Agricultural Marketing Service
Engineers Corps
Census Bureau
Industry and Security Bureau
International Trade Administration
National Institute of Standards and Technology
National Oceanic and Atmospheric Administration
Patent and Trademark Office
Army Department
Engineers Corps
Navy Department
Presidential Documents
Commission of Fine Arts
Centers for Disease Control and Prevention
Food and Drug Administration
Substance Abuse and Mental Health Services Administration
Coast Guard
Customs and Border Protection Bureau
Fish and Wildlife Service
Minerals Management Service
Reclamation Bureau
Drug Enforcement Administration
Employment Standards Administration
Federal Aviation Administration
Federal Motor Carrier Safety Administration
Federal Railroad Administration
National Highway Traffic Safety Administration
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.
Agricultural Marketing Service, USDA.
Final rule.
The Department of Agriculture (USDA) is adopting as a final rule, without change, an interim final rule which increased the assessment rate established for the Walnut Marketing Board (Board) for the 2006-07 and subsequent marketing years from $0.0096 to $0.0101 per kernelweight pound of assessable walnuts. The Board locally administers the marketing order which regulates the handling of walnuts grown in California. Assessments upon walnut handlers are used by the Board to fund reasonable and necessary expenses of the program. The marketing year begins August 1 and ends July 31. The assessment rate will remain in effect indefinitely unless modified, suspended, or terminated.
April 5, 2007.
Shereen Marino, Marketing Specialist, or Kurt J. Kimmel, Regional Manager, California Marketing Field Office, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA; Telephone: (559) 487-5901, Fax: (559) 487-5906, or E-mail:
Small businesses may request information on complying with this regulation by contacting Jay Guerber, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or E-mail:
This rule is issued under Marketing Agreement and Order No. 984, both as amended (7 CFR part 984), regulating the handling of walnuts grown in California, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”
USDA is issuing this rule in conformance with Executive Order 12866.
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, California walnut handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as issued herein will be applicable to all assessable walnuts beginning on August 1, 2006, and continue until amended, suspended, or terminated. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.
This rule continues in effect the action that increased the assessment rate established for the Board for the 2006-07 and subsequent marketing years from $0.0096 to $0.0101 per kernelweight pound of assessable walnuts.
The California walnut marketing order provides authority for the Board, with the approval of USDA, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the Board are producers and handlers of California walnuts. They are familiar with the Board's needs and the costs for goods and services in their local area and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed at a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input.
For the 2005-06 and subsequent marketing years, the Board recommended, and USDA approved, an assessment rate of $0.0096 per kernelweight of assessable walnuts that would continue in effect from year to year unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Board or other information available to USDA.
The Board met on September 8, 2006, and unanimously recommended 2006-07 expenditures of $3,222,860 and an assessment rate of $0.0101 per kernelweight pound of assessable walnuts. In comparison, last year's budgeted expenditures were $2,937,600. The assessment rate of $0.0101 per kernelweight pound of assessable walnuts is $0.0005 per pound higher than the 2005-06 rate. The higher assessment rate is necessary to cover increased expenses including increased salaries, operating expenses and research for the 2006-07 marketing year.
The following table compares major budget expenditures recommended by the Board for the 2005-06 and 2006-07 marketing years:
The assessment rate recommended by the Board was derived by dividing anticipated expenses by expected shipments of California walnuts certified as merchantable. Merchantable shipments for the year are estimated at 318,600,000 kernelweight pounds which should provide $3,217,860 in assessment income. Assessment income combined with interest income should allow the Board to cover its expenses. Unexpended funds may be used temporarily to defray expenses of the subsequent marketing year, but must be made available to the handlers from whom collected within 5 months after the end of the year, according to § 984.69.
The estimate for merchantable shipments is based on the California Agricultural Statistics Service's crop estimate for the crop year of 354,000 tons (inshell). Pursuant to § 984.51(b) of the order, this figure was converted to a merchantable kernelweight basis using a factor of .45 (354,000 tons × 2,000 pounds/ton × .45).
The assessment rate established in this rule will continue in effect indefinitely unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Board or other available information.
Although this assessment rate will be in effect for an indefinite period, the Board will continue to meet prior to or during each marketing year to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Board meetings are available from the Board or USDA. Board meetings are open to the public and interested persons may express their views at these meetings. USDA will evaluate Board recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking will be undertaken as necessary. The Board's 2006-07 budget and those for subsequent marketing years will be reviewed and, as appropriate, approved by USDA.
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this rule 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. Thus, both statutes have small entity orientation and compatibility.
There are currently 44 handlers of California walnuts subject to regulation under the marketing order and approximately 5,150 growers in the production area. Small agricultural service firms are defined by the Small Business Administration (SBA) (13 CFR 121.201) as those whose annual receipts are less than $6,500,000, and small agricultural producers are defined as those whose annual receipts are less than $750,000.
Current industry information suggests that 16 of the 44 handlers (36 percent) shipped over $6,500,000 of merchantable walnuts and could be considered large handlers by the SBA. Twenty-eight of the 44 walnut handlers (64 percent) shipped under $6,500,000 of merchantable walnuts and could be considered small handlers.
The number of large walnut growers (annual walnut revenue greater than $750,000) can be estimated as follows. According to the National Agricultural Statistics Service (NASS), the average yield per acre for 2003-05 is 1.567 tons. A grower with 353 acres with average yields would produce approximately 553 tons. The average of grower prices for 2003-05 (published by NASS) is $1,357 per ton. At that average price, the 553 tons produced on 353 acres would yield approximately $750,000 in annual revenue. The 2002 Agricultural Census indicated 56 walnut farms (just under one percent of the 7,025 walnut farmers in 2002) were 500 acres or larger. The 500 acre threshold in the census data is somewhat larger than the 353 acres that would produce $750,000 in revenue with average yields and average prices. Thus, it can be concluded that the number of large walnut farms in 2006 is still likely to be not much above one percent. Based on the foregoing, it can be concluded that the majority of California walnut handlers and producers may be classified as small entities.
This rule continues in effect the action that increased the assessment rate established for the Board and collected from handlers for the 2006-07 and subsequent marketing years from $0.0096 to $0.0101 per kernelweight pound of assessable walnuts. The Board unanimously recommended 2006-07 expenditures of $3,222,860 and an assessment rate of $0.0101 per kernelweight pound of assessable walnuts. The assessment rate of $0.0101 is $0.0005 higher than the 2005-06 rate. The quantity of assessable walnuts for the 2006-07 marketing year is estimated at 318,600,000 merchantable kernelweight pounds. Thus, the $0.0101 rate should provide $3,217,860 in assessment income. Assessment income combined with an anticipated interest income of $5,000 should be adequate to meet this year's expenses. The increased assessment rate is primarily due to increased budget expenditures.
The following table compares major budget expenditures recommended by the Board for the 2005-06 and 2006-07 marketing years:
Prior to arriving at this budget, the Board considered alternative expenditure levels, but ultimately decided that the recommended levels were reasonable to properly administer the order. Unexpended funds may be used temporarily to defray expenses of the subsequent marketing year, but must be made available to the handlers from whom collected within 5 months after the end of the year, according to § 984.69.
According to NASS, the season average grower prices for years 2004 and 2005 were $1,390 and $1,520 per ton, respectively. Dividing these average grower prices by 2,000 pounds per ton provides an inshell price per pound range of between $.70 and $.76. Adjusting by a few cents above and below those prices ($0.67 to $0.79 per inshell pound) provides a reasonable price range within which the 2006-07 season average price is likely to fall. Dividing these inshell prices per pound by the 0.45 conversion factor designated in the order yields a 2006-07 price range estimate of $1.49 and $1.76 per kernelweight pound of assessable walnuts.
To calculate the percentage of grower revenue represented by the assessment rate, the assessment rate of $0.0101 (per kernelweight pound) is divided by the low and high estimates of the price range and then multiplied by 100. The estimated assessment revenue for the 2006-07 marketing year as a percentage of total grower revenue would likely range between .7 and .6 percent.
This action continues in effect the action that increased the assessment obligation imposed on handlers. While assessments impose some additional costs on handlers, the costs are minimal and uniform on all handlers. Some of the additional costs may be passed on to producers. However, these costs are offset by the benefits derived by the operation of the marketing order. In addition, the Board's meeting was widely publicized throughout the California walnut industry and all interested persons were invited to attend the meeting and participate in Board deliberations on all issues. Like all Board meetings, the September 8, 2006, meeting was a public meeting and all entities, both large and small, were able to express views on this issue.
This action imposes no additional reporting or recordkeeping requirements on either small or large California walnut 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.
The AMS 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.
USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.
An interim final rule concerning this action was published in the
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at:
After consideration of all relevant material presented, including the information and recommendation submitted by the Board and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.
Marketing agreements, Walnuts, Nuts, Reporting and recordkeeping requirements.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
The FAA is adopting a new airworthiness directive (AD) for all Fokker Model F.28 Mark 0070 and 0100 airplanes. This AD requires inspecting the carbon-fiber reinforced plastic main landing gear (MLG) door to determine whether certain part numbers are installed. For airplanes having certain doors, this AD requires inspecting the MLG outboard door for cracks, play, and loose sealant/bolts/nuts, and related
This AD becomes effective April 10, 2007.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in the AD as of April 10, 2007.
You may examine the AD docket on the Internet at
Contact Fokker Services B.V., Technical Services Dept., P.O. Box 231, 2150 AE Nieuw-Vennep, the Netherlands, for service information identified in this AD.
Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 227-1137; fax (425) 227-1149.
You may examine the airworthiness directive (AD) docket on the Internet at
The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to all Fokker Model F.28 Mark 0070 and 0100 airplanes. That NPRM was published in the
We provided the public the opportunity to participate in the development of this AD. We received no comments on the NPRM or on the determination of the cost to the public.
We have carefully reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed.
The following table provides the estimated costs for U.S. operators to comply with this AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
(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) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket. See the
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a) This AD becomes effective April 10, 2007.
(b) None.
(c) This AD applies to all Fokker Model F.28 Mark 0070 and 0100 airplanes, certificated in any category.
(d) This AD results from a report of a rod bracket of the main landing gear (MLG) door detaching during flight. We are issuing this AD to detect and correct cracks in the rod bracket attachment bolts, which could result in the rod brackets detaching from the MLG door and blocking the proper functioning of the MLG.
(e) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(f) Within 9 months after the effective date of this AD, inspect the carbon-fiber reinforced plastic (CFRP) MLG doors to determine if any MLG door having a part number (P/N) D13312-401 through -410 inclusive is installed. A review of airplane maintenance records is acceptable in lieu of this inspection if the part number of the CFRP MLG doors can be conclusively determined from that review. If the CFRP MLG doors have any part number other than P/N D13312-401 through -410 inclusive installed, no further action is required by this AD.
(g) If any CFRP MLG door having any P/N D13312-401 through -410 inclusive is found during the inspection required by paragraph (f) of this AD: Within 9 months after the effective date of this AD, do a detailed inspection of the MLG outboard door for cracks, play, and loose sealant/bolts/nuts as specified in Part 1 of the Accomplishment Instructions of Fokker Service Bulletin SBF100-52-080, dated December 12, 2005, including Fokker Manual Change Notification—Maintenance Documentation MCNM-F100-103, dated November 15, 2005, and do all applicable related investigative and corrective actions, by doing all the applicable actions specified in Part 1 of the Accomplishment Instructions of the service bulletin, except as provided by paragraphs (i), (j), and (k) of this AD. Do all applicable related investigative and corrective actions before further flight.
For the purposes of this AD, a detailed inspection is: “An intensive examination of a specific item, installation, or assembly to detect damage, failure, or irregularity. Available lighting is normally supplemented with a direct source of good lighting at an intensity deemed appropriate. Inspection aids such as mirror, magnifying lenses, etc., may be necessary. Surface cleaning and elaborate procedures may be required.”
(h) If any CFRP MLG door having any P/N D13312-401 through -410 inclusive is found during the inspection required by paragraph (f) of this AD: Within 12 months after the effective date of this AD, modify the MLG outboard door operating rod bracket attachment and do all applicable related investigative and corrective actions by doing all the applicable actions specified in Part 2 of the Accomplishment Instructions of Fokker Service Bulletin SBF100-52-080, dated December 12, 2005, including Fokker Manual Change Notification—Maintenance Documentation MCNM-F100-103, dated November 15, 2005, except as provided by paragraph (i) of this AD. Do all applicable related investigative and corrective actions before further flight.
(i) Where Fokker Service Bulletin SBF100-52-080, dated December 12, 2005, including Fokker Manual Change Notification—Maintenance Documentation MCNM-F100-103, dated November 15, 2005, specifies to contact the manufacturer for repair, before further flight, repair using a method approved by either the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA) (or its delegated agent).
(j) If any loose sealant or any delamination is found during any inspection required by paragraph (g) of this AD, before further flight, do the corrective action specified in paragraph C.(3) of Part 1 of the Accomplishment Instructions of Fokker Service Bulletin SBF100-52-080, dated December 12, 2005, including Fokker Manual Change Notification—Maintenance Documentation MCNM-F100-103, dated November 15, 2005.
(k) Although the service bulletin referenced in this AD specifies to submit certain information to the manufacturer, this AD does not include that requirement.
(l)(1) The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(2) Before using any AMOC approved in accordance with § 39.19 on any airplane to which the AMOC applies, notify the appropriate principal inspector in the FAA Flight Standards Certificate Holding District Office.
(m) Dutch airworthiness directive NL-2006-001, dated January 5, 2006, also addresses the subject of this AD.
(n) You must use Fokker Service Bulletin SBF100-52-080, dated December 12, 2005, including Fokker Manual Change Notification—Maintenance Documentation MCNM-F100-103, dated November 15, 2005, to perform the actions that are required by this AD, unless the AD specifies otherwise. The Director of the Federal Register approved the incorporation by reference of this document in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Contact Fokker Services B.V., Technical Services Dept., P.O. Box 231, 2150 AE Nieuw-Vennep, the Netherlands, for a copy of this service information. You may review copies at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, S.W., Renton, Washington; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Federal Aviation Administration, DOT.
Final rule; technical amendment.
This amendment removes an obsolete reference in Special Federal Aviation Regulation 50-2, Special Flight Rules in the Vicinity of Grand Canyon National Park, AZ. In section 9 of that SFAR, there is a “Note” that refers to an informational map of the Special Flight Rules Area (SFRA). This map is no longer available; however, there is an illustrational map of the SFRA in Part 93, Subpart U. Therefore, this technical amendment deletes the reference in SFAR 50-2, which is no longer needed and is confusing to the public.
Linda Williams, Office of Rulemaking (ARM-109), Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591. Telephone: (202-267-9685); e-mail:
In January 2001(66 FR 1002) the FAA found it necessary to delay the implementation of the routes in the east end of the Canyon. Because this was initially difficult to explain in the regulations,
Because an illustrational map of the SFRA is contained in Part 93, Subpart U, the FAA removes the reference to the map in SFAR 50-2. The illustrational map remains in Part 93 to give interested parties a general picture of the Grand Canyon SFRA.
Aircraft, Airmen, Airports, Aviation safety, Freight, Incorporation by reference, Reporting and recordkeeping requirements.
49 U.S.C. 106(g), 1155, 40103, 40113, 40120, 44101, 44111, 44701, 44704, 44709, 44711, 44712, 44715, 44716, 44717, 44722, 46306, 46315, 46316, 46504, 46506-46507, 47122, 47508, 47528-47531, articles 12 and 29 of the Convention on International Civil Aviation (61 stat. 1180).
[Removed]
Federal Aviation Administration (FAA), DOT.
Final rule.
This amendment amends Standard Instrument Approach Procedures (SIAPs) for operations at certain airports. These regulatory actions are needed because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, addition of new obstacles, or changes in 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 March 6, 2007. The compliance date for each SIAP 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 March 6, 2007.
Availability of matter incorporated by reference in the amendment is as follows:
1. FAA Rules Docket, FAA Headquarters Building, 800 Independence Ave., SW., Washington, DC 20591;
2. The FAA Regional Office of the region in which affected airport is located; or
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.
Donald P. Pate, Flight Procedure Standards Branch (AFS-420), Flight Technologies and Programs Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082, Oklahoma City, OK 73125) telephone: (405) 954-4164.
This amendment to Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) amends Standard Instrument Approach Procedures (SIAPs). The complete regulatory description of each SIAP is contained in the appropriate FAA Form 8260, as modified by the National Flight Data Center (FDC)/Permanent Notice to Airmen (P-NOTAM), which is incorporated by reference in the amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of the Code of Federal Regulations. Materials incorporated by reference are available for examination or purchase as stated above.
The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the
This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP as modified by FDC/P-NOTAMs.
The SIAPs, as modified by FDC P-NOTAM, and contained in this
Further, the SIAPs contained in this amendment are based on the criteria contained in TERPS. 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).
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, LDA w/GS, SDF, SDF/DME; § 97.27 NDB, NDB/DME; § 97.29 ILS, MLS, TLS, GLS, WAAS PA, MLS/RNAV; § 97.31 RADAR SIAPs; § 97.33 RNAV SIAPs; § 97.35 COPTER SIAPs, § 97.37 Takeoff Minima and Obstacle Departure Procedures. Identified as follows:
Bureau of Industry and Security, Commerce.
Final rule.
This rule removes the geographic restrictions on use of a license exception used to ship items to U.S. government agencies, applies those geographic restrictions on use of license exceptions to crime control software and technology, reclassifies thumbcuffs on the Commerce Control List, and restates and emphasizes BIS's policy of distinguishing crime control items from specially designed implements of torture for export control purposes.
This rule is effective March 6, 2007.
Comments may be submitted by e-mail to
Steven B. Clagett, Director, Nuclear and Missile Technology Controls Division, Office of Nonproliferation and Treaty Compliance (202) 482-4188.
The Export Administration Regulations (EAR) impose license requirements on certain items because of their potential use in crime control activities. These license requirements are maintained to support U.S. foreign policy to promote human rights. This rule revises the EAR to make certain shipments of crime control items consigned to and for the use of U.S. government agencies eligible for a license exception. It also clarifies and strengthens limits on use of License Exceptions for crime control items generally and clearly delineates between our export control policies regarding legitimate crime control items (a policy of reviewing license applications based on the human rights record in the destination country with some exceptions to the license requirements available in appropriate circumstances) and our policies regarding specially designed implements of torture (a general policy of denial of license applications and no license exceptions available). In addition to these changes, BIS is continuing to review the list of items restricted for crime control reasons to ensure that such controls keep pace with the technologies currently used by law enforcement. The specific changes made by this rule are described more fully below.
This rule replaces the word “commodities” in paragraph (a)(4) of § 740.2 with the word “items” to make clear that the restrictions of paragraph (a)(4) on the use of License Exceptions to export or reexport crime control items apply to software and technology, as well as commodities.
This rule revises paragraph (a)(4) of § 740.2 to permit the use of License Exception GOV for the export of items subject to § 742.7 of the EAR if consigned to and for the official use of any U.S. government agency, worldwide. Although this change applies to any U.S. Government agency, BIS is making it at this time because of the need to supply U.S. armed forces in locations that, prior to publication of this rule, would be subject to the geographic restriction on use of License Exceptions for crime control items. This rule does not expand the scope of eligible recipients under License Exception GOV. In particular, this rule does not make shipments consigned to contractors employed by the U.S. government eligible for License Exception GOV. This rule also reformats paragraph (a)(4) while retaining its pre-existing exemptions for shipments to NATO countries, Australia, New Zealand and Japan as well as certain shipments of shotguns for personal use.
This rule creates a new paragraph (a)(10) in § 740.2. The new paragraph (a)(10) expressly prohibits the use of License Exceptions for all commodities subject to the license requirements of § 742.11 of the EAR (specially designed implements of torture and some related commodities).
This rule revises the heading and paragraph (a) of § 742.11 of the EAR to make clear that the license requirements and licensing policy of that section apply to all commodities that are controlled by Export Control Classification Number (ECCN) 0A983. Such was BIS's interpretation prior to publication of this rule and BIS does not view this as a substantive change. However, prior to publication of this rule, ECCN 0A983 referred to “specially designed implements of torture and thumbscrews; and parts and accessories, n.e.s.,” whereas § 742.11 referred to “specially designed implements of torture controlled by ECCN 0A983.” This rule makes the wording of the headings of § 742.11 and ECCN 0A983 identical and revises the license requirements section of § 742.11 to refer to “any commodity controlled by ECCN 0A983.”
This rule removes thumbcuffs from ECCN 0A982 and adds them to ECCN 0A983. BIS's licensing policy is generally to deny applications to export or reexport thumbcuffs. Controlling them under ECCN 0A983, for which § 742.11 of the EAR provides a general policy of denial, more accurately states BIS's licensing policy than does controlling them under ECCN 0A982, for which § 742.7 provides for favorable case-by-case consideration “unless there is civil disorder in the country or region or unless there is evidence that the government of the importing country may have violated internationally recognized human rights.” In addition, this change will make thumbcuffs ineligible for any License Exception under any circumstances. This rule also adds a “related controls” note to ECCN 0A982 to guide readers to ECCN 0A983 for controls on thumbcuffs.
Although the Export Administration Act of 1979 (EAA), as amended, expired on August 20, 2001, Executive Order 13222 of August 17, 2001 (3 CFR, 2001 Comp., p. 783 (2002)) as extended by the Notice of August 3, 2006, 71 FR 44551 (August 7, 2006), continues the EAR in effect under the International Emergency Economic Powers Act (IEEPA).
