type of interest in land.
F. General Information including: Prior receipt of services under the Housing Improvement Program and description of such; ownership of other housing and description of such; identification of Housing and Urban Development-funded house and current status of project; identification of other sources of housing assistance for which the applicant has applied and been denied assistance, if applying for a new housing unit or purchase of an existing standard unit; and advisement and description of any severe health problem, handicap or permanent disability.
G. Applicant Certification including: Signature of applicant and date, and signature of spouse and date.
Response is required to obtain a benefit.
Bureau of Land Management, Interior.
Notice of Intent.
In compliance with the National Environmental Policy Act of 1969, as amended, and the Federal Land Policy and Management Act of 1976, as amended, the Bureau of Land Management (BLM) Burns District Office, Three Rivers Resource Area, Burns, Oregon, intends to prepare an Environmental Assessment (EA) which will amend the 1992 Three Rivers Resource Management Plan (RMP), and by this notice is announcing the beginning of the scoping process to solicit public comments and identify issues.
This notice initiates the public scoping process for the EA and Land Tenure Amendment to the Three Rivers RMP. Comments on issues may be submitted in writing until August 22, 2011. The date(s) and location(s) of any scoping meeting(s) will be announced at
In order to be included in the Draft EA, all comments must be received prior to the close of the 30-day scoping period or 15 days after the last public meeting, whichever is later. We will provide additional opportunities for public participation upon publication of the EA.
You may submit comments on issues and planning criteria related to the Amendment to the Three Rivers Resource Management Plan for the Skull Creek Area by any of the following methods:
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Documents pertinent to this proposal may be examined at the BLM Burns District Office.
For further information and/or to have your name added to our mailing list, contact Tara McLain, Realty Specialist, telephone 541–573–4462; address: BLM Burns District Office, 28910 Hwy 20 W, Hines, OR 97738, phone: 541–573–4462; e-mail:
This plan amendment and associated EA will address a proposed land disposal in the Skull Creek Area. The purpose of this disposal is for the sale of the 5-acre parcel to the current lessees to resolve ownership issues. The project area encompasses 5 acres of public land. The legal description for the land specifically identified for disposal is: W.M., T. 20 S., R. 29 E., section 34, E
The 5 acres of public land proposed for disposal are currently authorized for private use under a lifetime lease. A cabin exists on the parcel as part of a long-term unintentional trespass. This parcel is essentially cut off from public use due to private land holdings and the general topography of the area. The environmental analysis will address other resource issues as necessary.
The purpose of the public scoping process is to determine relevant issues that will influence the scope of the environmental analysis, including alternatives, and guide the process for developing the EA. At present, the BLM has identified the following issues: Lands and realty management and social and economic values. Native American tribal consultations will be conducted in accordance with policy, and tribal concerns will be given due consideration, including impacts on Indian trust assets. Federal, State, and local agencies, along with other stakeholders that may be interested or affected by the BLM's decision on this project are invited to participate in the scoping process and, if eligible, may request or be requested by the BLM to participate as a cooperating agency. The BLM will use an interdisciplinary approach to develop the plan in order to consider the variety of resource issues and concerns identified. Specialists with expertise in the following disciplines will be involved in the planning process: Rangeland management, minerals and geology, forestry, outdoor recreation, archaeology, paleontology, wildlife and fisheries, lands and realty, hydrology, soils, sociology and economics. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
40 CFR 1501.7, 40 CFR 1508.22, 43 CFR 1610.2.
Bureau of Land Management, Interior, Montana, Billings and Miles City Field Offices.
Notice of public meeting.
In accordance with the Federal Land Policy and Management Act (FLPMA) and the Federal Advisory Committee Act of 1972 (FACA), the U.S. Department of the Interior, Bureau of Land Management (BLM) Eastern Montana Resource Advisory Council (RAC), will meet as indicated below.
The next regular meeting of the Eastern Montana Resource Advisory Council will be held on Aug. 25, 2011 in Billings, Montana. The meeting will start at 8 a.m. and adjourn at approximately 3:30 p.m.
When determined, the meeting location will be announced in a news release.
Mark Jacobsen, Public Affairs Specialist, BLM Eastern Montana/Dakotas District, 111 Garryowen Road, Miles City, Montana 59301.
The 15-member Council advises the Secretary of the Interior through the Bureau of Land Management on a variety of planning and management issues associated with public land management in Montana. At these meetings, topics will include: Miles City and Billings Field Office manager updates, subcommittee briefings, work sessions and other issues that the council may raise. All meetings are open to the public and the public may present written comments to the Council. Each formal Council meeting will also have time allocated for hearing public comments. Depending on the number of persons wishing to comment and time available, the time for individual oral comments may be limited. Individuals who plan to attend and need special assistance, such as sign language interpretation, tour transportation or other reasonable accommodations should contact the BLM as provided above.
Bureau of Land Management, Interior.
Notice of public meeting.
In accordance with the Federal Land Policy and Management Act (FLPMA) and the Federal Advisory Committee Act of 1972 (FACA), the U.S. Department of the Interior, Bureau of Land Management (BLM) Dakotas Resource Advisory Council (RAC), will meet as indicated below.
The next regular meeting of the Dakotas Resource Advisory Council will be held on Aug. 17, 2011 in Dickinson, ND. The meeting will start at 8 a.m. and adjourn at approximately 3:30 p.m. When determined, the meeting location will be announced in a news release.
Mark Jacobsen, Public Affairs Specialist, BLM Eastern Montana/Dakotas District, 111 Garryowen Road, Miles City, Montana, 59301.
The 15-member Council advises the Secretary of the Interior through the Bureau of Land Management on a variety of planning and management issues associated with public land management in the Dakotas. At these meetings, topics will include: North Dakota and South Dakota Field Office manager updates, subcommittee briefings, work sessions and other issues that the council may raise. All meetings are open to the public and the public may present written comments to the Council. Each formal Council meeting will also have time allocated for hearing public comments. Depending on the number of persons wishing to comment and time available, the time for individual oral comments may be limited. Individuals who plan to attend and need special assistance, such as sign language interpretation, tour transportation or other reasonable accommodations should contact the BLM as provided above.
Bureau of Land Management, Interior.
Final supplementary rules.
The Bureau of Land Management (BLM) in Idaho is finalizing a supplementary rule that will require anyone using, feeding, or storing forage or straw on BLM-administered land in Idaho to use certified noxious-weed-free forage and straw. Restoration, rehabilitation, and stabilization projects also will be required to use weed-free straw bales and mulch for project work. This action is a cooperative effort among the BLM, the U.S. Forest Service (USFS), and the Idaho State Department of Agriculture (ISDA) that supports Idaho State noxious weed laws.
These supplementary rules are effective August 22, 2011.
You may direct inquiries by letter to Roger Rosentreter, Botanist, Bureau of Land Management, 1387 S. Vinnell Way, Boise, ID 83709, or by e-mail to
Roger Rosentreter, Botanist, Bureau of Land Management, 1387 S. Vinnell Way, Boise, ID 83709; telephone (208) 373–3824; e-mail
Noxious and invasive weeds are a serious problem in the Western United States. Noxious weeds are spreading on BLM lands at a rate of over 2,300 acres per day, and on all Western public lands at approximately 4,600 acres per day. Species such as perennial pepperweed, purple loosestrife, yellow starthistle, hoary cress (whitetop), leafy spurge, diffuse knapweed, spotted knapweed, Russian knapweed, Scotch thistle, Canada thistle, rush skeletonweed, and many others are non-native to the United States and have no natural enemies to keep their populations in balance. Consequently, depending on the circumstances (
To curb the spread of noxious weeds, a growing number of Western States have jointly developed noxious-weed-free forage certification standards, and in cooperation with various Federal, State, and county agencies, have also passed weed management laws. Idaho participates in a regional inspection-certification process with Oregon, Montana, Washington, Nevada, and Wyoming and encourages, on a voluntary basis, forage producers in Idaho to grow and request voluntary certification inspections of forage products and straw.
Because forage products and straw containing noxious weed seed contribute to the spread and establishment of weed infestations, the USFS promulgated regulations in 1996, known as a “Weed Free Hay Order,” to address this issue. In response to that Order, the State of Idaho implemented a noxious-weed-free forage and straw certification program in 1997. Under Idaho Code, the ISDA wrote regulations in 2007 (Title 22, chapter 24 Noxious-Weed-Free Forage and Straw Rules and IDAPA 02.06.31). This program, which is a cooperative effort between the ISDA and the USFS, was established to limit the introduction and spread of noxious weeds through forage and straw onto National Forest System lands and other lands within Idaho. The Federal Plant Protection Act of 2000 (7 U.S.C. 7701–7751) directs agencies to develop integrated management plans for noxious weeds. These supplementary rules are intended to complement the existing regulatory framework.
These supplementary rules are promulgated under the authority of the Federal Land Policy and Management Act (FLPMA) of 1976 (43 U.S.C. 1733(a) and 1740) and 43 CFR 8365.1–6.
The BLM Idaho State Office proposed supplementary rules in the
Two of the comments suggested revising proposed paragraph (4): “Certified noxious-weed-free compressed forage bales are identified with yellow binding (strapping) material with the statement `ISDA NWFFS' and the manufacturer's name printed in purple.” The commenters suggested that the paragraph be reworded as follows: “Certified noxious-weed-free compressed forage bales are identified by strapping/binding material authorized by NAWMA [the North American Weed Management Association] with the same color and marking requirements on products certified by other NAWMA approved agencies.” This revision is consistent with the use of certification identifiers required by other agencies, and has been included in the final supplementary rules.
The third comment suggested that the BLM monitor livestock for what they have eaten during the three days before they are turned out onto the public lands, to address the possibility that weed seeds might pass through the digestive tracts of the livestock and subsequently germinate on the rangelands. Although there is a slight possibility of weed seeds surviving in this manner, BLM staff concluded that the resources and logistics of such monitoring would provide marginal benefit and would result in a significant regulatory burden for the agency and public. Consequently, these supplementary rules were not amended as suggested.
The final supplementary rules apply to BLM-administered lands in Idaho and provide for consistent management with National Forest System lands across jurisdictional boundaries. The final supplementary rules will be implemented by including a standard stipulation in all Special Recreation Permits and most other use authorizations. Livestock grazing permits would not need to include such a stipulation because 43 CFR 4140.1(a)(3) already requires the permittee to secure authorization before supplemental feeding, maintenance feeding, and emergency feeding on lands administered by the BLM.
The supplementary rules require holders of affected permits and use authorizations to use certified noxious-weed-free forage and straw when they use hay, cubes, and straw on BLM-administered public lands in Idaho. Affected permittees includes recreationists using pack and saddle stock, grazing permittees, outfitters, and contractors and operators who use straw or mulch for reclamation or re-seeding purposes. These individuals or groups are required to use certified noxious-weed-free forage and straw while on BLM-administered public lands in Idaho, unless they have a permit or letter signed by a BLM authorized officer specifically authorizing the otherwise-prohibited act, or are transporting forage across public lands from one private property to another private property. The BLM in Idaho allows forage certified by other States to be used as forage on lands administered by Idaho BLM offices.
In addition, in cooperation with the USFS hay closure and the Idaho State Department of Agriculture (ISDA) Noxious-Weed-Free Forage and Straw Certification (NWFFS) program, the BLM prohibits the use of forage and straw that has not been certified as noxious-weed-free for all BLM-administered public lands within Idaho. The BLM State Office in Idaho, in cooperation with the ISDA, will implement a public information plan intended to publicize the supplementary rules and notify visitors and land users where they can purchase state-certified noxious-weed-free forage and straw.
Paragraph (1) of the proposed supplementary rules provided for a 60-day grace period between the effective date and enforcement of the supplementary rules. The BLM recognizes that immediate compliance with these supplementary rules might not be realistic, and has determined that it is appropriate to postpone enforcement of these supplementary rules for 30 days after the effective date of these supplementary rules. During that time, the BLM plans to concentrate on education and outreach. The proposed regulatory text referring to a grace period has been revised to provide for a specific enforcement date that is 30 days after the effective date of these supplementary rules. This revised language appears in the penalty provision (
These supplementary rules are in conformance with all BLM land use plans within Idaho. The final supplementary rules are consistent with and supportive of the statewide Conservation Plan for the Greater Sage-Grouse in Idaho (Idaho Sage-Grouse Advisory Committee, 2006), which recommends that the use of weed-free forage on public and state lands be required to discourage the spread of invasive annuals and noxious weeds.
These supplementary rules are not a significant regulatory action and are not subject to review by the Office of Management and Budget under Executive Order 12866. These rules will not have an annual effect of $100 million or more on the economy. They will not adversely affect, in a material way, the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments, or communities. These final supplementary rules will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. The final supplementary rules do not materially alter the budgetary effects of entitlements, grants, user fees, or loan programs or the right or obligations of their recipients, nor do they raise novel legal or policy issues. They merely impose rules regarding the use of certified noxious-weed-free forage and straw on BLM-administered public lands in Idaho.
The BLM has prepared an environmental assessment (EA) titled “Implementation of Requirements for Certified Noxious-Weed-Free Forage and Straw On Bureau of Land Management Lands in Idaho.” The final supplementary rules do not constitute a major Federal action significantly affecting the quality of the human environment under Section 102(2)(C) of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4332(2)(C). A detailed environmental impact statement under NEPA is not required. The BLM has placed the EA and the Finding of No Significant Impact on file in the BLM Administrative Record at the address specified in the
Congress enacted the Regulatory Flexibility Act (RFA) of 1980, as amended, 5 U.S.C. 601–612, to ensure that Government regulations do not
These final supplementary rules do not constitute a “major rule” as defined at 5 U.S.C. 804(2). They would not result in an annual effect on the economy of $100 million or more, in a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions, or in significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. They would merely impose rules regarding the use of certified noxious-weed-free forage and straw on BLM-administered public lands in Idaho.
These final supplementary rules do not impose an unfunded mandate on State, local, or Tribal governments in the aggregate, or the private sector, of more than $100 million per year, nor do these final supplementary rules have a significant or unique effect on small governments. The final supplementary rules do not require anything of State, local, or Tribal governments. Therefore, the BLM is not required to prepare a statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531
The final supplementary rules are not government action capable of interfering with constitutionally protected property rights. The final supplementary rules do not have takings implications, do not address property rights in any form, and do not cause the impairment of anyone's property rights. Therefore, the Department of the Interior has determined that the final supplementary rules would not cause a taking of private property or require further discussion of takings implications under this Executive Order.
The final supplementary rules 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. The final supplementary rules apply in only one State, Idaho, and do not address jurisdictional issues involving the Idaho State Government. Therefore, in accordance with Executive Order 13132, the BLM has determined that these final supplementary rules do not have sufficient Federalism implications to warrant preparation of a Federalism Assessment.
Under Executive Order 12988, the BLM Idaho State Office has determined that these final supplementary rules would not unduly burden the judicial system and that they meet the requirements of sections 3(a) and 3(b)(2) of the Order.
In accordance with Executive Order 13175, the proposed supplementary rules and EA were mailed to all Idaho Tribes for comment. Consultation was conducted with the Shoshone-Paiute Tribes, and no concerns were expressed. In addition, the BLM Idaho State Office has found that the final supplementary rules do not include policies that have tribal implications.
These final supplementary rules are not a significant energy action. The rules will not have an adverse effect on energy supplies, distribution, or use. They only address the use of certified noxious-weed-free forage and straw on public lands and have no connection with energy policy.
These final supplementary rules do not contain information collection requirements that the Office of Management and Budget must approve under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501
The principal author of these final supplementary rules is Roger Rosentreter, Botanist, BLM Idaho State Office.
For the reasons stated in the preamble and under the authorities for supplementary rules at 43 U.S.C. 1733(a) and 1740 and 43 CFR 8365.1–6, the BLM Idaho State Director establishes final supplementary rules for public lands managed by the BLM in Idaho, to read as follows:
(1) To prevent the spread of noxious weeds on BLM-administered public lands in Idaho, it is a prohibited act to feed or store forage or straw on BLM-administered land that has not been certified as noxious-weed-free. Restoration, rehabilitation, and stabilization projects also are required to use noxious-weed-free straw bales and mulch for project work.
(2) The certification program currently includes 57 weeds that have been designated as noxious in Idaho under the Idaho State noxious-weed-free standards, or certified to be free from those weeds designated in the North American Weed Free Forage Program list, which was developed by the North American Weed Management Association (NAWMA). This NAWMA list currently includes the 57 weeds designated noxious in Idaho and also includes an additional 15 invasive weeds. The BLM in Idaho allows forage that meets Idaho, NAWMA, or other States' standards for certification as noxious-weed-free. Although weeds may be added or removed from these various lists, the BLM recognizes this forage as certified noxious-weed-free as long as it has been marked indicating that it meets the standards for certification.
(3) Certified noxious-weed-free hay must be identified by one of the following:
(a) State certification tag attached to the bale string;
(b) At least one strand of purple and yellow (intertwined) bale twine encircling the bale;
(c) Blue and orange (intertwined) bale twine encircling the bale; or
(d) Other colored twine encircling the bale that is used to designate certified forage.
(4) Certified noxious-weed-free compressed forage bales are identified by strapping/binding material authorized by NAWMA with the same color and marking requirements on products certified by other NAWMA approved agencies.
(5) Certified noxious-weed-free forage in bags is identified by a stamp, sticker, or printing on the bag identifying it as certified forage.
(6) The following persons/activities are exempt from these supplementary rules:
(a) Any person with a permit or letter signed by a BLM authorized officer specifically authorizing the prohibited act, such as an authorized livestock permittee during an emergency situation in which livestock must be fed uncertified forage or hay for a short period of time until they can be moved to safety; and
(b) Any person transporting hay or forage across public lands from private property to private property.
(7) Any person who knowingly and willfully violates the provisions of these supplementary rules on or after September 19, 2011 may be required to appear before a United States Magistrate and may be subject to a fine of not more than $1,000 or imprisonment of not more than 12 months, or both, in accordance with 43 U.S.C. 1733(a) and 43 CFR 8360.0–7.
Such violations may also be subject to enhanced fines provided for by 18 U.S.C. 3571.
National Park Service, Interior.
Notice.
The Denver Museum of Nature & Science has completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian tribes, and has determined that there is a cultural affiliation between the human remains and associated funerary objects and present-day Indian tribes. Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains and associated funerary objects may contact the Denver Museum of Nature & Science. Repatriation of the human remains and associated funerary objects to the Indian tribes stated below may occur if no additional claimants come forward.
Representatives of any Indian tribe that believes it has a cultural affiliation with the human remains and associated funerary objects should contact the Denver Museum of Nature & Science at the address below by August 22, 2011.
Chip Colwell-Chanthaphonh, Denver Museum of Nature & Science, 2001 Colorado Blvd., Denver, CO 80204, telephone (303) 370–6378.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects in the possession of the Denver Museum of Nature & Science, Denver, CO. The human remains and associated funerary objects were removed from Lancaster County, PA.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the Denver Museum of Nature & Science professional staff in consultation with representatives of the Absentee-Shawnee Tribe of Indians of Oklahoma; Cayuga Nation of New York; Delaware Nation, Oklahoma; Delaware Tribe of Indians, Oklahoma; Eastern Shawnee Tribe of Oklahoma; Oneida Nation of New York; Oneida Tribe of Indians of Wisconsin; Onondaga Nation of New York; Saint Regis Mohawk Tribe, New York; Seneca Nation of New York; Seneca-Cayuga Tribe of Oklahoma; Shawnee Tribe, Oklahoma; Stockbridge Munsee Community, Wisconsin; Tonawanda Band of Seneca Indians; Tuscarora Nation of New York; and the Haudenosaunee Standing Committee on Burial Rules and Regulations, a non-Federally recognized Indian organization for the purposes of NAGPRA.
Between 1926 and 1932, human remains representing a minimum of two individuals were removed from a burial context at the Keller Site (a burial component of the Washington Boro Village Site), in Lancaster County, PA, by Gerald B. Fenstermaker. On December 15, 1965, Francis and Mary Crane purchased the human remains as a part of a larger collection from Mr. Fenstermaker. At the time of the purchase, the human remains were on loan to the Hershey Museum, in Hershey, PA, where they remained until they were collected by the Cranes on October 18, 1966. In 1983, the Cranes donated the human remains to the Denver Museum of Natural History, as the museum was then called, and the remains were accessioned into the collections (DMNS catalogue numbers AC.9471 and AC.9542). The human remains are represented by one corked vial of cut hair and ten teeth. Through research and consultation, it was determined that the hair and teeth are human remains under NAGPRA. The human remains were originally determined to be culturally unidentifiable, but have been subsequently culturally affiliated. No known individuals were identified. The four associated funerary objects are one corked vial of white paint (AC.9472); one corked vial of red paint (AC.9473); a double-necked ceramic jar (AC.9474); and one necklace, which is made from red, white, blue, and black trade beads, four copper bells, two tubular copper beads, one bear tooth, and one scoop spoon made from a brass kettle (AC.9542).
Between 1926 and 1935, human remains representing a minimum of one individual were removed from a burial context in Pennsylvania by Gerald B. Fenstermaker. Based on museum records, Mr. Fenstermaker's collection history, and the associated funerary objects, dating to the Contact period, it is likely that these human remains were removed from the Washington Boro Village Site, in Lancaster County, PA. On December 15, 1965, the Cranes also purchased these human remains from Mr. Fenstermaker. In 1983, the Cranes donated the human remains to the museum and the remains were accessioned into the collections (AC.9812A). The human remains are represented by five teeth. Through research and consultation, it was determined that the teeth are human remains under NAGPRA. The human remains were originally determined to be culturally unidentifiable, but have been subsequently culturally affiliated.
Based on physical analysis and catalogue records, the human remains are determined to be Native American. Archeological evidence suggests that the Washington Boro Village Site and burial components, including the Keller Site, date to approximately A.D. 1600–1625. Archeological evidence and historical documentation show that the Washington Boro Village Site was occupied by the Susquehannock.
While the biological record is neutral regarding cultural affiliation, the Susquehannock likely shared a geographical affinity with the Haudenosaunee, as evidenced by shared ancestral lands in New York, common land use during the 1600s, and, starting in the 1700s, Haudenosaunee claims to the former territory of the Susquehannock. Furthermore, the Susquehannock shared kinship with the Haudenosaunee through similar clan systems, adoption, intermarriage, and burial practices. Current archeological evidence suggests that the Susquehannock and Haudenosaunee were descended from the same proto-Iroquoian culture. Around A.D. 1300, the Susquehannock split off from that culture. Settling in Lancaster County, PA, the Susquehannock had become a distinct group by A.D. 1580. Archeological evidence also demonstrates that the Susquehannock and Haudenosaunee shared a very similar material culture tradition across multiple artifact categories.
For more than a century, anthropologists have consistently referred to the Susquehannock as an Iroquoian people, and anthropological theories of diaspora and assimilation reasonably explain the incorporation of Susquehannock into the Haudenosuanee Confederacy in the late 1600s and 1700s. Although folkloric evidence is not abundant, nevertheless it is consistent with a conclusion of cultural affiliation. Scholars have conclusively shown that the Susquehannock language was very closely related to the other extant Iroquoian languages, which demonstrates a robust interrelationship among these peoples. Haudenosaunee oral tradition consistently and unambiguously expresses a strong cultural and historical affinity for the Susquehannock. Historical evidence indicates a complex relationship between the Susquehannock and Haudenosaunee, but convincingly suggests that by the late 1600s, the Susquehannock freely allowed themselves to be adopted into the Haudenosaunee. Expert opinion, as constituted by the NAGPRA Review Committee, further supports a determination that the Haudenosaunee and Susquehannock are culturally affiliated under NAGPRA. In summary, six lines of evidence support cultural affiliation (geographical, archaeological, anthropological, oral tradition, historical evidence, and expert opinion) and two lines strongly support cultural affiliation (kinship and linguistics). One line of evidence is indeterminate (biology), and one line of evidence is consistent with cultural affiliation (folklore). Therefore, the museum reasonably believes that there is a shared group identity between the Haudenosaunee Confederacy and the Susquehannock people who occupied Lancaster County, PA, at the Washington Boro Village Site.
Officials of the Denver Museum of Nature & Science have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described above represent the physical remains of three individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the 35 objects described above are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and associated funerary objects and the Cayuga Nation of New York; Oneida Nation of New York; Oneida Tribe of Indians of Wisconsin; Onondaga Nation of New York; Saint Regis Mohawk Tribe, New York; Seneca Nation of New York; Seneca-Cayuga Tribe of Oklahoma; Tonawanda Band of Seneca Indians; and the Tuscarora Nation of New York.
Representatives of any other Indian tribe that believes itself to be culturally affiliated with the human remains and associated funerary objects should contact Chip Colwell-Chanthaphonh, Denver Museum of Nature & Science, 2001 Colorado Blvd., Denver, CO 80204, telephone (303) 370–6378, before August 22, 2011. Repatriation of the human remains and associated funerary objects to the Cayuga Nation of New York; Oneida Nation of New York; Oneida Tribe of Indians of Wisconsin; Onondaga Nation; Saint Regis Mohawk Tribe, New York; Seneca Nation of New York; Seneca-Cayuga Tribe of Oklahoma; Tonawanda Band of Seneca Indians; and the Tuscarora Nation of New York, may proceed after that date if no additional claimants come forward.
The Denver Museum of Nature & Science is responsible for notifying the Absentee-Shawnee Tribe of Indians of Oklahoma; Cayuga Nation of New York; Delaware Nation, Oklahoma; Delaware Tribe of Indians, Oklahoma; Eastern Shawnee Tribe of Oklahoma; Oneida Nation of New York; Oneida Tribe of Indians of Wisconsin; Onondaga Nation of New York; Saint Regis Mohawk Tribe, New York; Seneca Nation of New York; Seneca-Cayuga Tribe of Oklahoma; Shawnee Tribe, Oklahoma; Stockbridge Munsee Community, Wisconsin; Tonawanda Band of Seneca Indians; Tuscarora Nation of New York; and the Haudenosaunee Standing Committee on Burial Rules and Regulations, a non-Federally recognized Indian organization for the purposes of NAGPRA, that this notice has been published.
National Park Service, Interior.
Notice.
The Slater Museum of Natural History, University of Puget Sound has completed an inventory of human remains, in consultation with the appropriate Indian tribes, and has determined that there is no cultural affiliation between the human remains and any present-day Indian tribe. Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains may contact the Slater Museum of Natural History, University of Puget Sound. Disposition of the human remains to the Indian tribes stated below may occur if no additional requestors come forward.
Representatives of any Indian tribe that believes it has a cultural affiliation with the human remains should contact the Slater Museum of Natural History, University of Puget Sound at the address below by August 22, 2011.
Peter Wimberger, Slater Museum of Natural History, University of Puget Sound, 1500 North Warner St., Tacoma, WA 98416–1088, telephone (253) 879–2784.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains in the possession of the Slater Museum of Natural History, University of Puget Sound, Tacoma, WA. The human remains were removed from “Western Washington.”
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3) and 43 CFR 10.11(d). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by Slater Museum of Natural History, University of Puget Sound professional staff in consultation with representatives of the Confederated Tribes and Bands of the Yakama Nation, Washington; Confederated Tribes of the Chehalis Reservation, Washington; Cowlitz Indian Tribe, Washington; Hoh Indian Tribe of the Hoh Indian Reservation, Washington; Jamestown S'Klallam Tribe of Washington; Lower Elwha Tribal Community of the Lower Elwha Reservation, Washington; Lummi Tribe of the Lummi Reservation, Washington; Makah Indian Tribe of the Makah Indian Reservation, Washington; Muckleshoot Indian Tribe of the Muckleshoot Reservation, Washington; Nisqually Indian Tribe of the Nisqually Reservation, Washington; Nooksack Indian Tribe of Washington; Port Gamble Indian Community of the Port Gamble Reservation, Washington; Puyallup Tribe of the Puyallup Reservation, Washington; Quileute Tribe of the Quileute Reservation, Washington; Quinault Tribe of the Quinault Reservation, Washington; Samish Indian Tribe, Washington; Sauk-Suiattle Indian Tribe of Washington; Shoalwater Bay Tribe of the Shoalwater Bay Indian Reservation, Washington; Skokomish Indian Tribe of the Skokomish Reservation, Washington; Snoqualmie Tribe, Washington; Squaxin Island Tribe of the Squaxin Island Reservation, Washington; Stillaguamish Tribe of Washington; Suquamish Indian Tribe of the Port Madison Reservation, Washington; Swinomish Indians of the Swinomish Reservation, Washington; Tulalip Tribes of the Tulalip Reservation, Washington; and the Upper Skagit Indian Tribe of Washington (hereinafter referred to as “The Tribes”). In addition, the Slater Museum of Natural History, University of Puget Sound professional staff consulted with the following non-Federally recognized Indian groups: Chinook Tribe, Duwamish Tribe, Kikiallus Nation, Marietta Band of Nooksack Indians, Snohomish Tribe, Snoqualmoo Tribe, and Steilacoom Indian Tribe (hereinafter referred to as “The Indian Groups”). The Slater Museum of Natural History, University of Puget Sound received responses from the Confederated Tribes and Bands of the Yakama Nation, Washington; Puyallup Tribe of the Puyallup Reservation, Washington; Skokomish Indian Tribe of the Skokomish Reservation, Washington; and the Squaxin Island Tribe of the Squaxin Island Reservation, Washington. Skokomish Indian Tribe of the Skokomish Reservation, Washington requested a status report on the disposition of the remains, but made no claim for disposition. The Puyallup Tribe of the Puyallup Reservation, Washington, and Confederated Tribes and Bands of the Yakama Nation, Washington, submitted a NAGPRA claim for the individual described in this Notice of Inventory Completion. The Squaxin Island Tribe of the Squaxin Island Reservation, Washington, supported the disposition of the individual to these two Indian tribes.
At an unknown date prior to 1970, human remains representing a minimum of one individual were removed from “Western Washington.” The remains were stored at the University of Puget Sound's Department of Comparative Sociology since at least the 1970s. In late Fall 2006 the remains were transferred to the Slater Museum by University staff. There is no record of the excavator, donor, date of removal, or exact provenience, except for “Western Washington.” No known individual was identified. No associated funerary objects are present.
Elements present include a cranium and a mandible. No cranial deformation is present and the mandible is missing five teeth postmortem. The remains are overall very clean and of a dark mottled coloration. Small roots are present in the nasal cavity and sediments are found endocranially, suggesting the individual was likely removed from an archeological context. Slight cortical exfoliation is present on both the cranium and mandible, indicating the individual was buried in a taphonomic environment characterized by alternating dry and wet conditions. Based on 14 morphological characteristics, a physical anthropologist determined the remains represent a (possibly) male individual 40–60 years old and of Native American ancestry (Gill 1998; Rhine 1990). Additionally, the very even and severe enamel wear indicate the mastication of population-specific coarse foods that characterized the diets of pre-contact and post-contact Native American populations (Buikstra and Ubelaker 1994). These characteristics, in addition to the Slater Museum's limited information, indicate that the individual is of Native American ancestry. The remains may have been removed from any location within Western Washington, which is considered by the Museum to include the 19 counties located between the Pacific Ocean and the Cascade Mountains. These include: Clallam, Clark, Cowlitz, Grays Harbor, Island, Jefferson, King, Kitsap, Lewis, Mason, Pacific, Pierce, San Juan, Skagit, Skamania, Snohomish, Thurston, Wahkiakum, and Whatcom Counties.
Officials of the Slater Museum of Natural History, University of Puget Sound have determined that:
• Pursuant to 25 U.S.C. 3001(2), a relationship of shared group identity cannot be reasonably traced between the Native American human remains and any present-day Indian tribe.
• According to final judgments of the Indian Claims Commission, the land from which the Native American human remains were removed is the aboriginal land of The Tribes.
• Multiple lines of evidence, including treaties, Acts of Congress, and Executive Orders, indicate that the land from which the Native American human remains were removed is the aboriginal land of The Tribes and The Indian Groups.
• Other credible lines of evidence, indicate that the land from which the Native American human remains were removed is the aboriginal land of The Tribes and The Indian Groups.
• Pursuant to 25 U.S.C. 3001(9), the human remains described above
• Pursuant to 43 CFR 10.11(c)(1), the disposition of the human remains is to the Confederated Tribes and Bands of the Yakama Nation, Washington, and Puyallup Tribe of the Puyallup Reservation, Washington.
Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains or any other Indian tribe that believes it satisfies the criteria in 43 CFR 10.11(c)(1) should contact Peter Wimberger, Slater Museum of Natural History, University of Puget Sound, 1500 North Warner St., Tacoma, WA 98416–1088, telephone (253) 879–2784, before August 22, 2011. Disposition of the human remains to the Confederated Tribes and Bands of the Yakama Nation, Washington, and Puyallup Tribe of the Puyallup Reservation, Washington, may proceed after that date if no additional requestors come forward.
The Slater Museum of Natural History, University of Puget Sound is responsible for notifying The Tribes and The Indian Groups that this notice has been published.
National Park Service, Interior.
Notice.