1. This rule has been determined to be not significant for purposes of Executive Order 12866.
2. Notwithstanding any other provision of law, no person is required to respond to nor be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
3. This rule does not contain policies with Federalism implications as that
4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public participation, and a delay in effective date, are inapplicable because this regulation involves a military or foreign affairs function of the United States (see 5 U.S.C. 553(a)(1)). Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule by 5 U.S.C. 553, or by any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601
Administrative practice and procedure, Exports, Reporting and recordkeeping requirements.
Exports, Terrorism.
Exports, Reporting and recordkeeping requirements.
50 U.S.C. app. 2401
(a) * * *
(4) The item being exported or reexported is subject to the license requirements described in § 742.7 of the EAR and the export or reexport is not:
(i) Being made to Australia, Japan, New Zealand, or a NATO (North Atlantic Treaty Organization) member state (see NATO membership listing in § 772.1 of the EAR);
(ii) Authorized by § 740.11(b)(2)(ii) (official use by personnel and agencies of the U.S. government); or
(iii) Authorized by § 740.14(e) of the EAR (certain shotguns and shotgun shells for personal use).
(10) The commodity being exported or reexported is subject to the license requirements of § 742.11 of the EAR.
50 U.S.C. app. 2401
(a)
50 U.S.C. app. 2401
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA) is issuing a final rule amending the final monograph (FM) for over-the-counter (OTC) dandruff, seborrheic dermatitis, and psoriasis drug products to include the combination of 1.8 percent coal tar solution and 1.5 percent menthol in a shampoo drug product to control dandruff. FDA did not receive any comments or data in response to its previously proposed rule to include this combination. This final rule is part of FDA's ongoing review of OTC drug products.
Michael L. Chasey, Center for Drug
In the
In the
In the
In the
In 1993, FDA received a petition containing new data in support of the combination of coal tar and menthol for the relief of scalp itching associated with dandruff. This new study addressed the concerns raised by FDA with the original study in the FM. The new study was a three-arm study, so the effectiveness of the individual ingredients could be properly compared to the combination product. In addition, the appropriate statistics were used to analyze the data. The study shows that both menthol alone as well as the combination of menthol and coal tar provide greater itch relief than coal tar alone at 5, 15, and 30 minutes after shampooing and that the differences at each timepoint were statistically significant. Although menthol alone provides itch relief, FDA has no data to support menthol as a single active ingredient for general relief and control of the non-pruritic symptoms of dandruff (e.g., scaling). Thus, in the
FDA did not receive any comments or data in response to the proposed amendment to the final rule. Therefore, in this final rule, FDA is adding the combination of 1.8 percent coal tar and 1.5 percent menthol to § 358.720 (21 CFR 358.720) and removing the combination from § 310.545(d)(3) (21 CFR 310.545(d)(3)). As proposed, FDA is also adding new § 358.760 (21 CFR 358.760) to describe the labeling for this combination. It reads as follows:
• Statement of identity (§ 358.760(a)(1)): “dandruff/anti-itch shampoo” or “antidandruff/anti-itch shampoo”
• Indication (§ 358.760(b)(1) and (b)(2)): “[bullet] [select one of the following: ‘for relief of’ or ‘controls’] the symptoms of dandruff [bullet] [select one of the following: ‘additional’ or ‘extra’] relief of itching due to dandruff”
• Warnings (§ 358.760(c)(1) and (c)(2)): those listed in § 358.750(c)(1) and (c)(2)
• Directions (§ 358.760(d)(1)): “[bullet] wet hair [bullet] apply shampoo and work into a lather [bullet] rinse thoroughly [bullet] for best results, use at least twice a week or as directed by a doctor”
Any OTC dandruff, seborrheic dermatitis, or psoriasis drug product containing this combination of ingredients that is initially introduced or initially delivered for introduction into interstate commerce after the effective date of this final rule and is not in compliance with the regulations is subject to regulatory action.
FDA is adding the combination of 1.8 percent coal tar and 1.5 percent menthol and corresponding labeling and is also revising § 358.720(a) to correct an error. Section 358.720(a) references “sulfur identified in § 358.710(a)(6),” but the paragraph should reference “sulfur identified in § 358.710(a)(7).” This error was introduced when micronized selenium sulfide was added to the monograph and § 358.710(a) was renumbered (58 FR 17554 and 59 FR 4000).
FDA has examined the impacts of the final rule under Executive Order 12866, the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501
FDA concludes that this final rule is consistent with the principles set out in Executive Order 12866 and in these two statutes. This final rule is not a significant regulatory action as defined by the Executive order and so is not subject to review under the Executive order. As discussed in this section, FDA has determined that this final rule will not have significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act. The Unfunded Mandates Reform Act does not require FDA to prepare a statement of costs and benefits for this final rule because the rule is not expected to result in any 1-year expenditure that would meet or exceed $100 million adjusted for inflation. The current threshold after adjustment for inflation is about $118 million, using the most current (2004) Implicit Price Deflator for the Gross Domestic Product.
The purpose of this final rule is to allow an additional combination of active ingredients for OTC antidandruff drug products. Manufacturers can reformulate their OTC antidandruff drug products that contain coal tar to include the combination or can manufacture a new combination product containing coal tar and menthol. Reformulating or manufacturing a new combination product might result in additional product sales but, in either case, is optional. Thus, this final rule will not impose a significant economic burden on affected entities. Therefore, FDA certifies that this final rule will not have a significant economic impact on a substantial number of small entities. No further analysis is required under the Regulatory Flexibility Act (5 U.S.C. 605(b)).
FDA concludes that the labeling requirements proposed in this document are not subject to review by the Office of Management and Budget because they do not constitute a “collection of information” under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
FDA has determined under 21 CFR 25.31(a) 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 analyzed this final rule in accordance with the principles set forth in Executive Order 13132. FDA has determined that the rule will have a preemptive effect on State law. 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.” Section 751 of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 379r) is an express preemption provision. Section 751(a) of the act (21 U.S.C. 379r(a)) provides that:
* * * no State or political subdivision of a State may establish or continue in effect any requirement—* * * (1) that relates to the regulation of a drug that is not subject to the requirements of section 503(b)(1) or 503(f)(1)(A); and (2) that is different from or in addition to, or that is otherwise not identical with, a requirement under this Act, the Poison Prevention Packaging Act of 1970 (15 U.S.C. 1471
This final rule amends the FM for OTC dandruff, seborrheic dermatitis, and psoriasis drug products to include the combination of 1.8 percent coal tar solution and 1.5 percent menthol in a shampoo drug product to control dandruff. Although this final rule has a preemptive effect, in that it precludes States from promulgating requirements related to labeling for OTC dandruff, seborrheic dermatitis, and psoriasis drug products that are different from or in addition to, or not otherwise identical with a requirement in the final rule, this preemptive effect is consistent with what Congress set forth in section 751 of the act. Section 751(a) of the act displaces both State legislative requirements and State common law duties. We also note that even where the express preemption provision is not applicable, implied pre-emption may arise (see
FDA believes that the preemptive effect of the final rule is consistent with Executive Order 13132. Section 4(e) of the Executive order provides that “when an agency proposes to act through adjudication or rulemaking to preempt State law, the agency shall provide all affected State and local officials notice and an opportunity for appropriate participation in the proceedings.”
On January 18, 2007, FDA's Division of Federal and State Relations provided notice via fax and email transmission to elected officials of State governments and their representatives of national organizations. The notice provided the States with further opportunity for input on the rule. It advised the States of the publication of the December 9, 2005, proposed rule and encouraged State and local governments to review the notice and to provide any comments to the docket (2005N-0448) by a date 30 days from the date of the letter (i.e., by February 20, 2007), or to contact certain named individuals. FDA received no comments in response to this notice. The notice has been filed in the above numbered docket.
Administrative practice and procedure, Drugs, Labeling, Medical devices, Reporting and recordkeeping requirements.
Labeling, Over-the-counter drugs.
21 U.S.C. 321, 331, 351, 352, 353, 355, 360b-360f, 360j, 361(a), 371, 374, 375, 379e; 42 U.S.C. 216, 241, 242(a), 262, 263b-263n.
(d) * * *
(3) December 4, 1992, for products subject to paragraph (a)(7) of this section that contain menthol as an antipruritic in combination with the antidandruff ingredient coal tar identified in § 358.710(a)(1) of this chapter. This section does not apply to products allowed by § 358.720(b) of this chapter after April 5, 2007.
21 U.S.C. 321, 351, 352, 353, 355, 360, 371.
(a)
(b)
The statement of identity, indications, warnings, and directions for use, respectively, applicable to each ingredient in the product may be combined to eliminate duplicative words or phrases so that the resulting information is clear and understandable.
(a)
(1)
(2) [Reserved]
(b)
(1)
(2) The following terms or phrases may be used in place of or in addition to the words “for the relief of” or “controls” in the indications in paragraph (b)(1) of this section: “fights,” “reduces,” “helps eliminate,” “helps stop,” “controls recurrence of,” “fights recurrence of,” “helps prevent recurrence of,” “reduces recurrence of,” “helps eliminate recurrence of,” “helps stop recurrence of.”
(3) The following terms may be used in place of the words “the symptoms of” in the indication in paragraph (b)(1) of this section: “scalp” (select one or more of the following: “itching,” “irritation,” “redness,” “flaking,” “scaling”) “associated with”.
(c)
(d)
(1)
(2) [Reserved]
Department of State.
Final rule.
The Department of State (the Department), with the joint review and approval of the Department of Homeland Security (DHS), is issuing a new rule to implement the requirement in the Intercountry Adoption Act of 2000 (the IAA) to establish a Case Registry for,
This rule is effective April 5, 2007. Information about the date the Convention will enter into force with respect to the United States is provided in 22 CFR 96.17.
Anna Mary Coburn at 202-736-9081. Hearing-or speech-impaired persons may use the Telecommunications Devices for the Deaf (TDD) by contacting the Federal Information Relay Service at 1-800-877-8339.
The Convention is a multilateral treaty that provides a framework for the adoption of children habitually resident in one country that is a party to the Convention by persons habitually resident in another country that is also a party to the Convention. The Convention establishes procedures to be followed in these intercountry adoption cases and imposes safeguards to protect the best interests of children. When the Convention enters into force with respect to the United States, it will apply to the United States as both a country of origin (outgoing cases, i.e., where children are emigrating from the United States to a foreign country) and a receiving country (incoming cases, i.e., where children are immigrating to the United States from a foreign country).
The implementing legislation for the Convention is the IAA. The IAA requires the Department and DHS to establish a Case Registry to track all intercountry adoption cases: Convention and non-Convention; emigrating and immigrating cases. The Department is, with the joint review and approval of DHS, promulgating this final rule to require adoption service providers that provide adoption services in intercountry adoption cases involving a child emigrating from the United States (including governmental authorities who provide such adoption services) to report certain information to the Department for incorporation into the Case Registry.
The Department issued a proposed rule for public comment (See Proposed Rule on Intercountry Adoption—Reporting on Non-Convention and Convention Adoptions of Emigrating Children, 71 FR 54001-54005, September 13, 2006). No public comments were received. The Department is now issuing the final rule as it was proposed. No changes have been made to the text of the rule, except that the Department has made certain technical clarifications, including changing the § 99.2 heading and § 99.2(d)(1) to correct any misimpression that the rule applies only to U.S. national children and changing § 99.2(a) to clarify that the reporting requirements do not take effect until the Convention has entered into force for the United States.
In accordance with provisions of the Administrative Procedure Act governing rules promulgated by Federal agencies that affect the public (5 U.S.C. 533), the Department published this rule for public comment.
In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601-612 and Executive Order 13272, section 3(b), the Department of State has evaluated the effects of this action on small entities, and has determined, and hereby certifies, pursuant to 5 U.S.C. 605(b), that it would not have a significant economic impact on a substantial number of small entities. Overall, the number of outgoing intercountry adoption cases is expected to be very small in comparison with the number of incoming cases. Consequently, very few ASPs that are small entities will also be involved in outgoing cases. Moreover, the rule requires only extremely limited reporting requirements for outgoing cases. Thus, the Department does not believe the economic impact on small entities will be significant. The Department received no public comments on the rule's impact on small entities.
This rule is not a major rule as defined by 5 U.S.C. 804 for purposes of congressional review of agency rulemaking under the Small Business Regulatory Enforcement Fairness Act of 1996, Pub. L. 104-121. The rule would not result in an annual effect on the economy of $100 million or more, a major increase in costs or prices, or significant adverse effects on competition, employment, investment, productivity, or innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.
Section 202 of the Unfunded Mandates Reform Act of 1995 (UFMA), Pub. L. 104-4; 109 Stat. 48; 2 U.S.C. 1532, generally requires agencies to prepare a statement, including cost-benefit and other analyses, before proposing any rule that may result in an annual expenditure of $100 million or more by State, local, or tribal governments, or by the private sector. This rule will not result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more in any year. Moreover, because this rule will not significantly or uniquely affect small governments, section 203 of the UFMA, 2 U.S.C. 1533, does not require preparation of a small government agency plan in connection with it.
A rule has federalism implications under Executive Order 13132 if it has substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. This regulation will not have such effects, and therefore does not have sufficient federalism implications to require consultations or to warrant the preparation of a federalism summary impact statement under section 6 of Executive Order 13132.
The Department of State does not consider this rule to be a “significant regulatory action” within the scope of section 3(f)(1) of Executive Order 12866. Nonetheless, the Department has reviewed the rule to ensure its consistency with the regulatory philosophy and principles set forth in the Executive Order.
The Department has reviewed this rule in light of sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden. The Department has made every reasonable effort to ensure compliance with the requirements in Executive Order 12988.
Under the PRA, 42 U.S.C. 3501
Adoption and foster care; International agreements; Reporting and recordkeeping requirements.
The Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (done at The Hague, May 29, 1993), S. Treaty Doc. 105-51 (1998); 1870 U.N.T.S. 167 (Reg. No. 31922 (1993)); The Intercountry Adoption Act of 2000, 42 U.S.C. 14901-14954.
As used in this part, the term:
(a)
(b) Such other terms as are defined in 22 CFR 96.2 shall have the meaning given to them therein.
(a) Once the Convention has entered into force for the United States, an agency (including an accredited agency and temporarily accredited agency), person (including an approved person), public domestic authority, or other adoption service provider providing adoption services in a case involving the emigration of a child from the United States must report information to the Secretary in accordance with this section if it is identified as the reporting provider in accordance with paragraph (b) of this section.
(b) In a Convention case in which an accredited agency, temporarily accredited agency, or approved person is providing adoption services, the primary provider is the reporting provider. In any other Convention case, or in a non-Convention case, the reporting provider is the agency, person, public domestic authority, or other adoption service provider that is providing adoption services in the case, if it is the only provider of adoption services. If there is more than one provider of adoption services in a non-Convention case, the reporting provider is the one that has child placement responsibility, as evidenced by the following factors:
(1) Entering into placement contracts with prospective adoptive parent(s) to provide child referral and placement;
(2) Accepting custody from a birthparent or other legal guardian for the purpose of placement for adoption;
(3) Assuming responsibility for liaison with a foreign government or its designees with regard to arranging an adoption; or
(4) Receiving information from, or sending information to a foreign country about a child that is under consideration for adoption.
(c) A reporting provider, as identified in paragraph (b) of this section, must report the following identifying information to the Secretary for each outgoing case within 30 days of learning that the case involves emigration of a child from the United States to a foreign country:
(1) Name, date of birth of child, and place of birth of child;
(2) The U.S. State from which the child is emigrating;
(3) The country to which the child is immigrating;
(4) The U.S. State where the final adoption is taking place, or the U.S. State where legal custody for the purpose of adoption is being granted and the country where the final adoption is taking place; and
(5) Its name, address, phone number, and other contact information.
(d) A reporting provider, as identified in paragraph (b) of this section, must report any changes to information previously provided as well as the following milestone information to the Secretary for each outgoing case within 30 days of occurrence:
(1) Date case determined to involve emigration from the United States (generally the time the child is matched with adoptive parents);
(2) Date of U.S. final adoption or date on which custody for the purpose of adoption was granted in United States;
(3) Date of foreign final adoption if custody for purpose of adoption was granted in the United States, to the extent practicable; and
(4) Any additional information when requested by the Secretary in a particular case.
Coast Guard, DHS.
Notice of temporary deviation from regulations.
The Commander, Eleventh Coast Guard District, has issued a temporary deviation from the regulation governing the operation of the Isleton Drawbridge across the Sacramento River, mile 18.7, at Isleton, CA. This deviation allows for a 12-hour notice for openings. The deviation is necessary for the bridge owner, the California Department of Transportation (Caltrans), to coordinate vessel traffic with their scheduled critical maintenance and operating upgrades.
This deviation is effective from 12:01 a.m. on April 21, 2007 through 11:59 p.m. on May 25, 2007.
Materials referred to in this document are available for inspection or copying at Commander (dpw), Eleventh Coast Guard District, Building 50-2, Coast Guard Island, Alameda, CA 94501-5100, between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays.
David H. Sulouff, Chief, Bridge Section, Eleventh Coast Guard District, telephone (510) 437-3516.
Caltrans requested a temporary change to the operation of the Isleton Drawbridge, mile 18.7, Sacramento River, at Isleton, CA. The Isleton Drawbridge navigation span provides a vertical clearance of 13 feet above Mean High Water in the closed-to-navigation position. The draw opens on signal between 6 a.m. and 10 p.m. from May 1 through October 31, and between 9 a.m. and 5 p.m. from November 1 through April 30. At all other times, it opens on signal if at least four hours notice is given as required by 33 CFR 117.189. Navigation on the waterway is recreational, search and rescue and commercial traffic hauling materials for levee repair. Caltrans requested a change to the 12-hour notice for openings from 12:01 a.m. on April 21, 2007 through 11:59 p.m. on May 25, 2007. During this time the control house will be replaced, motors refurbished, and operating machinery will be upgraded, resulting in manual control of the drawspan. This temporary deviation has been coordinated with waterway users. No objections to the proposed temporary rule were raised. Vessels that can transit the bridge while in the closed-to-navigation position may continue to do so at any time.
In accordance with 33 CFR 117.35(c), this work will be performed with all due speed in order to return the bridge to normal operation as soon as possible. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Coast Guard, DHS.
Notice of temporary deviation from regulations.
The Commander, Eleventh Coast Guard District, has issued a temporary deviation from the regulation governing the operation of the Paintersville Drawbridge across the Sacramento River, mile 33.4, at Paintersville, CA. This deviation allows for a 12-hour notice for openings. The deviation is necessary for the bridge owner, the California Department of Transportation (Caltrans), to coordinate vessel traffic with their scheduled critical maintenance and operating upgrades.
This deviation is effective from 12:01 a.m. on March 9, 2007 through 11:59 p.m. on April 11, 2007.
Materials referred to in this document are available for inspection or copying at Commander (dpw), Eleventh Coast Guard District, Building 50-2, Coast Guard Island, Alameda, CA 94501-5100, between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays.
David H. Sulouff, Chief, Bridge Section, Eleventh Coast Guard District, telephone (510) 437-3516.
Caltrans requested a temporary change to the operation of the Paintersville Drawbridge, mile 33.4, Sacramento River, at Paintersville, CA. The Paintersville Drawbridge navigation span provides a vertical clearance of 24 feet above Mean High Water in the closed-to-navigation position. The draw opens on signal between 6 a.m. and 10 p.m. from May 1 through October 31, and between 9 a.m. and 5 p.m. from November 1 through April 30. At all other times, it opens on signal if at least four hours notice is given as required by 33 CFR 117.189. Navigation on the waterway is recreational, search and rescue and commercial traffic hauling materials for levee repair. Caltrans requested a change to the 12-hour notice for openings from 12:01 a.m. on March 9, 2007 through 11:59 p.m. on April 11, 2007. During this time the control house will be replaced, motors refurbished, and operating machinery will be upgraded. This temporary deviation has been coordinated with waterway users. No objections to the proposed temporary rule were raised. Vessels that can transit the bridge while in the closed-to-navigation position may continue to do so at any time.
In accordance with 33 CFR 117.35(c), this work will be performed with all due speed in order to return the bridge to normal operation as soon as possible. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Final rule.
FMCSA amends the Federal Motor Carrier Safety Regulations to allow the use of automatic hydraulic inertia brake systems (surge brakes) on trailers when the ratios of gross vehicle weight ratings (GVWR) for the towing-vehicle and trailer are within certain limits. A surge brake is a self-contained permanently closed hydraulic brake system activated in response to the braking action of the towing vehicle. The amount of braking force developed by the trailer surge-brake system is proportional to the ratio of the towing vehicle to trailer weight and deceleration rate of the towing vehicle. This action is in response to a petition for rulemaking from the Surge Brake Coalition (Coalition).
Mr. Luke W. Loy, Vehicle and Roadside Operations Division, Federal Motor Carrier Safety Administration, 202-366-0676, 400 Seventh Street, SW., Washington, DC 20590-0001. Office hours are from 9 a.m. to 5 p.m., e.s.t., Monday through Friday, except Federal holidays.
This Final Rule is organized as follows:
This rule is based on the authority of the Motor Carrier Act of 1935 and the Motor Carrier Safety Act of 1984.
The Motor Carrier Act of 1935 provides that “[t]he Secretary of Transportation may prescribe requirements for—(1) qualifications and maximum hours of service of employees of, and safety of operation and equipment of, a motor carrier; and (2) qualifications and maximum hours of service of employees of, and standards of equipment of, a motor private carrier, when needed to promote safety of operation” [49 U.S.C. 31502(b)].