The Bureau of Indian Affairs and the Oregon Museum of Science and Industry have completed an inventory of human remains, in consultation with the appropriate Indian tribe, and determined that there is a cultural affiliation between the human remains and a present-day Indian tribe. Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains may contact the Oregon Museum of Science and Industry. Repatriation of the human remains to the Indian tribe stated below may occur if no additional claimants come forward.
Representatives of any Indian tribe that believes it has a cultural affiliation with the human remains should contact the Bureau of Indian Affairs through the Oregon Museum of Science and Industry at the address below by August 22, 2011.
Lori Erickson, Curator, Oregon Museum of Science and Industry, 1945 SE Water Ave., Portland, OR 97214, telephone (503) 797–4582.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains in the control of the U.S. Department of the Interior, Bureau of Indian Affairs, Washington, DC, and in the physical custody of the Oregon Museum of Science and Industry, Portland, OR. The human remains were removed from an area within the boundaries of the Hopi Reservation in Arizona.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by Oregon Museum of Science and Industry professional staff on behalf of the Bureau of Indian Affairs in consultation with representatives of the Hopi Tribe of Arizona.
In the early 1940s, human remains representing a minimum of one individual were removed from an area of the Hopi Reservation in Arizona by Ray Ghents, Dr. Hewitt, and Dr. Fischer. The exact location of the area is unclear from museum records. Mr. Paul Ghents donated the remains to the Oregon Museum of Science and Industry on November 10, 1977. No known individual was identified. No associated funerary objects are present.
The human remains have been identified as Native American based on observable dental traits and museum documentation. The remains are approximately 500 years old.
Officials of the Bureau of Indian Affairs and the Oregon Museum of Science and Industry have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of one individual of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and the Hopi Tribe of Arizona.
Representatives of any other Indian tribe that believes itself to be culturally affiliated with the human remains should contact Lori Erickson, Curator, Oregon Museum of Science and Industry, 1945 SE Water Ave., Portland, OR 97214, telephone (503) 797–4582, before August 22, 2011. Repatriation of the human remains to the Hopi Tribe of Arizona may proceed after that date if no additional claimants come forward.
The Bureau of Indian Affairs and the Oregon Museum of Science and Industry are responsible for notifying the Hopi Tribe of Arizona that this notice has been published.
National Park Service, Interior.
Notice.
The American Museum of Natural History has completed an inventory of human remains, in consultation with the appropriate Indian tribe, and has determined that there is a cultural affiliation between the human remains and a present-day Indian tribe. Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains may contact the American Museum of Natural History. Repatriation of the human remains to the Indian tribe stated below may occur if no additional claimants come forward.
Representatives of any Indian tribe that believes it has a cultural affiliation with the human remains should contact the American Museum
Nell Murphy, Director of Cultural Resources, American Museum of Natural History, Central Park West at 79th Street, New York, NY 10024–5192, telephone (212) 769–5837.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains in the possession of the American Museum of Natural History, New York, NY. The human remains were collected from West Brewster, Cape Cod, Barnstable County, MA.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the American Museum of Natural History professional staff in consultation with representatives of the Mashpee Wampanoag Tribe, Massachusetts.
Sometime prior to 1896, human remains representing a minimum of one individual were collected by R.W. Sears from what is identified in museum records as an “Indian grave” site in West Brewster, Cape Cod, Barnstable County, MA. The human remains were subsequently purchased by the American Museum of Natural History from the Giffort Brothers in 1896. No known individual was identified. No associated funerary objects are present.
The individual has been identified as Native American based on cranial and dental morphology, as well as the recorded association of the remains with a Native American grave site. A bioarcheologist who examined the human remains estimated them to be of a recent age. Consultation information provided by the tribe, as well as archeological and historical sources, indicate that the geographic location of the “Indian grave” site is consistent with the traditional and post-contact territory of the Mashpee Wampanoag Tribe, Massachusetts.
Officials of the American Museum of Natural History have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described above represent the physical remains of one individual of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and the Mashpee Wampanoag Tribe, Massachusetts.
Representatives of any other Indian tribe that believes itself to be culturally affiliated with the human remains should contact Nell Murphy, Director of Cultural Resources, American Museum of Natural History, Central Park West at 79th Street, New York, NY 10024–5192, telephone (212) 769–5837, before August 22, 2011. Repatriation of the human remains to the Mashpee Wampanoag Tribe, Massachusetts, may proceed after that date if no additional claimants come forward.
The American Museum of Natural History is responsible for notifying the Mashpee Wampanoag Tribe, Massachusetts, that this notice has been published.
National Park Service, Interior.
Notice.
The University of Colorado Museum has completed an inventory of human remains and an associated funerary object, in consultation with the appropriate Indian tribes, and has determined that there is no cultural affiliation between the human remains and associated funerary object and any present-day Indian tribe. Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains and associated funerary object may contact the University of Colorado Museum. Disposition of the human remains and associated funerary object to the Indian tribes stated below may occur if no additional requestors come forward.
Representatives of any Indian tribe that believes it has a cultural affiliation with the human remains and associated funerary object should contact the University of Colorado Museum at the address below by August 22, 2011.
Steve Lekson, Curator of Anthropology, University of Colorado Museum, in care of Jan Bernstein, NAGPRA Consultant, Bernstein & Associates, 1041 Lafayette St., Denver, CO 80218, telephone (303) 894–0648.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and an associated funerary object in the possession of the University of Colorado Museum, Boulder, CO. The human remains and associated funerary object were removed from Weld County, CO.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3) and 43 CFR 10.11(d). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary object. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains and associated funerary object was made by University of Colorado Museum professional staff in consultation with representatives of the Apache Tribe of Oklahoma; Arapahoe Tribe of the Wind River Reservation, Wyoming; Cheyenne River Sioux Tribe of the Cheyenne River Reservation, South Dakota; Cheyenne and Arapaho Tribes, Oklahoma; Comanche Nation, Oklahoma; Crow Tribe of Montana; Fort Sill Apache Tribe of Oklahoma; Jicarilla Apache Nation, New Mexico; Kiowa Indian Tribe of Oklahoma; Mescalero Apache Tribe of the Mescalero Apache Reservation, New Mexico; Northern Cheyenne Tribe of the Northern Cheyenne Indian Reservation, Montana; Oglala Sioux Tribe of the Pine Ridge Reservation, South Dakota; Pawnee Nation of Oklahoma; Rosebud Sioux Tribe of the Rosebud Indian Reservation, South Dakota; Southern Ute Indian Tribe of the Southern Ute Reservation, Colorado; Standing Rock Sioux Tribe of North & South Dakota;
On an unknown date, human remains representing a minimum of one individual were removed from Maxson #1, Site No. 20, N.E. of Greeley, Kuner, Weld County, CO, by Asa C. Maxson, an avocational archeologist. In February 2008, the human remains (16 teeth) were found in the collection during an inventory/computerization project. In July 2009, an object was identified as being associated with this individual during an assessment of the human remains. Mr. Maxson of Longmont, CO, created a large archeological collection of items from Arizona, Colorado, New Mexico, and Mexico. He donated his collection to the museum in 1982. No known individual was identified. The associated funerary object is a bird of prey talon that was possibly burned.
Officials of the University of Colorado Museum have determined that:
• Based on heavy dental attrition at a relatively young age (18–21 years old) consistent with the introduction of grit into the food of a typical Native American diet via the use of manos and metates, the human remains are Native American.
• Pursuant to 25 U.S.C. 3001(2), a relationship of shared group identity cannot be reasonably traced between the Native American human remains and associated funerary object and any present-day Indian tribe.
• According to final judgments of the Indian Claims Commission, the land from which the Native American human remains and associated funerary object were removed is the aboriginal land of the Arapahoe Tribe of the Wind River Reservation, Wyoming; Cheyenne and Arapaho Tribes, Oklahoma; and Northern Cheyenne Tribe of the Northern Cheyenne Indian Reservation, Montana.
• Multiple lines of evidence, including treaties, Acts of Congress, and Executive Orders, indicate that the land from which the Native American human remains and associated funerary object were removed is the aboriginal land of the Arapahoe Tribe of the Wind River Reservation, Wyoming, and Cheyenne and Arapaho Tribes, Oklahoma.
• Other credible lines of evidence indicate that the land from which the Native American human remains were removed is the aboriginal land of the Crow Tribe of Montana.
• Pursuant to 25 U.S.C. 3001(9), the human remains described above represent the physical remains of one individual of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the one object described above is reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 43 CFR 10.11(c)(1), the disposition of the human remains and associated funerary object is to the Arapahoe Tribe of the Wind River Reservation, Wyoming; Cheyenne and Arapaho Tribes, Oklahoma; Crow Tribe of Montana; and Northern Cheyenne Tribe of the Northern Cheyenne Indian Reservation, Montana.
Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains and associated funerary object or any other Indian tribe that believes it satisfies the criteria in 43 CFR 10.11(c)(1) should contact Steve Lekson, Curator of Anthropology, University of Colorado Museum, in care of Jan Bernstein, NAGPRA Consultant, Bernstein & Associates, 1041 Lafayette St., Denver, CO 80218, telephone (303) 894–0648, before August 22, 2011. Disposition of the human remains and associated funerary object to the Arapahoe Tribe of the Wind River Reservation, Wyoming; Cheyenne and Arapaho Tribes, Oklahoma; Crow Tribe of Montana; and Northern Cheyenne Tribe of the Northern Cheyenne Indian Reservation, Montana, may proceed after that date if no additional claimants come forward.
The University of Colorado Museum is responsible for notifying The Tribes that this notice has been published.
National Park Service, Interior.
Notice.
The Oregon State University Department of Anthropology has completed an inventory of human remains, in consultation with the appropriate Indian tribes, and has determined that there is a cultural affiliation between the human remains and present-day Indian tribes. Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains may contact the Oregon State University Department of Anthropology. Repatriation of the human remains to the Indian tribes stated below may occur if no additional claimants come forward.
Representatives of any Indian tribe that believes it has a cultural affiliation with the human remains should contact the Oregon State University Department of Anthropology at the address below by August 22, 2011.
Dr. David McMurray, Oregon State University Department of Anthropology, 238 Waldo Hall, Corvallis, OR 97331, telephone (541) 737–4515.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains in the control of the Oregon State University Department of Anthropology, Corvallis, OR. The human remains were removed from the mouth of the Sandy River, Multnomah County, OR.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by Oregon State University Department of Anthropology professional staff in consultation with a Columbia River Gorge National Scenic Area archeologist, and the Confederated Tribes of the Grand Ronde Community of Oregon; Confederated Tribes of the Umatilla Indian Reservation, Oregon; Confederated Tribes of the Warm Springs Reservation of Oregon; and the Nez Perce Tribe, Idaho. The Burns Paiute Tribe; Confederated Tribes and Bands of the Yakama Nation, Washington; Confederated Tribes of the Coos, Lower Umpqua and Siuslaw Indians of Oregon; Confederated Tribes
In the 1970s, human remains representing a minimum of three individuals were removed from somewhere near the mouth of the Sandy River, in Multnomah County, OR. The human remains were removed due to illegal pot-hunting activities. The human remains were subsequently given to the university, but specific provenience information was not provided. No known individuals were identified. No associated funerary objects are present.
Ethnographic records suggest the mouth of the Sandy River, where it meets the Columbia River, was occupied by Chinookan peoples. The Chinookan peoples occupied a vast area for hunting, fishing, and trade that was “south of the Columbia from the cascades to the mouth of the Willamette” (Berreman, 1937). The Sandy River is within this vast area. The human remains described above are believed to have been removed from this area, which is within or near the traditional lands of the Chinookan peoples whose descendants are members of the present-day Confederated Tribes of the Grand Ronde Community of Oregon and Confederated Tribes of the Warm Springs Reservation of Oregon.
The Confederated Tribes of the Grand Ronde Community of Oregon includes numerous bands from western Oregon, as well as some communities from extreme southwestern Washington and northern California. These communities and bands are the Clackamas Chinook, Multnomah Chinook, Clatsop Chinook, Willapa Chinook, Lower Chinook Proper, Nehalem, Salmon River, Tillamook, Nestucca, Kathlamet or Wahkiakum Chinook, Skilloot, Clatskanie, Clowewalla of the Tumwater, Cascades or Mehetatate of the Tumwater, Tualatin Calapooia, Yamhill Calapooia, Pudding River or Ahantchuyak Calapooia, Santiam Calapooia, Che-lucke-mute or Luckiamute Calapooia, Chelamelah or Long Tom Calapooia, Winefelly, Chemapho or Muddy Creek Calapooia, Chepenefa or Marys River Calapooia, Tsankupi or Tecopa Calapooia, Mohawk or Chefan Calapooia, Yoncalla, Northern Molalla, Southern Molalla, Latgawa or Upper Takelma, Rogue River, Upper Umpqua, and Northern Shasta. At the time of contact, the individual groups spoke 30 dialects of the Athapascan, Chinookan, Kalapuyan, Takelman, Molalan, Sahaptin, Salishan, and Shastan language families. In 1856–1857, the U.S. Government forcibly relocated the Grand Ronde peoples to the Grand Ronde Reservation, located at the headwaters of the South Yamhill River in Yamhill and Polk Counties, OR. The last additions to the Grand Ronde came onto the reservation in the 1870s. The Confederated Tribes of the Grand Ronde Community of Oregon were first incorporated in 1935, terminated from Federal recognition in 1954, and restored to recognized status in 1983.
The Confederated Tribes of the Warm Springs Reservation of Oregon are composed of the Wasco Tribe, the Warm Springs Tribes, and groups of Northern Paiutes. The Wasco Tribe, made up of the Dalles and Dog River bands, occupied the lower Columbia River area and belong to the Chinookan language group. The Warm Springs Tribes, composed of the Upper Deschutes (Tygh), Lower Deschutes (Wyam), Tenino and John Day (Dock-spus) bands, lived on the Deschutes and John Day Rivers, as well as up river of the Wasco Tribe on the Columbia River. The Northern Paiutes were forcibly moved onto the Warm Springs Reservation in 1879 and 1884, but originally had roamed a large territory that included parts of the Deschutes and John Day River Valleys, as well as high desert territories to the east and south of the reservation. In 1855, the Warm Springs and Wasco Tribes entered into a treaty with the United States of America, ceding more than 10 million acres of land. In 1938, the Warm Springs, Wasco and Northern Paiute Tribes formed a confederacy.
Officials of the Oregon State University Department of Anthropology have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of three individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and the Confederated Tribes of the Grand Ronde Community of Oregon and the Confederated Tribes of the Warm Springs Reservation of Oregon.
Representatives of any other Indian tribe that believes itself to be culturally affiliated with the human remains should contact Dr. David McMurray, Oregon State University Department of Anthropology, 238 Waldo Hall, Corvallis, OR 97331, telephone (541) 737–3850, before August 22, 2011. Repatriation of the human remains to the Confederated Tribes of the Grand Ronde Community of Oregon and the Confederated Tribes of the Warm Springs Reservation of Oregon may proceed after that date if no additional claimants come forward.
The Oregon State University Department of Anthropology is responsible for notifying the Burns Paiute Tribe; Confederated Tribes and Bands of the Yakama Nation, Washington; Confederated Tribes of the Coos, Lower Umpqua and Siuslaw Indians of Oregon; Confederated Tribes of the Grand Ronde Community of Oregon; Confederated Tribes of the Siletz Indians of Oregon; Confederated Tribes of the Umatilla Indian Reservation, Oregon; Confederated Tribes of the Warm Springs Reservation of Oregon; Coquille Tribe of Oregon; Cow Creek Band of Umpqua Indians of Oregon; Klamath Tribes, Oregon; and Nez Perce Tribe, Idaho, that this notice has been published.
National Park Service, Interior.
Notice.
The University of Colorado Museum has completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian tribes, and has determined that there is a cultural affiliation between the human remains and associated funerary objects and present-day Indian tribes. Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains and associated funerary objects may contact the University of Colorado Museum.
Representatives of any Indian tribe that believes it has a cultural affiliation with the human remains and associated funerary objects should contact the University of Colorado Museum at the address below by August 22, 2011.
Steve Lekson, Curator of Anthropology, University of Colorado Museum, in care of Jan Bernstein, NAGPRA Consultant, Bernstein & Associates, 1041 Lafayette St., Denver, CO 80218, telephone (303) 894–0648.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects in the possession and control of the University of Colorado Museum, Boulder, CO. The human remains and associated funerary objects were removed from Bell County, KY, and Summers County, WV.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by University of Colorado Museum professional staff in consultation with representatives of the Absentee-Shawnee Tribe of Indians of Oklahoma; Cherokee Nation, Oklahoma; Chickasaw Nation, Oklahoma; Eastern Band of Cherokee Indians of North Carolina; Eastern Shawnee Tribe of Oklahoma; Shawnee Tribe, Oklahoma; and United Keetoowah Band of Cherokee Indians in Oklahoma.
On an unknown date, human remains representing a minimum of two individuals were removed from a cave near Pineville, in Bell County, KY, by Gervis W. Hoofnagle (1886–1959), an avocational archeologist. No known individuals were identified. The associated funerary objects are five non-human rib bones (four of which have been modified to come to a point at one end).
Mr. Hoofnagle's widow, Alice G. Hoofnagle, sold his collection to the University of Colorado Museum in March 1961. In February 2008, the human remains and associated funerary objects were found in the museum. Based on reasonable evidence provided during consultation, the human remains are Native American. The same evidence supports cultural affiliation to all three Federally-recognized Cherokee tribes—Cherokee Nation, Oklahoma; Eastern Band of Cherokee Indians of North Carolina; and United Keetoowah Band of Cherokee Indians in Oklahoma. Traditional Cherokee burials are found in rock crevices and caves; traditional Cherokee burials include non-human bones such as the sharpened rib bones found with this burial. A portion of Bell County, KY, is within the aboriginal territory of the Cherokee based on a final judgment of the Indian Claims Commission. In addition, Bell County, KY, is within the aboriginal territory of the Cherokee based on reasonable evidence presented during consultation.
On an unknown date, human remains representing a minimum of one individual were removed from Burial 2, Farley site, on the New River, near Hinton, in Summers County, WV, by Hoofnagle (1886–1959). No known individual was identified. The associated funerary objects are two bear teeth.
This individual was part of the Hoofnagle collection sold to the University of Colorado Museum in March 1961. Based on tooth wear and the associated funerary objects, the human remains are Native American. During consultation, reasonable evidence was presented in support of Summers County, WV, being within the aboriginal territory of the Cherokee. Also during consultation, reasonable evidence was presented in support of continuity in the utilization of animal parts, such as bear teeth, in traditional Cherokee burials.
Officials of the University of Colorado Museum have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described above represent the physical remains of three individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the seven objects described above are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and associated funerary objects and the Cherokee Nation, Oklahoma; Eastern Band of Cherokee Indians of North Carolina; and United Keetoowah Band of Cherokee Indians in Oklahoma.
Representatives of any other Indian tribe that believes itself to be culturally affiliated with the human remains and associated funerary objects should contact Steve Lekson, Curator of Anthropology, University of Colorado Museum, in care of Jan Bernstein, NAGPRA Consultant, Bernstein & Associates, 1041 Lafayette St., Denver, CO 80218, telephone (303) 894–0648, before August 22, 2011. Repatriation of the human remains and associated funerary objects to the Cherokee Nation, Oklahoma; Eastern Band of Cherokee Indians of North Carolina; and United Keetoowah Band of Cherokee Indians in Oklahoma, may proceed after that date if no additional claimants come forward.
The University of Colorado Museum is responsible for notifying the Absentee-Shawnee Tribe of Indians of Oklahoma; Cherokee Nation, Oklahoma; Chickasaw Nation, Oklahoma; Eastern Band of Cherokee Indians of North Carolina; Eastern Shawnee Tribe of Oklahoma; Shawnee Tribe, Oklahoma; and United Keetoowah Band of Cherokee Indians in Oklahoma, that this notice has been published.
National Park Service, Interior.
Notice.
The Oregon State University Department of Anthropology has completed an inventory of human remains, in consultation with the appropriate Indian tribes, and has determined that there is a cultural affiliation between the human remains and present-day Indian tribes. Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains may contact
Representatives of any Indian tribe that believes it has a cultural affiliation with the human remains should contact the Oregon State University Department of Anthropology at the address below by August 22, 2011.
Dr. David McMurray, Oregon State University Department of Anthropology, 238 Waldo Hall, Corvallis, OR 97331, telephone (541) 737–4515.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains in the control of the Oregon State University Department of Anthropology, Corvallis, OR. The human remains were removed from Randolph and White Counties, IL.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by Oregon State University Department of Anthropology professional staff in consultation with representatives of the Iowa Tribe of Kansas and Nebraska, Peoria Tribe of Indians of Oklahoma, and the Osage Nation, Oklahoma (formerly the Osage Tribe). Representatives of the Absentee-Shawnee Tribe of Indians of Oklahoma; Cheyenne River Sioux Tribe of the Cheyenne River Reservation, South Dakota; Citizen Potawatomi Nation, Oklahoma; Delaware Nation, Oklahoma; Eastern Shawnee Tribe of Oklahoma; Forest County Potawatomi Community, Wisconsin; Hannahville Indian Community, Michigan; Ho-Chunk Nation of Wisconsin; Iowa Tribe of Oklahoma; Kaw Nation, Oklahoma; Kickapoo Tribe of Indians of the Kickapoo Reservation in Kansas; Kickapoo Tribe of Oklahoma; Miami Tribe of Oklahoma; Oglala Sioux Tribe of the Pine Ridge Reservation, South Dakota; Omaha Tribe of Nebraska; Ottawa Tribe of Oklahoma; Otoe-Missouria Tribe of Indians, Oklahoma; Pokagon Band of Potawatomi Indians, Michigan and Indiana; Ponca Tribe of Indians of Oklahoma; Ponca Tribe of Nebraska; Prairie Band of Potawatomi Nation, Kansas; Quapaw Tribe of Indians, Oklahoma; Sac & Fox Nation of Missouri in Kansas and Nebraska; Sac & Fox Nation, Oklahoma; Sac & Fox Tribe of the Mississippi in Iowa; Shawnee Tribe, Oklahoma; Tonkawa Tribe of Indians of Oklahoma; Winnebago Tribe of Nebraska; and Wyandotte Nation, Oklahoma, were notified but did not participate in consultation on the human remains described in this notice.
On an unknown date, human remains representing a minimum of one individual were probably removed from the Ethel R. Wilson site, White County, IL, by an unknown individual. The remains were donated to the Department of Anthropology by Holm Neumann, the son of Dr. Georg Karl Neumann, in 1976. Dr. Neumann worked as a physical anthropologist for Indiana State University, Terre Haute, IN. No known individual was identified. No associated funerary objects are present.
Records indicate that the ancestral remains are identified as “WH501–19 T.” According to the NAGPRA culturally unidentifiable inventories (CUI) database submitted by Indiana State University, “WH” is used to identify remains from the Ethel R. Wilson site (also known as the Wilson Site Cemetery), which is located in White County, IL. Based on the markings, the remains are reasonably believed to have been removed from the Ethel R. Wilson site. This site is on the western bluffs of the Wabash River, north of the confluence of the Wabash and Ohio Rivers. The Wilson site is thought to have been originally excavated by Norbert Bingman and Arkel Fisher in 1949. During the summer of 1950, Dr. Neumann directed archeological work at this site. Eleven burial mounds were recorded. The Illinois State Museum, University of Chicago, and the Southern Illinois University sponsored excavations in the lower Wabash Valley midway between the Ohio and Illinois Hopewellian centers, in an effort to clarify possible origins, development, cultural affiliations and physical relationships between the populations (Neumann 1951:
At an unknown date, human remains representing a minimum of two individuals were removed from an unknown site most likely in Randolph County, IL. The remains were donated to the Department of Anthropology by Holm Neumann in 1976. No known individuals were identified. No associated funerary objects are present.
The human remains have markings of either “Ra 501” or “Ra 502” written upon them, indicating the location from which they were excavated. Records in the CUI database for Indiana University show “Ra” as Randolph County, IL, and the site is listed as “Hiller.” In Neumann's records, he has a map indicating excavation work at Modoc Rock Shelter in Randolph County, IL. Between 1952 and 1956, the Modoc Rock Shelter site (11R5) was studied by Melvin L. Fowler, during four excavation seasons sponsored by the Illinois State Museum and the University of Chicago (Ahler 1993). This site is located at the base of the eastern bluffs of the Mississippi River Valley and is a National Historic Landmark. Included in the Neumann collection, are a series of photos of human remains that had been sent to Dr. Neumann from Thorne Deuel, Illinois State Museum, with a letter (dated December 15, 1958) requesting that Dr. Neumann identify the photos and send one copy of the photos back to the Illinois State Museum. On the back of some of the photos is written “Ra 501–29 Modoc Rock Shelter” or “Hiller Site, Randolph Co., Ill Archaic III. State Mus. Coll. Ra 502–2B.” Based on the markings on the remains, the records in the CUI database for Indiana University, and the photos identifying the origins as Modoc Rock Shelter or the Hiller Site, it is reasonably believed that these remains are from one or both of those sites.
White County is located in southeastern Illinois, along the Ohio River. Randolph County is located in southwestern Illinois, along the Mississippi River. Randolph County is an area historically occupied by the Michigamea, which is represented by the present-day Peoria Tribe of Indians of Oklahoma. Through consultation evidence, the Peoria Tribe have also shown cultural affiliation to White County, IL. In addition, both counties are part of the Osage ancestral territory. According to consultation evidence, the Osage historically migrated along the Ohio Valley to the Ohio River and Mississippi River confluence. The Osage are a Dhegiha Siouan tribe. They and other Dhegiha Siouan tribes' original territory is east of the Alleghenies and possibly in the Piedmont regions of Virginia and the Carolinas. Historical
Officials of the Oregon State University Department of Anthropology have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described above represent the physical remains of three individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and the Absentee-Shawnee Tribe of Indians of Oklahoma; Delaware Nation, Oklahoma; Hannahville Indian Community, Michigan; Kaw Nation, Oklahoma; Omaha Tribe of Nebraska; Osage Nation, Oklahoma; Peoria Tribe of Indians of Oklahoma; Ponca Tribe of Indians of Oklahoma; Ponca Tribe of Nebraska; Quapaw Tribe of Indians, Oklahoma; and the Tonkawa Tribe of Indians of Oklahoma.
Representatives of any other Indian tribe that believes itself to be culturally affiliated with the human remains should contact Dr. David McMurray, Oregon State University, Department of Anthropology, 238 Waldo Hall, Corvallis, OR 97331, telephone (541) 737–4515, before August 22, 2011. Repatriation of the human remains to the Absentee-Shawnee Tribe of Indians of Oklahoma; Delaware Nation, Oklahoma; Hannahville Indian Community, Michigan; Kaw Nation, Oklahoma; Omaha Tribe of Nebraska; Osage Nation, Oklahoma; Peoria Tribe of Indians of Oklahoma; Ponca Tribe of Indians of Oklahoma; Ponca Tribe of Nebraska; Quapaw Tribe of Indians, Oklahoma; and Tonkawa Tribe of Indians of Oklahoma, may proceed after that date if no additional claimants come forward.
The Oregon State University Department of Anthropology is responsible for notifying the Absentee-Shawnee Tribe of Indians of Oklahoma; Cheyenne River Sioux Tribe of the Cheyenne River Reservation, South Dakota; Citizen Potawatomi Nation, Oklahoma; Delaware Nation, Oklahoma; Eastern Shawnee Tribe of Oklahoma; Forest County Potawatomi Community, Wisconsin; Hannahville Indian Community, Michigan; Ho-Chunk Nation of Wisconsin; Iowa Tribe of Kansas and Nebraska; Iowa Tribe of Oklahoma; Kaw Nation, Oklahoma; Kickapoo Tribe of Indians of the Kickapoo Reservation in Kansas; Kickapoo Tribe of Oklahoma; Miami Tribe of Oklahoma; Oglala Sioux Tribe of the Pine Ridge Reservation, South Dakota; Omaha Tribe of Nebraska; Osage Nation, Oklahoma; Otoe-Missouria Tribe of Indians, Oklahoma; Ottawa Tribe of Oklahoma; Peoria Tribe of Indians of Oklahoma; Pokagon Band of Potawatomi Indians, Michigan and Indiana; Ponca Tribe of Indians of Oklahoma; Ponca Tribe of Nebraska; Prairie Band of Potawatomi Nation, Kansas; Quapaw Tribe of Indians, Oklahoma; Sac & Fox Nation of Missouri in Kansas and Nebraska; Sac & Fox Nation, Oklahoma; Sac & Fox Tribe of the Mississippi in Iowa; Shawnee Tribe, Oklahoma; Tonkawa Tribe of Indians of Oklahoma; Winnebago Tribe of Nebraska; and Wyandotte Nation, Oklahoma, that this notice has been published.
National Park Service, Interior.
Notice.
The U.S. Department of Agriculture, Forest Service, Gila National Forest and the Field Museum of Natural History have completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian tribes, and have determined that there is a cultural affiliation between the human remains and associated funerary objects and present-day Indian tribes. Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains and associated funerary objects may contact the U.S. Department of Agriculture, Forest Service, Gila National Forest. Repatriation of the human remains and associated funerary objects to the Indian tribes stated below may occur if no additional claimants come forward.
Representatives of any Indian tribe that believes it has a cultural affiliation with the human remains and associated funerary objects should contact the U.S. Department of Agriculture, Forest Service, Gila National Forest at the address below by August 22, 2011.
Dr. Frank E. Wozniak, Southwestern Region and National NAGPRA Coordinator, U.S. Department of Agriculture, Forest Service, 333 Broadway Blvd., SE., Albuquerque, NM 87102, telephone (505) 842–3238.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects in the control of the U.S. Department of Agriculture, Forest Service, Gila National Forest, Silver City, NM, and in the possession of the Field Museum of Natural History, Chicago, IL. The human remains and associated funerary objects were removed from the Gila National Forest, Catron Country, NM.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in
A detailed assessment of the human remains was made by the U.S. Department of Agriculture, Forest Service, Gila National Forest professional staff in consultation with representatives of the Hopi Tribe of Arizona; Pueblo of Acoma, New Mexico; and the Zuni Tribe of the Zuni Reservation, New Mexico (hereinafter referred to as “The Tribes”).
Between 1935 and 1955, human remains and associated funerary objects were recovered from the SU site, Oak Springs Pueblo, Tularosa Cave, Apache Creek Pueblo, the Turkey Foot Ridge site, Wet Leggett Pueblo, Three Pines Pueblo, South Leggett Pueblo and Valley View Pueblo, in Gila National Forest, Catron County, NM, by Dr. Paul Martin of the Field Museum of Natural History, Chicago, IL. There have been several Notices of Inventory Completion (NICs) published in the
Based on material culture, architecture, and site organization, the sites have been identified as Upland Mogollon sites. Continuities of ethnographic materials, technology, and architecture indicate affiliation of Upland Mogollon sites with historic and present-day Puebloan cultures. Oral traditions presented by representatives of The Tribes support cultural affiliation with these Upland Mogollon sites in this portion of southwestern New Mexico.
Officials of the U.S. Department of Agriculture, Forest Service, Gila National Forest have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described above represent the physical remains of 21 individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001 (3)(A), the five objects described above are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the human remains and associated funerary objects and The Tribes.
Representatives of any other Indian tribe that believes itself to be culturally affiliated with the human remains and associated funerary objects should contact Dr. Frank E. Wozniak, Southwestern Region and National NAGPRA Coordinator, U.S. Department of Agriculture, Forest Service, 333 Broadway Blvd., SE, Albuquerque, NM 87102, telephone (505) 842–3238, before August 22, 2011. Repatriation of the human remains and associated funerary objects to The Tribes may proceed after that date if no additional claimants come forward.
The U.S. Department of Agriculture, Forest Service, Gila National Forest is responsible for notifying The Tribes that this notice has been published.
National Park Service, Interior.
Notice.
The University of Colorado Museum has completed an inventory of human remains, in consultation with the appropriate Indian tribes, and has determined that there is no cultural affiliation between the human remains and any present-day Indian tribe. Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains may contact the University of Colorado Museum. Disposition of the human remains to the Indian tribes stated below may occur if no additional requestors come forward.
Representatives of any Indian tribe that believes it has a cultural affiliation with the human remains should contact the University of Colorado Museum at the address below by August 22, 2011.
Stephen Lekson, Curator of Anthropology, University of Colorado Museum, in care of Jan Bernstein, NAGPRA Consultant, Bernstein & Associates, 1041 Lafayette St., Denver, CO 80218, telephone (303) 894–0648.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains in the possession of the University of Colorado Museum, Boulder, CO. The human remains were removed from near Laguna, Cibola County, NM.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3) and 43 CFR 10.11(d). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the University of Colorado Museum professional staff in consultation with representatives of the Fort Sill Apache Tribe of Oklahoma; Hopi Tribe of Arizona; Mescalero Apache Tribe of the Mescalero
The Fort Sill Apache Tribe of Oklahoma; Mescalero Apache Tribe of the Mescalero Reservation, New Mexico; Navajo Nation, Arizona, New Mexico & Utah; Pueblo of Acoma, New Mexico; Pueblo of Laguna, New Mexico; San Carlos Apache Tribe of the San Carlos Reservation, Arizona; Tonto Apache Tribe of Arizona; and White Mountain Apache Tribe of the Fort Apache Reservation, Arizona (hereinafter the “Aboriginal Land Tribes”), do not object to the disposition of the human remains described in this notice to the Pueblo of Acoma, New Mexico, and Pueblo of Laguna, New Mexico.