The amendments to 49 CFR part 393 adopted today deal directly with the “safety of * * * equipment of[ ] a motor carrier” [sec. 31502(b)(1)] and the “standards of equipment of[ ] a motor private carrier * * *” [sec. 31502(b)(2)]. The adoption and enforcement of rules relating to brakes on commercial vehicles was clearly authorized by the Motor Carrier Act of 1935. This rule rests squarely on that authority.
The Motor Carrier Safety Act of 1984 provides concurrent authority to regulate drivers, motor carriers, and vehicle equipment. It requires the Secretary of Transportation to “prescribe regulations on commercial motor vehicle safety. The regulations shall prescribe minimum safety standards for commercial motor vehicles.” Although this authority is very broad, the Act also includes specific requirements: “At a minimum, the regulations shall ensure that—(1) commercial motor vehicles are maintained, equipped, loaded, and operated safely; (2) the responsibilities imposed on operators of commercial motor vehicles do not impair their ability to operate the vehicles safely; (3) the physical condition of operators of commercial motor vehicles is adequate to enable them to operate the vehicles safely; and (4) the operation of commercial motor vehicles does not have a deleterious effect on the physical condition of the operators” [49 U.S.C. 31136(a)].
This rule focuses primarily on the mandate of sec. 31136(a)(1) that commercial motor vehicles (CMVs) be “equipped * * * and operated” safely. FMCSA has determined that surge brakes can safely be allowed on trailers operating in interstate commerce under the conditions set forth in this final rule. Sections 31136(a)(2) and 31136(a)(4) deal with the safety and health effects, respectively, of the operational responsibilities imposed on CMV drivers. The Agency has concluded that operating a combination vehicle that includes a surge-braked trailer meeting the requirements of this rule would neither impair a driver's ability to operate safely nor adversely affect the driver's health. Finally, sec. 31136(a)(3) deals almost exclusively with a driver's “physical condition,” i.e., medical status. That subject is not specifically addressed in this rule, and the surge-brake provisions adopted today would not affect a driver's physical condition.
Before prescribing any regulations, FMCSA must also consider the “costs and benefits” of its proposal (49 U.S.C. 31136(c)(2)(A) and 31502(d)). Those factors are discussed in the regulatory analysis for this rule filed separately in the docket.
The National Highway Traffic Safety Administration (NHTSA) has a legislative mandate under Title 49 of the United States Code, Chapter 301, Motor Vehicle Safety, to issue Federal Motor Vehicle Safety Standards (FMVSS) and Regulations to which manufacturers of motor vehicles must conform; manufacturers must certify that their vehicles and equipment comply with the FMVSSs. These Federal safety standards are regulations written in terms of minimum safety performance requirements for motor vehicles or equipment. These requirements are specified in such a manner that the public is protected against unreasonable risk of crashes occurring as a result of the design, construction, or performance of motor vehicles and is also protected against unreasonable risk of death or injury in the event crashes do occur.
FMVSS No. 121, “Air brake systems,” specifies performance and equipment requirements for trucks, buses, and trailers equipped with air brake systems, including air-over-hydraulic brake systems, to ensure safe braking performance under normal and emergency conditions.
Whereas the FMVSSs—other than FMVSS No. 121—do not specify performance requirements for trailer braking, Section 393.40 of the FMCSRs requires each CMV to have brakes adequate to stop and hold the vehicle or combination of motor vehicles. Trailer braking performance is specified in Section 393.52(d) of the FMCSRs, and generally requires property-carrying vehicles and combinations of property-carrying vehicles used in interstate commerce be able to stop within 40 feet from 20 miles-per-hour (mph) on a hard surface that is substantially level, dry, smooth, and free of loose material. However, any semitrailer, trailer, or pole trailer with a gross weight of 3,000 pounds or less is not required to be equipped with brakes if the axle weight of the towed vehicle does not exceed 40 percent of the sum of the axle weights of the towing vehicle. Thus, a combination operating in interstate commerce would not need brakes on a 3,000-pound trailer when pulled by a 7,500-pound or heavier towing vehicle (49 CFR 393.42(b) (3)-(4)). In these cases, the vehicle combination must be able to stop within 35 feet from 20 mph, and the service brakes of the towing vehicle alone are sufficient to stop the combination.
In 1952, the two requirements regarding brakes that are the subject of this rulemaking were included in the FMCSRs. Section 393.48 of the FMCSRs requires that all brakes with which a motor vehicle is equipped be capable of operating at all times. In addition, § 393.49 requires that a single application valve must, when applied, operate all the service brakes on the motor vehicle or combination of motor vehicles. While electric brakes on trailers used in interstate commerce are considered to meet the requirements of §§ 393.48 and 393.49, and have been in use for many years, regulatory guidance issued by the Agency in 1975 (40 FR
Subsequent regulatory guidance published by FHWA on November 17, 1993, (58 FR 60734, 60755) indicated that surge brakes did not comply with either § 393.48 or § 393.49. It reads as follows:
Question 1: Do surge brakes comply with § 393.48?
The 1993 guidance was also republished in FHWA's April 4, 1997, publication, “Regulatory Guidance for the Federal Motor Carrier Safety Regulations.” (62 FR 16370, 16415-16416)
Various parties over the years expressed concern about FMCSA's position on trailer surge brakes. FMCSA advised interested parties to follow the procedures found at § 389.31 and submit a petition requesting such a rule change accompanied by sufficient information supporting the safety performance of their request. The Surge Brake Coalition (Coalition) submitted such a petition requesting a rulemaking to change the regulation. FMCSA notes that in contrast to the United States, Canada allows surge brake systems on trailers used in inter-Provincial commerce. Today's rule allowing surge brakes will enhance the uniformity of Canadian and U.S. safety regulations.
The Coalition submitted a petition on February 28, 2002, asking FMCSA to undertake rulemaking to allow surge brakes by amending §§ 393.48 and 393.49. Members of the Coalition include trailer manufacturers, parts suppliers, commercial users of surge-braked trailers, trailer rental companies, and trade associations representing segments of the trailer business. A copy of the Coalition's petition is included in the docket referenced at the beginning of this document.
The Coalition said:
Technological advances in braking systems render the original purpose of 393.49 and its “single-valve” criterion overly broad and excessively restrictive. FHWA [previously] developed this regulation as a materials-oriented specification to foreclose the shortcomings of and risks associated with the predominant braking system of the day, wheel brakes and their use in conjunction with large tractors or power units.
The Coalition asserted that Congress had declared that DOT's motor vehicle safety standards must be minimum performance standards, based upon performance of the vehicle (49 U.S.C. 30102(a)(8) and (9)). The standards must “meet the need for motor vehicle safety” and must be “stated in objective terms” (49 U.S.C. 30111(a)). However, FMCSA's interpretation of how §§ 393.48(a) and 393.49 apply to surge brakes is a prescriptive component specification that does not address how the trailer braking system performs either as a unit or as part of a combination vehicle.
The Coalition requested that section 393.48 be amended by:
1. Revising paragraph (a) to read:
“General rule. Except as provided in paragraphs (b), (c), and (d) of this section, all brakes with which a motor vehicle is equipped must at all times be capable of operating.”
2. Adding a new paragraph (d) to read:
“(d) Surge brakes. Paragraph (a) of this section does not apply to:
Any trailer with a gross vehicle weight rating (GVWR) of 12,000 pounds or less, equipped with inertial surge brakes when its GVWR does not exceed 1.75 times the GVWR of the towing vehicle; or
Any trailer with a GVWR greater than 12,000 pounds, but less than 20,001 pounds, equipped with inertial surge brakes when the GVWR does not exceed 1.25 times the GVWR of the towing vehicle.”
The Coalition also requested the following exception be added to § 393.49:
“This requirement shall not apply to trailers equipped with surge brakes that satisfy the conditions provided in § 393.48(d).”
The Coalition argued that surge brakes provide a safe, practical braking system for CMV combinations, especially for scenarios in which the trailer is likely to be towed by a variety of vehicles. For example, in the rental market, trailers are commonly rented separately from towing vehicles, and towing vehicles frequently are not wired for electric brake controls. The Coalition indicated that rental companies believe it is “prohibitively expensive and impractical” to install or adapt an electric brake control system on each towing vehicle every time they rent a trailer or piece of mobile equipment outfitted with electric brakes.
The Coalition stated that surge brakes are a popular alternative to electric brakes because they activate automatically when the towing vehicle brakes are applied, adapt to the weight of the trailer load, have fewer components, and require less maintenance than trailers with electric brakes. These features make surge brakes ideal for flatbed and van-type trailers with a GVWR of 20,000 pounds or less, and boat trailers serving the marine industry. The Coalition also noted that manufacturers install approximately 250,000 surge brake systems annually on such trailers. This includes both in the personal market and the commercial intrastate market in 7 States, as of their 2002 petition, where the Coalition said surge brakes are allowed in intrastate commercial applications. (The 2004 article cited in the Regulatory Evaluation from Trailer Body Builders indicates the number of such States had risen to 9.
In order to demonstrate systematically that surge brake equipped trailers meet the safety performance requirements of the FMCSRs, as well as relevant testing
The facility selected by Mr. Klein was Exponent Failure Analysis Associates' (EFAA) Test and Engineering Center in Phoenix, Arizona. EFAA is an ISO 9001 lab that conducts a wide variety of scientific testing and research. EFAA has performed compliance testing on various FMVSSs for NHTSA. Initially, EFAA tested and fully analyzed the data from the braking performance of 11 different combinations of instrumented towing vehicles and trailers from the matrix developed by Mr. Klein. Those 11 combinations were chosen for full analysis from the 20 instrumented combinations initially tested because they represented a very wide range of towing vehicle to trailer GVWR ratios. Based on results of those initial tests, two additional vehicle configurations were tested to determine the performance of trailers over 12,001 pounds GVWR when the ratio of the simulated trailer GVWR to towing vehicle GVWR was restricted to 1:1.25.
Mr. Klein interpreted the test data provided to him by EFAA and prepared the final report. His report is included as part of the petition submitted by the Coalition, and is, thus, included in the docket for this rulemaking.
•
•
•
•
•
•
The petition referred to the Chevrolet K-3500 and GMC Sierra as “heavy” vehicles. This document labels them as medium weight vehicles to distinguish them from the later discussion of a towing vehicle with a 16,000-pound GVWR, which we term “heavy.”
The Coalition developed a test plan modeled on the procedures employed by NHTSA. It was designed to check brake performance in three areas of particular concern for surge brake equipped trailers.
1.
2.
3.
A total of 22 towing vehicle and trailer combinations were tested. The petition explained that data from 13 instrumented combinations representing the widest possible range of weight ratios were selected for detailed analysis and inclusion in Mr. Klein's final report, which was included in the petition. The petition says that data collected from the other instrumented vehicle combinations tested were not included in the report because of budget constraints, but these tests generated essentially the same performance results as those that were included.
Initially, three towing vehicles representing two weight classes were tested with three trailers representing three weight classes. Subsequently, a fourth medium weight towing vehicle and heavy trailer were added for two extra tests.
The first three towing vehicles were run both at their unloaded curb weights of 4,194 pounds, 7,072 pounds and 7,476 pounds, and also loaded to their approximate GVWR of 6,100 pounds, 11,400 pounds, and 11,400 pounds, respectively. The three trailers were loaded at different weights to simulate towing vehicle to trailer GVWR ratios of 1:1, 1:1.25, 1:1.5, 1:1.7 and 1:2. The test “curb weights” shown in the petition for the towing vehicles were measured by driving the towing vehicles with loaded trailers attached onto the scales just before starting the test. Thus, the “curb weights” shown in the test data includes the driver, test equipment, fuel load, and tongue weight. A reasonable approximation of the tongue weight is 10 percent of the loaded trailer weight. For example, in a medium towing vehicle with an unloaded curb weight of
1.
The light towing vehicle loaded approximately to its GVWR of 6,100 pounds was also tested with a medium weight trailer (14,000 pounds GVWR) loaded to 9,090 pounds and 12,090 pounds (simulating GVWR ratios of approximately 1:1.5 and 1:2, respectively). These combinations also complied with § 393.52 by stopping from 20 mph within 40 feet.
The medium towing vehicles of 11,400 pounds GVWR were tested loaded to their GVWR with (1) a medium trailer (GVWR 14,000 pounds) partially loaded to 12,090 pounds for a simulated ratio of approximately 1:1.1, and (2) a heavy trailer (GVWR 20,000 pounds) partially loaded to 14,600 pounds for a simulated GVWR ratio of approximately 1:1.25. These combinations complied with § 393.52, demonstrating safe braking performance when the simulated GVWR of trailers heavier than 12,000 pounds was limited to approximately the requested 1.25 times that of the towing vehicle, or less.
A medium towing vehicle tested with a heavy trailer (both loaded to approximately their GVWR for a ratio of 1:1.75) achieved a stopping distance of 44.7 feet from 20 mph. This combination has a GVWR ratio that is considerably higher (approximately 40 percent higher) than the 1:1.25 requested by the petitioner for heavier trailers, yet the vehicle combination still came very close to the stopping distance requirement of 40 feet, as specified in § 393.52.
This test with a GVWR ratio of 1:1.75 demonstrated that the Coalition's proposed GVWR ratio of 1:1.25 is conservative, and includes a substantial safety margin for trailers with a GVWR greater than 12,000 pounds.
2.
The combinations included in these tests included: light towing vehicle and light trailer; the light towing vehicle and the medium trailer; medium towing vehicle and medium trailer; and medium towing vehicle and heavy trailer. The reported results indicated that in all of the 39 tests, the combinations were able to stop from 30 mph within a 12 foot lane on a 500 foot radius circle without any loss of control.
3.
Although surge brakes automatically release when deceleration stops, the tests showed that the service brakes of a towing vehicle are more than adequate to hold the combination at a stop even while facing uphill on a 20 percent grade, even when the GVWR ratios substantially exceed the limits proposed by the Coalition.
The data submitted by the Coalition indicate that approximately 250,000 surge-brake units are installed each year. This large number creates a considerable population of non-commercial surge-braked trailers operating on the public roads. Numerous commenters contend that this trailer braking technology is inherently unsafe, as discussed in following sections, because—compared to other brake systems—it increases (1) the risk of brake fires while descending large hills, and (2) the risk of crashes. FMCSA was unable to find any data to support those claims. Although surge brakes have been in use for many years, no government agency or private entity that FMCSA is aware of has found their performance to be inadequate or contributory to highway crashes. The absence of such data suggests that the alleged safety problems of surge brakes are in fact a non-issue for their manufacturers, renters and insurers of trailers so equipped, and State and local safety officials. FMCSA believes that the use of surge brakes has proven to be safe.
FMCSA investigated whether crash data could be obtained from either NHTSA's Fatality Analysis Reporting System (FARS) or the General Estimates System (GES) to assist in this evaluation. Neither FARS nor GES identifies the type of brakes used on trailers involved in fatal or non-fatal crashes and, therefore, cannot reveal whether surge brakes are under-or over-represented in crash statistics.
FMCSA analyzed the information provided by the Coalition and, as indicated in the NPRM, made a preliminary determination that the test results supported a number of conclusions. Vehicles equipped with surge brakes, subject to the GVWR ratios proposed in the petition and NPRM (1) have sufficient braking capability to comply with the Agency's stopping requirements while operating on public roads in interstate commerce; (2) have no braking stability problems; and (3) are able to safely hold their position when stopped facing uphill on steep grades, and then to proceed.
The test results involving a medium towing vehicle and a heavier trailer were particularly important. The tests demonstrated that heavier towing vehicles in compliance with FMVSS No. 105, which allows a longer stopping distance for non-passenger vehicles over 10,000 pounds, would still meet the vehicle braking performance requirements of § 393.52 if the GVWR ratio of towing vehicle to trailer did not exceed 1:1.25. The Coalition's petition asked for the break point in towing vehicle to trailer GVWR ratio to occur at 12,000 pounds. At a GVWR ratio of 1:1.25, the FMVSS No. 105 definition for towing vehicles of 10,000 or more pounds would place that break point for trailers with a GVWR of over 12,500 pounds. FMCSA chose the more conservative 12,000 requested by the Coalition.
Thus, while surge brakes are not “operable at all times,” as required by § 393.48(a), FMCSA concluded that the Coalition's safety performance test
FMCSA's analysis of the petition was reviewed by NHTSA, which concurred in the determination to grant the petition to initiate a rulemaking.
FMCSA published an NPRM on October 7, 2005 (70 FR 58657). The Agency explained that the use of surge brakes, under the conditions specified in the NPRM, appeared to be consistent with the safety performance objectives, though not the letter, of §§ 393.48 and 393.49. Therefore, the Agency concluded it was appropriate to propose amending the regulations to allow the use of surge-braked trailers in interstate commerce.
The NPRM proposed adding the following definition of “surge brake” to § 390.5:
The NPRM proposed amending § 393.48 by revising paragraph (a) and adding paragraph (d) to read as follows:
(a)
(b) * * *
(c) * * *
(d)
(i) Any trailer with a gross vehicle weight rating (GVWR) of 12,000 pounds or less, equipped with inertial surge brakes when its GVWR does not exceed 1.75 times the GVWR of the towing vehicle; or
(ii) Any trailer with a GVWR greater than 12,000 pounds, but less than 20,001 pounds, equipped with inertial surge brakes when the GVWR does not exceed 1.25 times the GVWR of the towing vehicle.
The NPRM proposed replacing § 393.49 in its entirety, including a revised title, to read as follows:
(a)
(b)
(c)
In view of the representative nature of the simulated GVWR ratios for towing vehicles and trailers used in the Coalition's tests and the satisfactory performance results, the NPRM noted that it was appropriate to conclude that surge-braked vehicles were safe, when operating within the specified ratios of towing vehicle GVWR to trailer GVWR.
The petition did not include test data demonstrating that a towing vehicle with a GVWR of 16,000 pounds or more, towing a 20,000 pounds trailer, could stop within 40 feet. Therefore, FMCSA noted it was reasonable to assume such a combination would pass the test, but also asked for public comment and data either supporting or contradicting that assumption. Specifically:
The Agency requests comment on whether additional analysis is needed to support the Petitioner's assertion that vehicle combinations that include a heavy trailer (GVWR between 14,600 pounds and 20,000 pounds) would satisfy FMCSA's brake performance requirements under § 393.52 when the GVWR of the trailer is 1.25 times that of the towing vehicle or less. The agency is also requesting the submission of brake performance data and information relevant to all the other issues raised in the petition, and the proposed amendments to §§ 393.48 and 393.49.
The Agency received 63 individual comments in response to the NPRM. (In some cases, more than one person from the same organization submitted similar comments.) Comments were submitted on behalf of the following organizations: A-1 Rental; A to Z Rental Center; ABC Equipment Rental; Action Rental; ADH Equipment & Sales; Advocates for Highway and Auto Safety (Advocates); Aide Rentals & Sales II; All County Rental Center; All Star Rents; ALTCO Tool Rental, L.L.C.; American Rental Association (ARA); American Trucking Associations, Inc. (ATA); Aurora Rents, Inc.; Arapahoe Rental; Bee Gee Rental & Sales; Mr. Barry Hansel; Bill's Rental Center, Inc.; Bradley Rentals; Bryant's Rent-All, Inc.; Buttons Rent-It; Carlisle Industrial Brake and Friction (Carlisle); Construction Rental Inc.; County Corner Rental Center, Inc.; Do-It-Yourself, Inc.; Equipment Rentals Inc.; Front Range Rents; Grants Rental; Highway 55 Rental; House of Rental; Jackson Rentals & Supplies Inc.; Johnson Creek Rentals; Kimps ACE Hardware and Rental; LEW Corporation; Lew Rents; Lindner Hardware, Inc.; London Road Rental Center; Maryland State Highway Administration, Motor Carrier Division (MDSHA/MCD); Mikerentals, Inc.; National Marine Manufacturers Association (NMMA); the Ohio State Highway Patrol (OSHP); Reading Rentals, Inc.; Rental World; The Rentit Shop Inc.; S and M Rentals Inc.; Southwest Rentals, Inc.; Sunstate Equipment Co.; Surge Brake Coalition (Coalition); Taylor Rental; Taylor Rental Center; Truck Manufacturers Association (TMA); Tidewater Rental & Sales; Total Rental Center; Top Quality Rental and Sales, LLC; United Rentals; Wautoma Rental Center; Wirtz Rentals, Co.; and Wirtz Rentals Co. Summit Division.
Fifty-four (54) commenters identified themselves as members of the ARA, and provided comments supporting the NPRM. The ARA commenters stated they rent surge brake equipped trailers, and indicated that FMCSA's current interpretation of the rules causes problems for both commercial and non-commercial customers. Specifically, non-commercial customers may use trailers equipped with surge brakes for private use without restrictions, while commercial customers are prohibited from using those same trailers in interstate commerce (or even in intrastate commerce in 41 States and the District of Columbia) due to the existing interpretations of the FMCSRs. These 54 commenters are grouped together under ARA.
1. ARA is a member of the Coalition, and supports its comments to the docket. ARA's initial comments essentially repeat material included in
Under the current regulations, a person operating as a licensed contractor may not transport equipment on rented trailers equipped with surge brakes in interstate commerce. The requirement of the Motor Carrier Safety Assistance Program (MCSAP) that States adopt regulations compatible with Federal regulations (49 CFR 350.201(a), 350.341) has resulted in the widespread prohibition of surge-braked trailers for commercial purposes, even in intrastate commerce. However, the Coalition points out that an individual can legally use surge-braked trailers for non-commercial uses. ARA believes this creates a fundamentally unworkable system for rental businesses.
ARA contends that there are no viable alternatives to surge brakes for rental businesses, where customers usually own the towing vehicles. Trailers with electric brake systems are available, but are not standardized, and towing vehicles are not always equipped with electric brake controllers and the necessary wiring to operate trailers equipped with electric brakes. ARA states that trailer brakes are a fundamental safety requirement, and that use of self-contained surge brakes is the only viable way rental businesses can meet that requirement.
ARA asserted that safety is a serious concern for its members and that the safety record of surge-braked rental trailers is good. ARA said that ARA Insurance Services (AIS), its wholly owned insurance subsidiary, offers property, casualty and liability insurance to ARA members. It offered the following information:
AIS writes insurance policies for approximately 40 percent of the ARA membership. AIS researched all trailer claims in its system back to 1989. During those 16 years, only six percent of the claims were for accidents involving trailers or towable equipment. In 91 percent of those claims, AIS was able to determine that on trailers equipped with surge brakes, the brakes were not the cause of the accidents. On the remaining nine percent [or 0.54% of all claims], there was not enough information or evidence available for AIS to find that surge brakes were a factor, nor to rule out the possibility that surge brakes were involved. However, within that 9 percent, we [AIS] found only two claims that actually mentioned surge brakes and neither of those specified that the insured [rental company] was liable for faulty surge brakes. It is noteworthy that through 25-plus years in business, AIS has and continues today to write insurance coverage for ARA members that have surge brake-equipped trailers in their fleets. There are no special provisions, premiums, or riders required for insuring surge brake equipped trailers in rental fleets.
Many of ARA's comments addressed the issue of efficiency in trailer-rental operations that, while not directly related to safety, were considered in the preparation of this rule, including the regulatory analysis of its costs and benefits.
2. (a) The Coalition pointed out that surge brake technology has evolved since the petition was submitted and suggested the definition of surge brakes may someday require modification. For example, non-hydraulic surge brake systems have been developed and are entering the marketplace in Europe. The Coalition proposed that FMCSA consider deleting “permanently closed hydraulic” and the adjective “hydraulic” from the definition of surge brakes as proposed in § 390.5 to eliminate any future design restrictions, or the need for further rulemaking petitions. The bulk of the Coalition comments responded to the request in the NPRM to provide additional information on trailers with weights between 14,000 pounds and 20,000 pounds.
(b) The Coalition acknowledged its tests did not include a towing vehicle with a GVWR exceeding 11,400 pounds. Under the proposal, a towing vehicle with a minimum GVWR of 16,000 pounds would be required to tow a trailer with a GVWR of 20,000 pounds. Instead of obtaining a 16,000 pound towing vehicle and running actual tests, the Coalition hired a national trailer expert, Dr. Michael Graboski, to perform independent mathematical analyses to predict braking performance from the data generated by the Coalition's tests. Specifically, Dr. Graboski used the test data submitted in the petition and analytically predicted that the combination of a heavy towing vehicle (GVWR of 16,000 pounds or greater) and a trailer of 20,000 pounds GVWR would comply with the stopping distance requirements of § 393.52.
The Coalition again asserted that the stopping distance for a properly matched combination vehicle depends on the ratio of the towing-vehicle to trailer weight, and not just on the weight of the trailer. The Coalition argued that the EFAA straight-line braking data is sufficient to predict that combinations with heavy trailers (14,600 to 20,000 pounds GVWR) would comply with the requirements of § 393.52 at GVWR ratios of 1:1.25 and less. It then reiterated the following test data results:
• Test data showed that the medium towing vehicle loaded to its approximate test GVWR of 11,730 pounds successfully completed the braking in a 2curve testing at 30 mph with a test weight trailer of 20,560 pounds. This represents a simulated GVWR ratio of 1:1.75, compared to the proposed GVWR ratio of 1:1.25.
• The towing vehicle loaded to its approximate test GVWR of 11,730 pounds with a test weight trailer of 20,560 pounds also successfully held the combination facing uphill on a 20 percent grade for 5 minutes using the service brakes. This is a GVWR ratio of 1:1.75, compared to the proposed GVWR ratio of 1:1.25.
• The towing vehicle loaded to its approximate test GVWR of 11,730 pounds, pulling a test weight trailer of 20,560 pounds, was also able to stop in a straight line from 20 mph in a distance of 44.7 feet, which only slightly exceeds the 40 feet stopping distance requirement of § 393.52. But this combination represents a GVWR ratio of 1:1.75 as compared to the proposed GVWR ratio of 1:1.25 for trailers between 12,001 pounds and 20,001 pounds GVWR.
• The towing vehicle (both at test curb weight of 9,260 pounds and loaded to its GVWR of 11,400 pounds) pulling a 20,000 pound GVWR trailer loaded to 14,600 pounds (ratio of 1:1.28) stopped within 38.5 and 38.9 feet respectively. The test data was used to perform the two following analytical analyses.
The deceleration of a towing vehicle-trailer combination is the sum of the towing vehicle and trailer braking forces divided by the sum of the weights of the towing vehicle and trailer. Surge brake operation relies on the compression force at the trailer hitch caused by deceleration of the towing vehicle being delivered to the trailer's hydraulic actuator to activate the trailer's hydraulic brakes. The compression force at the hitch is the product of the deceleration of the towing vehicle and the weight of the trailer minus the brake force of the trailer surge brakes.
Upon applying the towing vehicle brakes, the surge brake actuator, located between the trailer and the towing vehicle, receives the initial compressive force that results from the inertia difference between the braked towing vehicle and the as-yet-unbraked trailer. The surge brake actuator drives a piston in the trailer's hydraulic brake system master cylinder producing hydraulic pressure in the trailer's braking system proportional to that initial compressive force. The ratio of the resulting initial braking force applied to the trailer brakes to the compressive force at the surge brake actuator is termed the surge brake gain. More simply stated, the gain is the ratio of the amount of trailer braking force developed per pound of horizontal hitch force. This is a measure of the performance of that surge brake system. The value achieved is determined by the design characteristics of that particular system, including characteristics of the actuator. Although initial compression force generated at the hitch is subsequently diminished because of the braking force being applied by the trailer brakes, the amount of trailer braking force remains dependent on the gain realized above the remaining force at the hitch.
Dr. Graboski used the Klein and Szostak model to calculate the minimum required surge brake gain, G, necessary for the combination vehicle to stop within the 40 feet stopping distance requirement of § 393.52. That value is 1.48.
Instrument readings from several tests were available from EFAA. Those readings were used to calculate the initial surge brake gains that occurred for the two actuators tested for the two 20,000 pound GVWR 2001 Wells Cargo flatbed trailers. One was equipped with a Titan Model 20 surge brake actuator and the other with a Demco DA20 surge brake actuator.
• Towing vehicle loaded to its approximate test GVWR of 11,300 pounds and the 20,000 pound GVWR trailer loaded to 16,540 pounds, for a simulated GVWR ratio of approximately 1:1.45.
• Towing vehicle of 11,400 GVWR at test curb weight of 9,370 pounds and the 20,000 GVWR trailer loaded to 16,540 pounds, for a simulated GVWR ratio of approximately 1:1.45.
• Towing vehicle at approximate test GVWR of 11,730 pounds and the trailer loaded to its test GVWR of 20,560 pounds, for a GVWR ratio of approximately 1:1.75.
• Towing vehicle at approximately test GVWR of 11,400 pounds and the 20,000 pounds GVWR trailer loaded to a test 14,600 pounds, for a simulated GVWR ratio of about 1:1.28.
• Towing vehicle of 11,400 GVWR at test curb weight of 9,260 pounds and the 20,000 pounds GVWR trailer loaded to 14,600 pounds, for a simulated GVWR ratio of approximately 1:1.28.
Using the Klein and Szostak model, the surge brake gain, G, achieved for each of these surge brake actuators was calculated. It was 1.59 for the Demco DA20 and 1.84 for the Titan Model 20 surge brake actuators. The surge brake gain achieved by each of these actuators is thus well above the calculated minimum surge brake gain, G, of 1.48 needed to stop a combination of a 16,000 pound towing vehicle with a 20,000 pound trailer within 40 feet from 20 mph.
Based upon these analyses, the Coalition submits that it is safe to operate 20,000-pound GVWR trailers with towing vehicles having GVWRs of 16,000 pounds or more with braking characteristics similar to the vehicles tested. In summary, the Coalition believes that their tests and analytical evaluation of the data provide sufficient information to conclude that the proposals in the NPRM should be adopted.
(b) The additional analysis is consistent with the provision of § 389.31(b)(4) that requires petitions to contain “* * * any information and arguments available to the petitioner to support the action sought.” It is also consistent with the following request in the NPRM:
The Agency requests comment on whether additional analysis is needed to support the Petitioner's assertion that vehicle combinations that include a heavy trailer (GVWR between 14,600 lbs and 20,000 lbs) would satisfy FMCSA's brake performance requirements under § 393.52 when the GVWR of the trailer is 1.25 times that of the towing vehicle or less. The agency is also requesting the submission of brake performance data and information relevant to all the other issues raised in the petition, and the proposed amendments to §§ 393.48 and 393.49.
The Agency notes that the Klein and Szostak model was applied on the assumption that the sustained braking deceleration of the heavy towing vehicle with a 16,000-pound GVWR remains the same as the initial braking deceleration achieved by the medium 11,400-pound GVWR vehicles. The basis for this assumption is that the 16,000 pound GVWR vehicle is required by FMVSS No. 105 to comply with the same braking performance (stopping distance) as the 11,400 pound GVWR vehicle. Therefore, the total braking capability of the 16,000 pound vehicle must be proportionally greater than for the 11,400 pound vehicle, making it more capable of maintaining the initial
The assertion by the Coalition that the surge brake gain of both the Demco and Titan exceeds the minimum necessary for the combination vehicle to stop within 40 feet is relevant only if these actuators are reasonably representative of the brake gain provided by other surge brake actuators available in the market.
FMCSA notes that the Demco and Titan actuators on the test trailers represent manufacturers with very prominent market shares for heavy trailer actuators. The technology on which these actuators are based is quite standardized. The market for surge brake actuators for heavy trailers (14,600-20,000 pounds) is relatively small. As such, it is reasonable to assume other competing surge brake actuators in this weight range will have to provide comparable performance to remain competitive in the market. Therefore, the Agency believes the measured surge brake gains of 1.59 and 1.84 are representative, and that it is reasonable to presume the minimum gain necessary of 1.48 will be met by available actuators.
The Agency determined that the Coalition has provided sufficient additional analytical information supporting its original proposal to allow surge brakes on trailers when the towing vehicle to trailer GVWR ratio does not exceed 1:1.25 for trailers with GVWRs between 14,600 pounds and 20,000 pounds. The two independent analytical methods used by the Coalition, in conjunction with available test data, both predict that combination vehicles towing surge-braked trailers with GVWRs between 14,600 and 20,000 pounds, but not more than 1.25 times the GVWR of the towing vehicle, can meet the 40 feet stopping distance of § 393.52.
FMCSA finds these additional analyses persuasive and agrees with their conclusions.
3. The National Marine Manufacturers Association (NMMA) supports the use of trailers equipped with surge brakes in interstate “commercial” applications, and argues the recreational marine industry has a unique problem regarding surge brakes. NMMA notes that surge brakes are especially useful and reliable in marine applications where the boat trailer is expected to be repeatedly immersed in water, a practice that could damage components of electric brakes. NMMA states that while the consumer use of surge brakes on boat trailers is exempt from existing Federal regulations, the same brake system that is considered a safety feature for consumer use is prohibited when that boat trailer is used in a technically “commercial” application (for example, when a boat dealer or repair shop transports a boat to or from a customer using the customer's trailer). In addition, the FMCSRs may be violated when a boat dealer or manufacturer transports a boat on a consumer type surge-braked trailer to or from a boat show.
NMMA believes the current regulation is especially burdensome for the recreational boat industry, since a consumer boat trailer is often specifically matched or manufactured for a particular boat and is the preferred way to transport that boat. NMMA notes that this use of a surge brake equipped boat trailer, although sometimes commercial in nature, is in fact identical to the use of the boat trailer by the consumer. In addition, even if a boat dealer or repair shop did use its own trailer for these trips, NMMA states that it would be preferable to use a trailer with surge brakes, since those trailer brakes are generally considered more durable and suitable for water applications.
NMMA specifically states that a large number of private boat owners are personally using surge brake equipped trailers. Some of those trailers are for larger boats that would require a GVWR in the heavier range of 12,001 to 20,000 pounds. The fact that no safety problems relating to surge brake performance have been reported by the marine industry or by State and local highway safety officials, as a result of that usage on the public roads, suggests that these trailers and their braking systems are safe.
1. The Ohio State Highway Patrol (OSHP) believes surge brakes are a viable alternative to braking systems currently in use on smaller commercial motor vehicles, but also commented that:
(a)(i) Additional testing is appropriate, and
(ii) Such testing should be completed by FMCSA, NHTSA, and/or an independent group other than the Coalition. OSHP recommends that any additional testing include old vehicles, to the point where the requirements of § 393.52 cannot be met. OSHP believes that such testing would provide law enforcement with an acceptable level of confidence, and a margin of safety, for the use of surge brakes.
(iii) OSHP recommended that testing should also include the vehicle's ability to stop during backing maneuvers.
(b) OSHP also believes that the criterion set forth in the NPRM, i.e., that the ratios of the towing vehicle to trailer weight must be based solely on GVWR, is incomplete, and should include provisions for using each of the vehicles' actual gross weights to determine compliance with the proposed regulation. Specifically, OSHP recommended the inclusion of a provision to allow law enforcement to use either the vehicles' GVWR or their actual gross weights to determine compliance with the regulation. OSHP believes that this would keep the operator of the vehicle “honest” and keep unsafe combinations of vehicles from operating on the highway.
(a)(ii) A review of the test results provided by the Coalition indicates the towing vehicles were not new, and that the more extreme weight ratio combinations tested failed to achieve the brake performance requirements of § 393.52(d). The Coalition petitioned FMCSA to adopt GVWR ratios substantially more stringent than the ratios at which test combinations failed to meet the required stopping distance.
Manufacturers were required by NHTSA rules and § 393.55(a) to include ABS systems on new vehicles built after March 1, 1999; the brake performance of older vehicles manufactured before that date is essentially grandfathered. FMCSA acknowledges that two of the three Coalition test vehicles were newer than March 1999 and, thus, were equipped with ABS on all wheels. The third vehicle was a 1993 model that only has ABS on the rear axle brakes.
No data were submitted to the docket indicating that towing vehicles without ABS are a safety hazard. The subject of this rulemaking is the safety of surge brakes on trailers, not whether the Agency or anyone else believes that the lack of ABS on a grandfathered CMV would adversely affect the performance of a trailer equipped with surge brakes. As a practical matter, surge-braked trailers might improve the stopping performance of some pre-1999 towing vehicles (especially unloaded pickups) by putting added weight on the rear tires and, thus, delaying the onset of lock-up.
The Coalition's test procedures were specifically selected to address several existing specifications for braking systems. These include FMVSS No. 105 for Hydraulic Brakes, FMVSS No. 121 for Air Brake Systems, and § 393.52(d) for the FMCSA vehicle stopping distance requirements. FMCSA has no reason to believe the test procedures used by EFAA failed to demonstrate the braking characteristics of combination vehicles using surge-braked trailers.
The testing performed by EFAA utilized a wide variety of towing-vehicle and trailer weight combinations, with numerous different simulated GVWR ratios. Multiple test runs for each combination were made and measured. The ratios of weights for towing vehicle to trailer simulated GVWRs covering all ratios proposed in the petition, and included testing of GVWR ratios exceeding the request. Test data showed that all combinations were stable while braking in a curve and held firm on a 20 percent uphill grade while using only the towing vehicle's service brakes, some at GVWR ratios much higher than those proposed by the Coalition, in some cases at a ratio of 1:2. The subsequent mathematical analysis performed by Dr. Michael Graboski also predicted that the requirements of § 393.52(d) would be met by towing vehicles with GVWRs of 16,000 pounds or greater, towing surge brake trailers with a GVWR of 20,000 pounds or less, for a GVWR ratio of 1:1.25 or less.
The FMVSS currently includes manufacturers' performance standards only for air-braked trailers; there are no such standards for trailers with electrical, electric over hydraulic, or surge brakes. OSHP provided no information that the operation of surge brake equipped trailers for personal use has created undue concern among safety and law enforcement personnel.
(iii) There are no FMCSA or NHTSA regulatory standards for brake performance when a vehicle backs up. Rather, brake performance requirements for motor vehicles are applicable only when a vehicle is operating in the forward direction. Because vehicles typically operate in reverse at speeds much lower than when operating in the forward direction, and only for very short distances, existing tests that specify brake performance in the forward direction are considered to be sufficient to ensure that the same vehicle can stop safely when operating in reverse. As such, none of the FMVSSs or the FMCSRs specify braking performance requirements for vehicles operating in reverse.
While surge brakes automatically release when deceleration stops—and therefore, are not operable while the vehicle is operating in reverse—the brake holding on a hill tests conducted by the Coalition clearly showed that the service brakes of a towing vehicle alone are more than adequate to hold the combination at a stop (1) even while facing uphill on a 20 percent grade, and (2) even when the GVWR ratios substantially exceeded the limits that had been proposed by the Coalition. FMCSA considers these brake holding on a hill tests to be a much more severe test of brake performance than stopping a vehicle/surge brake equipped trailer combination traveling in reverse at low speeds or backing down an incline at less than a 20 percent grade. While recognizing that vehicles are not required to demonstrate the ability to stop while operating in reverse, as noted in the preceding paragraph, FMCSA is confident that these test results, in conjunction with the conservative GVWR ratios specified in this rule, will ensure that combinations with surge brake equipped trailers will be able to stop safely while operating at low speeds in reverse.
(b) FMCSA agrees with OSHP that an overloaded surge-braked trailer, or one without a manufacturer's GVWR certification, could pose safety risks. Therefore, the Agency has added provisions to the reformatted § 393.48(d) to deal with missing GVWR labels and overloading. New paragraphs (2) and (3) are added to read as follows:
(2) The gross vehicle weight (GVW) of a trailer equipped with surge brakes may be used instead of its GVWR to calculate the weight ratios specified in this paragraph (d)(1) of this section when the trailer manufacturer's GVWR label is missing.
(3) The GVW of a trailer equipped with surge brakes must be used to calculate the weight ratios specified in paragraph (d)(1) of this section when the trailer's GVW exceeds its GVWR.
General or approximate GVWRs for most models of towing vehicles covered by this rule are commonly known. FMCSA will ask the Commercial Vehicle Safety Alliance (CVSA) to make these values available for use when towing vehicles between 10,000 and 16,000 pounds do not have a GVWR plate. If OSHP is concerned about overloaded towing vehicles, all existing enforcement procedures remain in effect for dealing with vehicles loaded beyond their manufacturer's GVWR. OSHP has the authority under the State version of § 396.7 (adopted pursuant to MCSAP) to remove such vehicles from the road, and this provision is incorporated in the North American Standard (NAS) Out-of-Service criteria.
2. Mr. Barry Hansel commented that “surge brakes are better than no brakes,” but he argued:
(a) That surge brakes have numerous shortcomings that do not apply to electric over hydraulic brake systems
(b) Mr. Hansel contends that alternative brake technologies for trailers—specifically electric over hydraulic brake actuators—are safer because they do not have the shortcomings associated with surge brakes that were noted above.
(c) Mr. Hansel stated that the stopping distances documented by the Coalition were most likely achieved under ideal road conditions. He contends that surge brakes cannot stop a trailer on ice covered, wet, or dirt roads safely.
(d) He further argues the only reason the Surge Brake Coalition favors surge brakes is because they are cheaper than electric over hydraulic brakes.
(ii) The amount of braking force applied to the trailer brakes is a proportional function of the ratio of the towing vehicle and the trailer weight, and braking inertial forces generated by deceleration of the towing vehicle. Mr. Hansel is correct that, when a combination is backed up an incline, the trailer weight/gravity component could induce a braking effect. The larger inertial force generator is virtually absent. Additionally, some trailers are equipped with surge brakes with mechanisms that allow the operator to lock out the braking effect while backing the trailer. In any case, the Agency does not believe the presence or absence of this device is a safety issue. If the brakes should engage during a backing operation, it most likely would be an annoyance to the operator of these combination vehicles, not a safety issue associated with operating on public roads.
(iii) It is possible for some combination vehicles with air brakes, electric brakes, or the electric over hydraulic system described by Mr. Hansel, to apply the trailer brakes independently, in an effort to address a jack-knife situation. This technique is not easy to use in an emergency. Further, neither the FMVSSs nor the FMCSRs require combination vehicles to have this capability. Surge-braked trailers cannot be faulted for lacking a system that no other trailer is required to have.
Surge brakes are designed so that the amount of braking force applied by the trailer brakes is proportional to the effective braking/deceleration of the towing vehicle. Thus, the amount of braking of the trailer adjusts to that of the towing vehicle. If the braking ability of the towing vehicle is limited by the road conditions, so too is the brake-gain of the trailer, thus, preventing lock-up of the trailer brakes. However, in the unlikely case that the trailer brakes locked up, the driver could release them simply by taking his or her foot off the brake pedal, exactly the same technique used with electric or electric over hydraulic trailer brakes.
The braking-in-a-turn tests were specifically included to determine the inherent stability of each combination evaluated, i.e., whether there was a tendency to jack-knife. As pointed out in the discussions above regarding the breaking-in-a-turn test results, all combinations tested by EFAA passed this stability test.