On an unknown date, human remains representing a minimum of one individual were removed from Maxson site number 121, a rock fall near Laguna, Cibola County, NM, by Asa Maxson, an avocational archeologist. In 1982, Mr. Maxson donated his large archeological collection to the museum. On February 6, 2008, during an inventory, the human remains were found in the museum. No known individual was identified. No associated funerary objects are present.
Officials of the University of Colorado Museum have determined that:
• Based on the archeological context and the collecting history of Mr. Maxson, the human remains are Native American.
• Pursuant to 25 U.S.C. 3001(2), a relationship of shared group identity cannot be reasonably traced between the Native American human remains and any present-day Indian tribe.
• According to final judgments of the Indian Claims Commission, the land from which the Native American human remains were removed is the aboriginal land of the Navajo Nation, Arizona, New Mexico & Utah; Pueblo of Acoma, New Mexico; and Pueblo of Laguna, New Mexico.
• Multiple lines of evidence, including treaties, Acts of Congress, and Executive Orders, indicate that the land from which the Native American human remains were removed is the aboriginal land of the Navajo Nation, Arizona, New Mexico & Utah; Pueblo of Acoma, New Mexico; Pueblo of Laguna, New Mexico; San Carlos Apache Tribe of the San Carlos Reservation, Arizona; Tonto Apache Tribe of Arizona; and White Mountain Apache Tribe of the Fort Apache Reservation, Arizona.
• Other credible lines of evidence indicate that the land from which the Native American human remains were removed is the aboriginal land of the Chiricahua Apache. The Chiricahua Apache are Federally-recognized as the Fort Sill Apache Tribe of Oklahoma and Mescalero Apache Tribe of the Mescalero Reservation, New Mexico.
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of one individual of Native American ancestry.
• Pursuant to 43 CFR 10.11(c)(1), the disposition of the human remains is to the Pueblo of Acoma, New Mexico, and Pueblo of Laguna, New Mexico.
Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains or any other Indian tribe that believes it satisfies the criteria in 43 CFR 10.11(c)(1) should contact Steve Lekson, Curator of Anthropology, University of Colorado Museum, in care of Jan Bernstein, NAGPRA Consultant, Bernstein & Associates, 1041 Lafayette St., Denver, CO 80218, telephone (303) 894–0648, before August 22, 2011. Disposition of the human remains to the Pueblo of Acoma, New Mexico, and Pueblo of Laguna, New Mexico, may proceed after that date if no additional requestors come forward.
The University of Colorado Museum is responsible for notifying the Aboriginal Land Tribes that this notice has been published.
National Park Service, Interior.
Notice.
The Homer Society of Natural History, Pratt Museum has completed an inventory of human remains, in consultation with the appropriate Indian tribes, and has determined that there is a cultural affiliation between the human remains and present-day Indian tribes. Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains may contact the Homer Society of Natural History, Pratt Museum. Repatriation of the human remains to the Indian tribe stated below may occur if no additional claimants come forward.
Representatives of any Indian tribe that believes it has a cultural affiliation with the human remains should contact the Homer Society of Natural History, Pratt Museum at the address below by August 22, 2011.
Dr. Cusack-McVeigh, Pratt Museum, 3779 Bartlett St., Homer, AK 99603, telephone (907) 435–3338.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains in the possession of the Homer Society of Natural History, Pratt Museum, Homer, AK. The human remains were removed from Kachemak Bay, AK.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the Pratt Museum professional Curator and the Office of History and Archaeology for the State of Alaska, in consultation with representatives of the Kenaitze Indian Tribe, Native Village of Nanwalek (IRA Council), Ninilchik Village, Native Village of Port Graham, and Seldovia Village Tribe. Through the consultation
In 1982, a human remain representing one individual (HM–82–165–1) was found at Bishop's Beach, Kachemak Bay, in Homer, AK. On February 11, 1982, the skull was brought to the museum by Teri Dobbs. No known individual was identified. No associated funerary objects are present.
The card catalog indicates that the skull was found following a mudslide, approximately 1 mile north of Bishop's Beach. Originally identified as “Caucasian,” the museum now concludes that this single cranium belongs to a person of “Caucasian admixture, possibly Caucasian-Negroid or Caucasian-Mongoloid”; the facial flattening indicates Mongoloid (Asian or Native) characteristics. Based on the general appearance and condition of the skull, death occurred anywhere from 50 to 125 years ago. Although there are no known historic cemeteries in the area, remains belonging to a Native Alaskan were subsequently recovered from the same general location as this skull. The Native Alaskan community in this area has a history of mixed European and Native Alaskan heritage. For example, populations having Russian fathers and Native Alaskan mothers were common. Therefore, the museum believes the preponderance of the evidence shows that these remains are Native Alaskan. This determination of Native Alaskan ancestry is outlined in a December 17, 2010, report produced by the Office of History and Archaeology.
In 1993, human remains representing one individual were recovered from a bluff at Bishop's Beach, Kachemak Bay, in Homer, AK, by a private individual. The human remains were given to the museum under a 1993 Gift Agreement (PM–1993–4). No known individual was identified. No associated funerary objects are present.
The archeological and historical documentary evidence show that Kachemak Bay was used by both Dena'ina Athabascan and Sugpiaq Alutiiq ancestors. The relatively recent date for these crania (estimated postmortem interval in the 50–125 year range) suggests that these two individuals may have been associated with a nearby, large early 20th century coal mining venture or an unmarked Native cemetery.
Officials of the Homer Society of Natural History, Pratt Museum have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described above represent the physical remains of two individuals of mixed Native American ancestry.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and the Kenaitze Indian Tribe, Native Village of Nanwalek (IRA Council), Ninilchik Village, Native Village of Port Graham, and/or Seldovia Village Tribe.
Representatives of any other Indian tribe that believes itself to be culturally affiliated with the Native American human remains should contact Dr. Cusack-McVeigh, Pratt Museum, 3779 Bartlett St., Homer, AK 99603, telephone (907) 435–3338, before August 22, 2011. Repatriation of the human remains to the Seldovia Village Tribe may proceed after that date if no additional claimants come forward.
The Pratt Museum is responsible for notifying the Kenaitze Indian Tribe, Native Village of Nanwalek (IRA Council), Ninilchik Village, Native Village of Port Graham, and Seldovia Village Tribe that this notice has been published.
National Park Service, Interior.
Notice.
The Fowler Museum at UCLA, in consultation with the appropriate Indian tribes, has determined that the cultural items meet the definition of unassociated funerary objects and repatriation to the Indian tribes stated below may occur if no additional claimants come forward. Representatives of any Indian tribe that believes itself to be culturally affiliated with the cultural items may contact the Fowler Museum at UCLA.
Representatives of any Indian tribe that believes it has a cultural affiliation with the cultural items should contact the Fowler Museum at UCLA at the address below by August 22, 2011.
Wendy G. Teeter, PhD, Curator of Archaeology, Fowler Museum at UCLA, Box 951549, Los Angeles, CA 90095–1549, telephone (310) 825–1864.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3005, of the intent to repatriate cultural items in the possession of the Fowler Museum at UCLA, Los Angeles, CA, that meet the definition of unassociated funerary objects under 25 U.S.C. 3001.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the cultural items. The National Park Service is not responsible for the determinations in this notice.
In 1940, unassociated funerary objects were removed from the Van Liere Ranch Site, in Maricopa County, AZ, during excavations by J.W. Simmons. The collection was donated to the Fowler Museum at UCLA by Thomas Hinton in 1956. The 69 unassociated funerary objects are 17 clay plaques, 1 shell bead, 8 slate palettes, 1 shell, 1 ceramic sherd, 1 small ceramic bowl, 3 stone gaming pieces, 2 stone plaque fragments, 3 red clay vessels, 16 shell disc beads, 1 lead globular, 2 pieces of ochre, 4 organic fossils, and 9 awl fragments.
The Van Liere Ranch site was a burial ground with numerous Hohokam cremations and other features. This site is dated from A.D. 300—1500 based on the cultural materials found at the site, which are identified by archeologists and cultural experts as consistent with Hohokam culture. There are burial records that describe the excavation of each burial and include field and artifact photos, drawings, and site maps. Except for an infant tooth that is not associated with these funerary objects, the human remains were not removed from the ground. The unassociated funerary objects are identified based on their contextual burial designations and burial excavation notes and photos.
The Salt River Pima-Maricopa Indian Community of the Salt River Reservation, Arizona, has submitted a repatriation claim for the cultural items described in this notice, on behalf of itself and the Ak Chin Indian Community of the Maricopa (Ak Chin) Indian Reservation, Arizona; Gila River Indian Community of the Gila River Indian Reservation, Arizona; and Tohono O'odham Nation of Arizona (hereinafter referred to as “The Four Southern Tribes of Arizona”). The Four Southern Tribes of Arizona assert a “close relationship of shared group identity that can be traced both historically and prehistorically between the Four Southern Tribes of Arizona and the people that inhabited south central Arizona and the northern region of present day Mexico from time immemorial.” Therefore, The Four Southern Tribes of Arizona claim cultural affiliation to the cultural items based on geographical, archeological, linguistic, oral tradition, and historical evidence.
The Hopi Tribe “claims cultural and ancestral affiliation to all human remains, associated and unassociated funerary objects, sacred objects, and objects of cultural patrimony that were collected from Paleo-Indian, Archaic, Basketmaker, Hisatsinom (Anasazi), Mogollon, Hohokam, Sinaguan, Fremont, Mimbres, and Salado, prehistoric and historic cultures of the Southwest.”
Based on, “Zuni oral teachings and tradition, ethnohistoric documentation, historic documentation, archaeological documentation, and other evidence, the Zuni Tribe claims cultural affiliation with prehistoric cultures of the Southwestern United States that include, and are known as, Paleo Indian, Archaic, Basketmaker, Puebloan, Freemont, Anasazi, Mogollon (including Mimbres and Jornada), Hohokam, Sinagua, Western Pueblo, and Salado.”
Therefore, the oral tradition, kinship system, and archeology all indicate that The Four Southern Tribes of Arizona, Hopi Tribe of Arizona, and the Zuni Tribe of the Zuni Reservation, New Mexico, identify with the archeological Hohokam tradition. Finally, multiple lines of evidence, including treaties, Acts of Congress, and Executive Orders, indicate that the land from which the cultural items were removed is the aboriginal land of The Four Southern Tribes of Arizona, Hopi Tribe of Arizona, and the Zuni Tribe of the Zuni Reservation, New Mexico.
Officials of the Fowler Museum at UCLA have determined that:
• Pursuant to 25 U.S.C. 3001(3)(B), the 69 cultural items described above are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony and are believed, by a preponderance of the evidence, to have been removed from a specific burial site of a Native American individual.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the unassociated funerary objects and The Four Southern Tribes of Arizona, Hopi Tribe of Arizona, and the Zuni Tribe of the Zuni Reservation, New Mexico.
Representatives of any other Indian tribe that believes itself to be culturally affiliated with the unassociated funerary objects should contact Wendy G. Teeter, PhD, Curator of Archaeology, Fowler Museum at UCLA, Box 951549, Los Angeles, CA 90095–1549, telephone (310) 825–1864, before August 22, 2011. Repatriation of the unassociated funerary objects to the Salt River Pima-Maricopa Indian Community of the Salt River Reservation, Arizona, on behalf of The Four Southern Tribes of Arizona, may proceed after that date if no additional claimants come forward.
The Fowler Museum at UCLA is responsible for notifying The Four Southern Tribes of Arizona, Hopi Tribe of Arizona, and the Zuni Tribe of the Zuni Reservation, New Mexico, that this notice has been published.
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 filed on behalf of Samsung LED Co., Ltd. and Samsung Led America, Inc. on July 15, 2011. 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 light-emitting diodes and products containing same. The complaint names as respondents OSRAM GmbH of Germany, OSRAM Opto Semiconductors GmbH of Germany; OSRAM Opto Semiconductors Inc. of Sunnyvale, CA and OSRAM Sylvania Inc. of Danvers, MA.
The complainant, proposed respondents, other interested parties, and members of the public are invited to file comments, not to exceed five pages in length, on any public interest issues raised by the complaint. Comments should address whether issuance of an exclusion order and/or a cease and desist order in this investigation would negatively 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 orders are used in the United States;
(ii) Identify any public health, safety, or welfare concerns in the United States relating to the potential orders;
(iii) Indicate the extent to which like or directly competitive articles are produced in the United States or are otherwise available in the United States, with respect to the articles potentially subject to the orders; and
(iv) Indicate whether Complainant, Complainant's licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to an exclusion order and a cease and desist order within a commercially reasonable time.
Written submissions must be filed no later than by close of business, five business days after the date of publication of this notice in the
Persons filing written submissions must file the original document and 12 true copies thereof on or before the deadlines stated above with the Office of the Secretary. Submissions should refer to the docket number (“Docket No. 2831”) in a prominent place on the cover page and/or the first page. The Commission's rules authorize filing submissions with the Secretary by facsimile or electronic means only to the extent permitted by section 201.8 of the rules (see Handbook for Electronic Filing Procedures,
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 210.50(a)(4) of the Commission's Rules of Practice and Procedure (19 CFR 201.10, 210.50(a)(4)).
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has terminated the above-captioned investigation with a finding of violation of section 337, and has issued a general exclusion order directed against infringing foam footwear products, and cease and desist orders directed against respondents Double Diamond Distribution Ltd. (“Double Diamond”) of Canada, Effervescent Inc. (“Effervescent”) of Fitchburg, Massachusetts, and Holey Soles Holding Ltd. (“Holey Soles”) of Canada.
Clint Gerdine, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 708–5468. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 205–2000. General information concerning the Commission may also be obtained by accessing its Internet server at
The Commission instituted this investigation on May 11, 2006, based on a complaint, as amended, filed by Crocs, Inc. (“Crocs”) of Niwot, Colorado. 71 FR 27514–15 (May 11, 2006). The complaint alleged violations of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain foam footwear, by reason of infringement of claims 1–2 of U.S. Patent No. 6,993,858 (“the '858 patent”); U.S. Patent No. D517,789 (“the '789 patent”); and the Crocs trade dress (the image and overall appearance of Crocs-brand footwear). The complaint further alleged that an industry in the United States exists as required by subsection (a)(2) of section 337, and requested that the Commission issue a permanent general exclusion order and permanent cease and desist orders. The complaint named eleven (11) respondents that included: (1) Collective Licensing International, LLC of Englewood, Colorado; (2) Double Diamond; (3) Effervescent; (4) Gen-X Sports, Inc. of Toronto, Ontario; (5) Holey Soles; (6) Australia Unlimited, Inc. of Seattle, Washington; (7) Cheng's Enterprises Inc. of Carlstadt, New Jersey; (8) D. Myers & Sons, Inc. of Baltimore, Maryland; (9) Inter-Pacific Trading Corp. of Los Angeles, California; (10) Pali Hawaii of Honolulu, Hawaii; and (11) Shaka Shoes of Kaliua-Kona, Hawaii. The Commission terminated the investigation as to the trade dress allegation on September 11, 2006. A twelfth respondent, Old Dominion Footwear, Inc. of Madison Heights, Virginia, was added to the investigation on October 10, 2006. All but three respondents have been terminated from the investigation on the basis of a consent order, settlement agreement, or undisputed Commission determination of non-infringement. The three remaining respondents are Double Diamond, Effervescent, and Holey Soles.
On April 11, 2008, the presiding administrative law judge (“ALJ”) issued his final initial determination (“ID”) finding no violation of section 337. The ALJ found non-infringement and non-satisfaction of the technical prong of the domestic industry requirement with respect to the '789 patent, and found that the '858 patent was proven invalid as obvious under 35 U.S.C. 103. The ALJ's final ID made no finding on whether either asserted patent was unenforceable due to inequitable conduct. The ALJ's final ID also included his recommendation on remedy and bonding should the Commission find that there was a
On February 9, 2011, the ALJ issued his remand ID finding that the asserted patents were not unenforceable. On February 25, 2011, respondents Effervescent and Double Diamond filed both a joint petition for review of the remand ID and a motion for leave to file the petition two (2) days late. On March 4, 2011, the Commission issued an order declining to grant the motion, but without prejudice to respondents refiling their motion stating good cause for the enlargement of time. On March 16, 2011, respondents Effervescent and Double Diamond filed a joint motion for an enlargement of the time for filing petitions for review of the remand ID. On March 18, 2011, the Commission issued an order granting the motion for an enlargement of time and making responses due on March 28, 2011. On March 28, 2011, Crocs and the Commission investigative attorney (“IA”) each filed a brief in response to respondents' petition for review.
On April 25, 2011, the Commission issued notice of its determination not to review the ALJ's remand ID and requested written submissions on the issues of remedy, the public interest, and bonding from the parties and interested non-parties.
On May 6 and 13, 2011, respectively, complainant Crocs and the IA filed briefs and reply briefs on remedy, the public interest, and bonding. Also, on May 6 and 13, 2011, respectively, respondent Effervescent filed a brief and reply brief on these issues. Respondent Double Diamond filed a reply brief on May 13, 2011.
The Commission has made its determination on the issues of remedy, the public interest, and bonding. The Commission has determined that the appropriate form of relief is both: (1) A general exclusion order prohibiting the unlicensed entry of foam footwear that infringe one or more of (i) claims 1–2 of the ’858 patent, and (ii) the claimed design of the ’789 patent; and (2) cease and desist orders prohibiting Double Diamond, Effervescent, and Holey Soles from conducting any of the following activities in the United States: Importing, selling, marketing, advertising, distributing, offering for sale, transferring (except for exportation), and soliciting U.S. agents or distributors for, foam footwear that infringe one or more of (i) claims 1 or 2 of the ’858 patent, and (ii) the claimed design of the ’789 patent.
The Commission further determined that the public interest factors enumerated in section 337(d)(1) (19 U.S.C. 1337(d)(1)) do not preclude issuance of the general exclusion order or the cease and desist orders. Finally, the Commission determined to set a bond of $0.00 for Double Diamond's covered products, a bond of $0.01 per pair of shoes for Holey Soles' covered products, a bond of $0.05 per pair of shoes for Effervescent's covered products, and a bond of 100% of the entered value (for all other covered products) to permit temporary importation during the period of Presidential review (19 U.S.C. 1337(j)). The Commission's orders and opinion were delivered to the President and to the United States Trade Representative on the day of their issuance.
The Commission has terminated this investigation. The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in section 210.50 of the Commission's Rules of Practice and Procedure (19 CFR 210.50).
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined not to review the presiding administrative law judge's (“ALJ”) final initial determination (“ID”) issued on May 12, 2011, finding no violation of section 337 of the Tariff Act of 1930, 19 U.S.C. 1337, in this investigation.
Panyin Hughes, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 205–3042. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 205–2000. General information concerning the Commission may also be obtained by accessing its Internet server at
The Commission instituted this investigation on May 19, 2010, based on a complaint filed by Apple Inc. of Cupertino, California (“Apple”). 75 FR 28058 (May 19, 2010). The complaint alleged
On May 12, 2011, the ALJ issued his final ID, finding no violation of section 337 by Kodak with respect to any of the asserted claims of the asserted patents. Specifically, the ALJ found that the accused products do not infringe the asserted claims of the '964 patent. The ALJ also found that none of the cited references rendered the asserted claims obvious, and that Kodak is not a co-owner of the patent. Regarding the '911 patent, the ALJ found that the accused products do not infringe its asserted claims. The ALJ also found that the prior art anticipates and invalidates the asserted claims and that Kodak is not a co-owner of the patent. The ALJ concluded that an industry exists within the United States that practices the '911 patent but that a domestic industry does not exist with respect to the '964 patent as required by 19 U.S.C. 1337(a)(2).
On June 1, 2011, Apple filed a petition for review of the ALJ's findings related to the '964 patent. Apple did not petition for review of any of the ALJ's findings related to the '911 patent. On June 9, 2011, the Commission investigative attorney (“IA”) and Kodak filed respective responses to Apple's petition for review. Neither the IA nor Kodak filed petitions or contingent petitions for review of the ID.
Having examined the record of this investigation, including the ALJ's final ID, the petition for review, and the responses thereto, the Commission has determined not to review the subject ID.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in sections 210.42–46 of the Commission's Rules of Practice and Procedure (19 CFR 210.42–46).
By order of the Commission.
Notice is hereby given that on July 13, 2009, a proposed Second Amendment Consent Decree in United States of America; Commonwealth of Pennsylvania; City of Philadelphia; State of Oklahoma; and State of Ohio v. Sunoco, Inc., Civil Action 05–02866, was lodged with the United States District Court for the Eastern District of Pennsylvania.
This Second Amendment to the Consent Decree amends the Consent Decree entered by the Court on March 20, 2006 as well as the First Amendment to the Consent Decree entered by the Court on June 3, 2009. Specifically, the Second Amendment changes the date of completion of installation of pollution control equipment from June 2013 to June 2015. The second Amendment requires Sunoco to perform other pollution control measures in the interim time period, including lowering emissions limits and installing controls on other equipment to achieve greater reduction of emissions.
The Department of Justice will receive for a period of 30 days from the date of this publication comments relating to the Amended Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and either e-mailed to
The Amended Consent Decree may be examined at the Office of the United States Attorney, Zane D. Memeger, 615 Chestnut Street, Ste. 1250, Philadelphia, PA 19106, (215) 861–8200.
During the public comment period, the consent decree may also be examined on the following Department of Justice Web site,
Notice is hereby given that on July 13, 2011, a proposed Consent Decree was lodged with the District Court of Massachusetts, in
In this action, the United States sought penalties and injunctive relief for the Defendant's violations of the Clean Air Act, 42 U.S.C. 7401
The Department of Justice will receive comments relating to the proposed Consent Decrees for a period of thirty (30) days from the date of this publication. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and either e-mailed to
The proposed Consent Decree may be examined at the Office of the United States Attorney, United States Courthouse, 1 Courthouse Way, Suite 9200, Boston, MA 02210, and at the United States Environmental Protection Agency, 5 Post Office Square, Suite 100, Boston, Massachusetts 02109.
During the public comment period, the proposed agreement may also be examined on the following Department of Justice Web site:
National Institute of Corrections, U.S. Department of Justice.
Solicitation for a Cooperative Agreement.
The National Institute of Corrections (NIC) is seeking applications from organizations, groups, or individuals to enter into a cooperative agreement for an 18-month period to develop and pilot a methodology for correctional organizations to conduct an internal evaluation of their current policy and practice for working with women offenders. This methodology must cover a broad range of domains, such as leadership, external collaboration, management and operations, sanctions, assessment and case planning, and programs and services. The methodology must be concise but informative enough to be used by an organization with an understanding of evidence-based practices that incorporate gender-informed research and information. Additional consideration may be given to an applicant who can incorporate into the methodology those elements applicable to institutional and community corrections environments. The methodology should also include supplemental information that addresses an organization's readiness for change and a template that will help organizations initiate an internal strategic planning process. This award will also cover the piloting of the methodology, which should include both onsite work and use of Web-based technology, post-pilot revisions to the methodology based on feedback, and a design for conducting a process evaluation to measure the efficacy of the methodology.
The goal of this solicitation is to create and provide a methodology for organizations to (1) Conduct an abbreviated internal evaluation of their policies and practices specific to women and (2) begin to plan strategically to initiate the type of change required within their agency to reach their desired objectives. Information gathered by organizations using this methodology could also form the basis for resource requests from funding entities, formulation of technical assistance requests to external sources, and a vehicle to advance internal quality assurance. The awardee will work closely with designated NIC staff on all aspects of the project to ensure understanding of and agreement on the scope of work to be performed, and to work with other identified experts as well who are recognized for their expertise and practical experience in working with justice-involved women.
To be considered, applicants must demonstrate, at a minimum: In-depth knowledge of research and practice regarding gender-informed (women) and evidence-based practices, organizational readiness, strategic planning, and process evaluation; In-depth knowledge of the practices, programs, and complexities specific to the operation of women's correctional facilities and awareness of the issues relevant to women on community release and under supervision; In-depth knowledge about the risks, needs, strengths, and capacity for resiliency with justice-involved women; Specific examples of expertise in directing project design and implementation; Demonstrated ability to work collaboratively with other experts in the field of gender-informed practices; Ability and capacity to conduct Web-based events.
Applications must be received by 4 p.m., EDT, August 24, 2011.
Mailed applications must be sent to: Director, National Institute of Corrections, 320 First St., NW., Room 215, Washington, DC 20534.
Applicants are encouraged to use Federal Express, UPS, or similar service to ensure delivery by the due date.
Hand delivered applications should be brought to 500 First St., NW., Washington, DC 20534. At the front security desk, dial 7–3106, ext. 0 for pickup. Faxed or e-mailed applications will not be accepted. Electronic applications can only be submitted via
A copy of this announcement and links to the required application forms can be downloaded from the NIC Web site at
All technical or programmatic questions concerning this announcement should be directed to Maureen Buell, Correctional Program Specialist, National Institute of Corrections, Administrative Division. Ms. Buell can be reached directly at 1–800–995–6423 ext. 40121 or by e-mail at
In an attempt to deal with these challenges, organizations often will make piecemeal change (offer a parenting program or have female facilitators lead established programs), which has limited positive impact with women on items that are measured (
This is but a small sampling of requests over the years, but it was the impetus for collecting and organizing the emerging research and knowledge on women offenders.
Fortunately, as the rate of women entering our nation's justice systems was dramatically increasing, also emerging was a body of work that has had significant impact on the field of corrections. Evidence-based practices or risk reduction research, considered to be gender-neutral, and the gender-informed research that has identified and articulated specific areas that are unique to and/or occur with increased frequency with women. The latter body of work has provided opportunities to sharpen our knowledge and practices regarding areas that contribute to risk for women. NIC has paid considerable attention to these emerging bodies of work and has collected and organized this information into a set of domains that impact a wide range of practices in women's facilities and in community corrections environments. This information is continuously incorporated into NIC's current and emerging products and services and has informed technical assistance to the field.
The development of an internal evaluation methodology that contains the items drawn from both the evidence-based and gender-informed bodies of research and is in a concise and accessible format provides an opportunity for agency leadership and management to assess policy and practices that can contribute to or detract from an organization's overall effectiveness in managing justice-involved women. It is also a tool that can prepare an organization for requesting technical assistance, additional funding, or enhancing internal quality assurance.
Examples of issues for applicants to consider for this project include creation of methodology that is concise and easy to understand yet provides enough detail to ensure that a wide range of practices are evaluated relative to the research and knowledge on justice-involved women. The intent of this solicitation is to assist agencies in accurately evaluating internal practices for working with women, with improved management and outcomes as
Applications should be concisely written, typed double spaced, and reference the NIC opportunity number and title referenced in this announcement. If you are hand delivering or submitting via Fed-Ex, please include an original and three copies of your full proposal (program and budget narrative, application forms, assurances, and other descriptions). The original should have the applicant's signature in blue ink. Electronic submissions will be accepted only via
Public Law 93–415.
Are all of the elements and tasks as outlined in the proposal fully and clearly addressed? Is there a clear description of how each project activity will be accomplished, including major tasks; the strategies to be employed; required staffing; responsible parties, and other required resources? Are there any unique or exceptional approaches, techniques, or design aspects proposed that will enhance the project?
Does the applicant identify reasonable objectives, milestones, or measures to track progress? Are the proposed management and staffing plans clear, realistic, and sufficient to carry out the project? Is the applicant willing to meet with NIC, at a minimum, as indicated in the solicitation for this cooperative agreement? Is the proposed budget realistic, does it provide sufficient cost detail/narrative, and does it represent good value relative to the anticipated results? Does the application include a chart that aligns the budget with project activities along a timeline with, at minimum, quarterly benchmarks? In terms of program value, is the estimated cost reasonable in relation to work performed and project products?
Do the skills, knowledge, and expertise of the organization and the proposed project staff demonstrate a high level of competency to carry out the tasks? Does the applicant/organization have the necessary experience and organizational capacity to carry out all goals of the project? If consultants and/or partnerships are proposed, is there a reasonable justification for their inclusion in the project and a clear structure to ensure effective coordination?
NIC will NOT award a cooperative agreement to an applicant who does not have a Dun and Bradstreet Database Universal Number (DUNS) and is not registered in the Central Contractor Registry (CCR). Applicants can obtain a DUNS number at no cost by calling the dedicated toll-free request line at 800–333–0505. Applicants who are sole proprietors should dial 866–705–5711 and select option #1.
Employment and Training Administration (ETA), Labor.
Notice.
The Department of Labor (DOL or the Department) is prepared to conduct an evaluation to provide rigorous, nationally representative estimates of the net impacts of intensive services and training provided under the Workforce Investment Act (WIA) Adult and Dislocated Worker Programs. The Department has determined that it is in the public interest to use a random assignment impact methodology for the study. In the local workforce investment areas (LWIAs) randomly selected to participate in this evaluation, all applicants for intensive services and training under the WIA Adult and Dislocated Worker programs will be required to participate in the study during a 12–18 month period. The Department is soliciting comments concerning the Department's plan to carry out the study.
Written comments on the plan to require consent to participate in the study during the designated LWIAs' study enrollment periods must be received by the office listed in the addresses section below on or before August 4, 2011.
You may submit comments by any one of the following methods:
•
•
•
Please submit your comments by only one method. The Department will not review comments received by means other than those listed above or that are received after the comment period has closed.
The Department will retain all comments received without making any changes to the comments, including any personal information provided. If requested, the comments will be released to the public. The Department cautions commenters not to include their personal information such as Social Security Numbers, personal addresses, telephone numbers, and e-mail addresses in their comments as such submitted information will be released with the comment if the comments are requested. It is the commenter's responsibility to safeguard his or her information. If the comment is submitted by e-mail, the e-mail
Eileen Pederson, U.S. Department of Labor, Employment and Training Administration, Office of Policy Development and Research, 200 Constitution Avenue, NW., Room N–5641, Washington, DC 20210. Telephone number: (202) 693–3647 (this is not a toll-free number). Individuals with hearing or speech impairments may access the telephone number above via TTY by calling the toll-free Federal Information Relay Service at 1–877–889–5627 (TTY/TDD).
The Workforce Investment Act of 1998 (WIA) brought formerly fragmented public and private employment services together in a single location within each community and made them accessible to a wider population than did prior employment and training service delivery systems. The recent recession, high unemployment rate and limited Federal resources serve as a reminder of the importance of ensuring that the services provided to people who are out of work and desiring to transition to new employment are as effective as possible. In order to improve the management and effectiveness of WIA services and related activities, section 172 of the WIA requires the Department to continually evaluate WIA programs and activities. These evaluations must “utilize appropriate methodology and research designs, including the use of control groups chosen by scientific random assignment methodologies.” Congress, the Office of Management and Budget, and the Government Accountability Office have called on DOL to conduct an evaluation now in order to learn if WIA-funded intensive services and training are as effective as they can be. Accordingly, ETA is conducting a multisite control group evaluation to provide rigorous, nationally representative estimates of the net impacts of WIA intensive services and training provided under the Adult and Dislocated Worker Programs.
Generally speaking, intensive services are services that involve staff assistance and include assessments, counseling, and job placement. Training includes education and occupational skills building. This evaluation will offer policymakers, program administrators, and service providers information about the relative effectiveness of Adult and Dislocated Worker intensive services and training, how the effectiveness varies by target population, and how the services and training are implemented. The study will also produce estimates of the benefits and costs of these services and training. The study's key goal is to generate findings that are applicable to the national WIA Adult and Dislocated Worker programs.
To obtain rigorous, nationally representative estimates of WIA's effectiveness for adults and dislocated workers, the Department plans to use a random assignment impact methodology for the evaluation. The evaluation will take place in approximately 30 randomly selected LWIAs. WIA applicants in the selected LWIAs who are eligible for intensive services will be randomly assigned to one of three groups. The three research groups to which they will be assigned are: (1) The full-WIA group—adults and dislocated workers in this group can receive any WIA services and training for which they are eligible, (2) the core-and-intensive group—adults and dislocated workers in this group can receive any WIA services for which they are eligible other than training, and (3) the core-only group—adults and dislocated workers in this group can receive only WIA core services but no intensive services or training. Overall, 94 percent of all WIA applicants in the participating LWIAs who are eligible for and interested in intensive services or training will be assigned to the full-WIA group.
In the LWIAs randomly selected to participate in the evaluation, all applicants for intensive services and/or training under the WIA Adult and Dislocated Worker programs will be asked to participate in the study during the 12–18 month study enrollment period. They will be informed of the evaluation, provided an opportunity to ask questions or seek clarification of their role and responsibilities should they agree to participate, and then required to give their consent to participate. Applicants who do not consent to participate in the study will be allowed to receive core services only. The sample intake period will range between 12 and 18 months at each site. A total of about 68,000 WIA adult and dislocated worker program applicants will be randomly assigned to the evaluation.
The Department has determined that it is in the public interest to use a random assignment impact methodology. Random assignment is generally viewed as the best and most feasible design for credibly and reliably answering questions about the effectiveness of social programs and policy interventions. This is because when implemented carefully, random assignment creates groups that are, on average, identical in their characteristics before the intervention. Hence, any differences in the employment outcomes of customers in the three research groups can be confidently attributed to differences in the service intervention. Moreover, because of funding limitations, not all people who are eligible for, and could benefit from, WIA services can receive them. As a result, the total number of people who are served will not be affected by the study.
The Department recognizes that this design will assign some applicants to groups that limit their access to WIA services. However, the study was designed to balance two objectives: (1) To fulfill the mandate for a rigorous evaluation of WIA and (2) to maximize the number of customers in the study who have access to the full set of WIA-funded services. Since the three research groups will be identical except for their ability to access different levels of WIA-funded assistance, any differences in outcomes between the groups will be attributable to the WIA services. To meet the second objective, the study design allows most adult and dislocated worker customers to have access to the full set of WIA-funded assistance. Only a small percentage of customers will be restricted to receiving core services or core-and-intensive services. Those customers who are assigned to either the core only or core-and-intensive only research groups will be eligible to apply for intensive services and training 15 months after enrollment into the study.
To protect the rights and welfare of One-Stop Career Center customers who agree to participate in the evaluation, the evaluation team, consisting of researchers from Mathematica Policy Research and MDRC, submitted the WIA Evaluation design to MDRC's Institutional Review Board (IRB) for concurrence. On June 17, 2010, the IRB determined this study to be of minimal risk and unanimously approved it.
Currently, DOL is soliciting comments concerning the Department's intent to carry out the random assignment study described above: for the limited enrollment period, applicants for WIA intensive and training services would be required to consent to participate in the study, where they would be randomly assigned to one of the three research groups. Applicants who do not consent to participate would receive core services. This requirement would apply only to applicants for intensive services and training provided in the limited
The Department seeks comments focused on whether there is a methodology that would yield as credible and reliable an evaluation of the WIA program as random assignment, but avoids adverse affect on the study participants. The Department also welcomes comments that suggest ways to more effectively minimize any adverse impact on the study participants who participate in the study described above.
Following receipt of comments in response to this request, ETA will adjust, as appropriate, the approach for temporarily requiring applicants for WIA intensive services and training at selected LWIAs to participate in random assignment. Comments submitted in response to this request will also become a matter of public record.
National Science Foundation.
Notice of permit emergency provision for hazardous waste stored in Antarctica at a location other than a permanent station for more than 12 months due to an emergency, as specified by § 671.17.
The Program of Environment Health and Safety (PEHS) in the Office of Polar Programs (OD/OPP), in accordance with § 671.17, is giving notice that an emergency relating to considerations of human health and safety caused hazardous waste to be stored in a location other than a permanent station for more than 12 months.
Hazardous waste in the form of batteries and contaminated snow from small glycol and oil spills has been stored at the Antarctica's Gamburtsev Province Project South camp (AGAP) since the late 2009 camp closeout. The waste was packaged into 42 sealed containers, with lithium and lead acid batteries filling 21 of the containers. The remaining 21 containers were filled with waste oil, soiled absorbents, contaminated snow from small spills, and approximately 5 gallons of glycol in a 55 gallon drum. The waste was strapped to plastic air force pallets and placed in a storage berm. At the time of packing, all containers were sound and there was no evidence of leaks. No one has been back to AGAP since the waste was stored.
The South Pole Traverse (SPoT) was scheduled to remove this waste during the 2010–2011 season. The trip to AGAP was scheduled as a side trip between arriving at South Pole and starting the return trip to McMurdo. SPoT encountered bad storms on the way to South Pole. It arrived more than 1 week late, with one tractor incapacitated. With one less tractor to pull the load, the vehicles were travelling much more slowly. Despite this, SPoT set out for AGAP. However, 50 miles into the trip, a second tractor became incapacitated; further slowing progress and limiting the ability of SPoT to self rescue should they have further problems.
If SPoT proceeded as planned they would have been in the field late in the season when many of the planes have left and Search and Rescue (SAR) capabilities are significantly reduced. There was concern that SPoT would not arrive in McMurdo before the last plane left the continent for the season. To avoid this potentially dangerous situation, the trip to AGAP to collect the hazardous waste was cancelled.
In the 2011–2012 season SPoT's priority will be to collect the waste at AGAP. Spot will depart McMurdo for South Pole one week earlier than this past season to allow a greater buffer for weather and other delays. Further, SPoT will travel to AGAP with an extra tractor and driver to accommodate any breakdowns and help speed progress.
Dr. Polly A. Penhale at (703) 292–7420.
Nuclear Regulatory Commission (NRC).
Notice of the OMB review of information collection and solicitation of public comment.
The NRC has recently submitted to OMB for review the following proposal for the collection of information under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). The NRC hereby informs potential respondents that an agency may not conduct or sponsor, and that a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The NRC published a
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The public may examine and have copied for a fee publicly available documents, including the final supporting statement, at the NRC's Public Document Room, Room O–1F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852. OMB clearance requests are available at the NRC Web site:
Comments and questions should be directed to the OMB reviewer listed below by August 22, 2011. Comments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given to comments received after this date.
Comments can also be e-mailed to
The NRC Clearance Officer is Tremaine Donnell, 301–415–6258.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission (NRC).
Notice of the OMB review of information collection and solicitation of public comment.
The NRC has recently submitted to OMB for review the following proposal for the collection of information under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35). The NRC hereby informs potential respondents that an agency may not conduct or sponsor, and that a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The NRC published a
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A licensee or certificate holder seeking the issuance of a NOED, must document the safety basis for the request, including: an evaluation of the safety significance and potential consequences of the proposed request, a description of proposed compensatory measures, a justification for the duration of the request, the basis for the licensee's or certificate holder's conclusion that the request does not have a potential adverse impact on the public health and safety, that there will be no adverse consequences to the environment, and any other information the NRC staff deems necessary before the NRC staff makes a decision whether to exercise discretion.
In addition, the NRC's Enforcement Policy includes a provision allowing licensees to voluntarily adopt fire protection requirements contained in the National Fire Protection Association Standard 805, “Performance Based Standard for Fire Protection for Light Water Reactor Electric Generating Plants, 2001 Edition” (NFPA 805). Licensees who wish to implement the risk-informed process in NFPA 805 must submit a letter of intent (LOI) to the NRC. Licensees who wish to withdraw from the NFPA 805 risk-informed process must submit a letter of retraction.
The public may examine and have copied for a fee publicly available documents, including the final supporting statement, at the NRC's Public Document Room, Room O–1F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852. OMB clearance requests are available at the NRC Web site:
Comments and questions should be directed to the OMB reviewer listed below by August 22, 2011. Comments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given to comments received after this date.
Comments can also be e-mailed to
The NRC Clearance Officer is Tremaine Donnell, 301–415–6258.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Notice of the OMB review of information collection and solicitation of public comment.
The U.S. Nuclear Regulatory Commission (NRC) has recently submitted to OMB for review the following proposal for the collection of information under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). The NRC hereby informs potential respondents that an agency may not conduct or sponsor, and that a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The NRC published a
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The public may examine and have copied for a fee publicly available documents, including the final supporting statement, at the NRC's Public Document Room, Room O–1F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852. OMB clearance requests are available at the NRC Web site:
Comments and questions should be directed to the OMB reviewer listed below by August 22, 2011. Comments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given to comments received after this date.
Christine J. Kymn, Desk Officer, Office of Information and Regulatory Affairs (3150–0055), NEOB–10202, Office of Management and Budget, Washington, DC 20503.
Comments can also be e-mailed to
The NRC Clearance Officer is Tremaine Donnell, 301–415–6258.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Notice of acceptance for docketing.
Comments must be filed by September 19, 2011. A request for a hearing must be filed by September 19, 2011. Any potential party as defined in Title 10 of the
Please include Docket ID NRC–2011–0153 in the subject line of your comments. Comments submitted in writing or in electronic form will be posted on the NRC 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 may submit comments by any one of the following methods:
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Geoffrey Wertz, Project Manager, Research and Test Reactors Licensing Branch, Division of Policy and Rulemaking, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Rockville, MD 20852.
The U.S. Nuclear Regulatory Commission (NRC or the Commission) is considering an application for the renewal of Facility Operating License No. R–126 (“Application”), which currently authorizes the University of Utah (the licensee) to operate the University of Utah TRIGA Reactor (UUTR) at a maximum steady-state thermal power of 100 kilowatts (kW) thermal power. The renewed license would authorize the applicant to operate the UUTR up to a steady-state thermal power of 100 kW for an additional 20 years from the date of issuance.
By letter dated March 25, 2005, as supplemented on June 1, 2009, February 9, 2010, March 10, 2010, May 13, 2010, May 27, 2010, October 4, 2010 (two letters), and June 8, 2011, the NRC received an application from the licensee filed pursuant to Title 10 of the
The application contains sensitive unclassified non-safeguards information. Based on its initial review of the application and the supplemental information, the Commission's staff determined that UUTR submitted sufficient information in accordance with 10 CFR 50.33 and 10 CFR 50.34 so that the application is acceptable for docketing. The current Docket No. 50–407 for Facility Operating License No. R–126 will be retained. The docketing of the renewal application does not preclude requests for additional information as the review proceeds, nor does it predict whether the Commission will grant or deny the application. Prior to a decision to renew the license, the Commission will make the findings required by the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations.
Within 60 days of this notice, any person(s) whose interest may be affected may file a request for hearing/petition to intervene. As required by 10 CFR 2.309, a petition for leave to intervene shall set forth with particularity the interest of the petitioner/requestor in the proceeding, and how that interest may be affected by the results of the proceeding. The petition should specifically explain the reasons why intervention should be permitted with particular reference to the following general requirements: (1) The name, address and telephone number of the requestor or petitioner; (2) the nature of the requestor's/petitioner's right under the Act to be made a party to the proceeding; (3) the nature and extent of the requestor's/petitioner's property, financial, or other interest in the proceeding; and (4) the possible effect of any decision or order which may be entered in the proceeding on the requestor's/petitioner's interest. The petition must also identify the specific contentions which the petitioner/requestor seeks to have litigated at the proceeding.
Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the petitioner/requestor shall provide a brief explanation of the bases for the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the petitioner intends to rely in proving the contention at the hearing. The petitioner must also provide references to those specific sources and documents of which the petitioner is aware and on which the petitioner intends to rely to establish those facts or expert opinion. The petition must include sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. Contentions shall be limited to matters within the scope of the amendment under consideration. The contention must be one which, if proven, would entitle the petitioner/requestor to relief. A petitioner/requestor who fails to satisfy these requirements with respect to at least one contention will not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing with respect to resolution of that person's admitted contentions, including the opportunity to present evidence and to submit a cross-examination plan for cross-examination of witnesses, consistent with NRC regulations, policies, and procedures. The Atomic Safety and Licensing Board will set the time and place for any prehearing conferences and evidentiary hearings, and the appropriate notices will be provided.
Non-timely requests and/or petitions and contentions will not be entertained absent a determination by the Commission, the presiding officer, or the Atomic Safety and Licensing Board (the Licensing Board) that the petition and/or request should be granted and/or the contentions should be admitted, based on a balancing of the factors specified in 10 CFR 2.309(c)(1)(i)–(viii).
A State, county, municipality, Federally-recognized Indian Tribe, or agencies thereof, may submit a petition to the Commission to participate as a party under 10 CFR 2.309(d)(2). The petition should state the nature and extent of the petitioner's interest in the proceeding. The petition should be submitted to the Commission by September 19, 2011. The petition must be filed in accordance with the filing instructions in section III of this document, and should meet the requirements for petitions for leave to intervene set forth in this section, except that State and Federally-recognized Indian tribes do not need to address the standing requirements in 10 CFR 2.309(d)(1) if the facility is located within its boundaries. The entities listed above could also seek to participate in
Any person who does not wish, or is not qualified, to become a party to this proceeding may request permission to make a limited appearance pursuant to the provisions of 10 CFR 2.315(a). A person making a limited appearance may make an oral or written statement of position on the issues, but may not otherwise participate in the proceeding. A limited appearance may be made at any session of the hearing or at any prehearing conference, subject to such limits and conditions as may be imposed by the Licensing Board. Persons desiring to make a limited appearance are requested to inform the Secretary of the Commission by September 19, 2011.
All documents filed in NRC adjudicatory proceedings, including a request for hearing, a petition for leave to intervene, any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities participating under 10 CFR 2.315(c), must be filed in accordance with the NRC E-Filing rule (72 FR 49139, August 28, 2007). The E-Filing process requires participants to submit and serve all adjudicatory documents over the internet, or in some cases to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek an exemption in accordance with the procedures described below.
To comply with the procedural requirements of E-Filing, at least ten (10) days prior to the filing deadline, the participant should contact the Office of the Secretary by e-mail at
Information about applying for a digital ID certificate is available on NRC's public Web site at
If a participant is electronically submitting a document to the NRC in accordance with the E-Filing rule, the participant must file the document using the NRC's online, Web-based submission form. In order to serve documents through EIE, users will be required to install a Web browser plug-in from the NRC Web site. Further information on the Web-based submission form, including the installation of the Web browser plug-in, is available on the NRC's public Web site at
Once a participant has obtained a digital ID certificate and a docket has been created, the participant can then submit a request for hearing or petition for leave to intervene. Submissions should be in Portable Document Format (PDF) in accordance with NRC guidance available on the NRC public Web site at
A person filing electronically using the agency's adjudicatory E-Filing system may seek assistance by contacting the NRC Meta System Help Desk through the “Contact Us” link located on the NRC Web site at
Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852, Attention: Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. A presiding officer, having granted an exemption request from using E-Filing, may require a participant or party to use E-Filing if the presiding officer subsequently determines that the reason for granting the exemption from use of E-Filing no longer exists.
Documents submitted in adjudicatory proceedings will appear in NRC's electronic hearing docket which is available to the public at
Petitions for leave to intervene must be filed no later than 60 days from July 21, 2011. Non-timely filings will not be entertained absent a determination by the presiding officer that the petition or request should be granted or the contentions should be admitted, based on a balancing of the factors specified in 10 CFR 2.309(c)(1)(i)–(viii).
The NRC maintains an Agencywide Documents Access and Management System (ADAMS), which provides text and image files of the NRC's public documents. Detailed guidance which the NRC uses to review applications for the renewal of non-power reactor licenses can be found in the documents NUREG–1537, entitled “Guidelines for Preparing and Reviewing Applications for the Licensing of Non-Power Reactors” and the “Interim Staff Guidance on the Streamlined Review Process for License Renewal for Research Reactors” (ISG) which can be obtained from the Commission's public document room (PDR). The detailed review guidance (NUREG–1537 and the ISG) are available online in the NRC Library at
Persons who do not have access to ADAMS, or who encounter problems in accessing the documents located in ADAMS, should contact the NRC PDR Reference staff by telephone at 1–800–397–4209, or 301–415–4737, or by e-mail to
A. This Order contains instructions regarding how potential parties to this proceeding may request access to documents containing Sensitive Unclassified Non-Safeguards Information (SUNSI).
B. Within 10 days after publication of this notice of hearing and opportunity to petition for leave to intervene, any potential party who believes access to SUNSI is necessary to respond to this notice may request such access. A “potential party” is any person who intends to participate as a party by demonstrating standing and filing an admissible contention under 10 CFR 2.309. Requests for access to SUNSI submitted later than 10 days after publication will not be considered absent a showing of good cause for the late filing, addressing why the request could not have been filed earlier.
C. The requester shall submit a letter requesting permission to access SUNSI to the Office of the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, Attention: Rulemakings and Adjudications Staff, and provide a copy to the Associate General Counsel for Hearings, Enforcement and Administration, Office of the General Counsel, Washington, DC 20555–0001. The expedited delivery or courier mail address for both offices is: U.S. Nuclear Regulatory Commission, 11555 Rockville Pike, Rockville, Maryland 20852. The e-mail address for the Office of the Secretary and the Office of the General Counsel are
(1) A description of the licensing action with a citation to this
(2) The name and address of the potential party and a description of the potential party's particularized interest that could be harmed by the action identified in C.(1);
(3) The identity of the individual or entity requesting access to SUNSI and the requester's basis for the need for the information in order to meaningfully participate in this adjudicatory proceeding. In particular, the request must explain why publicly-available versions of the information requested would not be sufficient to provide the basis and specificity for a proffered contention;
D. Based on an evaluation of the information submitted under paragraph C.(3) the NRC staff will determine within 10 days of receipt of the request whether:
(1) There is a reasonable basis to believe the petitioner is likely to establish standing to participate in this NRC proceeding; and
(2) The requestor has established a legitimate need for access to SUNSI.
E. If the NRC staff determines that the requestor satisfies both D.(1) and D.(2) above, the NRC staff will notify the requestor in writing that access to SUNSI has been granted. The written notification will contain instructions on how the requestor may obtain copies of the requested documents, and any other conditions that may apply to access to those documents. These conditions may include, but are not limited to, the signing of a Non-Disclosure Agreement or Affidavit, or Protective Order
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(1) If the request for access to SUNSI is denied by the NRC staff either after a determination on standing and need for access, or after a determination on trustworthiness and reliability, the NRC staff shall immediately notify the requestor in writing, briefly stating the reason or reasons for the denial.
(2) The requester may challenge the NRC staff's adverse determination by filing a challenge within 5 days of receipt of that determination with: (a) The presiding officer designated in this proceeding; (b) if no presiding officer has been appointed, the Chief
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If challenges to the NRC staff determinations are filed, these procedures give way to the normal process for litigating disputes concerning access to information. The availability of interlocutory review by the Commission of orders ruling on such NRC staff determinations (whether granting or denying access) is governed by 10 CFR 2.311.
I. The Commission expects that the NRC staff and presiding officers (and any other reviewing officers) will consider and resolve requests for access to SUNSI, and motions for protective orders, in a timely fashion in order to minimize any unnecessary delays in identifying those petitioners who have standing and who have propounded contentions meeting the specificity and basis requirements in 10 CFR part 2. Attachment 1 to this Order summarizes the general target schedule for processing and resolving requests under these procedures.
For the Commission.
Thursday, August 4, 2011, at 10 a.m.; and Friday, August 5, at 8:30 a.m. and 10:30 a.m.
Washington, DC, at U.S. Postal Service Headquarters, 475 L'Enfant Plaza, S.W., in the Benjamin Franklin Room.
Thursday, August 4 at 10 a.m.—Closed; Friday, August 5, at 8:30 a.m.—Open; and at 10:30 a.m.—Closed
1. Strategic Issues.
2. Financial Matters.
3. Pricing.
4. Personnel Matters and Compensation Issues.
5. Governors' Executive Session—Discussion of prior agenda items and Board Governance.
1. Approval of Minutes of Previous Meetings.
2. Remarks of the Chairman of the Board.
3. Remarks of the Postmaster General and CEO.
4. Committee Reports.
5. Quarterly Report on Service Performance.
6. Quarterly Report on Financial Performance
7. Tentative Agenda for the September 12–13, 2011, meeting in Washington, D.C.
1. Continuation of Thursday's closed session agenda.
Julie S. Moore, Secretary of the Board, U.S. Postal Service, 475 L'Enfant Plaza, SW., Washington, DC 20260–1000. Telephone (202) 268–4800.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange is filing with the Commission a proposal to amend Exchange Rule 1020 (Registration and Function of Options Specialists) to correct a typographical error.
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this proposal is to correct a typographical error in subsection (a)(v)(B) of Rule 1020. On June 1, 2011, the Exchange filed an immediately effective proposal regarding Remote Specialists (the “Remote Specialist filing”) that expanded the Remote Specialist concept.
There is a typographical error in new subsection (a)(v)(B) of Rule 1020 as established in the Remote Specialist filing whereby a Registered Options Trader is inadvertently referred to as a “registered Remote Options Trader.” The Exchange is hereby correcting the error by deleting the word “Remote” so that the reference in subsection (a)(v)(B) would be to Registered Options Trader. The Exchange notes that the proposed change is wholly in conformity with the types of traders (market makers) on the Exchange. That is, unlike Registered Options Traders, which are defined in Exchange Rules and the Remote Specialist filing, there is no defined category of traders on the Exchange known as registered Remote Options Traders. Moreover, the term Registered Options Trader is used elsewhere in Rule 1020 as well as throughout Exchange rules, whereas the term registered Remote Options Trader is used only once in error.
The Exchange believes that it is clear from the context of Rule 1020, Exchange Rules in general, and the Remote Specialist filing that the Exchange intended to refer to Registered Options Trader in Rule 1020. The Exchange therefore now corrects the noted typographical error by referring in
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were either solicited or received.
Pursuant to Section 19(b)(3)(A) of the Act
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: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail 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 May 12, 2011, BATS Exchange, Inc. (the “Exchange” or “BATS”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Section 19(b)(2) of the Act
The Commission is hereby extending the 45-day period for Commission action on the proposed rule change. The Commission finds that it is appropriate to designate a longer period within which to take action on the proposed
Accordingly, pursuant to Section 19(b)(2)(A)(ii)(I) of the Act
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to request permanent approval of the Exchange's pilot program to permit the Boston Options Exchange (“BOX”) to accept inbound routes by NASDAQ Options Services, LLC (“NOS”) of Nasdaq Options Market (“NOM”) Exchange Direct Orders without checking the NOM book and 2) NOM non-System securities, including Exchange Direct Orders.
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of 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.
Currently, NOS is the approved outbound routing facility of the NASDAQ Stock Market (the “NASDAQ Exchange”) for NOM, providing outbound routing from NOM to other market centers.
Pursuant to prior rule filings with the Commission, BOX and NOS inbound routing relationship with respect to certain orders has operated on a pilot basis. In connection with this pilot program, BX committed to the following:
1. The Exchange and FINRA would enter into a regulatory services agreement (“Regulatory Contract”) pursuant to which FINRA has been allocated regulatory responsibilities to review NOS's compliance with BOX's rules through FINRA's examination program.
2. The Exchange and FINRA would monitor NOS for compliance with the
3. FINRA has agreed to provide a report to the BOXR's Chief Regulatory Officer, on at least a quarterly basis, that: (i) Quantifies all alerts (of which the Exchange and FINRA become aware) that identify NOS as a participant that has potentially violated Commission or Exchange rules and (ii) quantifies the number of investigations that identify NOS as a participant that has potentially violated Commission or Exchange rules;
4. BX adopted Chapter XXXIX, Section 2(c) of the Grandfathered Rules of the Exchange, which requires NASDAQ OMX, as the holding company owning NOS and affiliated with BOX through the ownership of the Exchange, to establish and maintain procedures and internal controls reasonably designed to ensure that NOS does not develop or implement changes to its system on the basis of non-public information regarding planned changes to BOX's systems, obtained as a result of its affiliation with BOX, until such information is available generally to similarly situated BOX participants, in connection with the provision of inbound order routing to BOX;
5. The Exchange proposed that NOS be authorized to route Exchange Direct Orders without checking the NOM book; and orders in NOM non-system securities inbound to the Exchange from NOM for a pilot period of twelve months, as further extended to August 16, 2011.
The Exchange has met all the above-listed conditions. By meeting the above-conditions, the Exchange has set up mechanisms that protect the independence of the Exchange's regulatory responsibility with respect to NOS, as well as demonstrate that NOS cannot use any information advantage it may have because of its affiliation with the Exchange and BOX. Since the Exchange has met all the above-listed conditions, it now seeks permanent approval of the BOX and NOS inbound routing relationship. The Exchange will continue to comply with the conditions 1–4 stated above.
The Exchange believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has neither solicited nor received comments on the proposed rule change.
Within 45 days of the date of publication of this notice in the Federal Register or within such longer period (i) as the Commission may designate up to 90 days of such date if it finds such longer period to be appropriate and publishes its reasons for so finding or (ii) as to which the Exchange consents, the Commission shall: (a) By order approve or disapprove such proposed rule change, or (b) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–1090.
All submissions should refer to File Number SR–BX–2011–045 and should be submitted on or before August 11, 2011.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice of request for public comment and submission to OMB of proposed collection of information.
The Department of State has submitted the following information collection request to the Office of Management and Budget (OMB) for approval in accordance with the Paperwork Reduction Act of 1995.
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Submit comments to the Office of Management and Budget (OMB) for up to 30 days from date of publication in the
Direct comments to the Department of State Desk Officer in the Office of Information and Regulatory Affairs at the Office of Management and Budget (OMB). You may submit comments by the following methods:
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You may obtain copies of the proposed information collection and supporting documents from Jacqueline Robinson, Diplomatic Security, Office of Foreign Missions, 2201 C Street, NW., Room 2236, Washington, DC 20520, who may be reached on (202) 647–3416.
We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary to properly perform our functions.
• Evaluate the accuracy of our estimate of the burden of the proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond,
Foreign Diplomatic Service Application Forms DS–4155 and DS–7675 are associated with OMB Collection number 1405–0105. Form DS–4155 (Vendor Application for OFM Website Account) is the means by which the Department of State (DOS) will provide authorized vendor access to the Office of Foreign Missions' electronic data submission (e-Gov) Bonded Warehouse program. This application will be used to determine eligibility and create a user account permitting bonded warehouse personnel, on behalf of foreign missions authorizing the request, to submit electronic bonded warehouse purchases (form DS–1504) for OFM clearance. OFM's e-Gov system is accessed to submit automated service requests to the Office of Foreign Missions and the Office of Protocol of the U.S. State Department to obtain “benefits” designated under the Vienna Convention on Diplomatic Relations (1961) (VCDR), the Vienna Convention on Consular Relations (1963) (VCCR), and the Foreign Missions Act, 22 U.S.C. 4301
By virtue of the authority vested in the Secretary of State by the laws of the United States, including the Mutual Educational and Cultural Exchange Act of 1961, as amended (Fulbright-Hays Act), the United States Information and Educational Exchange Act of 1948, as amended, and the State Department Basic Authorities Act of 1956, as amended, and delegated to me by Delegation of Authority 245–1, dated
Any authorities covered by this delegation may also be exercised by the Secretary of State, the Deputy Secretary, and the Deputy Secretary for Management and Resources. Nothing in this delegation of authority shall be deemed to supersede or revoke any existing delegation of authority, which shall remain in full force and effect during and after this delegation.
Any act or other authority related to this delegation of authority shall be deemed to be such act or other authority as amended from time to time.
This delegation of authority shall expire upon the appointment and entry upon duty of a subsequently-appointed individual to serve as Under Secretary of State for Public Diplomacy and Public Affairs.
This delegation of authority shall be published in the
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Notice; Announcement of Meeting Location and Date Change.
In a
Please refer to the May 20, 2011, (76 FR 29333) notice for more details about the meeting. The TPSSC and THLPSSC will consider a draft pipeline safety report to the nation. The meeting will be open to the public.
49 U.S.C. 60102, 60115; 60118.
On July 1, 2011, Michigan Air-Line Railway Co. (MAL Railway) filed with the Surface Transportation Board (Board) a petition under 49 U.S.C. 10502 for exemption from the provisions of 49 U.S.C. 10903 to abandon an approximately 5.45-mile rail line between milepost 45.26 (Engineer's Profile Station 2389+72), at the west line of Haggerty Road, and milepost 50.65 (Engineer's Profile Station 2677+67), at the intersection with the right-of-way of a CSX Transportation, Inc. rail line, in the City of Wixom, in Oakland County, Mich.
The line does not contain Federally granted rights-of-way. Any documentation in MAL Railway's possession will be made available promptly to those requesting it.
The interest of railroad employees will be protected by the conditions set forth in
By issuing this notice, the Board is instituting an exemption proceeding pursuant to 49 U.S.C. 10502(b). A final decision will be issued by October 19, 2011.
Any offer of financial assistance (OFA) under 49 CFR 1152.27(b)(2) will be due no later than 10 days after service of a decision granting the petition for exemption. Each OFA must be accompanied by a $1,500 filing fee.
All interested persons should be aware that, following abandonment of rail service and salvage of the line, the line may be suitable for other public use, including interim trail use. Any request for a public use condition under 49 CFR 1152.28 or for trail use/rail banking under 49 CFR 1152.29 will be due no later than August 10, 2011. Each trail use request must be accompanied by a $250 filing fee.
All filings in response to this notice must refer to Docket No. AB 1053 (Sub-No. 2X), and must be sent to: (1) Surface Transportation Board, 395 E Street, SW., Washington, DC 20423–0001; and (2) W. Robert Alderson, 2101 SW., 21st Street Topeka, KS 66604. Replies to MAL Railway's petition are due on or before August 10, 2011.
Persons seeking further information concerning abandonment procedures may contact the Board's Office of Public Assistance, Governmental Affairs, and Compliance at (202) 245–0238 or refer to the full abandonment or discontinuance regulations at 49 CFR Part 1152. Questions concerning environmental issues may be directed to the Board's Office of Environmental Analysis (OEA) at (202) 245–0305. Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1–800–877–8339.
An environmental assessment (EA) (or environmental impact statement (EIS), if necessary) prepared by OEA will be served upon all parties of record and upon any agencies or other persons who commented during its preparation. Other interested persons may contact OEA to obtain a copy of the EA (or EIS). EAs in these abandonment proceedings normally will be made available within 60 days of the filing of the petition. The deadline for submission of comments on the EA will generally be within 30 days of its service.
Board decisions and notices are available on our Web site at: “
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
The Department of the Treasury will submit the following public information collection requirements to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104–13 on or after the date of publication of this notice. A copy of the submissions may be obtained by calling the Treasury Bureau Clearance Officer listed. Comments regarding these information collections should be addressed to the OMB reviewer listed and to the Treasury PRA Clearance Officer, Department of the Treasury, 1750 Pennsylvania Avenue, NW., Suite 11010, Washington, DC 20220.
Written comments should be received on or before August 22, 2011 to be assured of consideration.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
NMFS hereby implements measures approved in Amendment 15 to the Scallop FMP (Amendment 15), which was developed by the New England Fishery Management Council (Council). Amendment 15 was developed primarily to implement annual catch limits (ACLs) and accountability measures (AMs) to bring the Scallop FMP into compliance with requirements of the MSA as reauthorized in 2007. Amendment 15 includes additional measures recommended by the Council, including: A revision of the overfishing definition (OFD); modification of the essential fish habitat (EFH) closed areas under the Scallop FMP; adjustments to measures for the Limited Access General Category (LAGC) individual fishing quota (IFQ) fishery; adjustments to the scallop research set-aside (RSA) program; and additions to the list of measures that can be adjusted by framework adjustments. NMFS has disapproved a provision that would have allocated additional scallop catch to the LAGC fleet because it was not consistent with National Standard 1 and the ACL requirement of the MSA.
Effective July 21, 2011.
A final environmental impact statement (FEIS) was prepared for Amendment 15 that describes the proposed action and its alternatives and provides a thorough analysis of the impacts of proposed measures and their alternatives. Copies of Amendment 15, including the FEIS and the IRFA, are available from Paul J. Howard, Executive Director, New England Fishery Management Council, 50 Water Street, Newburyport, MA 01950. These documents are also available online at
Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this rule should be submitted to the Regional Administrator at the address above and to the Office of Management and Budget (OMB) by e-mail at
Peter Christopher, Fishery Policy Analyst, phone (978) 281–9288, fax (978) 281–9135.
In January 2007, the MSA was reauthorized and included a provision requiring each FMP to use ACLs to prevent overfishing, including measures to ensure accountability, should the ACLs be exceeded. For fishery resources that were determined to be subject to overfishing, the MSA requires that such measures be implemented by 2010. For fishery resources that are not subject to overfishing, such measures must be implemented by 2011. Scallop fishery management measures to comply with the MSA's ACL and AM requirements are required for 2011, because the scallop resource is not subject to overfishing. To meet this requirement, the Council initiated development of Amendment 15 on March 5, 2008, by publishing a Notice of Intent to develop Amendment 15 (73 FR 11888, March 5, 2008) and prepare an EIS to analyze the impacts of the proposed management alternatives. The Council intended that Amendment 15 would address three goals: (1) Bring the Scallop FMP into compliance with new requirements of the reauthorized MSA; (2) address excess capacity in the limited access (LA) scallop fishery; and (3) consider measures to adjust several aspects of the overall program to make the scallop FMP more effective. Following the public comment period that ended on August 23, 2010, the Council adopted Amendment 15 on September 29, 2010. The Council voted to adopt most of the measures proposed in the amendment except permit stacking and leasing alternatives, which had been designed to address excess capacity, after considering extensive written and oral public comment on the measures. Ultimately the Council rejected these measures due to concerns that the measures would have unacceptable negative economic and social impacts on the scallop fleet and fishing communities. The Notice of Availability (NOA) for Amendment 15 was published March 24, 2011 (76 FR 16595), with a comment period ending May 23, 2011. The proposed rule for Amendment 15 was published April 11, 2011 (76 FR 19929), with a comment period ending May 26, 2011.