(iv) With regard to the possibility of surge brake systems overheating or catching fire going down a steep mountain grade, no such problems have come to the Department's attention as data in either of NHTSA's crash databases (FARS or GES), despite the large number of personal trailers equipped with surge brakes currently in use. This has not been identified as a safety issue in mountainous regions by enforcement personnel in such States. While it is incumbent on the commenter to substantiate claims made, Mr. Hansel did not do so. Thus, FMCSA must conclude that no available empirical data supports his concern.
(b) FMCSA's role is limited to determining whether a braking system meets the safety performance requirements of the FMCSRs. Manufacturers may select any system that complies with Federal standards, including the electric over hydraulic advocated by Mr. Hansel.
(c) Mr. Hansel is correct that the Coalition's testing was performed in dry conditions. This is required by § 393.52(c), which directs that stopping distance tests be performed on a hard surface that is substantially level, dry, smooth, and free of loose material. These are the test conditions that apply to all CMVs, including electric and hydraulic over electric braked trailers.
(d) If the emerging brake technology espoused by Mr. Hansel, electric over hydraulic, meets the FMCSR safety performance standards, this final rule does not preclude its development, marketing, and use.
3. TMA acknowledged that surge brakes are well adapted to the rental market where trailers are towed by a wide variety of vehicles.
(a) TMA expressed general concern, however, that no test results or other evaluations are available to assess how these trailers would perform when towed by air- or hydraulically-braked vehicles with GVWRs exceeding those that were tested by the Coalition. In the absence of performance standards for trailers equipped with surge brake systems, TMA said it was unable to predict with certainty whether overall combination-unit braking performance would be acceptable.
Like OSHP, TMA recommended that FMCSA and NHTSA conduct additional research, testing, and evaluation prior to amending the standard to allow the use of surge brakes in interstate commerce.
(b) With regard to stopping distances on public roads, TMA expressed concern over the potential failure of the towing unit's brake system. This would reduce deceleration rates, which in turn would reduce the braking forces generated by the surge-braked trailer, and the net effect would be even longer stopping distances. TMA cited the requirements of S5.1.2 and S5.1.3 of FMVSS No. 105, which set manufacturing standards to deal with partial brake failure and inoperative power assist units, respectively. TMA also drew attention to S5.7 of FMVSS No. 121, which sets emergency brake standards for trucks and buses. The organization acknowledged, however, that FMVSS No. 105 includes no specific test of vehicle performance after brake failure.
(c) TMA expressed concern that users could unwittingly park combination units with gross combination weights (GCWs) in excess of 40,000-50,000 pounds facing uphill on grades. In these situations, and in others less severe, TMA was concerned that the towing vehicle's parking brake system, which is neither designed nor required to handle that amount of weight, would not be able to hold the combination vehicle stationary.
TMA noted that FMCSA's recently revised parking brake requirements at § 393.41 (70 FR 48008) require the following:
(a) Hydraulic-braked vehicles manufactured on or after September 2, 1983. Each truck and bus (other than a school bus) with a GVWR of 4,536 kg (10,000 pounds) or less which is subject to this part and school buses with a GVWR greater than 4,536 kg (10,000 pounds) shall be equipped with a parking brake system as required by FMVSS No. 571.105 (S5.2) in effect at the time of manufacture. The parking brake shall be capable of holding the vehicle or combination of vehicles stationary under any condition of loading in which it is found on a public road (free of ice and snow) (Emphasis added). Hydraulic braked vehicles which were not subject to the parking brake requirements of FMVSS No. 571.105 (S5.2) must be equipped with a parking brake system that meets the requirements of paragraph (c) of this section.
TMA further noted:
* * * the new FMCSA requirement, § 393.42(c), which applies to vehicles not subject to FMVSS Nos.105 and 121 on the date of manufacture (which would be the case with all surge-brake trailers since NHTSA made it clear in their most recent revision to FMVSS 105 that it does not apply to hydraulic brake trailers), reads in part:
* * * every combination of motor vehicles must be equipped with a parking brake
TMA's reference in its December 2, 2005 letter to NHTSA making it clear that FMVSS No. 105 does not apply to trailer parking brakes can be found at (70 FR 37711, June 30, 2005).
TMA stated that since the parking brake system of the towing unit is neither required to meet, nor likely to be capable of meeting, this standard by itself, it is not apparent how this requirement could be met, under particularly adverse conditions, without the trailer having some type of parking brake system as well. While air-brake equipped trailers have this capability, TMA noted that trailers equipped with surge brakes—particularly those at the upper end of the proposed allowable weight range—generally do not have parking brake systems.
(d) TMA also pointed out concerns similar to those raised by Mr. Hansel regarding (i) excessive thermal loading of the towing unit's brakes on a long downhill grade, and (ii) the ability of a towing vehicle pulling a surge-braked trailer to make an abrupt stop while backing up at any speed above 1-2 mph.
The heaviest surge-braked trailer allowed by this final rule has a GVWR of 20,000 pounds. In order to meet the weight ratio specification, the minimum towing vehicle GVWR allowed for that trailer is 16,000 pounds, for a combined GVWR of 36,000 pounds. A higher combined weight rating is possible only if the additional GVWR is in the towing vehicle. Thus, a towing vehicle of 30,000 pounds GVWR would be required in order to achieve a combined GCWR of 50,000 pounds. If it were hydraulically braked, it would be subject to FMVSS No. 105, like the 16,000-pound GVWR towing vehicle, with the same stopping distance requirement. If that towing vehicle were air braked, it would be subject to FMVSS No. 121. It requires the same stopping distance as FMVSS No. 105. Thus, there appears to be no basis for TMA's suggestion that vehicles with higher GVWRs might not match the braking performance of a vehicle with a 16,000-pound GVWR. The Coalition's analysis, based on the model by Klein and Szostak, indicates that the braking performance of a lower GVWR ratio, i.e., a larger towing vehicle in combination with the same 20,000 pound GVWR trailer, would be better. This is because the stopping performance of the combination, including the surge-braked trailer, is dependent on the GVWR ratio of the towing vehicle to the trailer. The lower the ratio of GVWR of a trailer compared to that of the towing vehicle, the better the stopping power of the combination. The GVWR ratio of a 30,000 pound towing vehicle to a 20,000 pound trailer would be less than 1, i.e., 1:0.66.
In summary, FMVSS Nos. 105 and 121 have the same requirement for stopping distance. There is no reason to believe that a heavier towing vehicle with or without air brakes, which thus has a GVWR ratio below that required by this rule, would not meet the 40-foot stopping distance required by § 393.52(d), the 30 mph braking-in-a-curve test, and the 20 percent grade-service brake holding test.
(b) We agree with TMA's conclusion that no specific test applies to trailer brake performance after brake failure on the towing vehicle.
(c) TMA correctly noted there is no standard in FMVSS No. 105 that applies to the parking brake capability of hydraulically braked trailers. Neither is there a parking brake standard for electrically braked trailers or for trailers weighing less than 3,000 pounds that are exempted from having any brakes. Only air-braked trailers are subject to a parking brake standard. NHTSA, not FMCSA, has the authority to set manufacturing standards. Any rule requiring retrofitting of parking brakes to trailers already in operation would be prohibitively expensive, and the results of the tests submitted with the petition make it clear there would not be commensurate safety benefits.
Section 393.41(c) of the FMCSRs says that the parking brake on combination vehicles must be sufficient to prevent the combination from rolling backward. Although the rule does not further specify the performance standard, such as the grade on which roll-back must be tested, this standard applies to all combinations, including unbraked, electric braked, and surge-braked trailers. TMA's comments give no indication that its members have any parking brake problem for comparable electric-braked trailers, which do not have parking brakes. If manufacturers have no parking brake problem with similar GVWR electric-braked trailers, FMCSA is unable to see why there should be a problem with comparable surge-braked trailers.
(d) As discussed under 2(a)(iv) in response to Mr. Hansel's comments above, no data have been submitted in this rulemaking which supports this theoretical concern.
4. Carlisle elaborated on the points raised by Mr. Hansel and TMA.
(a)(i) Carlisle was primarily concerned that testing by EFAA for the Coalition was conducted on dry road surfaces. Carlisle contends that because the coefficient of friction drops with moisture or ice on the road surface, the trailer inertia may act to “push” the towing vehicle, thus, creating conditions where trailer jack-knife is much more likely to occur.
(ii) Carlisle noted that electric and electric over hydraulic trailer brake actuators do not rely on towing vehicle inertia to apply the trailer brakes. In these situations, the trailer brakes are applied at a proportionate rate whenever the towing vehicle brakes are applied. The combined braking of the two units minimizes the likelihood of a jack-knife condition. In addition, unlike surge brakes, the trailer brakes work when the vehicle backs up.
(b)(i) Carlisle, like Mr. Hansel, pointed out that alternative braking systems are available from more than one manufacturer, including themselves.
(ii) They also pointed out that most newer towing vehicles are wired for easy installation of in-cab brake controllers.
(c) Carlisle also expressed concern regarding elimination of the requirement, for trailers equipped with surge brakes, of a single control valve capable of operating all of the service brakes.
(d) Carlisle believes that one of the inherent problems with a surge brake system is the inability to verify that the system is working without driving the combination. Like MDSHA/MCD below, Carlisle questioned how a rental customer or enforcement agent could test a trailer to verify that the surge brakes are working.
(ii) It is unclear whether Carlisle is possibly implying that electric or electric over hydraulic brake systems
Surge brakes by their physical design apply a braking force proportional to that generated by the towing vehicle, that varies whether empty or loaded to any weight up to its GVWR. In contrast, the brake gain set on the controller for electric and electric over hydraulic brake systems has to be manually adjusted based on the load being carried by trailers equipped with those systems, and the driving conditions. This is a different meaning for the word proportionate. It is not apparent from Carlisle's comments how electric or electric over hydraulic brakes on a trailer would prevent it from jack-knifing in wet or icy conditions. Historically, a major cause of jack-knifing was locking up the brakes on the rear axle of the towing vehicle, now addressed by ABS systems.
(b)(i) The availability of alternative braking systems is not germane to determining whether surge brake systems meet FMCSA's safety performance requirements.
(ii) Carlisle's assertion that towing vehicles are wired for easy installation of in-cab electric brake controllers appears to be a reference to the common manufacturing practice of installing wiring harnesses that can accommodate optional equipment, such as a controller for electric trailer brakes. Carlisle fails to mention the cost and difficulty of purchasing and installing a controller in the cab of the towing vehicle. A brake expert on a specific model year truck could perhaps install a controller in 15 minutes. However, thousands of trailer rental companies are unlikely to (1) have such expertise readily available, or (2) stock appropriate controllers for all electric brake systems. While the Agency does not consider the installation of electric brake controllers “easy” based on the above, the availability of alternative brake systems is not related to the issue of whether surge brake systems meet the performance requirements of the FMCSRs.
(c) The rule requiring a single control valve (§ 393.49) is designed to enhance safety. The Coalition's petition argued that the actual, operational safety performance of surge-braked trailers demonstrates that this rule need not be applied to surge-braked trailers. FMCSA granted the petition for a rulemaking and via that process has now concluded that surge brakes are safe, when limited to certain GVWR ratios.
(d) Carlisle's concern about the ability of customers and enforcement personnel to verify that the trailer brakes are working was shared by MDSHA/MCD below. There are ways to verify that trailer brakes are operational. The following examples illustrate this:
Canada allows surge-braked trailers to be used for commercial purposes. Enforcement officers in the Provinces begin by making a visual inspection of the brake components. They perform the on-road inspection specified for hydraulic brakes in the NAS Out-of-Service criteria. Just as for all other hydraulically braked vehicles, this includes checking for leaks in the hydraulic system, sufficient fluid in the actuator/master-cylinder reservoir, and whether there are any unusual component conditions.
Then, if anything in the visual inspection causes concern, it is possible to physically test the trailer's hydraulic brake system. This is because combination vehicles—including trailers equipped with surge brake systems—must also meet the operational brake performance requirement of § 393.43(d) for trailer breakaway and emergency braking. A trailer equipped with surge brakes meets this requirement only if it also includes an emergency release mechanism that would be actuated on a breakaway. The standard design for surge brake actuators is for that emergency breakaway capability to work through the hydraulic actuator to apply the wheel brakes. In some designs the emergency release mechanism can be manually actuated, and a simple determination can then be made whether the brakes are operational, either by attempting to move the trailer, or by jacking up a trailer wheel and attempting to rotate the tire. In other designs, a different procedure is used.
Information on applying these approaches is available from the manufacturers of the surge brake actuators. FMCSA is convinced this two-stage inspection procedure is adequate for pre-trip and roadside inspections to insure safety of the braking function.
The current NAS Out-of-Service criteria gives nine different items the inspector is to check at the roadside for a vehicle with a hydraulic system. The instructor and student guide give more details on how to carry out inspections for these criteria.
Instructions very similar to this already exist in the CVSA NAS Out-of-Service criteria for a Level 1 inspection of electric brakes. The current instructor and student guides for the NAS Out-of-Service criteria read:
Electric brakes can be checked for operation by activating a manual control in the cab without activating the tractor's service brakes, and attempting to move the vehicle while the brakes are applied.
5. MDSHA/MCD commented that in 2004, Maryland Vehicle Law was modified by working with the trailer manufacturing industry to allow trailers and semi-trailers less than 10,000 pounds equipped with surge brakes to be used on Maryland highways, but limited to combination vehicles in intrastate commerce that would not require a CDL.
(a) MDSHA/MCD takes exception to allowing the use of surge brakes on trailers over 10,000 pounds operated in interstate commerce, contending that the very limited testing of a few vehicle combinations fails to justify revising the standards that currently apply. (i) MDSHA/MCD states the tests performed were not comprehensive enough and addressed only four towing vehicle and trailer combinations. (ii) MDSHA/MCD notes that since the NPRM proposed that a trailer may have a GVWR up to 20,000 pounds, a combination vehicle could include larger or smaller types of vehicles, including cargo type vans normally used by small construction and/or landscaping companies. MDSHA/MCD notes that these, as well as other, vehicles were not tested nor was data provided to substantiate that towing vehicles like cargo vans would be able to meet similar requirements for braking in curve from 30 mph, service brakes holding on a 20 percent uphill grade, and straight line stopping distance from 20 mph. (iii) MDSHA/MCD stated that no tests were conducted using towing vehicles that were not equipped with anti-lock braking systems (ABS). (iv) MDSHA/MCD contends that the amendments proposed in the NPRM do not address the GCW for the combinations tested, but only the GVWR ratio for the towing units and trailers equipped with surge brakes. MDSHA/MCD believes that the limited testing by the Coalition is not representative of the range of real-world applications.
(b) MDSHA/MCD is concerned that if the proposed amendments are adopted, enforcement personnel would be unable
MDSHA/MCD noted that 49 CFR 396.17 provides that periodic inspections shall be conducted covering those “accessories set forth in Appendix G of this subchapter.” However, MDSHA/MCD states that a review of Appendix G fails to reveal any guidance and/or methodology for conducting an inspection of any “surge brake” component to determine that it is working and/or maintained correctly to some unidentified accepted standards, e.g., SAE standards. MDSHA/MCD believes that this omission jeopardizes safety and, absent any guidance, owners and operators have no way of knowing what methods should be employed to assure that the surge brake equipment is functioning properly.
(c)(i) MDSHA/MCD, like Carlisle, commented that tests were not conducted on wet or icy surfaces to determine what could potentially occur when surge brakes are applied.
(ii) MDSHA/MCD expressed concern that during brake application under wet or icy road conditions, forward inertia could cause the surge brake to lock up and the operator to lose control of the combination vehicle. With electric or other brakes, by contrast, MDSHA/MCD maintains the operator has the ability to correct a brake lock condition by lifting his/her foot off the brake pedal.
(d) MDSHA/MCD believes that the revisions to § 393.48 are flawed, as the proposed amendment to paragraph (a) exempts surge brakes; therefore, they do not have to work or be capable of working. MDSHA/MCD contends that § 393.5 needs to be reworded to reflect that a vehicle and combinations must be equipped with brakes that are operative. In addition, MDSHA/MCD believes that wording to the effect that brakes must at all times be capable of operating should not exclude any system regardless of braking type, as does the proposed language.
(ii) The other types of vehicles MDSHA/MCD mentioned, including cargo vans, are normally built on a chassis similar to that of a pick-up truck in that vehicle's class, with similarly sized brake components meeting the FMVSS No. 105 requirement. For example, the light truck tested was a Chevrolet C-1500, which serves as the light truck chassis for the cargo vans built by GM in that model size class. Cargo vans built on light truck chassis have the same braking system and thus stopping ability of the truck chassis they are built on. The agency points out that vehicles like the C-1500 are required by FMVSS No. 105 to have a shorter stopping distance than larger vehicles over 10,000 pounds.
Further, for the even smaller cargo vans that are built on a truck chassis like the Chevrolet S-10 pick-up truck, all such vehicles less than 3,500 kilograms (7,716 pounds) are required by FMVSS No. 135 to have the same stopping distance performance as required by FMVSS No. 105 for light trucks over 7,716 pounds and less than 10,000 pounds.
The Agency concluded that the braking characteristics of other towing vehicles, such as cargo vans, will be similar to that of the vehicles tested by EFAA. As long as the towing vehicle meets the applicable FMVSS standard, and the combination meets the GVWR ratios of this rule, all evidence demonstrates that such combinations will have braking system performance similar to the vehicles tested by the Coalition.
(iii) As explained above, there is no justification for requiring a different testing standard for surge brakes than for electric brakes. Trucks manufactured before March 1, 1999, when the requirement for ABS brake took effect (see § 393.55), have always been allowed to tow trailers with electric brakes. These vehicles will be equally safe when towing surge-braked trailers, within the GVWR ratios required by this rule.
(iv) MDSHA/MCD may have been confused by the repeated use of the term GVWR in the NPRM. The Coalition tested a variety of simulated GVWR combinations by loading the trailers to different weights. These were selected to be representative of or simulate different GVWR combinations in order to test the safety performance of the associated surge brake systems. The combinations were tested at simulated towing vehicle to trailer weight/GVWR ratios from 1:1 up to 1:2. FMCSA believes that the data provided by the Coalition thoroughly address the concern of MDSHA/MCD that vehicles be tested at a wide range of GCWs.
(b) Since Maryland allows surge brake systems on trailers up to 10,000 pounds GVWR in intrastate commerce, at least some of the larger trailers are used as part of combination vehicles over 10,000 pounds. It appears Maryland felt surge-braked trailers operating in intrastate commerce are safe without needing a roadside inspection program. Such a program is feasible, as the response to Carlisle under section 4(d) above demonstrates.
Appendix G to Chapter III, Subchapter B of title 49, identifies hydraulic brake components that must be checked. FMCSA believes inspection of surge brakes should begin with these hydraulic brake components. If compromised components are found by the first stage inspection, it would then be appropriate or necessary to perform a second stage performance inspection.
(c)(i) As discussed above under section 2(c) of the Agency's response to Mr. Hansel, the performance regulations require the testing to be conducted under dry conditions.
(ii) The theory that under icy conditions the surge brakes of the trailer could lock up requires an assumption that the towing vehicle has enough friction with the road to create a deceleration force on the trailer actuator. Thus, the towing vehicle would have to have better friction contact with the road than the trailer. While this could momentarily be true, the combination is traveling down the road, and the trailer wheels will encounter exactly the same friction contact that the towing vehicle just passed over. Thus, as the trailer wheels move forward that might have momentarily locked up on ice, they will encounter the greater traction just experienced by the towing vehicle. And as MDSHA/MCD pointed out, the operator has the ability to correct a brake lock condition by lifting his/her foot off the brake pedal.
(d) The MDSHA/MCD expressed concern that the exemption in § 393.48(d) would mean that surge brakes do not have to operate. The NPRM pointed out that surge brakes will still be subject to the performance requirements of § 393.52(d), which served as guidance for the tests performed by the Coalition. The NPRM said:
The Agency emphasizes that the granting of the petition for rulemaking, and subsequent proposal to amend §§ 393.48 and 393.49 should not be construed as an exception to the brake performance requirements under § 393.52. Therefore,
The NPRM and this final rule also contain a new § 393.40(b)(5) requiring surge braked trailers to comply with the same existing provisions required for electric brakes. However, to further clarify that the surge brakes must operate, FMCSA has added an additional paragraph to the reformatted § 393.48(d) to read as follows:
(4) The surge brakes must meet the requirements of § 393.40.
6. The American Trucking Associations, Inc. (ATA), on behalf of its members that manufacture commercial vehicles, expressed the same concern as TMA above regarding the lack of parking-brake capability with surge brakes, and the potential that the parking brake system on the towing vehicle could be overloaded, thus, creating a roll-away situation. ATA believes this is reason enough to continue to ban the use of surge brakes on commercial vehicles where they are more likely to be used beyond the towing vehicles' rated capacities. ATA believes that additional parking brake
Testing should be completed on situations where the trailer has the maximum proposed gross vehicle weight rating of 1.75 times the weight of the towing vehicle for 12,000 pounds or less, and 1.25 times the weight of the towing vehicle for 12,000-20,000 pounds GVWR to verify if the towing vehicle has the capacity to hold the combined weight. This testing may have to include a variety of makes and models as individual vehicles from different manufacturers can have performance variations.
7. Advocates for Highway and Auto Safety (Advocates) opposed the proposed rulemaking on the grounds that FMCSA moved the petition immediately into rulemaking, rather than preliminarily asking for comments and views on the wisdom of changing current regulations to permit this technology. Advocates regards the subject rulemaking proposal
both as inadequate and premature, as well as failing to meet the agency's basic responsibilities to conduct its own investigations and make its own determinations about the merits of major changes to its safety regulations. Moreover, the agency has failed to offer this petition for public evaluation in a timely manner through an earlier notice asking for preliminary information that would be relevant to determining whether to propose changes to the FMCSR and exactly what changes are documented by the agency's own tests to be in the public interest to advance motor carrier and commercial vehicle safety.