This final rule implementing Amendment 15 establishes the mechanism for implementing ACLs and AMs, which in turn will generate scallop fishery specifications, including days-at-sea (DAS), access area trip allocations, and individual fishing quotas (IFQs). Amendment 15 does not include ACLs and fishery specifications. These specifications will be established through the separate action of Framework 22 to the FMP for fishing years (FYs) 2011, 2012, and 2013. Framework 22 includes specific measures that address the change from DAS, access areas, and trip allocations that became effective on March 1, 2011, to different allocations implemented under Framework 22. If Framework 22 is approved, a final rule implementing Framework 22 measures will be published shortly after publication of this final rule.
The Council reviewed the Amendment 15 proposed regulations as drafted by NMFS and deemed them to be necessary and appropriate as required by section 303(c) of the MSA.
NMFS has disapproved the proposed measure that would have allocated additional catch to the LAGC IFQ fleet if the limited access fleet's AM exception were implemented. The Council adopted, and NMFS has approved, a LA fleet AM exception that could exempt the LA fleet from its AM, even if the LA fleet exceeds its sub-ACL in a given FY. The exception will be implemented if the actual F for the total ACL is lower than the estimated F for the scallop fishery's ACL for that year, based on an evaluation by the Council's Scallop Plan Development Team (PDT) after the end of the fishing year. Estimated F could be higher than actual F if landings per unit effort (LPUE) had been underestimated relative to the status of the resource, so that the estimated F, and consequently the specified ACL, was inconsistent with actual resource conditions.
The Council also adopted a related measure that would have allocated additional catch to the LAGC IFQ fleet if the LA fleet's AM exception was enacted after the LA sub-ACL was exceeded, in a manner proportional to the LA fleet's overage. The Council's rationale was that, if the LA fleet did not have to have its AM triggered, the LAGC IFQ fleet should benefit in some way too (
Under the LA fleet AM exception measure, the LA fleet could have exceeded its prescribed ACL, and could have unaccounted catch, but there would be a process for evaluating the overage relative to the F related to the total ACL (which is equal to the acceptable biological catch (ABC)). However, the proposed measure that would have allocated additional catch to the LAGC IFQ fleet if the AM exception is triggered would not have evaluated the reallocation relative to ABC, ACL, sub-ACLs, or the associated Fs, and therefore could have risked exceeding the ABC/ACL. Because the proposed AM exception would have been automatic, additional catch would have been allocated in the following FY without consideration of whether the additional catch would cause the overall ACL, or F associated with that ACL, to be exceeded when combined with total catch in that year. This is contrary to the Council's intent to build precaution into establishing ACLs and sub-ACLs in the fishery. As a result, this measure would risk overfishing. Because there is no assurance that allocating additional catch to the LAGC IFQ fleet would prevent overfishing, the measure is inconsistent with National Standard 1 of the MSA. The measure is also inconsistent with the MSA requirement at Section 303(a)(15) that FMPs “establish a mechanism for specifying ACLs in the plan * * * at a level such that overfishing does not occur in the fishery, including measures to ensure accountability.”
In addition, this substantive measure was added to Amendment 15 at the last Council meeting before adoption of Amendment 15 and, as such, is inconsistent with MSA and National Environmental Policy Act procedures because the process did not provide sufficient opportunity for full open public and Council consideration of the impacts of the measure and its implications on ACL management of the scallop fishery. NMFS has therefore disapproved the proposed measure.
Amendment 15 establishes a method for accounting for all catch in the scallop fishery and includes designations of Overfishing Limit (OFL), ABC, ACLs, and Annual Catch Targets (ACT) for the scallop fishery, as well as scallop catch for the Northern Gulf of Maine (NGOM), incidental, and state waters catch components of the scallop fishery. The scallop fishery assessment will determine the exploitable biomass, including an assessment of discard and incidental mortality (mortality of scallops resulting from interaction, but not capture, in the scallop fishery). Based on the assessment, OFL is specified as the level of landings, and associated F that, above which, overfishing is occurring. OFL will account for landings of scallops in state waters by vessels without Federal scallop permits. The current assessment of the scallop fishery (SAW 50, 2010) determined that the F associated with the OFL is 0.38. Since discard and incidental mortality are accounted for in the scallop resource assessment and removed prior to setting ABC, the specification of ABC, ACL, and ACT; as well as the NGOM and incidental catch; are represented by landings as a proxy for catch. ACL will be equal to ABC, but to account for scientific uncertainty, ABC will be less than OFL, with an associated F that has a 25-percent probability of exceeding F associated with OFL (
Amendment 15 modifies the current OFD to provide for better management of the scallop fishery under area rotation. The Hybrid OFD combines the overfishing threshold from the status quo OFD for open areas with a time-averaged F approach for access areas. The F target in the open areas will be set at a level that is no higher than the overfishing threshold (currently F = 0.38). In access areas, it will be set annually at a level that results in F no higher than F
The OFD and overfishing reference points that are replaced by the approved measures in Amendment 15 were based on the assumption that F is spatially uniform. In the scallop fishery this assumption was inaccurate, because of unfished biomass in closed areas, variable Fs in access areas, and spatially variable F in open areas. Under the replaced OFD, closed and access areas protected the scallop stock from recruitment overfishing, but growth overfishing could have occurred in the open areas because the OFD averaged spatially across open and closed areas (
The previous OFD stated that F
If stock biomass is equal or greater than B
The changes to the OFD also require revisions of the current framework provisions in the scallop fishery regulations at § 648.55. Under the previous OFD, the framework adjustment process included provisions that ensure that measures achieve optimum yield (OY) on a continuing basis. These provisions were established as part of Amendment 10 to the FMP because of the potential inconsistency between rotational area management and use of a spatially-average OFD, whereby open area F may be elevated relative to the condition of the resource in open areas, thus preventing OY from being achieved. Because the approved OFD drastically reduces the risk of inappropriate open area fishing levels, due to application of the threshold F to drive open area fishing levels, the framework provisions specifically designed to adjust Council recommendations to ensure that OY is achieved are no longer necessary.
Amendment 15 includes two different assessments of scientific uncertainty, based on the following scientific parameters that are utilized in scallop resource and fishery assessments:
• Growth;
• Maturity and fecundity;
• Shell height/meat weight relationship;
• Natural mortality;
• Catch data;
• Discards and discard mortality;
• Incidental mortality;
• Commercial shell height data;
• Commercial and survey gear selectivity;
• Commercial and survey dredge efficiency;
• Stock-recruitment relationship; and
• Density dependence.
The first assessment of scientific uncertainty is qualitative and is based on the level of uncertainty, importance, and effect of the parameters. Uncertainty, importance, and effect of the parameters on the scallop resource and fishery assessment are characterized numerically on a scale of low to high. This first assessment of scientific uncertainty provides managers with an indication of the overall level of scientific uncertainty, which would help determine a buffer between the OFL and ABC. The Council concluded in Amendment 15 that scientific uncertainty in the scallop resource and fishery is low.
The second assessment of scientific uncertainty enables the Council to establish ABC that has a low risk of exceeding OFL. Based on the parameters for determining scientific uncertainty, an analytical model developed by the Council's Scallop PDT specifies the probability of exceeding the OFL at a specified F associated with the corresponding catch level. Using this model, and given the overall low level of scientific uncertainty, the ABC control rule sets ABC at a level that has a 25-percent probability of exceeding OFL (
Scallop catch from state waters by vessels not issued a Federal scallop permit is a relatively small component of overall scallop catch, and the scallop resource in state waters is not part of the Federal scallop resource survey. To account for scallop landings from state waters, the Councils Scallop PDT will estimate landings annually, based on available state waters landings information, and include it in the specification of OFL. The amount of scallop landings in state waters will then be specified as a separate level of landings that will be compared to actual landings each year, and adjusted as necessary in subsequent years. This component of overall catch is not specified as an ACL and has no associated AM, since there is no Federal authority to adjust catch by vessels without a Federal permit.
Scallop catch in the NGOM will be specified similar to state waters scallop catch, except that the NGOM landings level will be based on historical landings or available resource surveys in the NGOM, and will be included in the specification of ABC. While there is no Federal survey in the NGOM, independent surveys have been conducted and, if continued, would provide survey information for NGOM landings specifications each year. Although this component of overall scallop catch is not formally an ACL, an overage will be accounted for in the subsequent FY through a reduction of the landings limit that is equal to the overage from the prior FY.
Incidental catch has been estimated to be 50,000 lb (24,948 kg), and data continue to support this value, based on historical and predicted landing levels. Incidental catch will be removed from ABC prior to establishing the research and observer set-asides and ACLs for the LA and LACG IFQ fleets. This component of overall scallop catch does not have a specific AM, but if incidental catch is higher than predicted, the landings limit will be adjusted in the subsequent FY(s) by removing more incidental catch from ABC.
The LA and LAGC IFQ fleets will be allocated landings as sub-ACLs of the overall scallop fishery ACL with the same allocation values that were established under Amendment 11 to the FMP: LA vessels will be allocated 94.5 percent of the ABC/ACL landings; and LAGC IFQ vessels will be allocated 5.5 percent of the ABC/ACL landings. Both allocations will be made after deducting incidental catch and research and observer set-asides from ABC. Sub-ACLs were established for these two fleets so that AMs would be based on each fleet's harvest relative to its own ACL, without requiring that one fleet would be penalized for an overage of the other. Both fleets will have carryover provisions and RSA catch can be carried over into the subsequent FY. For the purpose of accounting relative to ABC and ACL, landings from carryover DAS, IFQ, or TAC will apply to the FY in which they are landed (
Amendment 15 specifies that management uncertainty in the scallop fishery mainly results from the uncertainty associated with carryover DAS, vessel upgrades and replacements, and open area catch under DAS. The uncertainty associated with these measures results from a difference between estimated vessel efficiency and LPUE, and realized efficiency and LPUE during the course of the FY. Management uncertainty for the LAGC IFQ fleet is considered very low because it would result from landings in excess
The primary AM for the LA fleet requires a DAS reduction for the fleet in open areas that will approximate the catch overage of the ACT. Using the ACT for determining the overage is designed to account for management uncertainty and to better prevent vessels from exceeding the fleet's ACL. The DAS reduction will be distributed evenly to limited access vessels. For example, an overage of 1.5 million lb (680 mt) would have a DAS equivalent of 625 DAS, based on an LPUE of 2,400 lb (1.1 mt) per DAS. Divided across 327 full-time vessels, the DAS reduction per vessel would be 1.9 DAS. Part time vessel DAS would be reduced by 0.76 DAS (40 percent of the full time deduction) and occasional vessel DAS would be reduced by 0.16 DAS (1/12th of the full time deduction). Part-time and occasional proportional deductions are consistent with the way that DAS are assigned in the fishery. The AM will take effect in the FY following the FY in which the ACL was exceeded. Since the AM will apply mid-year, vessels may have already used more DAS in that FY than are ultimately allocated after applying the AM. If this occurs, a vessel that exceeds the DAS it is allocated after the AM is applied will have the amount of DAS used in excess of the vessel's final DAS allocation after the AM is applied deducted from its DAS allocation in the subsequent FY. For example, if a vessel initially allocated 32 DAS in FY 2011 uses all 32 DAS prior to application of the AM, and after application of the AM, the vessel's DAS allocation is reduced to 31 DAS, the vessel's DAS in FY 2012 would be reduced by 1 DAS.
Even if the ACL is exceeded, the F associated with the fleet's ACL may not be exceeded if, in retrospect, some of the assumptions for determining the ACL, such as LPUE relative to the status of the resource or the biomass were underestimated. Since the overall goal of the ACL is to ensure that F limits are not exceeded, enacting an AM may not be necessary if the F limits are not exceeded. To address this, Amendment 15 includes an exception provision that will stop the AM from taking effect if, in an analysis of the preceding FY before the AM goes into effect, the actual F for the scallop fishery in the prior FY was one standard deviation (currently estimated to be 0.04) below the overall F for the scallop fishery's ACL (
The application of the AM described in item 8 above, and the AM exception described in this item 9, will be considered at the same time to ensure that multiple adjustments of DAS do not occur in the same FY, if possible. The decision to implement the AM or the AM exception will be made by the Regional Administrator on or about September 30 of each year.
If an LAGC vessel exceeds its IFQ, its IFQ will be reduced by the amount equal to the overage as soon as possible in the FY immediately following the FY in which the IFQ overage occurred. Since the AM will apply mid-year, vessels may have already used more IFQ in that FY than is ultimately allocated after applying the AM. If this occurs, a vessel that exceeds the IFQ it is allocated after the AM is applied will have the amount of IFQ landed in excess of the vessel's final IFQ allocation after the AM is applied deducted from its IFQ allocation in the subsequent FY. For example, a vessel with an initial IFQ of 1,000 lb (453.6 kg) in 2010 landed 1,200 lb (544.3 kg) of scallops in FY 2010, and is initially allocated 1,300 lb (589.7 kg) of scallops in FY 2011. That vessel would be subject to an IFQ reduction equal to 200-lb (90.7-kg) to account for the 200 lb (90.7 kg) overage in FY 2010. If that vessel lands 1,300 lb (589.7 kg) of scallops in FY 2011 prior to application of the 200 lb (90.7 kg) deduction as the AM, the vessel would be subject to a deduction of 200 lb (90.7 kg) in FY 2012.
For vessels involved in a temporary IFQ transfer, the entire deduction will apply to the vessel that acquired IFQ, not the transferring vessel. A vessel that has an overage that exceeds its IFQ in the subsequent FY will be subject to an IFQ reduction in subsequent years until the overage is paid back. For example, a vessel with an IFQ of 1,000 lb (454 kg) in each FY over a 3-year period, that harvests 2,500 lb (1,134 kg) of scallops the first year will have a 1,500-lb (680-kg) IFQ deduction, so that it would have zero pounds to harvest in year-2, and 500 lb (227 kg) to harvest in year-3. A vessel that has a “negative” IFQ balance, as described in the example, can lease or transfer IFQ to balance the IFQ, provided there are no sanctions or other enforcement penalties that would prohibit the vessel from acquiring IFQ.
Applying the AM to an individual vessel's IFQ was considered appropriate because individual vessel overages of IFQ will be the only cause of exceeding the ACL for the IFQ fleet. A vessel that has an overage in one FY that exceeds its entire IFQ in the subsequent FY will be required to take IFQ reductions in subsequent years until the overage is paid back. For example, a vessel with an IFQ of 1,000 lb (454 kg) in each FY over a 3-year period, that harvests 2,500 lb (1,134 kg) of scallops the first year, will have a 1,500-lb (680-kg) IFQ deduction, so that it will have zero pounds to harvest in year-2, and 500 lb (227 kg) to harvest in year-3. A vessel that has a “negative” IFQ balance, as described in the example, can lease IFQ to balance the IFQ, provided there are no sanctions or other enforcement actions that would prohibit the vessel from acquiring IFQ. These automatic IFQ deductions do not excuse a vessel from any enforcement actions that may be applicable for the overage. The Council determined that this individual-vessel AM would be more equitable than penalizing others in the fleet for single-vessel overages. The Council did incorporate ACT into the LAGC IFQ fleet allocation, but chose not to apply any management uncertainty buffer for the fleet at this time. This can be adjusted through the framework process if an ACT is needed to address management uncertainty.
To account for YTF catch in the scallop fishery, Amendment 15 establishes sub-ACLs (called “sub” ACLs to reflect that these ACLs are part of the overall ACL established in the NE Multispecies FMP) for the Southern New England/Mid-Atlantic (SNE/MA)
Areas within the GB and SNE/MA YTF stock areas that have been pre-identified will close to scallop fishing in the FY following a FY in which the YTF sub-ACL for the scallop fishery is exceeded. These areas were identified in Amendment 15 as the statistical areas that have high bycatch of YTF in the scallop fishery. For the GB YTF stock, the closure will be in statistical area 562, which extends from just west of Closed Area II (CAII), through that closed area, and to the southeast of that closed area. In addition, a small portion of statistical area 525 within the CAII access area will also be closed. For the SNE/MA YTF stock, statistical areas 537, 539, and 613 will close under the YTF AM. Coordinates of these YTF AM closed areas are included in the proposed regulations in this proposed rule. A chart depicting the areas is in the Amendment 15 FEIS (see
In order to more effectively monitor YTF bycatch in open areas, the daily vessel monitoring system (VMS) catch report that is currently required in access areas only is required for all scallop trips in all areas. Vessel operators are required to report the following information: Fishing vessel trip report (FVTR) serial number; date fish caught; total pounds of scallop meats kept; total pounds of YTF kept; total pounds of YTF discarded; and total pounds of all other fish kept. Vessels are required to submit VMS catch reports for every day fished by 9:00 a.m. of the day following the day on which fishing occurred, consistent with access area catch reporting.
IFQ scallop vessels are allowed to harvest 600 lb (272.2 kg) of shucked scallops or 75 bu (26.4 hL) of in-shell scallops per trip, an increase of 200 lb (90.7 kg) or 25 bu (8.8 hL) per trip from the previous 400-lb (181.4-kg) or 50-bu (17.6-hL) possession/trip limit. This measure addresses concerns that the previous possession limit was not economically feasible due to increased costs. The new 600-lb (272.2-kg) possession limit is not expected to change the “small boat” nature of the LAGC fishery, and remains consistent with the Council's vision for LAGC vessels, while enabling vessel owners to maintain profits under rising costs. The increase is also consistent with the conservation objectives of the FMP because of landings are constrained by the IFQ allocations.
An IFQ vessel that has unused IFQ at the end of the FY can carry over its unused IFQ, up to 15 percent of the IFQ issued to the vessel, including transferred IFQ, for that FY into the next FY. Any IFQ that was leased, but not used, by a vessel can also be carried over by the vessel that acquired the IFQ (for monitoring and accounting purposes, leased-in IFQ is used first, in the order acquired). For accounting purposes, the combined total of all vessels' IFQ carryover will be added to the LAGC IFQ fleet's applicable ACL for the FY in which the carryover IFQ is allocated. Any IFQ carried over that is landed will be counted against the ACL as increased by the total carryover for all LAGC IFQ vessels. Carryover will retroactively apply to unused FY 2010 IFQ and FY 2011 IFQs will be adjusted.
The 2-percent IFQ cap per vessel is increased to 2.5 percent of the total LAGC IFQ sub-ACL allocation to allow more flexibility and promote efficiency for vessels in fishing IFQs available to them. The 2.5-percent IFQ cap does not apply to IFQ vessels that also are issued a LA scallop permit. IFQ that is carried over does not contribute to the vessel's 2.5-percent IFQ cap because the
LAGC IFQ permit owners may permanently transfer some or all of their IFQ and its IFQ contribution percentage, independent of their IFQ permit, to another LAGC IFQ permit holder while retaining the permit itself. This measure enables vessel owners additional flexibility to buy or sell IFQ without impacting other permits on their vessel. This allowance only applies to IFQ permit holders that do not also have a LA scallop permit to prevent crossover of IFQ allocations between the two IFQ fleets that have separate allocations.
To establish compatibility with the NE Multispecies FMP, Amendment 15 modifies the EFH closed areas in the Scallop FMP by removing the four EFH closed areas that were implemented in Amendment 10 to the Scallop FMP, and replaces them with EFH closed areas that are identical to the EFH closed areas implemented under the NE Multispecies FMP. These areas are the Closed Area I (CAI), CAII, Nantucket Lightship Closed Area (NLCA), and Western Gulf of Maine, Jeffrey's Bank, and Cashes Ledge Habitat Closed Areas. Coordinates for these areas are provided in the regulations in this final rule. A chart depicting these areas is in the FEIS for Amendment 15 (see
Fishery specifications in the scallop fishery are generally set every 2 yr, through the biennial framework adjustment process. This measure extends the fishery specification process to include a third year of allocation measures that would be effective if subsequent framework actions are delayed. Currently, measures from the prior FY roll over to the next FY while the implementation of the new set of management measures is pending, but the measures that roll over are often not appropriate for the status of the resource because they were established specific to the resource conditions in the prior (second) year. By setting the measures for the third year in the framework, the measures are more likely to be appropriate for the condition of the fishery and resource. Third-year measures will need to be set with sufficient precaution to take into account the uncertainty associated with projections for the third year. The third-year measures would be superseded by the measures developed in the biennial framework adjustment for that year as soon as it is implemented.
The following measures are added to the current list of measures that can be adjusted under the Scallop FMP by framework action.
The framework action proposing the boundary change will include an analysis of the impacts of the specific boundaries considered. This additional framework authority will not allow adoption of new EFH closed areas.
Under Amendment 15, 1.25 million lb (567 mt) of scallops is set aside annually for scallop RSA projects, regardless of the total projected catch for the fishery. In the future, the value could be increased or decreased by framework action.
Amendment 15 contains several adjustments designed to improve the RSA Program so that it is more efficient, and so that awards under the Federal grants process can be provided near or before the start of the scallop FY on March 1.
The announcement of the FFO will be published as soon as possible in the year preceding the year in which research would be conducted. If this results in more timely reviewing and processing of awards, this will maximize time for research and compensation trips before the end of the FY. This will be facilitated by the Amendment 15 proposal to allocate 1.25 M lb (567 mt) to RSA program annually (see below).
Previously, research priorities, TACs for RSAs, and approved research
Previously, 2 percent of access area TACs and open area DAS were set aside for the Scallop RSA Program. TAC and DAS vary depending on the total TAC and DAS for the fishery. Amendment 15 modifies the Scallop RSA Program so that 1.25 M lb (567 mt) is set aside for the Scallop RSA Program. In addition, open area RSA will be awarded in pounds rather than DAS. Total projected catch for the fishery may vary from year to year, but the amount of catch set-aside for research will be constant at 1.25 M lb (567 mt), unless changed through a framework adjustment. Assuming a projected catch of about 50 million lb (22,680 mt) for the fishery, 1.25 M lb (567 mt) equals about 2.5 percent. This is higher than recent levels to recognize the importance of research and scallop resource surveys for the success of the area rotation program, but it does not create a separate pool of RSA for scallop resource surveys.
Allocating this fixed amount should enable the grant awards to be issued earlier, because the amount of TAC available for research will be known in advance and will not change from year to year. The specific areas that will have available RSA would be identified in the framework, but RSA awards can still be made before approval of the framework, based on total scallop pounds needed to fund the research. Recipients could either choose to wait until NMFS approval of the framework to begin compensation fishing within approved access areas, or could begin compensation fishing in open areas prior to approval of the framework. The intent is to help improve timeliness of the scallop RSA program. This should only be an issue for the first year of a framework, because area-specific RSA pounds will be known for the second year of the framework action.
If updated analyses suggest that the price per pound estimates used in the FFO were low, and if all the scallop RSA TAC is not allocated, NMFS can allocate unused TAC to compensate awarded projects or to expand a project rather than having that RSA go unused. If there is RSA TAC available after all awards are made, a project that was already awarded RSA would be permitted to apply for additional TAC to expand its research project or for compensation if the actual scallop price per pound was less than estimated. The implementation details of this were not specified in Amendment 15. This provision enables NMFS to provide the opportunity for this reallocation of available RSA pounds as part of the original FFO for the project. The FFO will specify the conditions under which a project that has been awarded RSA could be provided additional RSA pounds as supplemental compensation to account for lower-than-expected scallop price or for expansion of the approved project.
Previously all RSA TAC had to be harvested by the end of the FY for which it is awarded. Amendment 15 allows an RSA award recipient to harvest RSA compensation TAC for up to 3 months (
This final rule establishes a list of the scallop management measures from which RSA funded projects may be exempt. The researcher will need to list the measures the project is proposed to be exempt from in the RSA proposal. The researcher will not need to apply for an exempted fishing permit (EFP) to be exempt from the following restrictions: Crew restrictions; seasonal closures in access areas; and the requirement to return to port if fishing in more than one area. These exemptions will be issued by the Regional Administrator through a letter of authorization. The exemptions will be issued for research trips under the applicable RSA project. RSA compensation fishing trips are not eligible for exemption from these restrictions because compensation trips are intended only to provide researchers with the ability to collect funds through normal fishing operations.
Although the Council recommended that the Council's Scallop Advisory Panel members play a more prominent role in setting research priorities and reviewing proposals, no regulations implementing this suggestion are necessary. NMFS will seek more input from the Council's Scallop Advisors through the next solicitation for scallop RSA proposals. Review of RSA projects under the Federal grants program is limited to individuals that do not have any relationship to or vested interest in the proposed research.
Nine relevant comment letters were received on Amendment 15 and its proposed rule. Four addressed the regulatory text included in the proposed rule, with the rest addressing other topics.
NMFS does not agree that the exemption is necessarily discriminatory or unfairly applied to the IFQ fleet in violation of National Standard 4. FSF states that the LAGC IFQ and limited access fleets are “similar.” This is not accurate, because fishing opportunities for IFQ vessels are more restricted than LA vessels. Although some limited access vessels have fished heavily in the SNE region recently due to high catch rates, limited access vessels are more mobile and are not as constrained to fishing in waters close to its home port. LAGC vessels are more constrained to fish within areas nearer to the vessel's home port due to vessel size and historical fishing practices. For LAGC IFQ vessels with ports in Rhode Island and Long Island, the closure AM could prevent them from operating at all while limited access vessels and LAGC IFQ vessels in other ports would be able to continue fishing. This exemption would prevent closures to the LAGC IFQ fleet that would substantially reduce their fishing opportunities in a more significant way than the limited access fleet. NMFS therefore finds, on balance, that the measure is not inconsistent with National Standard 4.
In addition, an overage of the YTF ACL that could be caused by yellowtail flounder bycatch in both sectors of the scallop industry would result in an AM that is consistent with the conservation measures and goals for yellowtail flounder under both the NE Multispecies and Scallop FMPs. Disapproving the exemption for LAGC vessels from the AM as a result of information showing the fishery catches yellowtail would not provide measures to sufficiently offset the negative impacts of closing the fishery to certain LAGC vessel owners that rely on that area to harvest scallops.
During development of Amendment 15 it was uncertain if subsequent year AMs were workable, but in the end the Council supported that if feasible, AMs are more effective if they can be implemented in the subsequent fishing year. So while there may be places in the document that suggest AMs may have to be two years out, the final intent of the Council was to make all AMs effective the subsequent year: LA AMs, LAGC AMs, NGOM AM, as well as AMs related to the YT flounder sub-ACL.
NMFS agrees that implementing AMs in the first FY after the ACL-overage is consistent with the final guidelines for implementing AMs (74 FR 3211, January 16, 2009) which specify that “If an ACL was exceeded, AMs must be triggered and implemented as soon as possible to correct the operation issue that caused the ACL overage * * * .” NMFS has not therefore changed the provision based on FSF's comment because the Council's intent was clear, but NMFS also recognizes the operational complexity that may result from mid-year adjustment of DAS. Therefore, the Council has been informed of FSFs concerns so that changes, if appropriate, can be considered in a future action.
Oceana's concerns about vessel operator self-reporting are unfounded. Vessel operators report catch, including discards and kept landings. Discards can be compared to observer reports, which are considered the most reliable discard information. Kept scallops and fish are compared to dealer reports. Although the daily catch reports will be used to provide periodic reports, the dealer-reported landings, which are matched to scallop trips and daily reports, will ultimately provide the data for the kept-all estimate. A large portion of the scallop industry has demonstrated a strong interest and willingness to work collaboratively to prevent excessive YTF catch. An example is the participation of several scallop vessels in a recent voluntary YTF catch reporting program administered by the University of Massachusetts, Dartmouth, School for Marine Science and Technology (SMAST).
NMFS believes that Oceana's use of the Northeast Fishery Science Center Director's memorandum regarding the Northeast Multispecies Sector program is taken out of context. The SBRM establishes observer coverage levels that are sufficient to meet minimum bycatch monitoring needs. The SBRM levels are then expanded to account for variations in the fisheries. The issues with monitoring sector allocations are different, because the amount of catch allocated to each sector is relatively small, requiring more vigorous monitoring to ensure the allocations are not exceeded. Therefore, the Science Director's memorandum should not be considered to be applicable to all fisheries and monitoring programs for stock-wide ACLs or large sub-ACLs.
In § 648.14(i)(4)(ii)(B) and (i)(4)(iii)(B), the term TAC is changed to ACL, and a reference to § 648.53(a)(5) is changed to § 648.53(a)(4)(i) in order to reference the correct ACL.
In § 648.53(b)(4)(iii)(A), the F trigger for the LA AM exception is changed from F = 0.24 to F = 0.28, and the F associated with the fishery's total ACL is changed from F = 0.28 to F = 0.32.
In § 648.53, paragraph (b)(4)(iii)(B) has been removed because the measure was disapproved by NMFS.
In § 648.53(b)(4)(iv), the F trigger for the LA AM exception is changed from F = 0.24 to F = 0.28, for the reasons stated above.
In § 648.53, paragraph (h)(2)(v)(B) is clarified so that IFQ carried over from one FY to the next is not applicable to the 2.5-percent IFQ cap or the 5-percent ownership cap for the FY in which the carryover IFQ is applied.
In § 648.53(h)(3)(ii)(A), the reference to § 648.53(a)(3)(ii) and (iii) is changed to (a)(4)(i) in order to reference the correct ACL.
In § 648.53(h)(5)(iii) and (h)(5)(iv)(C), the term TAC is changed to ACL to reflect ACL management measures.
In § 648.53(h)(5)(iv), the restriction pertaining to when IFQ transfers must be submitted is clarified to indicate that vessel owners may not have sufficient time in the remaining FY to utilize transferred IFQ for which an application was received less than 45 prior to the end of the FY.
In § 648.55(f)(26), the term DAS is removed because DAS set-asides have been eliminated under Amendment 15.
In § 648.56, paragraph (a) is changed to clarify the timing of the FFO and to change the regulatory reference from § 648.53(b)(3) to § 648.56(d), because § 648.53(b)(3) no longer includes DAS set-asides, since Amendment 15 allocates set-aside only in pounds of scallops.
In § 648.56, paragraph (c) is revised by changing NMFS to NOAA, since the responsibility to administer the Federal grants program is not delegated to NMFS.
In § 648.56, paragraph (d) is revised to clarify how set-aside pounds will be awarded relative to access areas.
In § 648.56, paragraph (f) is revised to clarify the administration of scallop RSA award carryover.
Revisions to the area coordinates for the Sea Scallop Access Areas have been included in § 648.59(b)(3) and (d)(3) to reflect the revised coordinates resulting from the change to the EFH closed areas specified in § 648.61.
In § 648.64, values for YTF sub-ACLs are included for FYs 2011 and 2012.
The Assistant Administrator for Fisheries, NOAA, has determined that this rule is consistent with the national standards and other provisions of the MSA and other applicable laws.
The Office of Management and Budget has determined that this rule is not significant according to Executive Order 12866.
The Assistant Administrator for Fisheries has determined that the need to implement these measures in an expedited manner in order to help achieve conservation objectives for the scallop fishery and certain fish stocks, as well as threatened and endangered sea turtles, constitutes good cause, under authority contained in 5 U.S.C. 553(d)(3), to waive the 30-day delay in effectiveness.
The measures in this final rule to implement Amendment 15 include regulatory changes that are administrative and are only minor adjustments to the Scallop FMP management measures overall. The ACL management measures in Amendment 15 are administrative, establishing the mechanism for managing the scallop fishery under ACL requirements. Actual values for ACLs are established under Framework 22, if approved, and delaying the effectiveness of the ACL provisions in Amendment 15 would constrain the timing of implementation of the measures under Framework 22, including the appropriate management measures and vessel allocations for FY 2011. FY 2011 began on March 1, 2011, and the scallop fishery has been operating under FY 2010 management measures, including DAS, observer set-aside, and access area trip allocations, in lieu of Framework 22 FY 2011 measures. The DAS current allocations are higher than the measures proposed in Framework 22, which were developed to reflect an updated estimate of the annual catch that can be harvested without resulting in overfishing. Accordingly, a delay in effectiveness for this final rule risks creating a race for fish in advance of Framework 22 measures, and vessel owners and operators have the potential of exceeding the FY 2011 catch levels specified in Framework 22. Further continuation of the inconsistent FY 2010 management measures increases the risk that the actual F will exceed the target level upon which Framework 22 management measures are based. Allocations in FY 2011 need to be lower than those in place in FY 2010 in order to meet the management target F specified in the ACL measures of this final rule. Estimates from the 2010 stock assessment, which were endorsed by the SARC–50 review panel, are best available science, and show that biomass was just above, and fishing mortality was at, MSY levels in 2009. In addition, actual F has been higher than projected in FYs 2008–2010, a situation which was addressed in both this final rule's ACL measures and the DAS model used to calculate Framework 22 vessel allocations. Constraining the implementation of Framework 22 by instituting a delay in Amendment 15 effectiveness would be contrary to the public interest because continuing this trend in higher-than-projected F could result in overfishing and future decreases in allowable harvest. Current scallop catch rates in open areas have been the highest on record, and vessels may continue to fish beyond their
In addition, Framework 22 includes management measures necessary to achieve conservation objectives for threatened and endangered sea turtles by limiting the number of Mid-Atlantic scallop access area trips each vessel can take between June 15 and October 31, 2011. This limitation complies with one of the reasonable and prudent measures in the most recent Biological Opinion completed for the scallop fishery. If implementation of Amendment 15 is delayed further beyond June 15, 2011, thus further delaying the Framework 22 turtle conservation measures, the measures from last year will continue. The measures currently in place allow for more fishing effort during these months than intended under Framework 22 and further delay could potentially compromise sea turtle conservation benefits during this short window.
Expediting the implementation of the Amendment 15 ACL management measures, thus enabling the final rule to Framework 22 to establish actual ACL values, will also have greater public benefit because enacting the allocations of IFQ and access area trips would have positive impacts on the economics of the fishery. Currently, vessels have already fished their limited number of scallop access area trips and have no other access areas available from which to harvest scallops. Amendment 15 will enable Framework 22 to open up three additional access areas for vessels and take pressure off of vessel owners/operators from using more DAS than allocated in FY 2011. In addition, LAGC IFQ vessels will be able to take advantage of this final rule's management measures, such as increased trip possession limits, carryover allocations, and improved permanent transfer opportunities, while also benefiting from their increased IFQ allocations specified through the final rule to Framework 22.
A delay in effectiveness for the Amendment 15 management measures that improve the RSA program is also contrary to the public interest and undermines the ability of researchers to complete their research projects and potentially hinder the quality of their research. Proposals that have been submitted for NOAA Grants Program review are currently awaiting final award notification from NOAA. This cannot occur until the revisions to the RSA program under Amendment 15 are effective. Many of the projects conducted under the Scallop RSA program rely on careful timing for research activity and coordination with participating vessels. Further, many of the Scallop RSA projects completed in the past provide critical information for continued improvements to the overall management of the scallop fishery. Therefore, in order to ensure that RSA projects can be issued final grants awards and begin research operations and coordination with participating vessels, the measures that improve the RSA program should be effective upon publication of this final rule.
NMFS was unable to incorporate the 30-day delay in effectiveness into the timeline for Amendment 15 rulemaking due to the delay in the Council's adoption of Amendment 15 from June 2010 to September 2010, and Amendment 15 was not formally submitted to NMFS until January 2011. In addition, the Council submitted Framework 22 in late March 2011, more than 3 weeks after the March 1 start of the 2011 scallop FY. With such delays, NMFS was unable to complete the rulemaking process, make a final determination to approve the amendment, and implement Amendment 15 measures in the 2 months prior to the start of FY 2011. As a result, the final allocations for FY 2011, as specified through the final rule to Framework 22, could not have been implemented prior to the start of FY 2011 or to the implementation of this final rule to Amendment 15.
The Council prepared an FEIS for Amendment 15; an NOA was published on April 1, 2011. The FEIS describes the impacts of the proposed Amendment 15 measures on the environment. ACL and AM measures under Amendment 15 would have minimal impacts on the human environment compared to taking no action, because both establish similar limitations on scallop fishing. Other measures to improve management of the scallop fishery are expected to have positive impacts on the human environment, as a result of improved management of the scallop fishery.
This rule contains a revision to a current collection-of-information requirement subject to review and approval by OMB under the Paperwork Reduction Act (PRA). Public reporting burden for this collection of information, the expansion of the VMS catch report to all areas (OMB Control Number 0648–0491), is estimated to average 2 min per response. This estimate includes the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection information. Send comments on these or any other aspects of the collection of information to OMB by e-mail at
Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.
NMFS, pursuant to section 604 of the Regulatory Flexibility Act (RFA), has prepared a final regulatory flexibility analysis (FRFA) in support of Amendment 15. The FRFA describes the economic impact that this final rule, along with other non-preferred alternatives, will have on small entities. The FRFA incorporates the economic impacts and analysis summarized in the IRFA for the proposed rule to implement Amendment 15, the comments and responses in this final rule, and the corresponding economic analyses prepared for Amendment 15 (
This action proposes to implement ACL and AMs for the scallop fishery, as well as other measures to improve management of the scallop fishery. A description of the management measures, why this action is being considered, and the legal basis for this action are contained in the preamble of this final rule and are not repeated here.
NMFS did not receive any comments pertaining to the IRFA or the economic impacts of these measures more generally on small businesses. Summaries of the public comments and NMFS's responses are provided in the “Comments and Responses” section of this final rule.
These final regulations will affect vessels with LA and LAGC scallop permits. The FEIS for Amendment 15 provides extensive information on the number and size of vessels and small businesses that would be affected by the proposed regulations, by port and state. There were 313 vessels that obtained full-time LA permits in 2010, including 250 dredge, 52 small-dredge and 11 scallop trawl permits. In the same year, there were also 34 part-time LA permits in the sea scallop fishery. No vessels were issued occasional scallop permits. By the start of FY 2010, the first year of the LAGC IFQ program, 362 IFQ permits (including 40 IFQ permits issued to vessels with a LA scallop permit), 127 NGOM, and 294 incidental catch permits were issued.
The RFA defines a small business entity in any fish-harvesting or hatchery business as a firm that is independently owned and operated and not dominant in its field of operation (including its affiliates), with receipts of up to $4 million annually. The vessels in the Atlantic sea scallop fishery are considered small business entities because all of them grossed less than $3 million according to dealer data for FYs 1994 to 2009. In FY 2009, total average revenue per full-time scallop vessel was just over $1 million, and total average scallop revenue per general category vessel was just under $80,000. The IRFA was completed consistent with analyses under the RFA for recent scallop actions, and as such, considers receipts of individual vessels and did not consider individual entity ownership of multiple vessels.
The Office of Advocacy at the Small Business Association (SBA) suggests two criteria to consider in determining the significance of regulatory impacts; namely, disproportionality and profitability. The disproportionality criterion compares the effects of the regulatory action on small versus large entities (using the SBA-approved size definition of “small entity”), not the difference between segments of small entities. Amendment 15 is not expected to have significant regulatory impacts on the basis of the disproportionality criterion, because all entities are considered to be small entities in the scallop fishery and, therefore, the action will not place a substantial number of small entities at a significant competitive disadvantage relative to large entities.
This action implements an expansion of current VMS catch reporting requiring all LA and LAGC IFQ scallop vessels to report YTF catch (kept and discards) and all other species kept (including scallops) on all scallop trips. Such reports must be submitted for each day fished by 9 a.m. of the day following the day on which the fishing activity occurred. Previously, this requirement applied only to access area scallop trips. The expansion of the requirement to all areas increases the current burden cost of 333 hr at a total cost of $4,995 to 1,000 hr, at a total cost of $15,000 for all scallop vessels combined. The expansion is needed to monitor YTF bycatch relative to the sub-ACL for YTF under Amendment 15.
Amendment 15 does not duplicate, overlap, or conflict with any other Federal law.
A summary of the economic impacts of adopted and alternative measures is provided below. Detailed economic impact analysis is provided in Section 5.4 and Appendix III of the FEIS for Amendment 15 (see
Each vessel within the same permit category (
NMFS evaluated the Council's proposed measures relative to compliance with the MSA, including national standards, required provisions, and discretionary provisions, as well as with applicable laws and the FMP. NMFS has determined that Amendment 15, as partially approved by NMFS, is consistent with all National Standards and required provisions of the MSA. Without Amendment 15, the Scallop FMP would not be in compliance with the new ACL and AM requirements of the MSA and the management improvements and efficiencies created through other Amendment 15 measures would not be achieved. This would ultimately compromise NMFS's ability to effectively manage the scallop fishery overall.
The evaluation of Amendment 15 measures concluded that the suite of measures combine to minimize the negative impacts on qualified vessels. Positive impacts on the scallop fishery fleets are expected as the management measures in Amendment 15 continue to prevent overfishing, achieve OY on a continuing basis, and improve overall management efficiency.
A description of significant alternatives to the measures approved in Amendment 15, which affect the impact on small entities, and the reasons why these other alternatives were not adopted by the Council follows. NMFS does not have the discretion under the MSA to implement measures that were not adopted by the Council. Under the MSA, NMFS must either approve or
Establishing ACLs in the Scallop FMP is expected to have long-term economic benefits on the fishery by helping to ensure that ACLs are set at or below ABC, in order to prevent the resource from being overfished and overfishing from occurring. Buffers for scientific and management uncertainty reduce the risk of fishery exceeding its ACL, thus reducing the risk of overfishing the scallop resource, with positive impacts on the overall scallop yield, revenues, and total economic benefits from the fishery. Establishing catch limits is expected to result in a similar landings stream compared to the status quo management. Even if the landing streams changed as a result of the new measures, the risk to the resource from overfishing due to scientific or management uncertainty is minimized because sources of uncertainty are better accounted for. This, in turn, is expected to keep the landings and economic benefits relatively more stable and reduce the uncertainty in business decisions over the long-term. The separation of an ACL into two sub-ACLs with associated ACTs is expected to have positive impacts on the scallop fishery and its subcomponents. Separating the two fleets with separate ACLs prevents one component of the fishery from impacting the catch levels of the other. This prevents negative economic impacts from spreading from one fleet to the other. No alternatives would generate higher economic benefits for the participants of the scallop fishery. Under the No Action alternative, there is a risk of overfishing the resource due to the scientific and management uncertainty that is not adequately addressed currently. Existing measures do not have well-defined accountability and payback mechanisms if catch limits are exceeded due to these sources of uncertainty, which could result in continual reductions in allocations, effort levels, and trips.
LA AMs consist of the use of an ACT, and an overall DAS reduction to account for any overages. The deduction is applied in the FY following the FY in which the overage occurred (
For the LAGC fishery, if an individual vessel exceeds its IFQ (including leased IFQ), the amount of IFQ equal to the overage is deducted from the vessel's IFQ in the FY following the FY in which the overage occurred. Similarly, if the NGOM component of the fishery exceeds the overall hard-TAC (equal to the NGOM ACL) after all data are final, then the hard TAC could be reduced by the amount equal to the overage in the following FY. Exceeding the vessel's IFQ in one FY will have positive economic impacts in that FY, followed by negative impacts in the FY in which the deduction is applied, so the short-term impacts averaged over these 2 FYs would be neutral or small. The measures help reduce the risks of exceeding ACLs and have positive impacts on the scallop yields and economic impacts from the fishery as a whole over the long term.
The Council also considered making the AMs effective in the second FY following the FY in which the overage occurred. This would have very similar economic impacts to the proposed application of AMs, except that the negative impacts would be delayed for 1 FY.
The AM for the YTF sub-ACL, if the scallop fishery exceeds the sub-ACL, is a seasonal closure of areas that have been pre-identified to have high YTF bycatch rates. The applicable area will be closed in the subsequent FY for a specified period of time to only LA scallop vessels (LAGC vessels are exempt from the closure). This measure could increase fishing costs and have negative impacts on the scallop revenues and profits if the effort is moved to less productive areas with lower LPUE, or to areas with a predominance of smaller scallops with a lower price. Implementation of the closure in the subsequent FY, rather than in-season, prevents derby-style fishing and minimize the negative impacts on prices and revenues associated with it. Exempting LAGC trips from this AM prevents high distributional impacts for LAGC vessels that have a dependence on fishing within the proposed closure areas in SNE waters.
The alternative that would close an entire YTF stock area would have greater negative impacts on scallop revenues and profits compared to adopted measures. The alternatives that would institute either a fleet maximum DAS or an individual maximum number of DAS that could be used in a stock area for year 3 to account for an overage of the YTF sub-ACL in year 1 could reduce the negative impacts on scallop revenues, costs, and total economic benefits by preventing derby fishing and allowing more time for the scallop fleet to make adjustments for exceeding the YTF ACLs. However, it would apply penalties to the whole fleet for overages that may have been caused by only a part of the fleet. In addition, these options could increase the administration costs by making it necessary to monitor DAS-used by YTF stock areas, which would require additional reporting and recordkeeping requirements.
The adoption of the hybrid OFD could result in a reduction in revenues and profits compared to no action alternative in the short to medium term. During the first 10 yr of implementation, average scallop revenue per vessel net of trips costs are expected to decline by about 5.8 percent. The hybrid OFD is expected have positive economic impacts over the long term, however, since this definition will provide more flexibility to meet the area rotation objectives and is expected to increase catch by 10 percent, with larger average scallop size. In addition, this alternative could potentially reduce area swept, thus reducing adverse effects on bycatch, seabed habitats, and EFH, with indirect positive impacts on the scallop fishery. For example, a reduction in bycatch prevents triggering YTF AM measures, and the negative impacts on scallop landings and revenues associated with such a measure. This
The status quo OFD is estimated to result in higher revenues and profits in the short-term compared to the hybrid OFD. However, this alternative was not selected by the Council because it is not consistent with the spatial management of the scallop fishery, has higher risks for the scallop resource, and lower economic benefits for the scallop fishery over the long-term compared to the hybrid OFD.
The IFQ carryover provision allows LAGC IFQ vessels to carry up to 15 percent of a vessel's IFQ, including leased IFQ, to the following FY, if the vessel has unused IFQ at the end of the FY. This provides flexibility and safety-at-sea benefits in the case of unforeseen circumstances or bad weather that prevents the vessel from using all of its IFQ. As a result, this provides opportunity for vessels to land their unused IFQ in the next FY, with positive economic impacts for vessels, the LAGC fishery, and overall scallop revenue and profits.
The no action alternative has smaller economic benefits compared to the adopted carryover provision because it would not allow IFQ to be carried over into the subsequent FY. The Council also considered allowing a vessel's entire IFQ to be carried over, which would have provided higher immediate economic benefits than the adopted carryover provision. However, transferring a larger portion, or the entire amount of the unused IFQ could increase management uncertainty, which could result in application of an ACT, set below the ACL, to serve as a buffer to protect against the uncertainty. This overall reduction for the following FY would have negative impacts on the IFQ allocations and economic benefits in future years.
An increase in the LAGC IFQ possession limit from 400 lb (181.4 kg) to 600 lb (272.2 kg) is expected to reduce the fishing time and trip costs, because it is expected to increase trip efficiency and reduce steaming time over the course of the FY. In addition, it could increase profits for these vessels or offset the cost of elevated fuel prices. As a result, the 600-lb (272.2-kg) possession limit is expected have positive economic impacts on the scallop fishery compared to the no action alternative.
Alternatives to the proposed action included eliminating the possession limit and increasing it to 1,000 lb (454 kg) per trip. These alternatives produce higher benefits than the proposed option by maximizing trip revenue compared to fishing costs. However, these alternatives could change the nature of the LAGC IFQ fishery from a small-scale fishery to a full-time operation like the LA fishery, which would run counter to the FMP's objective of preserving the small-scale nature of the fishery for the LAGC IFQ fleet. It may result in consolidation that would eliminate operations with smaller IFQs or that have less total share of the IFQ fishery. These alternatives were not selected because the Council continues to support the LAGC IFQ fishery as a small-vessel fishery, consistent with its goals and vision for the fishery as developed under Amendment 11 to the FMP.
Changing the 2-percent maximum quota per vessel to 2.5 percent provides more flexibility to vessels to adjust their harvest levels to changes in the scallop resource conditions. In addition, since a vessel owner could meet the 5-percent ownership cap by owning only two vessels, it eliminates ownership costs associated with multiple vessels. The increase to a 2.5-percent cap, therefore, has positive impacts on profitability. The no action alternative for increasing the maximum IFQ per vessel would not improve flexibility and would have negative economic impacts associated with costs of vessel ownership compared to the proposed action.
Allowing the IFQ to be split from the IFQ permit improves flexibility and facilitates movement of quota between fishermen. It also increases the likelihood that all IFQ will be harvested, thereby reducing management uncertainty. It allows fishermen to combine their allocations and to benefit from an economically viable operation when the allocations of some vessels are too small to make scallop fishing profitable. This measure is therefore likely to have positive impacts on revenues and profits for the participants of the IFQ fishery.
The Council rejected an alternative that would have allowed quota to be transferred between the LA/IFQ fleet and IFQ-only fleet. This alternative would have resulted in larger economic benefits for LAGC IFQ vessels because it would provide another source of IFQ. However, this option was not chosen by the Council mostly due to concerns about the difficulty of monitoring mixed quota from the two categories, since they are allocated quota from two separate pools.
Under the no action alternative, LAGC IFQ vessels that want to permanently transfer quota have to purchase LAGC IFQ permit as well as all the other permits a vessel has, which makes purchasing of LAGC IFQ very expensive. It also is a deterrent to engaging in permanent transfers, since some owners would prefer to retain the permits for other fisheries. The no action alternative, therefore, would have reduced benefits compared to the adopted measure.
This action modifies the EFH areas closed to scallop gear under Scallop Amendment 10 to be consistent with NE Multispecies Amendment 13, and eliminate the areas closed for EFH under Amendment 10. As a result, effort could be allocated to CAI (where the scallops are larger and yield is higher), instead of allocating more open area effort in areas with potentially lower catch rates. This is expected to have positive impacts on the scallop resource and future yield, and to increase the scallop revenues by about $8 million (assuming a price of $7.00 per lb) per year. Fishing in more productive areas is also expected to reduce the fishing costs. Therefore, the revised EFH closed areas are expected to have positive impacts on revenues and profits from the scallop fishery. The Council considered taking no action, but such action would have lower economic benefits than the proposed action, since it would not provide access to portions of the scallop resource that would improve yield and reduce fishing costs.
These measures are expected to have positive indirect economic benefits for the sea scallop fishery by improving the timing and administration of the RSA program. Having dedicated resources for funding research to survey access areas will improve the Council's ability to allocate the appropriate amount of effort to prevent overfishing and optimize yield. Exempting RSA projects (if identified in the proposal) from crew restrictions, the seasonal closure in Elephant Trunk, and the requirement to return to port if fishing in more than one area will allow more flexibility and more effective research. If, as a result of these measures, the program can be more streamlined, and worthwhile
A third year of specifications will be established through the framework adjustment process in order to prevent outdated measures from being implemented due to the delay in the implementation of the 2-yr framework actions. It serves as a safety mechanism to prevent against management measure rollovers during implementation delays. These rollover measures complicate management of the scallop fishery, do not make sense for the industry, and may cause undesired negative effects or require further management intervention. Therefore, including third-year specifications alleviates some of the implementation issues caused by the time lag between the FY and the time when the survey data become available. Since the measures that are created for year 3 will result in landings more consistent with the updated scallop biomass estimates and PDT recommendations, this action is expected to have positive indirect effects on the participants of the scallop fishery. There are no other alternatives that would result in larger economic benefits.
Expanding the list of frame workable items allows the Council to more easily adjust the allocations according to the resource conditions and as needed in terms of research priorities or to make further changes to benefit EFH. As a result, these measures are expected to have positive impacts on the scallop fishery and its participants. There are no other alternatives that would result in larger economic benefits.
Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a small entity compliance guide was prepared. The guide will be sent to all holders of permits issued for the Atlantic scallop fishery. In addition, copies of this final rule and guide (
Fisheries, Fishing, Recordkeeping and reporting requirements.
For the reasons set out in the preamble, 50 CFR part 648 is amended as follows:
16 U.S.C. 1801
(a) * * *
(2) * * *
(i)
(ii) * * *
(A)
(e) * * *
(5) * * *
(i) A vessel subject to the VMS requirements of § 648.9 and paragraphs (b) through (d) of this section that has crossed the VMS Demarcation Line under paragraph (a) of this section is deemed to be fishing under the DAS program, the LAGC IFQ or NGOM scallop fishery, or other fishery requiring the operation of VMS as applicable, unless prior to leaving port, the vessel's owner or authorized representative declares the vessel out of the scallop, NE multispecies, or monkfish fishery, as applicable, for a specific time period. NMFS must be notified by transmitting the appropriate VMS code through the VMS, or unless the vessel's owner or authorized representative declares the vessel will be fishing in the Eastern U.S./Canada Area, as described in § 648.85(a)(3)(ii), under the provisions of that program.
(ii) Notification that the vessel is not under the DAS program, the LAGC IFQ or NGOM scallop fishery, or any other fishery requiring the operation of VMS, must be received by NMFS prior to the vessel leaving port. A vessel may not change its status after the vessel leaves port or before it returns to port on any fishing trip.
(f) * * *
(4) * * *
(i) The owner or operator of a limited access or LAGC IFQ vessel that fishes for, possesses, or retains scallops, and is not fishing under a NE Multispecies DAS or sector allocation, must submit reports through the VMS, in accordance with instructions to be provided by the Regional Administrator, for each day fished, including open area trips, access area trips as described in § 648.60(a)(9), and trips accompanied by a NMFS-approved observer. The reports must be submitted for each day (beginning at 0000 hr and ending at 2400 hr) and not later than 0900 hours of the following day. Such reports must include the following information:
(A) FVTR serial number;
(B) Date fish were caught;
(C) Total pounds of scallop meats kept;
(D) Total pounds of yellowtail flounder kept;
(E) Total pounds of yellowtail flounder discarded; and
(F) Total pounds of all other fish kept.
(h) * * *
(8) Any vessel issued a limited access scallop permit and not issued an LAGC scallop permit that possesses or lands scallops; any vessel issued a limited access scallop and LAGC IFQ scallop permit that possesses or lands more than 600 lb (272.2 kg) of scallops; any vessel issued a limited access scallop and LAGC NGOM scallop permit that possesses or lands more than 200 lb (90.7 kg) of scallops; any vessel issued a limited access scallop and LAGC IC scallop permit that possesses or lands more than 40 lb (18.1 kg) of scallops; any vessel issued a limited access NE multispecies permit subject to the NE multispecies DAS program requirements that possesses or lands regulated NE multispecies, except as provided in §§ 648.10(h)(9)(ii), 648.17, and 648.89; any vessel issued a limited access monkfish permit subject to the monkfish DAS program and call-in requirement that possess or lands monkfish above the incidental catch trip limits specified in § 648.94(c); and any vessel issued a limited access red crab permit subject to the red crab DAS program and call-in requirement that possesses or lands red crab above the incidental catch trip limits specified in § 648.263(b)(1) shall be deemed to be in its respective DAS program for purposes of counting DAS and will be charged DAS from its time of sailing to landing, regardless of whether the vessel's owner or authorized representative provides adequate notification as required by paragraphs (e) through (h) of this section.
(g) * * *
(1)
(2) * * *
(ii)
(i) * * *
(1) * * *
(ii)
(iii) * * *
(A) * * *
(
(
(
(
(
(2) * * *
(viii) Fish for scallops in, or possess scallops or land scallops from, the yellowtail flounder accountability measure closed areas specified in § 648.64 during the period specified in the notice announcing the closure and based on the closure table specified in § 648.64.
(4) * * *
(i) * * *
(A) Fish for or land per trip, or possess at any time, in excess of 600 lb (272.2 kg) of shucked, or 75 bu (26.4 hL) of in-shell scallops per trip, or 100 bu (35.2 hL) in-shell scallops seaward of the VMS Demarcation Line, unless the vessel is carrying an observer as specified in § 648.11 while participating in the Area Access Program specified in § 648.60 and an increase in the possession limit is authorized by the Regional Administrator and not exceeded by the vessel, as specified in §§ 648.52(g) and 648.60(d)(2).
(ii) * * *
(B) Have an IFQ allocation on an IFQ scallop vessel of more than 2.5 percent of the total IFQ scallop ACL as specified in § 648.53(a)(4)(i).
(iii) * * *
(B) Apply for an IFQ transfer that will result in the receiving vessel having an IFQ allocation in excess of 2.5 percent of the total IFQ scallop ACL as specified in § 648.53(a)(4)(i).
(d) * * *
(1) Shucking machines are prohibited on all limited access vessels fishing under the scallop DAS program, or any vessel in possession of more than 600 lb (272.2 kg) of scallops, unless the vessel has not been issued a limited access scallop permit and fishes exclusively in state waters.
(e)
(a) A vessel issued an IFQ scallop permit that is declared into the IFQ scallop fishery as specified in § 648.10(b), or on a properly declared NE multispecies, surfclam, or ocean quahog trip and not fishing in a scallop access area, unless as specified in paragraph (g) of this section or exempted under the state waters exemption program described in § 648.54, may not possess or land, per trip, more than 600 lb (272.2 kg) of shucked scallops, or possess more than 75 bu (26.4 hL) of in-shell scallops shoreward of the VMS Demarcation Line. Such a vessel may land scallops only once in any calendar day. Such a vessel may possess up to 100 bu (35.2 hL) of in-shell scallops seaward of the VMS demarcation line on a properly declared IFQ scallop trip, or on a properly declared NE multispecies, surfclam, or ocean quahog trip and not fishing in a scallop access area.
The revisions and additions read as follows:
(a)
(1) ABC/ACL for fishing years 2011 through 2013 shall be:
(i)
(ii)
(iii)
(2)
(3)
(i) The limited access fishery sub-ACLs for the 2011 through 2013 fishing years are:
(A)
(B)
(C)
(ii) The limited access fishery ACTs for the 2011 through 2013 fishing years are:
(A)
(B)
(C)
(4)
(i) The ACLs for the 2011 through 2013 fishing years for LAGC IFQ vessels without a limited access scallop permit are:
(A)
(B)
(C)
(ii) The ACLs for the 2011 through 2013 fishing years for vessels issued both a LAGC and a limited access scallop permit are:
(A)
(B)
(C)
(b)
(1)
(i)
(ii)
(iii)
(4) Each vessel qualifying for one of the three DAS categories specified in the
(ii)
(iii)
(iv)
(c)
(d)
(g)
(2)
(h) * * *
(2) * * *
(iii)
(v)
(B) For accounting purposes, the combined total of all vessels' IFQ carry-over shall be added to the LAGC IFQ fleet's applicable ACL for the carry-over year. Any IFQ carried over that is landed in the carry-over fishing year shall be counted against the ACL specified in paragraph (a)(4)(i) of this section, as increased by the total carry-over for all LAGC IFQ vessels, as specified in this paragraph (h)(2)(v)(B). IFQ carry-over shall not be applicable to the calculation of the IFQ cap specified in paragraph (h)(3)(i) of this section and the ownership cap specified in paragraph (h)(3)(ii) of this section.
(vi)
(3) * * *
(i) * * *
(A) Unless otherwise specified in paragraphs (h)(3)(i)(B) and (C) of this section, a vessel issued an IFQ scallop permit or confirmation of permit history shall not be issued more than 2.5 percent of the ACL allocated to the IFQ scallop vessels as described in paragraphs (a)(4)(i) and (iii) of this section.
(B) A vessel may be initially issued more than 2.5 percent of the ACL allocated to the IFQ scallop vessels as described in paragraphs (a)(4)(i) of this section, if the initial determination of its contribution factor specified in accordance with § 648.4(a)(2)(ii)(E) and paragraph (h)(2)(ii) of this section, results in an IFQ that exceeds 2.5 percent of the ACL allocated to the IFQ scallop vessels as described in paragraph (a)(4)(i) of this section. A vessel that is allocated an IFQ that exceeds 2.5 percent of the ACL allocated to the IFQ scallop vessels as described in paragraphs (a)(4)(i) of this section, in accordance with this paragraph (h)(3)(i)(B), may not receive IFQ through an IFQ transfer, as specified in paragraph (h)(5) of this section.
(C) A vessel initially issued a 2008 IFQ scallop permit or confirmation of permit history, or that was issued or renewed a limited access scallop permit or confirmation of permit history for a vessel in 2009 and thereafter, in compliance with the ownership restrictions in paragraph (h)(3)(i)(A) of this section, is eligible to renew such permits(s) and/or confirmation(s) of permit history, regardless of whether the renewal of the permit or confirmations of permit history will result in the 2.5-percent IFQ cap restriction being exceeded.
(ii) * * *
(A) For any vessel acquired after June 1, 2008, a vessel owner is not eligible to be issued an IFQ scallop permit for the vessel, and/or a confirmation of permit
(4)
(5) * * *
(ii)
(iii)
(iv)
(A)
(B)
(C)
(a) At least biennially, the Council shall assess the status of the scallop resource, determine the adequacy of the management measures to achieve scallop resource conservation objectives, and initiate a framework adjustment to establish scallop fishery management measures for the 2-year period beginning with the scallop fishing year immediately following the year in which the action is initiated. The PDT shall prepare a Stock Assessment and Fishery Evaluation
(b) The preparation of the SAFE Report shall begin on or about June 1 of the year preceding the fishing year in which measures will be adjusted.
(c)
(1)
(2) The specification of ABC, ACL, and ACT shall be based upon the following overfishing definition: The F shall be set so that in access areas, averaged for all years combined over the period of time that the area is closed and open to scallop fishing as an access area, it does not exceed the established F threshold for the scallop fishery; in open areas it shall not exceed the F threshold for the scallop fishery; and for access and open areas combined, it is set at a level that has a 75-percent probability of remaining below the F associated with ABC, as specified in paragraph (c)(2) of this section, taking into account all sources of fishing mortality in the limited access and LAGC fleets of the scallop fishery.
(3)
(4)
(5)
(6)
(7)
(d)
(e)
(f) After considering the PDT's findings and recommendations, or at any other time, if the Council determines that adjustments to, or additional management measures are necessary, it shall develop and analyze appropriate management actions over the span of at least two Council meetings. To address interactions between the scallop fishery and sea turtles and other protected species, such adjustments may include proactive measures including, but not limited to, the timing of Sea Scallop Access Area openings, seasonal closures, gear modifications, increased observer coverage, and additional research. The Council shall provide the public with advance notice of the availability of
(1) Total allowable catch and DAS changes;
(2) Shell height;
(3) Offloading window reinstatement;
(4) Effort monitoring;
(5) Data reporting;
(6) Trip limits;
(7) Gear restrictions;
(8) Permitting restrictions;
(9) Crew limits;
(10) Small mesh line;
(11) Onboard observers;
(12) Modifications to the overfishing definition;
(13) VMS Demarcation Line for DAS monitoring;
(14) DAS allocations by gear type;
(15) Temporary leasing of scallop DAS requiring full public hearings;
(16) Scallop size restrictions, except a minimum size or weight of individual scallop meats in the catch;
(17) Aquaculture enhancement measures and closures;
(18) Closed areas to increase the size of scallops caught;
(19) Modifications to the opening dates of closed areas;
(20) Size and configuration of rotational management areas;
(21) Controlled access seasons to minimize bycatch and maximize yield;
(22) Area-specific trip allocations;
(23) TAC specifications and seasons following re-opening;
(24) Limits on number of area closures;
(25) Set-asides for funding research;
(26) Priorities for scallop-related research that is funded by research TAC set-aside;
(27) Finfish TACs for controlled access areas;
(28) Finfish possession limits;
(29) Sea sampling frequency;
(30) Area-specific gear limits and specifications;
(31) Modifications to provisions associated with observer set-asides; observer coverage; observer deployment; observer service provider; and/or the observer certification regulations;
(32) Specifications for IFQs for limited access general category vessels;
(33) Revisions to the cost recovery program for IFQs;
(34) Development of general category fishing industry sectors and fishing cooperatives;
(35) Adjustments to the Northern Gulf of Maine scallop fishery measures;
(36) VMS requirements;
(37) Increases or decreases in the LAGC possession limit;
(38) Adjustments to aspects of ACL management;
(39) Adjusting EFH closed area management boundaries or other associated measures; and
(40) Any other management measures currently included in the FMP.
(g) The Council may make recommendations to the Regional Administrator to implement measures in accordance with the procedures described in this section to address gear conflict as defined under § 600.10 of this chapter. In developing such recommendation, the Council shall define gear management areas, each not to exceed 2,700 mi
(1) Monitoring of a radio channel by fishing vessels;
(2) Fixed-gear location reporting and plotting requirements;
(3) Standards of operation when gear conflict occurs;
(4) Fixed-gear marking and setting practices;
(5) Gear restrictions for specific areas (including time and area closures);
(6) VMS;
(7) Restrictions on the maximum number of fishing vessels or amount of gear; and
(8) Special permitting conditions.
(h) The measures shall be evaluated and approved by the relevant committees with oversight authority for the affected FMPs. If there is disagreement between committees, the Council may return the proposed framework adjustment to the standing or ad hoc gear conflict committee for further review and discussion.
(i) Unless otherwise specified, after developing a framework adjustment and receiving public testimony, the Council shall make a recommendation to the Regional Administrator. The Council's recommendation must include supporting rationale and, if management measures are recommended, an analysis of impacts and a recommendation to the Regional Administrator on whether to publish the framework adjustment as a final rule. If the Council recommends that the framework adjustment should be published as a final rule, the Council must consider at least the following factors and provide support and analysis for each factor considered:
(1) Whether the availability of data on which the recommended management measures are based allows for adequate time to publish a proposed rule, and whether regulations have to be in place for an entire harvest/fishing season;
(2) Whether there has been adequate notice and opportunity for participation by the public and members of the affected industry, consistent with the Administrative Procedure Act, in the development of the Council's recommended management measures;
(3) Whether there is an immediate need to protect the resource or to impose management measures to resolve gear conflicts; and
(4) Whether there will be a continuing evaluation of management measures adopted following their promulgation as a final rule.