Advocates contend that a proposed rule is not the occasion for requesting comment on whether additional analysis is needed to support the petitioner's assertions.
FMCSA determined in accordance with § 389.33(b) that the petition appeared to have merit, and the Administrator, therefore, notified the Coalition their petition for rulemaking was granted.
FMCSA subsequently issued the NPRM, asking for specific data regarding trailers over 14,600 pounds. The NPRM is the official opportunity for the public to provide comments or data relevant to the proposed rule. There is nothing unusual about asking potential commenters who may possess data or analysis to share it with an agency, nor is there any requirement of administrative law that an agency digest and republish for an additional round of comments all data submitted in response to an NPRM.
1. As specified in Part 389, the Surge Brake Coalition submitted a petition for rulemaking containing safety performance test data supporting their contention that surge-braked trailers meet the safety performance requirements of Part 393, and, thus, should not be prescriptively excluded.
2. FMCSA determined that the test data supported the contention of the Coalition, and that a rulemaking on this subject was warranted. Therefore, FMCSA granted the petition for a rulemaking.
3. FMCSA then developed and issued an NPRM putting forth the proposal and asking for any additional information from the public. In particular, FMCSA requested data regarding the safety performance of trailers with a GVWR greater than 14,600 pounds.
4. FMCSA analyzed all information submitted to the docket and developed this final rule specifying that surge-braked trailers subject to the specified GVWR ratios are allowed as part of combination commercial motor vehicles operating in interstate commerce.
FMCSA has determined that this action is a significant regulatory action within the meaning of Executive Order 12866 because it is the subject of both a regulatory reform nomination and an industry petition. This rule has generated a significant amount of public interest and has been listed in the 2005 “Regulatory Reform of the U.S. Manufacturing Sector” as published by the Office of Management and Budget. We expect the rule will have minimal costs and small benefits that outweigh the costs. The Agency has prepared a regulatory analysis of the costs and benefits of this rulemaking action. A copy of the analysis is included in the docket referenced at the beginning of this document.
In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-612), FMCSA considered the effects of this regulatory action on small entities and determined that this final rule has a minimal, but positive impact on a substantial number of small entities. This is because it removes a regulatory obstacle to the use of surge brakes on small and medium trailers. There are over 150 firms that manufacture trailers, about 300 firms that are in the boat delivery service, thousands of landscape and construction firms that may use trailers, and over 2,000 rental equipment firms that may offer trailers for rent. The majority of these firms are small businesses according to the definition provided by the Small Business Administration. No entity is required to use surge brakes, and those currently using electric or other types of brakes have the option to continue with no change.
This final rule allows a braking system that was not allowed in interstate commerce for a number of years. Many businesses use small or medium trailers in their daily operations; if these operations are in interstate commerce, and the vehicle combination meets the definition of CMV (49 CFR 390.5), they are subject to the FMCSRs, which previously did not allow the use of surge brakes. CMVs
Accordingly, FMCSA certifies that this rule does not have a significant economic impact on a substantial number of small entities.
This rulemaking does not impose an unfunded Federal mandate, as defined by the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532,
In accordance with E.O. 13175, we evaluated possible effects on federally recognized Indian tribes and have determined there are no effects.
This action meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
FMCSA analyzed this action under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. The Agency determined that this rulemaking does not create an environmental risk to health or safety disproportionately affecting children.
This rulemaking does not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This action was analyzed in accordance with the principles and criteria contained in Executive Order 13132. The FMCSA determined this rulemaking does not have a substantial direct effect on States, nor does it limit the policy-making discretion of the States. Nothing in this document preempts any State law or regulation.
The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this program.
This rulemaking does not contain a collection of information requirement for the purposes of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501,
The Agency analyzed this action for purposes of the National Environmental Policy Act of 1969 (42 U.S.C. 4321,
The Agency analyzed this action under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution or Use. The Agency determined it would not be a “significant energy action” under that Executive Order because it is not economically significant and does not have a significant adverse effect on the supply, distribution, or use of energy.
Highway safety, Motor carriers and Motor vehicle safety.
Section 1041(b) of Pub. L. 102-240, 105 Stat. 1914; 49 U.S.C. 31136 and 31502; and 49 CFR 1.73.
(b) * * *
(5)
(a)
(b) * * *
(c) * * *
(d)
(i) Any trailer with a gross vehicle weight rating (GVWR) of 12,000 pounds or less, when its GVWR does not exceed 1.75 times the GVWR of the towing vehicle; and
(ii) Any trailer with a GVWR greater than 12,000 pounds, but less than 20,001 pounds, when its GVWR does not exceed 1.25 times the GVWR of the towing vehicle.
(2) The gross vehicle weight (GVW) of a trailer equipped with surge brakes may be used instead of its GVWR to calculate compliance with the weight
(3) The GVW of a trailer equipped with surge brakes must be used to calculate compliance with the weight ratios specified in paragraph (d)(1) of this section when the trailer's GVW exceeds its GVWR.
(4) The surge brakes must meet the requirements of § 393.40.
(a)
(b)
(c)
Issued on: February 26, 2007.
Agricultural Marketing Service, USDA.
Proposed rule.
This proposed rule would amend the U.S. Department of Agriculture's (USDA) National List of Allowed and Prohibited Substances (National List) regulations to reflect recommendations submitted to the Secretary of Agriculture (Secretary) by the National Organic Standards Board (NOSB) from November 17, 2005 through October 19, 2006. The recommendations addressed in this proposed rule pertain to the continued exemption (use) and prohibition of 169 substances in organic production and handling. Consistent with the recommendations from the NOSB, this proposed rule would renew 166 of the 169 exemptions and prohibitions on the National List (along with any restrictive annotations), and remove 3 exemptions from the National List.
Comments must be received by May 7, 2007.
Interested persons may comment on this proposed rule using the following procedures:
•
•
• Written comments on this proposed rule should be identified with the docket number TM-04-07. Commenters should identify the topic and section number of this proposed rule to which the comment refers.
• Clearly indicate if you are for or against the proposed rule or some portion of it and your reason for it. Include recommended language changes as appropriate.
• Include a copy of articles or other references that support your comments. Only relevant material should be submitted.
It is our intention to have all comments to this proposed rule, whether submitted by mail, or Internet, available for viewing on the regulations.gov homepage. Comments submitted in response to this proposed rule will be available for viewing in person at USDA-AMS, Transportation and Marketing, Room 4008-South Building, 1400 Independence Ave., SW., Washington, DC, from 9 a.m. to 12 noon and from 1 p.m. to 4 p.m., Monday through Friday (except official Federal holidays). Persons wanting to visit the USDA South Building to view comments received in response to this proposed rule are requested to make an appointment in advance by calling (202) 720-3252.
Toni Strother, Agricultural Marketing Specialist, Telephone: (202) 720-3252; Fax: (202) 205-7808.
The Organic Foods Production Act (OFPA), 7 U.S.C. 6501
The exemptions and prohibitions granted under the OFPA are required to be reviewed every 5 years by the NOSB. The Secretary of Agriculture has authority under the OFPA to renew such exemptions and prohibitions. If they are not reviewed by the NOSB within 5 years of their inclusion on the National List and renewed by the Secretary, their authorized use or prohibition expires. This means that a synthetic substance exempted for use on the National List in 2002 and currently allowed for use in organic production will no longer be allowed for use after October 21, 2007; a non-synthetic substance prohibited from use on the National List in 2002 and currently prohibited from use in organic production will be allowed after October 21, 2007; and a synthetic or nonsynthetic substance exempted for use on the National List and currently allowed for use in organic handling will be prohibited after October 21, 2007.
In response to the sunset provisions in the OFPA, the Secretary published an Advanced Notice of Proposed Rulemaking (ANPR) (70 FR 35177) in the
We received approximately 350 comments. Comments were received from consumers, producers, certifying agents, trade associations, retailers, organic associations, animal welfare organizations, consumer groups, the NOSB, and various industry groups.
In general, we received comments urging the current list to remain intact as it currently exists with many providing specific focused support for materials that they promoted, represented, or relied upon. One commenter strongly advocated for a careful review of the materials up for sunset review and not just a blanket approval. In particular, the commenter emphasized the need for additional technical review of the general categories of flavors, colors, vitamins and minerals used in handling; aquatic plant products, fish products, humic acid derivatives, antibiotics used in crops; and chlorine materials used as sanitizers in crops, livestock and handling.
The NOSB reviewed the comments received on the ANPR and used the comments to make recommendations to the Secretary regarding the continued use and prohibition of the 169 substances under review. Three meetings were held for the NOSB to deliberate and make recommendations to the Secretary. The first meeting was held on November 16-17, 2005, in
As a result of the November 2005, and 2006 April and October NOSB meetings, the NOSB recommended that the Secretary renew 166 of the 169 exemptions and prohibitions on the National List; and remove 3 exemptions from the National List. These recommendations are limited to those exemptions and prohibitions that were originally included on the National List on October 21, 2002. The Secretary is engaging in this proposed rulemaking to reflect the recommendations of the NOSB, from November 2005, April 2006, and October 2006, and request public comment.
Under the authority of the OFPA, as amended, (7 U.S.C. 6501
From November 17, 2005, through October 19, 2006, the NOSB reviewed 169 exemptions and prohibitions that are authorized on the National List and set to expire on October 21, 2007. [In the ANPR announcing this sunset review of substances (70 FR 35177, June 17, 2005), the original count of substances was quoted at 174 substances; however, there were a number of substances counted in technical error. As a result, the count has been corrected to reflect a total of 169 substances under review during this sunset process.] Using the evaluation criteria specified in the ANPR for sunset review, the NOSB reviewed these exemptions and prohibitions for continued authorization in organic agricultural production and handling. As a result of the NOSB's review, the NOSB recommended that the Secretary renew 166 of the 169 exemptions and prohibitions. In addition, the NOSB recommended that 3 exemptions not be renewed.
With respect to the criteria used to make recommendations regarding the continued authorization of exemptions and prohibitions, the NOSB agreed that decision making would be based on public comments and applicable supporting evidence that expressed a continued need for the use or prohibition of the substance(s).
Concerning criteria used to make recommendations regarding the discontinuation of an authorized exempted synthetic substance or prohibited nonsynthetic substance, the NOSB agreed that decision making, for the exempted synthetic substance, would be based on public comments and applicable supporting evidence that demonstrated the currently authorized exempted or prohibited substance is (a) harmful to human health or the environment, (b) not necessary to the production of the agricultural products because of the availability of wholly nonsynthetic substitute products, or (c) inconsistent with organic farming and handling.
In the case of recommendations to discontinue prohibitions of nonsynthetic substances, the NOSB agreed that decision making would be based on public comments and applicable supporting evidence demonstrating that the prohibited nonsynthetic substance is no longer harmful to human health or the environment and is consistent and compatible with organic practices.
After considering all public comments and supporting evidence, the NOSB determined that 166 out of the 169 exemptions and prohibitions demonstrated a continued need for authorization in organic agricultural production and handling. Based on the recommendations from the NOSB concerning substances identified for review under this sunset review process, this proposed rule would amend the USDA's National regulations (7 CFR part 205) to renew exemptions and prohibitions of the following substances in organic agricultural production and handling (use categories and any restrictive annotations remain unchanged, but have been omitted from this overview):
1. Ethanol.
2. Isopropanol.
3. Calcium hypochlorite.
4. Chlorine dioxide.
5. Sodium hypochlorite.
6. Hydrogen peroxide.
7. Soap-based algicide/demossers.
8. Herbicides, soap-based.
9. Newspaper or other recycled paper, without glossy or colored inks.
10. Plastic mulch and covers.
11. Newspapers or other recycled paper, without glossy or colored inks.
12. Soaps, ammonium.
13. Ammonium carbonate.
14. Boric acid.
15. Elemental sulfur.
16. Lime sulfur-including calcium polysulfide.
17. Oils, horticultural-narrow range oils as dormant, suffocating, and summer oils.
18. Soaps, insecticidal.
19. Sticky traps/barriers.
20. Pheromones.
21. Sulfur dioxide.
22. Vitamin D
23. Copper hydroxide.
24. Copper oxide.
25. Copper oxychloride.
26. Copper sulfate.
27. Hydrated lime.
28. Hydrogen peroxide.
29. Lime sulfur.
30. Oils, horticultural, narrow range oils as dormant, suffocating, and summer oils.
31. Potassium bicarbonate.
32. Elemental sulfur.
33. Streptomycin.
34. Tetracycline (oxytetracycline calcium complex).
35. Aquatic plant extracts (other than hydrolyzed).
36. Elemental sulfur.
37. Humic acids.
38. Lignin sulfonate.
39. Magnesium sulfate.
40. Soluble boron products.
41. Sulfates.
42. Carbonates.
43. Oxides.
44. Silicate of zinc.
45. Silicate of copper.
46. Silicate of iron.
47. Silicate of manganese.
48. Silicate of molybdenum.
49. Silicate of selenium.
50. Silicate of cobalt.
51. Liquid fish products.
52. Vitamin B
53. Vitamin C.
54. Vitamin E.
55. Ethylene gas.
56. Lignin sulfonate.
57. Sodium silicate.
58. EPA List 4-Inerts of Minimal Concern.
1. Ash from manure burning.
2. Arsenic.
3. Lead salts.
4. Potassium chloride.
5. Sodium fluoaluminate (mined).
6. Sodium nitrate.
7. Strychnine.
8. Tobacco dust (nicotine sulfate).
1. Ethanol.
2. Isopropanol.
3. Aspirin.
4. Vaccines.
5. Chlorhexidine.
6. Calcium hypochlorite.
7. Chlorine dioxide.
8. Sodium hypochlorite.
9. Electrolytes.
10. Glucose.
11. Glycerine.
12. Hydrogen peroxide.
13. Iodine.
14. Magnesium sulfate.
15. Oxytocin.
16. Ivermectin.
17. Phosphoric acid.
18. Copper sulfate.
19. Iodine.
20. Lidocaine.
21. Lime, hydrated.
22. Mineral oil.
23. Procaine.
24. Trace minerals.
25. Vitamins.
26. EPA List 4-Inerts of Minimal Concern.
1. Strychnine.
(a) Nonsynthetics allowed:
1. Alginic acid.
2. Citric acid.
3. Lactic acid.
4. Bentonite.
5. Calcium carbonate.
6. Calcium chloride.
7. Carageenan.
8. Dairy cultures.
9. Diatomaceous earth.
10. Enzymes.
11. Flavors.
12. Kaolin.
13. Magnesium sulfate.
14. Nitrogen-oil-free grades.
15. Oxygen-oil-free grades.
16. Perlite.
17. Potassium chloride.
18. Potassium iodide.
19. Sodium bicarbonate.
20. Sodium carbonate.
21. Carnauba wax.
22. Wood resin wax.
23. Autolysate yeast.
24. Bakers yeast.
25. Brewers yeast.
26. Nutritional yeast.
27. Smoked yeast.
(b) Synthetics allowed:
1. Alginates.
2. Ammonium bicarbonate.
3. Ammonium carbonate.
4. Ascorbic acid.
5. Calcium citrate.
6. Calcium hydroxide.
7. Monobasic calcium phosphates.
8. Dibasic calcium phosphates.
9. Tribasic calcium phosphates.
10. Carbon dioxide.
11. Calcium hypochlorite.
12. Chlorine dioxide.
13. Sodium hypochlorite.
14. Ethylene.
15. Ferrous sulfate.
16. Monoglycerides.
17. Diglycerides.
18. Glycerin.
19. Hydrogen peroxide.
20. Lecithin—bleached.
21. Magnesium carbonate.
22. Magnesium chloride.
23. Magnesium stearate.
24. Nutrient vitamins.
25. Nutrient minerals.
26. Ozone.
27. Pectin (low-methoxy).
28. Phosphoric acid.
29. Potassium acid tartrate.
30. Potassium carbonate.
31. Potassium citrate.
32. Potassium hydroxide.
33. Potassium iodide.
34. Potassium phosphate.
35. Silicon dioxide.
36. Sodium citrate.
37. Sodium hydroxide.
38. Sodium phosphates.
39. Sulfur dioxide.
40. Tocopherols.
41. Xanthan gum.
1. Cornstarch (native).
2. Gums—water extracted only (arabic, guar, locust bean, carob bean).
3. Kelp—for use only as a thickener and dietary supplement.
4. Lecithin—unbleached.
5. Pectin (high-methoxy).
Based on recommendations from the NOSB concerning substances identified for review under this sunset review process, this proposed rule would amend the USDA's National List to remove exemptions (and any restrictive annotations) for the following substances in organic agricultural production and handling:
Milk replacers without antibiotics, as emergency use only, no nonmilk products or products from BST treated animals.
A milk replacer is a formula (powdered or liquid) designed to take the place of natural mother's milk by supplying the nutritional needs of the baby animal during the critical, early nursing stage of its life. Milk replacers traditionally contain milk-based ingredients as their major source of protein. However, as more milk proteins are being used by the human food industry, milk proteins are becoming more and more expensive to source.
The NOP regulations, at § 205.237(a), state that “The producer of an organic livestock operation must provide livestock with a total feed ration composed of agricultural products, including pasture and forage, that are organically produced and, if applicable, organically handled:
In reviewing public comments and evidence regarding the continued authorization of the use of milk replacers in organic agricultural livestock production, the NOSB determined that nonorganic milk replacers should no longer be permitted for use in organic livestock production. The NOSB based their decision on input and testimonies from organic livestock producers which stated that the use of such nonorganic agricultural feed supplements were not a necessity or widely utilized in organic livestock production. They also suggested that organic milk is commercially available and should be used to feed young animals that may need to be fed a milk replacer during their early stages of development. Since the full implementation of the NOP regulations and approximately four years of certified organic livestock production under such regulations, commenters expressed that there were not many emergency cases that justified the use of nonorganic milk replacers above organic
There were a few comments that suggested that nonorganic milk replacers should remain available for use in organic livestock production. Such comments provided that it would be more expensive to use organic milk as a milk replacer than nonorganic milk because organic milk is a highly valued commodity for human consumption. Therefore, it would present more of an economic challenge to farmers to feed saleable organic milk to an animal, rather than selling the milk for human consumption.
After considering all input from the public and any applicable evidence, the NOSB maintained that nonorganic milk replacers should no longer be permitted as an authorized substance for use in organic livestock production, due to the availability of organic milk and the requirements in the regulations that require the feeding of organic agricultural feed to organically produced livestock. Therefore, the Secretary accepts the NOSB's recommendation and proposes not to renew the exemption for the use of nonorganic milk replacers in § 205.603(c) of the National List.
Colors-nonsynthetic sources only.
The NOSB voted not to renew the exemption to permit the use of nonsynthetic colors in organic handling. In considering whether to renew the exemption of nonsynthetic colors, many concerns were raised for the NOSB. First, the NOSB reflected on the fact that the OFPA states that the National List, established by the Secretary, shall be based upon a proposed National List or proposed amendments to the National List developed by the NOSB. In relation to that provision of the OFPA, the NOSB was made aware that nonsynthetic colors never received a formal recommendation by the NOSB to be included on the National List. Nonsynthetic colors were erroneously included in the final rule. As a result, the NOSB received several comments to remove the category of nonsynthetic colors from the National List, as nonsynthetic colors should be evaluated by the NOSB through the petition process.
Secondly, the NOSB took comments into account that raised concern about how the broad category of “nonsynthetic colors” produces difficulty in determining and verifying what colors are truly nonsynthetic versus synthetic and how such ambiguity could give rise to the use of inappropriate substances in organically handled products.
In addition, the NOSB also deliberated on the historical fact that nonsynthetic colors had been permitted for use by the organic industry for over five years. As a result, commenters raised a general concern that removing nonsynthetic colors from the National List could cause a disruption in the manufacture of organic products in the organic handling sector.
Taking all of these concerns into consideration, the NOSB decided that it would not affirm or deny the re-authorization of nonsynthetic colors on the National List at its April 2006 meeting. Instead, the NOSB decided that it would provide the industry a window of opportunity to petition the addition of nonsynthetic colors on the National List before the finalization of the Sunset Review process. As of the October 2006 meeting, nine individual and groups of colors had been petitioned for consideration as nonsynthetic on § 205.605(a), and as agricultural, but not commercially available as organic, on § 205.606, of the National List. In addition, the NOSB considered that in the absence of an initial recommendation from the NOSB to permit the addition of nonsynthetic colors as a broad category that they could not continue to permit the exemption of nonsynthetic colors on § 205.605(a). As a result, the NOSB voted not to renew the exemption of nonsynthetic colors on § 205.605(a) and that they not be permitted for use in organic handling. Therefore, the Secretary accepts the NOSB's recommendation and proposes not to renew the exemption for the use of colors, nonsynthetic on § 205.605(a) of the National List.
Potassium tartrate made from tartaric acid.
The NOSB recommended to remove “Potassium tartrate made from tartaric acid” from § 205.605(b) of the National List. The NOP regulations, at § 205.605(b), authorize the use of Potassium tartrate made from tartaric acid in organic handling. Comments were submitted concerning the continued need for this authorization. Based on information received through public comment, the NOSB learned that Potassium tartrate made from tartaric acid is not a term/substance formally recognized or authorized by the Food and Drug Administration (FDA) in food processing and is improperly identified on the National List. Comments suggested that the authorization for Potassium tartrate made from tartaric acid be removed from the National List and be properly referenced as “Potassium acid tartrate,” (21 CFR 184.1077), which is already an exempted substance on the National List.