(j) If the Council's recommendation includes adjustments or additions to management measures, and if, after reviewing the Council's recommendation and supporting information:
(1) The Regional Administrator approves the Council's recommended management measures, the Secretary may, for good cause found pursuant to the Administrative Procedure Act, waive the requirement for a proposed rule and opportunity for public comment in the
(2) The Regional Administrator approves the Council's recommendation and determines that the recommended management measures should be published first as a proposed rule, the action shall be published as a proposed rule in the
(3) The Regional Administrator does not concur, the Council shall be notified, in writing, of the reasons for the non-concurrence.
(k) Nothing in this section is meant to derogate from the authority of the Secretary to take emergency action under section 305(c) of the Magnuson-Stevens Act.
(a) At least biennially, in association with the biennial framework process, the Council and NMFS shall prepare and issue an announcement of Federal Funding Opportunity (FFO) that identifies research priorities for projects to be conducted by vessels using research set-aside as specified in paragraph (d) of this section and § 648.60(e), provides requirements and instructions for applying for funding of a proposed RSA project, and specifies the date by which applications must be received. The FFO shall be published as soon as possible by NMFS and shall provide the opportunity for applicants to apply for projects to be awarded for 1 or 2 years by allowing applicants to apply for RSA funding for the first year, second year, or both.
(b) Proposals submitted in response to the FFO must include the following information, as well as any other specific information required within the FFO: A project summary that includes the project goals and objectives, the relationship of the proposed research to scallop research priorities and/or management needs, project design, participants other than the applicant, funding needs, breakdown of costs, and the vessel(s) for which authorization is requested to conduct research activities.
(c) NOAA shall make the final determination as to what proposals are approved and which vessels are authorized to take scallops in excess of possession limits, or take additional trips into Open or Access Areas. NMFS shall provide authorization of such activities to specific vessels by letter of acknowledgement, letter of authorization, or Exempted Fishing Permit issued by the Regional Administrator, which must be kept on board the vessel.
(d) Available RSA allocation shall be 1.25 million lb (567 mt) annually, which shall be deducted from the ABC/ACL specified in § 648.53(a) prior to setting ACLs for the limited access and LAGC fleets, as specified in § 648.53(a)(3)(i) and (a)(4)(i), respectively. Approved RSA projects shall be allocated an amount of scallop pounds that can be harvested in open areas and available access areas. The specific access areas that are open to RSA harvest shall be specified through the framework process and identified in § 648.60(e)(1). In a year in which a framework adjustment is under review by the Council and/or NMFS, NMFS shall make RSA awards prior to approval of the framework, if practicable, based on total scallop pounds needed to fund each research project. Recipients may begin compensation fishing in open areas prior to approval of the framework, or wait until NMFS approval of the framework to begin compensation fishing within approved access areas.
(e) If all RSA TAC is not allocated in a fishing year, and proceeds from compensation fishing for approved projects fall short of funds needed to cover a project's budget due to a lower-than-expected scallop price, unused RSA allocation can be provided to that year's awarded projects to compensate for the funding shortfall, or to expand a project, rather than having that RSA go unused. NMFS shall identify the process for the reallocation of available RSA pounds as part of the FFO for the RSA program. The FFO shall specify the conditions under which a project that has been awarded RSA could be provided additional RSA pounds as supplemental compensation to account for lower-than-expected scallop price or for expansion of the project, timing of reallocation, and information submission requirements.
(f) If all RSA pounds awarded to a project cannot be harvested during the applicable fishing year, RSA TAC awarded to that project may be harvested through May 31 of the fishing year subsequent to the fishing year in which the set-aside is awarded.
(g) Vessels conducting research under an approved RSA project may be exempt from crew restrictions specified in § 648.51, seasonal closures of access areas specified in § 648.59, and the restriction on fishing in only one access area during a trip specified in § 648.60(a)(4). The RSA project proposal must list which of these measures for which an exemption is required. An exemption shall be provided by Letter of Authorization issued by the Regional Administrator. RSA compensation fishing trips and combined compensation and research trips are not eligible for these exemptions.
(h) Upon completion of scallop research projects approved pursuant to this section and the applicable NOAA grants review process, researchers must provide the Council and NMFS with a report of research findings, which must include at least the following: A detailed description of methods of data collection and analysis; a discussion of results and any relevant conclusions presented in a format that is understandable to a non-technical audience; and a detailed final accounting of all funds used to conduct the sea scallop research.
(b) * * *
(3) The Closed Area I Access Area is defined by straight lines connecting the following points in the order stated (copies of a chart depicting this area are available from the Regional Administrator upon request):
(d) * * *
(3) The Nantucket Lightship Sea Scallop Access Area is defined by straight lines connecting the following points in the order stated (copies of a chart depicting this area are available from the Regional Administrator upon request):
(a) * * *
(9)
(c) * * *
(3) The vessel owner/operator must report the termination of the trip prior to entering the access area if the trip is terminated while transiting to the area, or prior to leaving the Sea Scallop Access Area if the trip is terminated after entering the access area, by VMS e-mail messaging, with the following information: Vessel name, vessel owner, vessel operator, time of trip termination, reason for terminating the trip (for NMFS recordkeeping purposes), expected date and time of return to port, and amount of scallops on board in pounds;
(e) * * *
(1) Research set-aside may be harvested in an access area that is open in the applicable fishing year, as specified in § 648.59.
(a) No vessel fishing for scallops, or person on a vessel fishing for scallops, may enter, fish in, or be in the EFH Closure Areas described in paragraphs (a)(1) through (6) of this section, unless otherwise specified. A chart depicting these areas is available from the Regional Administrator upon request.
(1)
(2)
(3)
(4)
(5)
(6)
(b)
(b) * * *
(3) If the TAC specified in paragraph (b)(1) of this section is exceeded, the amount of NGOM scallop landings in excess of the TAC specified in paragraph (b)(1) of this section shall be deducted from the NGOM TAC for the subsequent fishing year, as soon as practicable, once scallop landings data for the NGOM fishery is available.
(a) As specified in § 648.55(d), and pursuant to the biennial framework
(1)
(2)
(3)
(b)
(2)
(i) For years when the Closed Area II Sea Scallop Access Area is open, the closure duration shall be:
(ii) For fishing years when the Closed Area II Sea Scallop Access Area is closed to scallop fishing, the closure duration shall be:
(c)
(2)
(d)
(e)
(f)
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
NMFS is implementing measures specified in Framework Adjustment 22 (Framework 22) to the Atlantic Sea Scallop Fishery Management Plan (FMP), which was developed and adopted by the New England Fishery Management Council (Council). The specifications in Framework 22 are based on, and are being implemented in conjunction with, the management measures in Amendment 15 to the FMP (Amendment 15) that establish the process for setting annual catch limits (ACLs) and accountability measures (AMs) to bring the FMP into compliance with the requirements of the Magnuson-Stevens Fishery Conservation and Management Act (MSA). The purpose of Framework 22 is to set the following scallop management measures for the 2011 through 2013 fishing years (FYs): The overfishing limit (OFL), acceptable biological catches (ABC), ACLs, and annual catch targets (ACTs) for both the limited access (LA) and limited access general category (LAGC) fleets; open area days-at-sea (DAS) and Sea Scallop Access Area (access area) trip allocations; DAS adjustments if an access area yellowtail flounder (YTF) total allowable catch (TAC) is caught; LAGC-specific allocations, including access area trip allocations for vessels with individual fishing quotas (IFQs), the Northern Gulf of Maine (NGOM) TAC, and the incidental target TAC; management measures to minimize impacts of incidental take of sea turtles as required by the March 14, 2008, Atlantic Sea Scallop Biological Opinion (Biological Opinion); and the elimination of the default Georges Bank (GB) access area rotation schedule. Consistent with proposed measures in Amendment 15, Framework 22 sets FY 2013 management measures as precautionary default measures, to be applied if a new biennial framework adjustment is not implemented by the start of FY 2013.
Effective August 1, 2011.
An environmental assessment (EA) was prepared for Framework 22 that describes the action and other considered alternatives and provides a thorough analysis of the impacts of the measures and alternatives. Copies of Framework 22, the EA, and the Initial Regulatory Flexibility Analysis (IRFA) are available upon request from Paul J. Howard, Executive Director, New England Fishery Management Council, 50 Water Street, Newburyport, MA 01950.
Emily Gilbert, Fishery Policy Analyst, 978–281–9244; fax 978–281–9135.
Framework 22 was developed and adopted by the Council, partially in conjunction with and based on Amendment 15 measures, in order to comply with requirements of the MSA and to meet the FMP's objectives to prevent overfishing and improve yield-per-recruit from the fishery. Consequently, the authority to implement Framework 22 is in part based on NMFS' approval of Amendment 15, which is concurrently under rulemaking. Framework 22 specifies measures for FYs 2011 through 2013. FY 2013 measures will go into place as a default, should the biennial framework to specify FY 2013–2014 measures be delayed beyond the start of FY 2013.
The Council adopted Framework 22 on November 17, 2010, and submitted it to NMFS on March 22, 2011. The Council reviewed the Framework 22 proposed rule regulations as drafted by NMFS, which included regulations proposed by NMFS under the authority of section 305(d) of the MSA, and on March 18, 2011, deemed them to be necessary and consistent with section 303(c) of the MSA. The proposed rule for Framework 22 published in the
The final Framework 22 management measures are described below. Details concerning the Council's development of these measures were presented in the preamble of the proposed rule and are not repeated here.
These specifications are set in accordance with measures and criteria in Amendment 15. The OFL is set based on a fishing mortality rate (F) of 0.38, equivalent to the F threshold updated through the most recent scallop stock assessment. The ABC and equivalent total ACL for each FY are based on an F of 0.32, the F associated with a 25-percent probability of exceeding the OFL. The Council's Scientific and Statistical Committee (SSC) recommended ABCs for the FY 2011 and 2012 scallop fisheries of 60.1 M lb (27,269 mt) and 63.8 M lb (28,961 mt), respectively, after accounting for discards and incidental mortality. The Scallop Plan Development Team (PDT) estimated the FY 2013 ABC of 63.3 M lb (28,700 mt) using the same approach that was reviewed and approved by the SSC to set the ABC for FYs 2011 and 2012. The decision to include third-year default measures occurred after the SSC made ABC recommendations for this action. The SSC will recommend an ABC in conjunction with the next biennial framework adjustment for FY 2013 and FY 2014, as well as a default ABC for FY 2015.
Table 1 outlines the scallop fishery catch limits that are derived from these ABC values. After deducting the incidental target TAC and the research and observer set-asides, the remaining ACL available to the fishery is proportioned out according to Amendment 11 fleet allocations, with 94.5 percent allocated to the LA scallop fleet, 5 percent allocated to the LAGC IFQ fleet, and the remaining 0.5 percent
These allocations do not account for any adjustments that would be made year-to-year if the AMs specified in Amendment 15 are triggered due to annual landings exceeding the ACL.
This action implements vessel-specific DAS allocations for each of the three limited access scallop DAS permit categories (i.e., full-time, part-time, and occasional) for FYs 2011 through 2013 (Table 2). FY 2013 DAS allocations are set at a precautionary level equal to 75 percent of what current biomass projections indicate could be allocated to each LA scallop vessel for the entire FY to avoid over-allocating DAS to the fleet in the event that the framework that would set those allocations, if delayed past the start of FY 2013, estimates that DAS should be less than currently projected.
Because Framework 22 was not implemented at the March 1 start of FY 2011, and the DAS allocated at the start of FY 2011 are higher than those specified in Framework 22, it is possible that scallop vessels could exceed their Framework 22 DAS allocations during the interim period between March 1, 2011, and the effective date of this final rule. Therefore, Framework 22 specifies that the number of LA open area DAS used in FY 2011 by a vessel (excluding carryover DAS) that exceed the final FY 2011 open area DAS allocation for that vessel will be deducted from the vessel's FY 2012 open area DAS allocation. For example, if a full time vessel fishes 38 DAS between March 1, 2011, and the effective date of this final rule, 6 DAS (i.e., 38 DAS −32 DAS) will be deducted from that vessel's FY 2012 DAS allocation, resulting in a total of 28 DAS for FY 2012.
Under the Northeast (NE) Multispecies FMP, 10 percent of the GB YTF TAC (i.e., total GB YTF ACL) is allocated to scallop vessels fishing in the Closed Area I (CAI) and Closed Area II (CAII) Access Areas, combined; and 10 percent of the Southern New England/Mid-Atlantic (SNE/MA) YTF TAC (i.e., total SNE/MA YTF ACL) is allocated to scallop vessels fishing in NLS. Framework Adjustment 45 to the NE Multispecies FMP (76 FR 23042; April 25, 2011) set the total YTF ACLs outlined in Table 3 for FYs 2011 and 2012 (FY 2013 values will be determined in a future framework adjustment to the NE multispecies FMP). Table 3 also includes the TACs available for the scallop access areas (i.e., 10 percent of each total ACL) and, for comparison, the sub-ACLs allocated to the scallop fishery. The scallop fishery's YTF sub-ACLs and YTF access area TACs are not additive. For example, YTF catch from CAII is applied to both the GB sub-ACL and the YTF TAC available for the two GB access area.
Under the NE multispecies regulations, if the GB or SNE/MA YTF TAC is caught, CAI and CAII, and/or NLS will close to further scallop fishing for the remainder of the FY. If a vessel has unutilized trip(s) after an access area is closed due to reaching the YTF TAC, it will be allocated additional open area DAS at a reduced rate. Unused access area trip(s) will be converted to open area DAS so that scallop fishing mortality that would have resulted from the access area trip(s) will be equivalent to the scallop fishing mortality resulting from the open area DAS allocation. The conversion used to allocate additional DAS from a YTF access area closure is based on Framework 22's FYs 2011–2013 LA scallop possession limits for access area trips of 18,000 lb (8,165 kg) for full-time vessels, 14,400 lb (6,532 kg) for part-time vessels, and 6,000 lb (2,723 kg) for occasional vessels, and are as follows: For a given FY, the pounds remaining from an access area trip(s) (i.e., from a fully unused trip(s) and/or unused compensation trip(s)) is first multiplied by the average meat count (i.e., number of shucked scallop abductor muscles per lb) from that area and then subsequently divided by both the open area average meat count and by the open area landings-per-unit-effort (LPUE), resulting in a DAS allocation comparable to the unused access area pounds. For example, in FY 2011, based on a catch limit of 18,000 lb (8,165 kg), and average meat count for scallops in CAI estimated to be 10.6 meats/lb, 190,800 scallops would be removed per full-time trip (18,000 lb (8,165 kg) × 10.6 meats/lb = 190,800 meats). The meat count and LPUE for open areas in FY 2011 are estimated to be 18.4 meats/lb and 2,441 lb/DAS, respectively. The estimated number of open area DAS a full-time vessel would use to catch the same number of scallops as it would in CAI with an 18,000-lb (8,165-kg) possession limit is estimated to be 4.3 DAS (190,800 scallops/(18.4 meats/lb × 2,441 lb/DAS = 4.3 DAS). Therefore, if a full-time vessel had an unused CAI trip at the time of a CAI YTF TAC closure, the vessel will be allocated 4.3 DAS in open areas. Table 4 outlines the DAS/trip conversion for unused full-time, part-time, and occasional vessels access area trips. This trip/DAS conversion applies to all full-time vessels, but only to occasional or part-time vessels that have no other available access areas in which to take their access area trip(s). If a vessel has an unused compensation trip in an access area that closes due to YTF, the same calculation outlined above applies, resulting in a proportional DAS increase to that of a fully unused trip allocation. For example, in FY 2011, if a full-time vessel had an unused 9,000-lb (4,082-kg) CAI compensation trip (i.e., half of the full-time vessel's 18,000-lb (8,165-kg) possession limit) at the time of a CAI YTF TAC closure, the vessel will be allocated 2.15 DAS (i.e., half of the 4.3 DAS that is allocated for a full unused CAI trip).
This action specifies a new access area allocation scheme for full-time vessels fishing in scallop access areas. In terms of allocations to the fleet, full-time LA scallop vessels will receive four access area trips in each FY from 2011 through 2013. In order to avoid allocating trips into access areas with scallop biomass levels not large enough to support a full trip by all 313 LA full-time vessels in a single FY, Framework 22 allocates “split-fleet” trips into certain access areas. In order to make this process as fair as possible to scallop vessel owners, prior to the start of each FY, NMFS will randomly allocate half of the full-time vessels a full trip into a specific area(s), and half of the full-time vessels a full trip into a different area(s) through the process outlined in Framework 22. Ultimately, all vessels receive the same number of total access area trips, although the specific areas to which they have access may differ (Table 4). This allocation scheme is a “random allocation process” rather than a lottery. The process and rationale for randomly allocating access area trips to full-time vessels are more fully described in detail in the preamble of the proposed rule and in Section 2.4.2 of the Council's Framework 22 document and is not repeated here.
In order to facilitate trading trips between vessels, the FY 2011 allocations for full-time vessels have already been identified, and can be found in Section 2.4.2 of the Framework 22 document (See
In FY 2011, all full-time scallop vessels are allocated one trip in the Delmarva Access Area (Delmarva), one trip into the Hudson Canyon Access Area (HC), and one trip into CAI (Table 5). In addition, 157 full-time vessels are allocated one trip into CAII, and the other 156 full-time vessels are allocated an additional trip into CAI, for a total of four access area trips per full-time vessel. A part-time scallop vessel is allocated two trips, which could be taken in one of the following combinations: Two trips in CAI; one trip in the CAI and one trip in CAII; one trip in CAI and one trip in HC; one trip in CAI and one trip in Delmarva; one trip in CAII and one trip in HC; one trip in CAII and one trip in Delmarva; or one trip in HC and one trip in Delmarva. An occasional vessel is allocated one trip, which could be taken in any one open access area.
Because these trip allocations are being implemented after March 1, 2011, and the current regulations that rolled over into FY 2011 are inconsistent with the proposed specifications, it is possible that during the interim between the start of FY 2011 and the implementation of this rule, a scallop vessel could take a trip in an area not open under these final measures. For example, under the current roll-over provisions, at the start of FY 2011, the Elephant Trunk Access Area (ETAA) is an access area, and full-time vessels have received the same allocation as they received in FY 2010 (
If, during FY 2011, a vessel fishes on an ETAA trip allocated during the interim period between the start of FY 2011 and the implementation of this rule, any pounds landed from a declared ETAA trip shall be converted to the equivalent DAS and deducted from that vessel's open area DAS allocations in FY 2012. The pounds a vessel lands from the ETAA shall first be multiplied by the estimated ETAA average meat count (18.4 meats/lb) and then divided by the product of the estimated open area average meat count (also 18.4 meats/lb) multiplied by the estimated open area LPUE for FY 2011 (2,441 lb/DAS). For example, if a full-time vessel lands the full 18,000-lb (8,165-kg) possession limit on an ETAA trip in FY 2011, that vessel shall incur a DAS deduction of 7.4 DAS in FY 2012 ((18,000 lb × 18.4 meats/lb)/(18.4 meats/lb × 2,441 lb/DAS)), to account for those landings, resulting in a total FY 2012 DAS allocation of 26.8 DAS (
Framework 22 includes a provision that this DAS deduction does not apply to vessels that fished compensation trips in the ETAA from trips broken during the last 60 days of FY 2010. The regulations allow for these compensation trips to be taken within the first 60 days of the subsequent FY if the access area from where the trip was broken remains open. Because the ETAA was still considered an access area under the roll-over regulations at the start of FY 2011, any FY 2010 compensation trips started prior to April 29, 2011, will not be counted against FY 2011 DAS.
Due to the emergency action to close NLS, vessels did not have the opportunity to fish in NLS. This final rule continues the NLS closure for the duration of FY 2011. Because of the emergency rule, the pay-back measure included in the proposed rule for Framework 22 to account for scallops that could be landed from vessels that declare NLS trips in FY 2011 is no longer necessary.
Because Delmarva was the only access area that remains open under the measures in place at the start of FY 2011 and specified in this final rule implementing Framework 22, the preamble to the proposed rule discussed the potential complications for vessels that exchanged a Delmarva trip for a trip in the ETAA prior to the implementation of Framework 22. In summary, if a vessel owner gave up its Delmarva trip through an exchange with another vessel owner, and gained an additional ETAA as a result, its three ETAA trips (
Framework 22 limits each full-time vessel to a total of only four access area trips in FY 2011. For the reason outlined above, a full-time vessel that receives an additional Delmarva trip through a trip exchange prior to Framework 22's implementation may end up with five access area trips as a result of the mid-year implementation of this rule. However, because this result would create an inconsistency in measures, this final rule clarifies that the 4-trip limit supersedes the potential for a vessel owner to have 5 access area trips, to avoid the potential risk of exceeding FY 2011 catch limits. If a full-time vessel receives a final FY 2011 allocation of five trips due to a previous trip exchange, that vessel must relinquish one trip in FY 2011 from its available access area trip allocation so that it receives the same number of access area trips as all other full-time vessels (
No access area trips were allocated for CAI and CAII, and HC closed prior to this final rule, so no trips into those areas could be taken until Framework 22 is effective.
In FY 2012, all full-time scallop vessels are allocated a total of four access area trips (Table 5). Each full-time vessel is allocated one trip into CAII, and one trip into HC. The remaining two access area trips are allocated in the following combinations: One trip in CAI and one trip in NLS; one trip in CAI and one additional trip in HC; one trip in CAI and one trip in Delmarva; one trip in NLS and an additional trip in HC; one trip in NLS and one trip in Delmarva; or an additional trip in HC and one in Delmarva. Trip assignments, based on a random vessel assignment to the four applicable areas noted above, will be available prior to the start of FY 2012. Each part-time scallop vessel is allocated two trips in FY 2012, which could be taken in one of the following combinations: Two trips in HC; one trip in the CAI and one trip in NLS; one trip in CAI and one trip in HC; one trip in CAI and one trip in Delmarva; one trip in NLS and one trip in HC; one trip in NLS and one trip in Delmarva; or one trip in HC and one trip in Delmarva. Each occasional vessel is allocated one trip, which could be taken in any one open access area.
At the start of FY 2013, all full-time scallop vessels will be allocated one trip in CAII, one trip in NLS, and one trip in HC (Table 5). In addition, half the fleet will be allocated a trip in Delmarva and the other half of the fleet will be allocated another trip in HC, for a total of four access area trips for each full-time vessel. These allocations will be assigned and made publically available prior to the start of FY 2013. A part-time scallop vessel will be allocated two trips, which could be taken in one of the following combinations: Two trips in HC; one trip in CAII and one trip in NLS; one trip in CAII and one trip in HC; one trip in CAII and one trip in Delmarva; one trip in NLS and one trip in HC; one trip in NLS and one trip in Delmarva; or one trip in HC and one trip in Delmarva. An occasional vessel will be allocated one trip, which could be taken in any one open access area.
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Because this action is implemented after the start of FY 2011, and the FY 2010 regulations that continued into FY 2011 are inconsistent with the regulations in this final rule, it is possible that LAGC scallop vessels could exceed the final FY 2011 fleet-wide trip allocation in Delmarva under Framework 22. The current regulations
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As specified in Amendment 15, this action deducts 1.25 M lb (567 mt) of scallops annually for FYs 2011 through 2013 from the ABC and sets it aside as the Scallop RSA to fund scallop research and to compensate participating vessels through the sale of scallops harvested under RSA projects. Upon the effective date of Amendment 15 measures, this set-aside will be available for harvest in open areas. Framework 22 sets the access area rotation schedule, and vessels will be able to harvest RSA from access areas upon the effective date of this final rule to implement Framework 22 measures. Unlike previous scallop framework adjustments, Framework 22 does not set specific RSA quota allocations within specific access areas. Projects are now assigned harvest allocations through the RSA application review and approval process, and a vessel with available RSA could harvest allotted RSA from an access area until the RSA allocated to that vessel and/or project is fully harvested.
This action removes 1 percent from the ABC and sets it aside for the industry-funded observer program to help defray the cost of carrying an observer. This observer set-aside is further divided proportionally into access areas and open areas. Scallop vessels on an observed DAS trip are charged a reduced DAS rate, and scallop vessels on an observed access area trip are authorized an increased possession limit. The Regional Administrator has specified the following compensation rate for FY 2011: Vessels carrying an observer will receive 180 lb (82 kg) of scallops per day, or part of a day, when fishing in an access area, and LA DAS vessels will be compensated 0.08 DAS per DAS fished during observed open area trips (i.e., vessels will be charged 0.92 DAS per DAS fished with an observer onboard). The Regional Administrator shall periodically review, at least once prior to each fishing year, all available fishery information to determine if these rates should be adjusted. The FY 2011 through 2013 observer set-aside allocations for open and access areas are outlined in Table 7.
Under the Endangered Species Act (ESA), each Federal agency is required to ensure its actions are not likely to jeopardize the continued existence of any listed species or critical habitat. If a Federal action is likely to adversely affect a listed species, section 7 of the ESA requires formal consultation. To date, five formal consultations, with resulting Biological Opinions, have been completed on the Atlantic sea scallop fishery. All five have had the same conclusion: The continued authorization of the scallop fishery may adversely affect, but is not likely to jeopardize, the continued existence of four sea turtles species (Kemp's ridley, loggerhead, green, and leatherback). In the accompanying Incidental Take Statements of the Biological Opinions, NMFS is required to identify and implement non-discretionary reasonable and prudent measures (RPMs) necessary or appropriate to minimize the impacts of any incidental take, as well as Terms and Conditions (T/C) for implementing each RPM. RPMs and T/C cannot alter the basic design, location, scope, duration, or timing of the action, and may involve only minor changes. Five RPMs and T/Cs were identified in the most recent Biological Opinion, as amended on February 5, 2009. This final rule includes management measures to comply with the first of these RPMs, which requires a limit of fishing effort in the Mid-Atlantic during times when sea turtle distribution is expected to overlap with scallop fishing activity. The Biological Opinion requires that this restriction be limited to a level that will not result in more than a minor impact on the scallop fishery.
For FYs 2011 through 2013, Framework 22 defines “more than a minor impact” on the fishery as one that results in a 10-percent or greater shift in baseline effort from the Mid-Atlantic during June 15 through October 31 into other areas and times of year when sea turtle interactions are less likely. This definition, as well as management measures to comply with the Biological Opinion and any future Biological Opinions, will be re-evaluated for FY 2013 and future fishing years in subsequent framework actions (or if a new Biological Opinion occurs, a framework can be reinitiated). An informal consultation under the ESA was prepared to analyze the impact of the Framework 22 on threatened and endangered sea turtles and NMFS has determined that fishing activities pursuant to Framework 22 will not affect endangered and threatened species or critical habitat in any manner not considered in prior consultations on this fishery.
For FYs 2011 through 2013, each full-time and part-time vessel will be restricted to taking one access area trip to areas in the Mid-Atlantic (
Compliance with the trip restriction will be monitored using pounds landed during June 15 through October 31, rather than trip declarations, which could result in landings that are less than the allowable trip possession limit. For example, full-time and part-time LA vessels will be restricted to landing a maximum of 18,000 lb (8,165 kg) per trip for full-time vessels and 14,400 lb (6,532 kg) per trip for part-time vessels from those areas (i.e., the equivalent of one full access area trip, depending on the permit category's possession limit). Additionally, if a full-time vessel has acquired four Mid-Atlantic access trips due to a trip exchange(s), that vessel will be restricted to landing a combined maximum of 36,000 lb (16,329 kg) from HC and Delmarva (i.e., the equivalent of two full access area trips). Compensation trips may not be combined during this time period in a way that will allow more than 14,400 lb (6,532 kg) for part-time vessels, 18,000 lb (8,165 kg) for full-time vessels, or 36,000 lb (16,329 kg) for full-time vessels with a total allocation of four Mid-Atlantic access area trips, to be landed from HC and Delmarva, combined, from June 15 through October 31 of FYs 2011 through 2013. For example, if a full-time vessel is allocated two total trips into the Mid-Atlantic access areas and that vessel declared and subsequently broke one of the two trips into Mid-Atlantic access areas prior to June 15, it will have one full trip (
Because this final rule is implemented mid-year, and the current regulations are inconsistent with the proposed specifications, it is possible that full-time and part-time vessels could exceed their final FY 2011 access area trip restrictions prior to this rule becoming effective. If this measure is implemented after June 15, 2011, a full-time or part-time vessel that landed more than 18,000 lb (8,165 kg) or 14,400 lb (6,532 kg), respectively (
Under this final rule, the Delmarva and ETAA seasonal closures are no longer in effect.
This action eliminates the default GB access area schedule that was implemented through Framework 16 to the FMP (69 FR 63460; November 2, 2004). The Council intended that this default cycle would be in place until the Council modified it through a future action. The schedule has based access area openings on the premise that an area would be open for 1 year, followed by a 2-year closure. However, the schedule has been consistently revised in framework actions based on area-specific scallop biomass projections. The pre-defined schedule has led to inconsistencies between roll-over measures at the start of a FY when a framework is delayed and unnecessary confusion. This final rule removes the schedule from the regulations, allowing for the GB access area scheduled openings to be based on updated resource information. Third-year default measures (
NMFS received three comment letters in response to the proposed rule from the Fisheries Survival Fund (FSF), writing on behalf of full-time limited access scallop fleet members; a member of the United National Fishermen's Association; and an individual. Six relevant issues relating to the proposed Framework 22 measures were raised and are responded to below. Other comments were not relevant to this rulemaking and are therefore not responded to in this final rule. FSF submitted comments that were related to Amendment 15 management measures, and those will be addressed in the final rule to Amendment 15. NMFS may only approve, disapprove, or partially approve measures in Framework 22, and cannot substantively amend, add, or delete measures beyond what is necessary under section 305(d) of the MSA to discharge its responsibility to carry out such measures.
An increase in LPUE is not necessarily a reliable indicator of increased biomass and, as such, the recent increases in LPUE do not necessarily demonstrate that surveys are underestimating overall biomass. Current scallop catch rates in open areas
There were some survey tows conducted in inshore areas in recent years, and an estimate of the biomass from non-regularly surveyed areas was included in the last stock assessment. Estimates from the 2010 stock assessment, which were endorsed by the SARC–50 review panel, are best available science, and show that biomass was just above, and fishing mortality at, maximum sustainable yield (MSY) levels in 2009. The survey data indicate that allocations in FY 2011 need to be lower than those in place in FY 2009 in order to meet the management target F.
While the commenter may find higher DAS allocations preferable, NMFS must approve or disapprove the measure in Framework 22, and has determined that the DAS allocations proposed through Framework 22 are consistent with National Standard 1 of the MSA and are based on the best scientific information available, as required by National Standard 2.
With regards to increased cooperative surveys, Amendment 15 had made a number of adjustments to the Scallop RSA Program, including increasing the RSA quota to 1.25 M lb (567 mt), which will allow for more research projects to be funded through this process. NMFS continues to encourage industry members to participate in the RSA Program.
In § 648.58, paragraph (e) is removed to eliminate the temporary regulations added by the June 1, 2011, emergency action to close NLS.
In § 648.59, paragraphs (b)(3) and (d)(3) are added to incorporate the updated access area coordinates for CAI and NLS, respectively. In addition, paragraph (d)(5) is revised to no longer include pay-back measures applicable to vessels if they fished in the NLS in FY 2011 prior to the implementation of Framework 22 management measures. These payback measures are no longer necessary due to the emergency action that closed the NLS prior to June 15, 2011. This closure will be continued throughout the rest of the NLS open season as part of Framework 22 measures.
In § 648.60, the text in paragraph (a)(3)(i) has been clarified to explain how vessels that end up with a total allocation of five access area trips (
Other editorial and minor changes were made throughout the rule to clarify various provisions in this action. In addition, any relevant changes to the regulatory text at § 648.53 made in the Amendment 15 final rule were also incorporated in this rule.
The Assistant Administrator for Fisheries, NOAA, has determined that this rule is consistent with the national standards and other provisions of the MSA and other applicable laws. The regulatory language in this final rule has incorporated, where applicable, the regulatory language in Amendment 15.
The Office of Management and Budget has determined that this rule is not significant according to Executive Order 12866.
The Assistant Administrator for Fisheries has determined that the need to implement these measures in an expedited manner in order to help achieve conservation objectives for the scallop fishery and certain fish stocks, as well as threatened and endangered sea turtles, constitutes good cause, under authority contained in 5 U.S.C. 553(d)(3), to waive the 30-day delay in effectiveness.