Research demonstrates that the original intent of the NOSB, in 1995, was to authorize the use of “Potassium tartrate” (also known as Potassium acid tartrate) in organic handling; however, when the NOSB made its recommendation to the Secretary, its recommendation included language suggesting the Secretary authorize the use of “Potassium acid tartrate (or potassium tartrate made from tartaric acid)” on the National List for organic handling. As a result of the NOSB recommendation, the NOP, when finalizing the National List in December 2000, included both references of the substance (Potassium acid tartrate and Potassium tartrate made from tartaric acid) on the National List and created a situation of unnecessary duplication, as the terms were meant to be synonymous. Therefore, the inclusion of the term “Potassium tartrate made from tartaric acid” was included in technical error, considering the fact that the FDA regulations do not authorize its use, but, instead, authorize the use of “potassium acid tartrate”.
Accordingly, in response to the NOSB's recommendation to remove “Potassium tartrate made from tartaric acid” from the National List at § 205.605(b), the Secretary accepts the NOSB's recommendation and proposes not to renew the exemption.
One advanced notice of proposed rulemaking with request for comments was published in
The OFPA, as amended (7 U.S.C. 6501
This action has been determined not significant for purposes of Executive Order 12866, and therefore, has not been reviewed by the Office of Management and Budget.
Executive Order 12988 instructs each executive agency to adhere to certain requirements in the development of new and revised regulations in order to avoid unduly burdening the court system. This proposed rule is not intended to have a retroactive effect.
States and local jurisdictions are preempted under § 2115 of the OFPA (7 U.S.C. 6514) from creating programs of accreditation for private persons or State officials who want to become certifying agents of organic farms or handling operations. A governing State official would have to apply to USDA to be accredited as a certifying agent, as described in § 2115(b) of the OFPA (7 U.S.C. 6514(b)). States are also preempted under §§ 2104 through 2108 of the OFPA (7 U.S.C. 6503 through 6507) from creating certification programs to certify organic farms or handling operations unless the State programs have been submitted to, and approved by, the Secretary as meeting the requirements of the OFPA.
Pursuant to § 2108(b)(2) of the OFPA (7 U.S.C. 6507(b)(2)), a State organic certification program may contain additional requirements for the production and handling of organically produced agricultural products that are produced in the State and for the certification of organic farm and handling operations located within the State under certain circumstances. Such additional requirements must: (a) Further the purposes of the OFPA, (b) not be inconsistent with the OFPA, (c) not be discriminatory toward agricultural commodities organically produced in other States, and (d) not be effective until approved by the Secretary.
Pursuant to § 2120(f) of the OFPA (7 U.S.C. 6519(f)), this proposed rule would not alter the authority of the Secretary under the Federal Meat Inspection Act (21 U.S.C. 601
Section 2121 of the OFPA (7 U.S.C. 6520) provides for the Secretary to establish an expedited administrative appeals procedure under which persons may appeal an action of the Secretary, the applicable governing State official, or a certifying agent under this title that adversely affects such person or is inconsistent with the organic certification program established under this title. The OFPA also provides that the U.S. District Court for the district in which a person is located has jurisdiction to review the Secretary's decision.
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601
Pursuant to the requirements set forth in the RFA, the Agricultural Marketing Service (AMS) performed an economic impact analysis on small entities in the final rule published in the
Small agricultural service firms, which include producers, handlers, and accredited certifying agents, have been defined by the Small Business Administration (SBA) (13 CFR 121.201) as those having annual receipts of less than $6,500,000 and small agricultural producers are defined as those having annual receipts of less than $750,000. This proposed rule would have an impact on a substantial number of small entities.
The U.S. organic industry at the end of 2001 included nearly 6,949 certified organic crop and livestock operations. These operations reported certified acreage totaling more than 2.09 million acres of organic farm production. Data on the numbers of certified organic handling operations (any operation that transforms raw product into processed products using organic ingredients) were not available at the time of survey in 2001; but they were estimated to be in the thousands. By the end of 2004, the number of certified organic crop, livestock, and handling operations totaled nearly 11,400 operations. Based on 2003 data, certified organic acreage increased to 2.2 million acres.
The U.S. sales of organic food and beverages have grown from $1 billion in 1990 to an estimated $12.2 billion in 2004. Organic food sales were projected to reach $14.5 billion in 2005; total U.S. organic sales, including nonfood uses, were expected to reach $15 billion in 2005. The organic industry is viewed as the fasting growing sector of agriculture, representing 2 percent of overall food and beverage sales. Since 1990, organic retail sales have historically demonstrated a growth rate between 20 to 24 percent each year. This growth rate is projected to decline and fall to a rate of 5 to 10 percent in the future.
In addition, USDA has accredited 95 certifying agents provide certification services to producers and handlers. A complete list of names and addresses of accredited certifying agents may be found on the AMS NOP Web site, at
No additional collection or recordkeeping requirements are imposed on the public by this proposed rule. Accordingly, OMB clearance is not required by section 350(h) of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501,
The AMS is committed to compliance with the Government Paperwork Elimination Act (GPEA), which requires Government agencies in general to provide the public the option of
The AMS 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.
This proposed rule reflects recommendations submitted to the Secretary by the NOSB for the continuation of 166 exemptions and prohibitions contained on the National List of Allowed and Prohibited Substances. This proposed rule also reflects recommendations by the NOSB to discontinue 3 exemptions contained on the National List. A 60-day period for interested persons to comment on this rule is provided.
Administrative practice and procedure, Agriculture, Animals, Archives and records, Imports, Labeling, Organically produced products, Plants, Reporting and recordkeeping requirements, Seals and insignia, Soil conservation.
For the reasons set forth in the preamble, 7 CFR part 205, Subpart G is proposed to be amended as follows:
1. The authority citation for 7 CFR part 205 continues to read as follows:
7 U.S.C. 6501-6522.
2. Section 205.603 is revised to read as follows:
In accordance with restrictions specified in this section the following synthetic substances may be used in organic livestock production:
(a) As disinfectants, sanitizer, and medical treatments as applicable.
(1) Alcohols.
(i) Ethanol—disinfectant and sanitizer only, prohibited as a feed additive.
(ii) Isopropanol—disinfectant only.
(2) Aspirin—approved for health care use to reduce inflammation.
(3) Biologics—Vaccines.
(4) Chlorhexidine—Allowed for surgical procedures conducted by a veterinarian. Allowed for use as a teat dip when alternative germicidal agents and/or physical barriers have lost their effectiveness.
(5) Chlorine materials—disinfecting and sanitizing facilities and equipment. Residual chlorine levels in the water shall not exceed the maximum residual disinfectant limit under the Safe Drinking Water Act.
(i) Calcium hypochlorite.
(ii) Chlorine dioxide.
(iii) Sodium hypochlorite.
(6) Electrolytes—without antibiotics.
(7) Glucose.
(8) Glycerine—Allowed as a livestock teat dip, must be produced through the hydrolysis of fats or oils.
(9) Hydrogen peroxide.
(10) Iodine.
(11) Magnesium sulfate.
(12) Oxytocin—use in postparturition therapeutic applications.
(13) Paraciticides. Ivermectin—prohibited in slaughter stock, allowed in emergency treatment for dairy and breeder stock when organic system plan-approved preventive management does not prevent infestation. Milk or milk products from a treated animal cannot be labeled as provided for in subpart D of this part for 90 days following treatment. In breeder stock, treatment cannot occur during the last third of gestation if the progeny will be sold as organic and must not be used during the lactation period for breeding stock.
(14) Phosphoric acid—allowed as an equipment cleaner,
(b) As topical treatment, external parasiticide or local anesthetic as applicable. (1) Copper sulfate.
(2) Iodine.
(3) Lidocaine—as a local anesthetic. Use requires a withdrawal period of 90 days after administering to livestock intended for slaughter and 7 days after administering to dairy animals.
(4) Lime, hydrated—as an external pest control, not permitted to cauterize physical alterations or deodorize animal wastes.
(5) Mineral oil—for topical use and as a lubricant.
(6) Procaine—as a local anesthetic, use requires a withdrawal period of 90 days after administering to livestock intended for slaughter and 7 days after administering to dairy animals.
(c) As feed supplements. None.
(d) As feed additives.
(1) DL-Methionine, DL-Methionine-hydroxy analog, and DL-Methionine-hydroxy analog calcium—for use only in organic poultry production until October 21, 2008.
(2) Trace minerals, used for enrichment or fortification when FDA approved.
(3) Vitamins, used for enrichment or fortification when FDA approved.
(e) As synthetic inert ingredients as classified by the Environmental Protection Agency (EPA), for use with nonsynthetic substances or a synthetic substances listed in this section and used as an active pesticide ingredient in accordance with any limitations on the use of such substances.
(1) EPA List 4—Inerts of Minimal Concern.
(2) [Reserved]
(f) through (z) [Reserved]
3. In § 205.605, the substance “colors, nonsynthetic sources only” is removed from paragraph (a) and the substance “Potassium tartrate made from tartaric acid” is removed from paragraph (b).
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for certain Boeing Model 747-100, 747-100B, 747-200B, 747-200C, 747-200F, 747-300, 747SR, and 747SP series airplanes. This proposed AD would require repetitive high frequency eddy current inspections for cracks of the fuselage skin at stringer 5 left and right between stations 340 and 350, and corrective actions if necessary. This proposed AD results from reports of fatigue cracks in the fuselage skin near stringer 5 between stations 340 and 350. We are proposing this AD to detect and correct fatigue cracking of the fuselage skin near stringer 5. Cracks in this area could join together and result in in-flight depressurization of the airplane.
We must receive comments on this proposed AD by April 20, 2007.
Use one of the following addresses to submit comments on this proposed AD.
•
•
•
•
•
Contact Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207, for the service information identified in this proposed AD.
Ivan Li, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 917-6437; fax (425) 917-6590.
We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed in the
We will post all comments we receive, without change, to
You may examine the AD docket on the Internet at
We have received a report indicating that, during inspections on certain Boeing Model 747 airplanes, four operators found fatigue cracks in the fuselage skin at stringer 5, between stations 340 and 350. The airplanes had flown 18,000 to 20,000 total flight cycles. The cracks that were found ranged in length from a single crack of 0.25 inch to multiple cracks that were equivalent to a 10-inch long crack. Skin cracks in this area could join together and result in in-flight depressurization of the airplane.
On January 16, 1990, we issued AD 90-06-06, amendment 39-6490 (55 FR 8374, March 7, 1990), for certain Boeing Model 747 series airplanes. That AD requires the incorporation of certain structural modifications (reference Boeing Service Bulletin 747-53-2272, Revision 12, dated December 22, 1988, identified in Boeing Document No. D6-35999). We issued that AD to prevent structural failure of the affected airplanes. One of the required modifications of AD 90-06-06 ends the repetitive inspections of certain structures that would also be required by this proposed AD.
On April 1, 2005, we issued AD 2005-08-01, amendment 39-14053 (70 FR 18290, April 11, 2005), for certain Boeing Model 747 series airplanes. That AD requires repetitive inspections; repetitive external detailed inspections for cracks or loose or missing fasteners of certain body skin on the left and right sides of the airplane; an internal detailed inspection for cracking of certain left- and right-side frames and adjacent skin; repetitive high-frequency eddy current (HFEC) inspections of certain body frames between certain body stations; and repairs if necessary. We issued that AD to detect and correct fatigue cracks in the body frames, skin, and other internal structures in fuselage section 41, which could lead to rapid decompression and loss of the structural integrity of the airplane. Paragraph (s) of AD 2005-08-01 refers to Boeing Service Bulletin 747-53-2272, dated January 12, 1987, and any revision through Revision 18, dated May 16, 2002, as the appropriate source of service information for accomplishing the terminating action described in that AD. That terminating action ends the repetitive inspections of certain structures that would also be required by this proposed AD.
We have reviewed Boeing Alert Service Bulletin 747-53A2542, dated February 16, 2006 (referred to hereafter as “the alert service bulletin”). For airplanes that do not have external skin doublers installed around the left- and right-side Number 3 flight deck windows in accordance with Boeing Service Bulletin 747-53-2272, the alert service bulletin describes procedures for repetitive HFEC inspections for cracks of the external surface of the fuselage skin at stringer 5 left and right, between stations 340 and 350. The alert service bulletin specifies that the HFEC inspections be done at the compliance times specified in the following table.
The alert service bulletin also describes corrective actions to be done if any crack is found. If the total length of all cracks found is less than 1.0 inch, corrective actions include stop drilling the crack or cracks; and, either installing external skin doublers around the Number 3 flight deck window, or installing a temporary external structural repair manual (SRM) skin repair. If the total length of all cracks found is 1.0 inch or longer, corrective actions include trimming the cracked area of skin and installing a filler; and, either installing external skin doublers around the Number 3 flight deck window and installing a tripler, or installing a temporary external SRM skin repair. The alert service bulletin specifies that the corrective actions should be done before further flight. The alert service bulletin refers to Boeing Service Bulletin 747-53-2272 (currently at Revision 18, dated May 16, 2002) as an additional source of service information for installing the external skin doublers around the left- and right-side Number 3 flight deck windows.
For Group 2 airplanes only: The alert service bulletin describes installing external skin doublers around the left- and right-side Number 3 flight deck windows before accumulating 24,000 total flight cycles or within 250 flight cycles after the effective date of the alert service bulletin, whichever occurs later. This constitutes terminating action for the repetitive HFEC inspections specified in this NPRM.
For Group 1 airplanes only: AD 90-06-06 requires installation of external skin doublers around the Number 3 flight deck windows in accordance with Boeing Service Bulletin 747-53-2272, Revision 12, dated December 22, 1988, at or before 20,000 total flight cycles. This constitutes terminating action for the repetitive HFEC inspections specified in this NPRM.
Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition.
We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other airplanes of this same type design. For this reason, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously, except as discussed under “Difference Between the Proposed AD and Alert Service Bulletin.”
The alert service bulletin specifies to contact the manufacturer for instructions on how to repair certain conditions, but this proposed AD would require repairing those conditions in one of the following ways:
• Using a method that we approve; or
• Using data that meet the certification basis of the airplane, and that have been approved by an Authorized Representative for the Boeing Commercial Airplanes Delegation Option Authorization Organization whom we have authorized to make those findings.
Although the alert service bulletin discusses reporting inspection results, the Accomplishment Instructions of the alert service bulletin do not specify sending such a report to Boeing. This proposed AD would not require such reporting.
There are about 281 airplanes of the affected design in the worldwide fleet. This proposed AD would affect about 92 airplanes of U.S. registry. The proposed inspection would take about 4 work hours per airplane, at an average labor rate of $80 per work hour. Based on these figures, the estimated cost of the proposed inspection for U.S. operators is $29,440, or $320 per airplane, per inspection cycle.
For Group 2 airplanes (about 4 of U.S. registry), the mandatory terminating action for the repetitive inspections would take about 1,240 work hours, at an average labor rate of $80 per work hour. The manufacturer states that it will supply required parts to the operators at no cost. Based on these figures, the estimated cost of the terminating action for U.S. operators is $396,800, or $99,200 per airplane.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that the proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The Federal Aviation Administration (FAA) amends § 39.13 by adding the following new airworthiness directive (AD):
(a) The FAA must receive comments on this AD action by April 20, 2007.
(b) AD 90-06-06, amendment 39-6490, paragraph A., requires installation of external skin doublers in the area near the flight deck windows for Group 1 airplanes, which ends the repetitive high-frequency eddy current (HFEC) inspections required by this AD only for those airplanes. Installing external skin doublers as required by paragraph (g) of this AD ends certain repetitive inspections of the fuselage skin required by paragraph (f) of AD 2005-08-01, amendment 39-14053, only for the area near the flight deck windows modified by the external skin doublers.
(c) This AD applies to Boeing Model 747-100, 747-100B, 747-200B, 747-200C, 747-200F, 747-300, 747SR, and 747SP series airplanes, certificated in any category; as identified in Boeing Alert Service Bulletin 747-53A2542, dated February 16, 2006.
(d) This AD results from reports of fatigue cracks in the fuselage skin near stringer 5 between body stations 340 and 350. We are issuing this AD to detect and correct fatigue cracking of the fuselage skin near stringer 5. Cracks in this area could join together and result in in-flight depressurization of the airplane.
(e) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(f) For any airplane that has not had external skin doublers installed around the left- or right-side Number 3 flight deck window in accordance with Boeing Service Bulletin 747-53-2272, Revision 18, dated May 16, 2002, or an earlier revision: Do the applicable actions described in paragraphs (f)(1) and (f)(2) of this AD. Do all the actions in and in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2542, dated February 16, 2006. Do the actions at the compliance times specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2542, dated February 16, 2006, on the side(s) of the airplane on which the doubler installation has not been done; except where the service bulletin specifies compliance times after the date on the service bulletin, this AD requires compliance times after the effective date of this AD. Installing external skin doublers around the left- or right-side Number 3 flight deck windows in accordance with Boeing Service Bulletin 747-53-2272, Revision 18, or an earlier revision; ends the repetitive HFEC inspections required by this paragraph on the side of the airplane on which the doubler is installed. After the effective date of this AD, only Boeing Service Bulletin 747-53-2272, Revision 18, may be used to install the external skin doublers around the left- and right-side Number 3 flight deck windows.
(1) Do a HFEC inspection for cracks of the fuselage skin at stringer 5, between body stations 340 and 350; and do all applicable corrective actions before further flight.
(2) Repeat the HFEC inspection thereafter at the applicable interval specified in paragraph 1.E. of Boeing Alert Service Bulletin 747-53A2542.
(g) For Group 2 airplanes only: Before accumulating 24,000 total flight cycles, or within 250 flight cycles after the effective date of the AD, whichever occurs later, install external skin doublers around the left- and right-side Number 3 flight deck windows; in accordance with Boeing Service Bulletin 747-53-2272, Revision 17, dated November 18, 1999; or Revision 18, dated May 16, 2002. After the effective date of this AD, only Boeing Service Bulletin 747-53-2272, Revision 18, may be used to accomplish the doubler installation around the left- and right-side Number 3 flight deck windows. Accomplishing this action ends the repetitive inspections required by paragraph (f) of this AD.
(h)(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(2) Before using any AMOC approved in accordance with § 39.19 on any airplane to which the AMOC applies, notify the appropriate principal inspector in the FAA Flight Standards Certificate Holding District Office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair required by this AD, if it is approved by an Authorized Representative for the Boeing Commercial Airplanes Delegation Option Authorization Organization who has been authorized by the Manager, Seattle ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Supplemental notice of proposed rulemaking (NPRM); reopening of comment period.
The FAA is revising an earlier NPRM for an airworthiness directive (AD) that applies to certain Airbus Model A318, A319, A320, and A321 airplanes. The original NPRM would have superseded an existing AD that currently requires repetitive detailed inspections of the inboard flap trunnions for any wear marks and of the sliding panels for any cracking at the long edges, and corrective actions if necessary. The original NPRM proposed to add airplanes to the applicability in the existing AD and change the inspection type. The original NPRM resulted from a determination that certain airplanes must be included in the applicability of the AD, and that the inspection type must be revised. This new action revises the original NPRM by including airplanes that were inadvertently excluded from the applicability. We are proposing this supplemental NPRM to detect and correct wear of the inboard flap trunnions, which could lead to loss of flap surface control and consequently result in the flap detaching from the airplane. A detached flap could result in damage to the tail of the airplane.
We must receive comments on this supplemental NPRM by April 2, 2007.
Use one of the following addresses to submit comments on this proposed AD.
• DOT Docket web site: Go to
• Government-wide rulemaking web site: Go to
• Mail: Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590.
• Fax: (202) 493-2251.
• Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
Contact Airbus, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France, for service information identified in this supplemental NPRM.
Dan Rodina, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 227-2125; fax (425) 227-1149.
We invite you to submit any relevant written data, views, or arguments regarding this proposal. Send your comments to an address listed in the
We will post all comments submitted, without change, to
You may examine the AD docket on the Internet at
The FAA issued a notice of proposed rulemaking (NPRM) (the “original NPRM”) to amend 14 CFR part 39 to include an AD that supersedes AD 2006-04-06, amendment 39-14487 (71 FR 8439, February 17, 2006). The original NPRM applies to certain Airbus Model A318, A319, A320, and A321-100 airplanes. The original NPRM was published in the
We have determined that the original NPRM should have applied to certain Airbus Model A318 airplanes, and all Airbus Model A319, A320, and A321-111, -112, and -131 airplanes. In the original NPRM, we stated that we were adding Model A321-211 and -231 airplanes; however, the applicability was inadvertently changed to Model A318, A319, A320, and A321 airplanes on which Airbus Modification 26495 has been incorporated in production. The change resulted in the airplanes identified in paragraph (f) of the original NPRM (Model A319-111, -112, -113, -114, -115, -131, -132, and -133 airplanes; Model A320-111 airplanes; Model A320-211, -212, -214, -231, -232, and -233 airplanes; and Model A321-111, -112, and -131 airplanes; except those on which Airbus Modification 26495 has been accomplished in production) being excluded from the applicability of the original NPRM. We have changed the applicability in this supplemental NPRM to certain Airbus Model A318 airplanes, and “all” Airbus Model A319-111, -112, -113, -114, -115, -131, -132, and -133 airplanes; Model A320-111 airplanes; Model A320-211, -212, -214, -231, -232, and -233 airplanes; and Model A321-111, -112, -131, -211, and -231 airplanes.