If there is a 30-day delay in implementing the measures in Framework 22, the scallop fleet will continue under the current access area schedule, as well as access area trip, DAS, IFQ, RSA and observer set-aside allocations. The DAS allocations are higher than the measures in Framework 22, which were developed to reflect an updated estimate of the annual catch that can be harvested without resulting in overfishing. Accordingly, a delay in effectiveness risks creating a race to fish in advance of this rule's measures, and vessel owners and operators have the potential of exceeding the catch levels specified in Framework 22 for FY 2011. Allocations in FY 2011 need to be lower than those in place in FY 2010 in order to meet the management target F. Estimates from the 2010 stock assessment, which were endorsed by the SARC–50 review panel, are best available science, and show that biomass was just above, and fishing mortality was at, MSY levels in 2009. In addition, actual F has been higher than projected in FYs 2008–2010, a situation which was addressed in the DAS model used to calculate the Framework 22 allocations. Further continuation of the inconsistent FY 2010 management measures increases the risk that the actual F will exceed the target level upon which Framework 22 management measures are based. Constraining the implementation of Framework 22 by instituting a 30-day delay in effectiveness would be contrary to the public interest because continuing this trend in higher-than-projected F could result in overfishing and future decreases in allowable harvest. Current scallop catch rates in open areas have been the highest on record, and vessels may continue to fish beyond their Framework 22 DAS allocations until this action is effective because they are limited in where else they can fish.
In addition, Framework 22 includes management measures to minimize fishery interaction with threatened and endangered sea turtles and prevent overfishing. Specifically, Framework 22 includes a measure that specifies vessels may take only one access area trip in HC and Delmarva (combined) between June 15 and October 31, 2011. This limitation complies with one of the RPMs in the most recent Biological Opinion completed for the scallop fishery. The Biological Opinion examined fishery interactions with threatened and endangered sea turtles and specified RPMs to minimize the impacts on sea turtles. If implementation is delayed further beyond June 15, 2011, the measures from last year will continue (
Expediting the implementation of Framework 22 measures will also have greater public benefit because enacting the allocations of IFQ, RSA, and access area trips would have positive impacts on the economics of the fishery. Currently, with biomass in the ETAA not producing valuable trips and the NLS closed through emergency action, most vessels have already fished their Delmarva access area trips and have no other access areas available from which to harvest scallops. Framework 22 will open up three additional access areas for vessels (
NMFS was unable to incorporate the 30-day delay in effectiveness into the timeline for Framework 22 rulemaking due to the Council's January 2011, submission of Amendment 15 and March 2011, final submission of Framework 22, which was more than 3 weeks after the March 1 start of the 2011 scallop FY. However, NMFS must also consider the need of the scallop industry to have prior notice in order to make the necessary preparations to begin fishing under these finalized measures (
NMFS, pursuant to section 604 of the Regulatory Flexibility Act (RFA), has completed a final regulatory flexibility analysis (FRFA) in support of Framework 22 in this final rule. The
This action sets the management measures and specifications for the Atlantic sea scallop fishery for FY 2011 and FY 2012, with FY 2013 default measures. A description of the action, why it is being considered, analysis of proposed and final measures considered for Framework 22, and the legal basis for this action are contained in Framework 22 and the preambles of the proposed and final rules and are not repeated here.
The RFA defines a small business entity in any fish-harvesting or hatchery business as a firm that is independently owned and operated and not dominant in its field of operation (including its affiliates), with receipts of up to $4 million annually. The vessels in the Atlantic sea scallop fishery are considered small business entities because all of them grossed less than $4 million according to the dealer's data for FYs 1994 to 2009. In FY 2009, total average revenue per full-time scallop vessel was just over $1 million, and total average scallop revenue per general category vessel was just under $80,000. The IRFA for this and prior Scallop FMP actions does not consider individual entity ownership of multiple vessels. More information about common ownership is being gathered, but the effects of common ownership relative to small versus large entities under the RFA is still unclear and will be addressed in future analyses.
The Office of Advocacy at the Small Business Association (SBA) suggests two criteria to consider in determining the significance of regulatory impacts; namely, disproportionality and profitability. The disproportionality criterion compares the effects of the regulatory action on small versus large entities (using the SBA-approved size definition of “small entity”), not the difference between segments of small entities. Framework 22 is not expected to have significant regulatory impacts on the basis of the disproportionality criterion, because all entities are considered to be small entities in the scallop fishery and, therefore, the action would not place a substantial number of small entities at a significant competitive disadvantage relative to large entities. A summary of the economic impacts relative to the profitability criterion is provided below under “Economic Impacts of Proposed Measures and Alternatives.”
The measures contained in this final rule affect vessels with LA and LAGC scallop permits. The Framework 22 document from the Council provides extensive information on the number and size of vessels and small businesses that will be affected by these regulations, by port and state. There were 313 vessels that obtained full-time LA permits in 2010, including 250 dredge, 52 small-dredge and 11 scallop trawl permits. In the same year, there were also 34 part-time LA permits in the sea scallop fishery. No vessels were issued occasional scallop permits. By the start of FY 2010, the first year of the LAGC IFQ program, 362 IFQ permits (including 40 IFQ permits issued to vessels with a LA scallop permit), 127 NGOM, and 294 incidental catch permits were issued. Since all scallop permits are limited access, vessel owners would only cancel permits if they decide to stop fishing for scallops on the permitted vessel permanently or if they transfer IFQ to another IFQ vessel and permanently relinquish the vessel's scallop permit. This is likely to be infrequent due to the value of retaining the permit. As such, the number of scallop permits could decline over time, but would likely be by fewer than 10 permits per year.
No public comments were received in response to the IRFA summary in the proposed rule.
This action contains no new collection-of-information, reporting, and recordkeeping requirements. It does not duplicate, overlap, or conflict with any other Federal law.
The aggregate economic impacts of these final measures, including the open area DAS and access area allocations for LA vessels and ACLs for the LAGC fishery, are expected to be positive in both in the short-term (FYs 2011–2012) and the long-term (FYs 2011–2022) compared to the No Action alternative and all other alternatives considered. Estimated fleet revenues under the adopted action in FY 2011 are slightly lower than the average fleet revenues in FYs 2009 and 2010. In FY 2012, revenues are expected to exceed the average revenues in FYs 2009 and 2010. The adopted action is not expected to have short-term adverse impacts on the revenues and profits of the scallop vessels compared to recent levels. The impact of four allocation alternatives were evaluated in Framework 22: One alternative proposing a new closure in the Great South Channel (GSC; the “GSC closure” alternative); one alternative with full-time “split fleet” allocations and no new closure (the proposed action); one alternative with identical access area allocations (i.e., all full-time vessels are allocated access into the same areas) (the “identical fleet allocation” alternative) and the No Action alternative. With the exception of the No Action alternative, the total number of access area trips allocated to LA vessels was the same for all alternatives.
The definition of “No Action” refers to the continuation of the allocations that are specified in the current regulations. However, because of the restrictions set forth by the current GB rotational area schedules, which determine outside of annual allocations when an access area will be opened or closed to fishing in a given FY, the No Action alternative does not result in the same allocations or revenues as in FY 2010. Rather, No Action would result in one less access area trip in FY 2012 compared to FY 2010 due to the closure of NLS (
Framework 22 will be implemented mid-year, roughly 4 months after the start of FY 2011 (March 1, 2011). In the interim, the FY 2010 management measures and allocations have been extended into FY 2011 until this final rule is implemented. These current roll-over measures include open area LA allocation that are higher than those specified under Framework 22 (
The following describes all of the alternatives considered by the Council.
The adopted open area DAS allocations are expected to prevent overfishing in open areas. This final rule implements the following vessel-specific DAS allocations for FYs 2011 and 2012: Full-time vessels will be allocated 32 and 34 DAS, respectively; part-time vessels will be allocated 13 and 14 DAS, respectively; and occasional vessels will receive 3 DAS for each FY. Additionally, full-time vessels will receive a total of four access area trips, part-time vessels will receive two access area trips, and occasional vessels will receive one access area trip.
The Framework 22 analysis of the fleet-wide aggregate economic impacts indicates that the adopted alternative and all other alternatives will have positive economic impacts on the revenues and profits of the scallop vessels in the short-term (FYs 2011 and 2012), compared with the No Action alternative. Total fleet revenue under the adopted action is estimated at $399.1 million in FY 2011 and $428.4 million in FY 2012. Additionally, net revenues per vessel (i.e., gross revenues minus trip costs, used as a proxy for profits) are estimated to be $1,014,659 and $1,089,108 in FY 2011 and FY 2012, respectively. Compared with No Action fleet revenues ($364.5 M in FY 2011 and $290.1 M in FY 2012), the adopted action will result in increases in fleet revenues of 9.6 percent and 47.6 percent in FYs 2011 and 2012, respectively; the “GSC closure” alternative would result in increases in revenues by 2.2 percent and 44.9 percent in FYs 2011 and 2012, respectively; and the “identical fleet allocation” alternative would result in increases in revenues by 10.3 percent and 44.3 percent in FYs 2011 and 2012, respectively. In terms of net revenues per vessel ($917,452 in FY 2011 and $732,848 M in FY 2012 for No Action), the adopted action will result in higher vessel net revenues (10.6 percent in FY 2011 and 48.6 percent in FY 2012). Vessel net revenues would be higher under the “GSC closure” and “identical fleet allocation” alternatives, as well, ranging between 3.1–11.3 percent higher in FY 2011 and 45.2–45.5 percent higher in FY 2012. In both the short- and long-term, the adopted action will result in larger cumulative fleet and vessel net revenues than both the “GSC closure” alternative and the “identical fleet allocation.” The adopted action's fleet revenues are estimated to exceed the revenues for the “identical fleet allocation” alternative by $6.5 M and $53 M in the short- and long-term, respectively. The adopted action's revenues are expected to exceed those for the “GSC closure” alternative by an even greater amount: $33.5 M and $98.9 M more in the short- and long-
Compared to the Status Quo, the adopted action will result in gross fleet revenues about $47.9 M lower in the short-term, resulting in estimates of gross revenue per vessel to be 7.9 percent and 4.1 percent, less than those under Status Quo in FY 2011 and FY 2012, respectively. These decreases in fleet and vessel revenues compared to those estimated under Status Quo are because the Status Quo alternative does not take projected scallop biomass levels into account: Although landings and revenues are higher in the short-term under the Status Quo scenario, by setting future allocations based on an F that exceeds sustainable levels, the Status Quo reduces yield and revenues in the long-term. From FYs 2011–2022, the adopted action will have positive economic impacts compared to Status Quo, exceeding Status Quo fleet revenues by $19.8 M. Over the medium-term (FYs 2011–2015), the adopted action will result in higher revenues per vessel compared to the Status Quo—5.8 percent in FY 2013 and 3.7 percent in FYs 2014 and 2015—thus offsetting the decreases in FYs 2011 and 2012. Because the cumulative value of the scallop net revenue per vessel will be only marginally lower (0.1 percent) in the medium-term compared to the Status Quo values, the adopted action will not have significant impacts for the scallop vessels compared to Status Quo levels.
The adopted action will have positive economic benefits in both the short and long term for the LAGC fishery starting in FY 2011, as the LAGC ACL will increase compared to No Action allocations. Under the adopted allocations, LAGC vessels will be allocated 5 percent of the total ACL and the LA vessels with the IFQ permits will be allocated 0.5-percent of the total ACL. The positive short- and long-term economic impacts of these allocations for the LAGC vessels, compared to the No Action alternative, result from the higher allocation of scallops to the LAGC fleets (1.3 percent higher in FY 2011 and 2.9 percent higher in FY 2012) than those allocated under No Action. In addition, compared to FY 2010 revenues, which was the first year that the LAGC IFQ Program was implemented, the revenues of LAGC vessels will be higher under the adopted action. There are no alternatives that would generate higher economic benefits for the participants of the scallop fishery. In fact, because the LAGC allocations are derived from the ACL, the values are identical across all alternatives considered, with the exception of No Action.
In summary, this action will not have a considerable adverse impact on the net revenues and profits on the LA and LAGC scallop fleets. Therefore, the adopted action is not expected to have significant economic impacts on the viability of these vessels, especially in a highly profitable industry like the scallop fishery.
The adopted action to allocate split-fleet trips into access areas with biomass levels not large enough to support a full trip will increase landings, revenues, and total economic benefits to the fishery. The administration of the random allocation process is expected to have positive economic impacts on the fishermen by providing flexibility for the vessels to trade access area trips. With the exception of the No Action alternative, all alternatives considered the same number of access area trips. There were no other alternatives considered that would generate higher economic benefits for the participants of the scallop fishery.
This action maintains provisions that allocate additional open area DAS if an access area closes due to the attainment of the scallop YTF TAC for unused access area trips (
This action will allocate 1 percent of the ABC to the industry-funded observer set-aside program, and will set aside 1.25 M lb (567 mt) from the ABC for the RSA program, based on measures in Amendment 15. These set-asides are expected to have indirect economic benefits for the scallop fishery by improving scallop information and data made possible by research and the observer program. Although allocating a higher observer set-aside percentage or higher RSA allocation could result in higher indirect benefits to the scallop fleet by increasing available funds for research and the observer program, these set-aside increases could also decrease direct economic benefits to the fishery by reducing revenues, and no such alternatives were considered in this action.
This action specifies a 70,000-lb (31,751-kg) TAC for the NGOM. This is the same TAC as the No Action alternative. Thus, the action will not have additional economic impacts on the participants of the NGOM fishery. The NGOM TAC has been specified at this level since FY 2008, and the fishery has harvested less than 15 percent of the TAC in each FY; therefore, the TAC has no negative economic impacts. There are no alternatives that would generate higher benefits for NGOM scallop vessels. The alternative for setting the NGOM TAC at 31,100 lb (14,107 kg) is expected to reduce the chance of excess fishing in Federal waters in the NGOM management area, but could result in negative impacts on the participants of the NGOM fishery if landings from NGOM-permitted vessels fishing in state waters lead to the closure of the NGOM management area.
This action limits the maximum number of trips that can be taken in the Mid-Atlantic areas from June 15 to October 31. Because fishing effort is shifted to a relatively less productive season, total fleet trip costs are expected to increase slightly (
The elimination of the GB rotation schedule that indicates the opening and closing of access areas in the regulations will reduce the public's confusion and administrative burden. Instead, access area schedules will be based solely on survey results and available exploitable biomass as assessed by the Scallop PDT and the SSC. These schedules will be approved by the Council and implemented biannually through the framework adjustment process. This action will improve the management of the scallop resource, with positive impacts on the scallop yield and on economic benefits from the scallop fishery. There are no alternatives that would generate higher benefits for the scallop vessels.
Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a letter to permit holders that also serves as a small entity compliance guild (the guide) was prepared. Copies of this final rule are available from the Northeast Regional Office, and the guide, i.e., permit holder letter, will be sent to all holders of permits for the scallop fishery. The guide and this final rule will be available upon request.
Fisheries, Fishing, Recordkeeping and reporting requirements.
For the reasons set out in the preamble, 50 CFR part 648 is amended as follows:
16 U.S.C. 1801
(i) * * *
(2) * * *
(vi) * * *
(F) Unless specified in paragraph (i)(2)(vi)(F)(
(
(
(G) Part-time vessels shall not fish for, possess, or retain more than a combined total of 14,400 lb (6,532 kg; the equivalent of one part-time access area trip) of scallops from the Delmarva and Hudson Canyon Access Areas specified in § 648.59(a) and (e) during the period June 15 through October 31. Any scallops fished for, possessed, or retained during this time period from either Delmarva and Hudson Canyon Access Areas, regardless of whether or not they were harvested on a single access area trip or on multiple trips by taking compensation trips, as specified in § 648.60(c), will be applied to this possession and landing limit. This restriction does not include the additional possession allowance to defray the cost of carrying an observer, as specified in § 648.60(d), that occur during observed trips between June 15 through October 31.
The revisions and additions read as follows:
(a)
(1) ABC/ACL for fishing years 2011 through 2013 shall be:
(i)
(ii)
(iii)
(2)
(3)
(i) The limited access fishery sub-ACLs for fishing years 2011 through 2013 are:
(A)
(B)
(C)
(ii) The limited access fishery ACTs for fishing years 2011 through 2013 are:
(A)
(B)
(C)
(4)
(i) The ACLs for fishing years 2011 through 2013 for LAGC IFQ vessels without a limited access scallop permit are:
(A)
(B)
(C)
(ii) The ACLs for fishing years 2011 through 2013 for vessels issued both a LAGC and a limited access scallop permits are:
(A)
(B)
(C)
(b)
(1)
(i) 2011 fishing year: 2,441 lb/DAS.
(ii) 2012 fishing year: 2,662 lb/DAS.
(iii) 2013 fishing year: 2,676 lb/DAS.
(4) Each vessel qualifying for one of the three DAS categories specified in the table in this paragraph (b)(4) (full-time, part-time, or occasional) shall be allocated the maximum number of DAS for each fishing year it may participate in the open area limited access scallop fishery, according to its category, excluding carryover DAS in accordance with paragraph (d) of this section. DAS allocations shall be determined by distributing the portion of ACT specified in paragraph (a)(3)(ii), as reduced by access area allocations specified in § 648.59, and dividing that amount among vessels in the form of DAS calculated by applying estimates of open area LPUE specified in paragraph (b)(1) of this section. Allocation for part-time and occasional scallop vessels shall be equal to 40 percent and 8.33 percent of the full-time DAS allocations, respectively. DAS allocations for the 2013 fishing year are default allocations and are subject to change through a future framework adjustment. The annual open area DAS allocations for each category of vessel for the fishing years indicated are as follows:
(i) If, prior to the implementation of Framework 22, a limited access vessel uses more open area DAS in the 2011 fishing year than specified in this section, such vessel shall have the DAS used in excess of the 2012 fishing year allocation specified in this paragraph (b)(4) deducted from its fishing year 2012 open area DAS allocation.
(ii)
(iii)
(iv)
(v) The Elephant Trunk Access Area shall change to an open area starting in fishing year 2011. For reference, the Elephant Trunk Access Area was defined by straight lines connecting the following points in the order stated (copies of a chart depicting the area previously known as the Elephant Trunk Access Area are available from the Regional Administrator upon request):
(vi) If, prior to the implementation of Framework 22, a vessel lands all or part of an Elephant Trunk Access Area trip that was allocated at the start of the 2011 fishing year, any pounds landed from that declared Elephant Trunk Access Area trip would be converted to DAS and deducted from the vessel's open area DAS allocations in fishing year 2012. This DAS deduction would be equal to the scallop fishing mortality resulting from the open area DAS allocation. For example, if a full-time vessel lands the full 18,000-lb (8,165-kg) possession limit from an Elephant Trunk Access Area trip allocated at the start of the 2011 fishing year, the pounds landed would be converted to DAS and deducted from the vessel's 2012 fishing year DAS allocation as follows: The 18,000 lb (8,165-kg) would first be multiplied by the estimated average meat count in the Elephant Trunk Access Area (18.4 meats/lb) and then divided by the estimated open area average meat count (also 18.4 meats/lb) and by the estimated open area LPUE for fishing year 2011 (2,441 lb/DAS), resulting in a DAS deduction of 7.4 DAS ((18,000 lb × 18.4 meats/lb)/(18.4 meats/lb × 2,441 lb/DAS) = 7.4 DAS). This amount would be deducted from that vessel's 2012 fishing year (i.e., 34 DAS minus 7.4 DAS), resulting in a total 2012 fishing year DAS allocation of 26.6 DAS. Similarly, Part-time and occasional vessels shall receive deductions of 5.9 DAS and 2.5 DAS, respectively, based on their respective possession limits, for landing their full trip possession limits from the area formerly known as the Elephant Trunk Access Area. If a vessel only lands a portion of its full possession limit, the applicable DAS reduction shall be proportional to those landings. For example, if a full-time vessel lands 9,000 lb (4,082 kg) during a declared Elephant Trunk Access Area trip, that vessel's fishing year 2012 DAS allocation would be reduced by 3.7 DAS (i.e., half of the DAS that would be deducted for a full trip).
(vii) If, prior to the implementation of Framework 22, a vessel owner exchanges an Elephant Trunk Access Area trip for another access area trip as specified in § 648.60(a)(3)(ii) in fishing year 2011, the vessel that receives an additional Elephant Trunk Access Area trip would receive a DAS credit of 7.4 DAS in FY 2011, resulting in a total fishing year 2011 DAS allocation of 39.4 DAS (32 DAS plus 7.4 DAS). This DAS credit from unused Elephant Trunk Access Area trip gained through a trip exchange is based on a full-time vessel's 18,000-lb (8,165-kg) possession limit and is calculated by using the formula specified in paragraph (b)(4)(vi) but the DAS conversion is applied as a DAS credit in the 2011 fishing year, rather than as a DAS deduction in fishing year 2012. Similarly, using the same calculation with a 14,400-lb (6,532-kg) possession limit, part-time vessels would receive a credit of 5.9 DAS if the vessel owner received an additional Elephant Trunk Access Area trip through a trip exchange in the interim between the start of the 2011 fishing year and the implementation of Framework 22 and did not use it. If a vessel fishes any part of an Elephant Trunk Access Area trip gained through a trip exchange, those landings would be deducted from any DAS credit applied to the 2011 fishing year. For example, if a full-time vessel lands 10,000 lb (4,536 kg) from an Elephant Trunk Access Area trip gained through a trip exchange, the pounds landed would be converted to DAS and deducted from the trip-exchange credit as follows: The 10,000 lb (4,536 kg) would first be multiplied by the
(5)
(ii)
(iii) If a vessel has unused broken trip compensation trip(s), as specified in § 648.60(c), when Closed Area I, Closed Area II, and/or Nantucket Lightship Access Areas close due to the yellowtail flounder TAC, it will be issued additional open area DAS in proportion to the unharvested possession limit. For example, if a full-time vessel had an unused 9,000-lb (4,082-kg) Nantucket Lightship Access Area compensation trip (half of the possession limit) at the time of a Nantucket Lightship Access Area yellowtail flounder TAC closure in FY 2012, the vessel will be allocated 2.15 DAS (half of 4.3 DAS).
(c)
(d)
(g)
(2)
(h) * * *
(2) * * *
(iii)
(v)
(B) For accounting purposes, the combined total of all vessels' IFQ carry-over shall be added to the LAGC IFQ fleet's applicable ACL for the carry-over year. Any IFQ carried over that is landed in the carry-over fishing year shall be counted against the ACL specified in paragraph (a)(4)(i) of this section, as increased by the total carry-over for all LAGC IFQ vessels, as specified in this paragraph (h)(2)(v)(B). IFQ carry-over shall not be applicable to the calculation of the IFQ cap specified in paragraph (h)(3)(i) of this section and the ownership cap specified in paragraph (h)(3)(ii) of this section.
(vi)
(3) * * *
(i) * * *
(A) Unless otherwise specified in paragraphs (h)(3)(i)(B) and (C) of this section, a vessel issued an IFQ scallop permit or confirmation of permit history shall not be issued more than 2.5 percent of the ACL allocated to the IFQ scallop vessels as described in paragraph (a)(4)(i) of this section.
(B) A vessel may be initially issued more than 2.5 percent of the ACL allocated to the IFQ scallop vessels as described in paragraph (a)(4)(i) of this section, if the initial determination of its contribution factor specified in accordance with § 648.4(a)(2)(ii)(E) and paragraph (h)(2)(ii) of this section, results in an IFQ that exceeds 2.5 percent of the ACL allocated to the IFQ scallop vessels as described in paragraph (a)(4)(i) of this section. A vessel that is allocated an IFQ that exceeds 2.5 percent of the ACL allocated to the IFQ scallop vessels as described in paragraph (a)(4)(i) of this section, in accordance with this paragraph (h)(3)(i)(B), may not receive IFQ through an IFQ transfer, as specified in paragraph (h)(5) of this section.
(C) A vessel initially issued a 2008 IFQ scallop permit or confirmation of permit history, or that was issued or renewed a limited access scallop permit or confirmation of permit history for a vessel in 2009 and thereafter, in compliance with the ownership restrictions in paragraph (h)(3)(i)(A) of this section, is eligible to renew such permits(s) and/or confirmation(s) of permit history, regardless of whether the renewal of the permit or confirmations of permit history will result in the 2.5-percent IFQ cap restriction being exceeded.
(ii) * * *
(A) For any vessel acquired after June 1, 2008, a vessel owner is not eligible to be issued an IFQ scallop permit for the vessel, and/or a confirmation of permit history, and is not eligible to transfer IFQ to the vessel, if, as a result of the issuance of the permit and/or confirmation of permit history, or IFQ transfer, the vessel owner, or any other person who is a shareholder or partner of the vessel owner, will have an ownership interest in more than 5 percent of the ACL allocated to the IFQ scallop vessels as described in paragraph (a)(4)(i) of this section.
(4)
(5) * * *
(ii)
(iii)
(iv)
(A)
(B)
(C)
(a) * * *
(1) From March 1, 2011, through February 28, 2014 (i.e., fishing years 2011 through 2013), a vessel issued a scallop permit may fish for, possess, or land scallops in or from the area known as the Delmarva Sea Scallop Access Area, described in paragraph (a)(2) of this section, only if the vessel is participating in, and complies with the requirements of, the area access program described in § 648.60. The Delmarva Scallop Access Area schedule and TACs specified in paragraph (a)(3) of this section for fishing year 2013 are default measures and subject to change through a future framework adjustment.
(3)
(ii)
(B) Based on the TAC specified in paragraph (a)(4)(ii)(A) of this section, LAGC scallop vessels are allocated 593 trips in fishing year 2011, 296 trips in fishing year 2012, and 298 trips in fishing year 2013 to the Delmarva Access Area. This fleet-wide trip allocation applies to both LAGC IFQ vessels and limited access vessels with LAGC IFQ permits that are fishing under the provisions of the LAGC IFQ permit. The Regional Administrator shall notify all LAGC IFQ scallop vessels of the date when the total number of trips have been, or are projected to be, taken by providing notification in the
(
(
(C) Scallops landed by each LAGC IFQ vessel on a Delmarva Access Area trip shall be counted against that vessel's IFQ.
(b)
(2) From March 1, 2011, through February 28, 2013 (i.e., fishing years 2011 and 2012), subject to the seasonal restrictions specified in paragraph (b)(4) of this section, a vessel issued a scallop permit may fish for, possess, and land scallops in or from the area known as the Closed Area I Access Area, described in paragraph (b)(3) of this section, only if the vessel is participating in, and complies with the requirements of, the area access program described in 648.60.
(3) The Closed Area I Access Area is defined by straight lines connecting the following points in the order stated (copies of a chart depicting this area are available from the Regional Administrator upon request):
(5) * * *
(i)
(ii) * * *
(A) The percentage of the Closed Area I Access Area TAC to be allocated to LAGC scallop vessels shall be specified through the framework adjustment process and shall determine the number of trips allocated to LAGC scallop vessels as specified in paragraph (b)(5)(ii)(B) of this section. The TAC applies to both LAGC IFQ vessels and limited access vessels with LAGC IFQ permits that are fishing under the provisions of the LAGC IFQ permit. LAGC IFQ vessels will be allocated 533,850 lb (242 mt) in fishing year 2011, and 177,490 lb (81 mt) in fishing year 2012, which represent 5.5 percent of the Closed Area I Access Area TACs for each fishing year. This TAC applies to both LAGC IFQ vessels and limited access vessels with LAGC IFQ permits that are fishing under the provisions of the LAGC IFQ permit. The Closed Area I Access Area will be closed to LAGC IFQ vessels in fishing year 2013.
(B) Based on the TACs specified in paragraph (b)(5)(ii)(A) of this section, LAGC IFQ vessels are allocated a total of 890 trips in fishing year 2011, and 296 trips in fishing year 2012 in the Closed Area I Access Area. No LAGC IFQ trips will be allocated in Closed Area I Access Area in fishing year 2013.
(c) * * *
(2) From March 1, 2011, through February 28, 2014 (i.e., fishing years 2011 through 2013), subject to the seasonal restrictions specified in paragraph (c)(4) of this section, a vessel issued a scallop permit may fish for, possess, or land scallops in or from the area known as the Closed Area II Sea Scallop Access Area, described in paragraph (c)(3) of this section, only if the vessel is participating in, and complies with the requirements of, the area access program described in § 648.60. The Closed Area II Sea Scallop Access Area schedule and TACs specified in paragraph (c)(5) of this section for fishing year 2013 are default measures and subject to change through a future framework adjustment.
(5) * * *
(i)
(ii) * * *
(A) The percentage of the total Closed Area II Access Area TAC to be allocated to LAGC IFQ scallop vessels shall be specified through the framework adjustment process and shall determine the number of trips allocated to IFQ LAGC scallop vessels as specified in paragraph (c)(5)(ii)(B) of this section. The TAC applies to both LAGC IFQ vessels and limited access vessels with LAGC IFQ permits. The Closed Area II Access Area is closed to LAGC IFQ vessels in the 2011 through 2013 fishing years.
(d) * * *
(1) From March 1, 2011, through February 28, 2012 (i.e., fishing year 2011), vessels issued scallop permits may not fish for, possess, or land scallops in or from the area known as the Nantucket Lightship Access Area, described in paragraph (d)(3) of this section, unless transiting pursuant to paragraph (f) of this section. Vessels issued both a NE multispecies permit and an LAGC scallop permit may fish in an approved SAP under § 648.85 and under multispecies DAS in the scallop access area, provided they comply with restrictions in paragraph (d)(5)(ii)(C) of this section.
(2) From March 1, 2012, through February 28, 2014 (
(3) The Nantucket Lightship Sea Scallop Access Area is defined by straight lines connecting the following points in the order stated (copies of a chart depicting this area are available from the Regional Administrator upon request):
(5) * * *
(i)
(ii) * * *
(A) The percentage of the Nantucket Lightship Access Area TAC to be allocated to LAGC IFQ scallop vessels shall be specified through the framework adjustment process and shall determine the number of trips allocated to LAGC IFQ scallop vessels as specified in paragraph (d)(5)(ii)(B) of this section. The Nantucket Lightship Access Area will be closed to LAGC IFQ vessels in fishing year 2011. LAGC IFQ vessels are allocated 177,490 lb (81 mt) in fishing year 2012 and 357,200 lb (162 mt) in fishing year 2013, which represent 5.5 percent of the Nantucket Lightship Access Area TAC for each fishing year. The TAC applies to both LAGC IFQ vessels and limited access vessels with LAGC IFQ permits that are fishing under the provisions of the LAGC IFQ permit.
(B) Based on the TAC specified in paragraph (d)(5)(ii)(A) of this section, LAGC scallop vessels are allocated 296 trips in fishing year 2012, and 595 trips in fishing year 2013 to the Nantucket Lightship Access Area. This fleet-wide trip allocation applies to both LAGC IFQ vessels and limited access vessels with LAGC IFQ permits that are fishing under the provisions of the LAGC IFQ permit. The Regional Administrator shall notify all LAGC IFQ scallop vessels of the date when the total number of trips have been, or are projected to be, taken by providing notification in the
(e)
(2) The Hudson Canyon Sea Scallop Access Area is defined by straight lines connecting the following points in the order stated (copies of a chart depicting this area are available from the Regional Administrator upon request):
(3) [Reserved]
(4)
(ii)
(B) Based on the TACs specified in paragraph (e)(4)(ii)(A) of this section, LAGC IFQ vessels are allocated a total of 593, 887, and 893 trips in the Hudson Canyon Access Area in fishing years 2011, 2012, and 2013, respectively. This fleet-wide trip allocation applies to both LAGC IFQ vessels and limited access vessels with LAGC IFQ permits that are fishing under the provisions of the LAGC IFQ permit. The Regional Administrator shall notify all LAGC IFQ scallop vessels of the date when the maximum number of allowed trips have been, or are projected to be taken by providing notification in the
(C) Scallops landed by each LAGC IFQ vessel on a Hudson Canyon Access Area trip shall count against that vessel's IFQ.
(a) * * *
(3) * * *
(i)
(
(
(B)
(
(
(
(
(
(C)
(
(
(
(
(
(D)
(
(
(E) [Reserved]
(ii) * * *
(A)
(B) [Reserved]
(5) * * *
(i)
(c) * * *
(5) * * *
(ii) * * *
(A) Pursuant to paragraphs (a)(3)(i)(B)(
(v)
(d) * * *
(1)
(ii)
(iii)
(iv)
(v)
(e) Sea Scallop Research Set-Aside Harvest in Access Areas—
(1)
(i)
(ii)
(iii)
(g) * * *
(1) An LAGC scallop vessel may only fish in the scallop access areas specified in § 648.59(a) through (e), subject to the seasonal restrictions specified in § 648.59(b)(4), (c)(4), and (d)(4), and subject to the possession limit specified in § 648.52(a), and provided the vessel complies with the requirements specified in paragraphs (a)(1), (a)(2), (a)(6) through (a)(9), (d), (e), (f), and (g) of this section, and § 648.85(c)(3)(ii). A vessel issued both a NE Multispecies permit and an LAGC scallop permit may fish in an approved SAP under § 648.85 and under multispecies DAS in the Closed Area I, Closed Area II, and Nantucket Lightship Sea Scallop Access Areas specified in § 648.59(b) through (d), provided the vessel complies with the requirements specified in § 648.59(b)(5)(ii), (c)(5)(ii), and (d)(5)(ii), and this paragraph (g), but may not fish for, possess, or land scallops on such trips.
(b) * * *
(1)