Airbus has issued Service Bulletins A320-27-1117, Revision 03, dated August 24, 2001; and Revision 04, dated November 6, 2001. (Airbus Service Bulletin A320-27-1117, Revision 02, dated January 18, 2000, was referenced in the original NPRM as the appropriate source of service information for accomplishing the modification.) Airbus has also issued Airbus Service Bulletin A320-57-1133, Revision 01, dated August 7, 2006. (Airbus Service Bulletin A320-57-1133, dated July 28, 2005, was referenced in the original NPRM as the appropriate source of service information for accomplishing the inspections.) The changes in these revisions are minor and no additional work is necessary for airplanes modified by the previous issues. We have changed the AD to refer to this revised service information as the appropriate source of service information for accomplishing the required actions. In addition, we have added new paragraphs (k) and (l) to this AD to provide credit for accomplishing the actions before the effective date of this AD in accordance with the service information referenced in the original NPRM. Subsequent paragraphs have been re-identified accordingly. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition.
We have considered the following comments on the original NPRM.
Airbus supports the original NPRM.
The Modification and Replacement Parts Association (MARPA) states that, frequently, airworthiness directives are based on service information originating with the type certificate holder or its suppliers. MARPA adds that manufacturer service documents are privately authored instruments generally having copyright protection against duplication and distribution. MARPA notes that when a service document is incorporated by reference into a public document, such as an airworthiness directive, it loses its private, protected status and becomes a public document. MARPA adds that if a service document is used as a mandatory element of compliance, it should not simply be referenced, but should be incorporated into the regulatory document; by definition, public laws must be public, which
MARPA adds that incorporated by reference service documents should be made available to the public by publication in the Docket Management System (DMS), keyed to the action that incorporates them. MARPA notes that the stated purpose of the incorporation by reference method is brevity, to keep from expanding the
We do not agree that documents should be incorporated by reference during the NPRM phase of rulemaking. The Office of the Federal Register (OFR) requires that documents that are necessary to accomplish the requirements of the AD be incorporated by reference during the final rule phase of rulemaking. We intend that the final rule in this action will incorporate by reference the documents necessary for the accomplishment of the proposed requirements mandated by this AD. Further, we point out that while documents that are incorporated by reference do become public information, they do not lose their copyright protection. For that reason, we advise the public to contact the manufacturer to obtain copies of the referenced service information.
Additionally, we do not publish service documents in DMS. We are currently reviewing our practice of publishing proprietary service information. Once we have thoroughly examined all aspects of this issue, and have made a final determination, we will consider whether our current practice needs to be revised. However, we consider that to delay this AD action for that reason would be inappropriate, since we have determined that an unsafe condition exists and that the requirements in this AD must be accomplished to ensure continued safety. Therefore, we have not changed the supplemental NPRM in this regard.
We have changed paragraphs (g) and (j)(2) of this supplemental NPRM (paragraph (i)(2) of the original NPRM) to specify the “applicable” compliance times in the subparagraphs. Paragraphs (g)(2) and (j)(2)(ii) of this supplemental NPRM are applicable only to airplanes that have not had Airbus Modification 26495 done in production.
We have changed the applicability in paragraph (g) of this supplemental NPRM for clarity and we have added Model A320-111 airplanes, which were inadvertently excluded from that paragraph in the original NPRM. Paragraph (g) is applicable to all airplanes identified in the existing AD, and Model A320-111 airplanes are included in that applicability.
The changes discussed above expand the scope of the original NPRM; therefore, we have determined that it is necessary to reopen the comment period to provide additional opportunity for public comment on this supplemental NPRM.
The following table provides the estimated costs for U.S. operators to comply with this supplemental NPRM.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in subtitle VII, part A, subpart III, section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for
We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that the proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this supplemental NPRM and placed it in the AD docket. See the
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The Federal Aviation Administration (FAA) amends § 39.13 by removing amendment 39-14487 (71 FR 8439, February 17, 2006) and adding the following new airworthiness directive (AD):
(a) The FAA must receive comments on this AD action by April 2, 2007.
(b) This AD supersedes AD 2006-04-06.
(c) This AD applies to the airplanes identified in paragraphs (c)(1) and (c)(2) of this AD, certificated in any category.
(1) Airbus Model A318-111 and -112 airplanes on which Airbus Modification 26495 has been incorporated in production.
(2) All Airbus Model A319-111, -112, -113, -114, -115, -131, -132, and -133 airplanes; Model A320-111 airplanes; Model A320-211, -212, -214, -231, -232, and -233 airplanes; and Model A321-111, -112, -131, -211, and -231 airplanes.
(d) This AD results from a determination that certain airplanes must be included in the applicability of the AD, and that the inspection type must be revised. We are issuing this AD to detect and correct wear of the inboard flap trunnions, which could lead to loss of flap surface control and consequently result in the flap detaching from the airplane. A detached flap could result in damage to the tail of the airplane.
(e) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(f) For Model A319-111, -112, -113, -114, -115, -131, -132, and -133 airplanes; Model A320-111 airplanes; Model A320-211, -212, -214, -231, -232, and -233 airplanes; and Model A321-111, -112, and -131 airplanes; except those on which Airbus Modification 26495 has been accomplished in production: Within 18 months after January 8, 2001 (the effective date of AD 2000-24-02, amendment 39-12009), modify the sliding panel driving mechanism of the flap drive trunnions, in accordance with Airbus Service Bulletin A320-27-1117, Revision 02, dated January 18, 2000; or Revision 04, dated November 6, 2001. As of the effective date of this AD, only Revision 04 may be used.
Accomplishment of the modification required by paragraph (f) of this AD before January 8, 2001, in accordance with Airbus Service Bulletin A320-27-1117, dated July 31, 1997; or Revision 01, dated June 25, 1999; is acceptable for compliance with that paragraph.
(g) For Model A318-111 and -112 airplanes; Model A319-111, -112, -113, -114, -115, -131, -132, and -133 airplanes; Model A320-111 airplanes; Model A320-211, -212, -214, -231, -232, and -233 airplanes; and Model A321-111, -112, and -131 airplanes: At the latest of the applicable times specified in paragraphs (g)(1), (g)(2), and (g)(3) of this AD, do a detailed inspection of the inboard flap trunnions for any wear marks and of the sliding panels for any cracking at the long edges, and do any corrective actions, as applicable, by accomplishing all of the applicable actions specified in the Accomplishment Instructions of Airbus Service Bulletin A320-57-1133, dated July 28, 2005; or Revision 01, dated August 7, 2006; except as provided by paragraph (p) of this AD. As of the effective date of this AD, only Revision 01 may be used. Any corrective actions must be done at the compliance times specified in Figures 5 and 6, as applicable, of the service bulletin; except as provided by paragraphs (m), (n), and (o) of this AD. Repeat the inspection thereafter at intervals not to exceed 4,000 flight hours until the inspection required by paragraph (j) of this AD is done.
For the purposes of this AD, a detailed inspection is: “An intensive examination of a specific item, installation, or assembly to detect damage, failure, or irregularity. Available lighting is normally supplemented with a direct source of good lighting at an intensity deemed appropriate. Inspection aids such as mirror, magnifying lenses, etc., may be necessary. Surface cleaning and elaborate procedures may be required.”
(1) Before accumulating 4,000 total flight hours on the inboard flap trunnion since new.
(2) Within 4,000 flight hours after accomplishing paragraph (f) of this AD.
(3) Within 600 flight hours after March 24, 2006 (the effective date of AD 2006-04-06).
(h) For Model A321-211 and -231 airplanes, except those on which Airbus Modification 26495 has been accomplished in production: Within 18 months after the effective date of this AD, modify the sliding panel driving mechanism of the flap drive trunnions, in accordance with Airbus Service Bulletin A320-27-1117, Revision 04, dated November 6, 2001.
(i) Accomplishing the modification specified in paragraph (h) of this AD is acceptable for compliance with the requirements of that paragraph if done before the effective date of this AD in accordance with the applicable service bulletin identified in Table 1 of this AD.
(j) For all airplanes: At the time specified in paragraph (j)(1) or (j)(2) of this AD, as applicable, do a general visual inspection of the inboard flap trunnions for any wear marks and of the sliding panels for any cracking at the long edges, and do all applicable corrective actions, by accomplishing all of the applicable actions specified in the Accomplishment Instructions of Airbus Service Bulletin A320-57-1133, Revision 01, dated August 7, 2006; except as provided by paragraph (p) of this AD. All corrective actions must be done at the compliance times specified in Figures 5 and 6, as applicable, of the service bulletin; except as provided by paragraphs (m), (n), and (o) of this AD. Repeat the inspection thereafter at intervals not to exceed 4,000 flight hours. Accomplishment of the general visual inspection required by this paragraph terminates the detailed inspection requirement of paragraph (g) of this AD.
For the purposes of this AD, a general visual inspection is: “A visual examination of an interior or exterior area, installation, or assembly to detect obvious damage, failure, or irregularity. This level of inspection is made from within touching distance unless otherwise specified. A mirror may be necessary to ensure visual access to all surfaces in the inspection area. This level of inspection is made under normally available lighting conditions such as daylight, hangar lighting, flashlight, or droplight and may require removal or opening of access panels or doors. Stands, ladders, or platforms may be required to gain proximity to the area being checked.”
(1) For airplanes on which the detailed inspection required by paragraph (g) of this AD has been done before the effective date of this AD: Inspect before accumulating 4,000 total flight hours on the inboard flap trunnion since new, or within 4,000 flight hours after accomplishing the most recent inspection required by paragraph (g) of this AD, whichever occurs later.
(2) For airplanes other than those identified in paragraph (j)(1) of this AD: Inspect at the latest of the applicable times specified in paragraphs (j)(2)(i), (j)(2)(ii), and (j)(2)(iii) of this AD.
(i) Before accumulating 4,000 total flight hours on the inboard flap trunnion since new.
(ii) Within 4,000 flight hours after accomplishing paragraph (f) or (h) of this AD.
(iii) Within 600 flight hours after the effective date of this AD.
(k) Accomplishment of the modification required by paragraph (f) of this AD before the effective date of this AD, in accordance with Airbus Service Bulletin A320-27-1117, Revision 03, dated August 24, 2001, is acceptable for compliance with the requirements of that paragraph.
(l) Accomplishment of the inspections required by paragraph (j) of this AD before the effective date of this AD, in accordance with Airbus Service Bulletin A320-57-1133, dated July 28, 2005, is acceptable for compliance with the requirements of that paragraph.
(m) Where Airbus Service Bulletins A320-57-1133, dated July 28, 2005; and Revision 01, dated August 7, 2006; specify replacing the sliding panel at the next opportunity if damaged, replace it within 600 flight hours after the inspection required by paragraph (g) or (j) of this AD, as applicable.
(n) If any damage to the trunnion is found during any inspection required by paragraph (g) or (j) of this AD, before further flight, do the corrective actions specified in Airbus Service Bulletin A320-57-1133, dated July 28, 2005; or Revision 01, dated August 7, 2006. As of the effective date of this AD, only Revision 01 may be used.
(o) Where Airbus Service Bulletins A320-57-1133, dated July 28, 2005; and Revision 01, dated August 7, 2006; specify contacting the manufacturer for a grace period assessment after replacing the trunnion or flap, contact the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; the Direction Ge´ne´rale de l'Aviation Civile; or the European Aviation Safety Agency (or its delegated agent); for the grace period assessment.
(p) Although Airbus Service Bulletins A320-57-1133, dated July 28, 2005; and Revision 01, dated August 7, 2006; specify to submit certain information to the manufacturer, this AD does not include that requirement.
(q)(1) The Manager, International Branch, ANM-116, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(2) Before using any AMOC approved in accordance with 14 CFR 39.19 on any airplane to which the AMOC applies, notify the appropriate principal inspector in the FAA Flight Standards Certificate Holding District Office.
(r) French airworthiness directive F-2005-139, dated August 3, 2005, also addresses the subject of this AD.
Minerals Management Service (MMS), Interior.
Proposed rule.
MMS proposes to amend the regulations regarding oil and natural gas production. This is a complete rewrite of these regulations, addressing issues such as production rates, burning oil, and venting and flaring natural gas. The proposed rule would eliminate most restrictions on production rates and clarify flaring and venting limits. The proposed rule was written using plain language, so it will be easier to read and understand.
Submit comments by June 4, 2007. MMS may not fully consider comments received after this date. Submit comments to the Office of Management and Budget on the information collection burden in this rule by April 5, 2007.
You may submit comments on the rulemaking by any of the following methods. Please use the Regulation Identifier Number (RIN) 1010-AD12 as an identifier in your message. See also Public Comment Procedures under Procedural Matters.
• MMS's Public Connect on-line commenting system,
• Federal eRulemaking Portal:
• E-mail MMS at
• Fax: 703-787-1546. Identify with the RIN, 1010-AD12.
• Mail or hand-carry comments to the Department of the Interior; Minerals Management Service; Attention: Rules Processing Team (RPT); 381 Elden Street, MS-4024; Herndon, Virginia 20170-4817. Please reference “Oil and Gas Production Requirements, 1010-AD12” in your comments and include your name and return address.
• Send comments on the information collection in this rule to: Interior Desk Officer 1010-AD12, Office of Management and Budget; 202/395-6566 (facsimile); e-mail:
Amy C. White, Regulations and Standards Branch, 703-787-1665.
This rule proposes to revise subpart K, Oil and Gas Production Rates, of 30 CFR 250. The new version of subpart K would represent a major change in the structure and readability of the regulation with some changes in the requirements. This revision would eliminate some requirements that are no longer necessary in today's industry and clarify other requirements. Some of these revisions are based on a Government Accountability Office (GAO) report on natural gas flaring and venting.
In July 2004, the GAO issued a report on world-wide emissions from vented and flared natural gas titled, “Natural Gas Flaring and Venting—Opportunities to Improve Data and Reduce Emissions” (GAO-04-809). This report is available on the GAO Web site at:
• The amount of gas emitted through flaring and venting worldwide is small compared with global natural gas production and represents a small portion of greenhouse gas emissions.
• Worldwide flaring and venting is estimated to contribute, respectively, about 4 percent of the total methane and about 1 percent of the total carbon dioxide emissions caused by human activity.
• EIA [Energy Information Administration] estimates that the United States flares or vents about 0.4 percent of its production, representing only 3 percent of the world's total amount of natural gas flared and vented.
• In the United States, there are well-developed natural gas markets and infrastructure to reduce the flaring and venting of associated natural gas.
• Since 1990, the quantity of oil produced has increased, but because of various global reduction initiatives, the quantity of natural gas flared and vented has remained constant. Consequently, natural gas emissions as a percentage of oil production have decreased.
• Since the impact of methane (venting) on the earth's atmosphere is about 23 times greater than that of carbon dioxide (flaring), a small change in the ratio of flaring to venting could cause a disproportionate change in the impact of emissions.
The report concluded that more accurate records on flaring and venting are needed to determine the amount of the resource that is lost and the volume of greenhouse gas emissions these practices contribute to the atmosphere each year. The GAO made two recommendations to the Secretary of the Interior: (1) “Consider the cost and benefit of requiring that companies flare the natural gas, whenever possible, when flaring or venting is necessary,” and (2) “consider the cost and benefit of requiring that companies use flaring and venting meters to improve oversight.” In addition, there was a recommendation to the Secretary of Energy to consider, “in consultation with EPA [Environmental Protection Agency], MMS, and BLM [Bureau of Land Management], how to best collect separate statistics on flaring and venting.”
In comments on the draft report, the Department of the Interior (DOI) concurred with the report's recommendations and agreed to assess the cost effectiveness of requiring the oil and gas industry to implement these changes. MMS conducted analyses to assess the costs and benefits of requiring flare/vent meters and also of requiring flaring instead of venting. The first analysis supported the recommendation to require meters provided that the facilities process more than 2,000 barrels of oil per day (BOPD). This requirement is included in the proposed rule.
The second analysis indicated that a regulatory change to require flaring instead of venting may be appropriate. However, the cost of implementing this requirement is significant, and input from potentially affected parties is necessary to establish a reasonable threshold. MMS plans to work directly with interested parties to determine the best approach in considering the GAO recommendation to require flaring instead of venting natural gas. We are soliciting comments on this issue in this proposed rule. We would like comments related to additional costs, environmental impacts, and conditions or situations where flaring may not be advisable. We are planning a workshop to discuss the issue. The workshop would be followed by appropriate rulemaking.
To improve data collection, as the GAO report suggested, MMS is proposing that operators report flaring and venting volumes to MMS separately. Currently, MMS only collects information on the total natural gas flared and vented. Operators do not need to differentiate between the two categories. In addition, MMS inspectors currently use infrared cameras to verify natural gas venting.
The proposed rule would completely restructure subpart K. The new version is divided into shorter, easier-to-read sections. Each section focuses on one topic instead of the arrangement in the current version, which covers multiple topics in each section. For example, in the current edition of subpart K, the regulations regarding burning liquid hydrocarbons, as well as those governing flaring or venting natural gas, are in one section. In the proposed rule, these same requirements are in five sections, making it easier for an operator to find the information that applies to its particular situation. The numbering for subpart K would start at § 250.1150 instead of § 250.1100 to accommodate other planned rulemaking. The proposed structure is shown in the following table:
The organization of the proposed rule reflects the actual sequence of events that occurs as wells are developed and the resources produced. The proposed rule is written in plain language to conform to the DOI's standards for rule writing. These changes include incorporating tables, using a question format for section headings, and using pronouns. These changes would make the rule easier to understand. Finally, a table at the end of the rule lists the information that operators would have to submit to MMS to receive approvals for various operations.
Some requirements from the previous edition of subpart K would be eliminated by the proposed rule because they are unnecessary in today's petroleum industry. For example, MMS required operators to establish maximum production rates (MPR's) for producing well completions, and maximum efficient rates (MER's) for producing reservoirs, in OCS Order No. 11 in 1974, during a period of oil shortages and energy crises. In 1988, MMS reduced the MER requirement. Currently, MER's are required only on sensitive reservoirs (primarily oil reservoirs with associated gas caps). Determining and maintaining production rates imposes a significant burden on operators. Based on the past 30 years of experience, MMS has concluded that maximum rate requirements and production balancing requirements can be largely eliminated without significant detriment to efforts for conservation and maximization of ultimate recovery. However, the proposed rule would allow the Regional Supervisor to set production rates in cases where excessive production could harm ultimate recovery from the reservoir.
The proposed rule would clarify required information submittals to MMS, including requirements relating to the documents submitted to MMS and the timing of those submissions. For example, there is additional guidance on notifying adjoining operators regarding production within 500 feet of a common lease or unit line. The proposed rule would provide more detail as to when the notification must occur, what the notice must include, and how to verify the notification with MMS.
The proposed rule would incorporate several Notices to Lessees and Operators (NTLs) that clarify the current regulations. These NTLs would be obsolete if the proposed rule becomes final and MMS would withdraw all of these NTLs at that time. However, if necessary, MMS would issue additional NTLs to provide guidance. The NTLs affected include:
• NTL No. 97-16, “Production Within 500 Feet of a Unit or Lease Line,” effective August 1, 1997. This NTL clarifies MMS policy on issuing approvals for production within 500 feet of a unit or lease line, and includes details on what the requesting operator needs to provide to MMS for approval. Those details are addressed in the proposed rule.
• NTL No. 98-23, “Interim Reporting Requirements for 30 CFR 250, subpart K, Oil and Gas Production Rates,” effective October 15, 1998. This NTL addressed oral approvals for gas flaring and relaxed some of the requirements regarding production rates, including MER and MPR in certain circumstances. The NTL clarified the submittal of written summary letters on flaring incidents that received oral approval. These requirements are addressed in the proposed rule.
• NTL No. 99-G20, “Downhole Commingling Applications,” effective September 7, 1999. This NTL was issued in conjunction with NTL No. 99-G19. It clarifies what information the applicant needs to include in downhole commingling applications to ensure that the application is processed without delay. These information requirements were added to the proposed rule.
• NTL No. 2006-N06, “Flaring and Venting Approvals,” effective December 19, 2006. This NTL clarifies the definitions of flaring and venting, the record-keeping requirements, the classification of emitted natural gas, and the MMS policy regarding continuous flaring or venting of small volumes of oil-well gas or gas-well gas from storage vessels or other low-pressure production vessels when the gas cannot be economically recovered. These issues are addressed in the proposed rule. This NTL also provides contact information for each Region and provides sample
The most significant change, with regard to cost, would be a proposed requirement for natural gas flare/vent meters on facilities that process significant volumes of oil. The current MMS requirements rely heavily on the accuracy of operator calculations and record keeping. Recent incidents have shown that these methods are insufficient to accurately capture actual flaring and venting volumes. The proposed rule would require the installation of meters to accurately measure all flared and vented natural gas on facilities that process more than 2,000 BOPD. These facilities have the potential to flare or vent significant volumes of associated gas.
MMS estimates the cost of purchasing and installing these meters to be $77,000 per facility. Limiting the requirement to facilities that process over 2,000 BOPD ensures that the meters are a small expense relative to the cost of operating those facilities and relative to the income generated by those facilities; and that the requirement would not be an unfair burden to small operators. MMS estimates that 34 operators would have to install the meters on 112 facilities. Of those operators that would have to install the meters, nine are considered small businesses, according to the North American Industry Classification System (NAICS).
The July 2004 GAO report on world-wide emissions from vented and flared natural gas, discussed above, recommended that more accurate records on flaring and venting are needed to determine the amount of the resource that is wasted, and the volume of greenhouse gas these practices contribute to the atmosphere each year. The report recommended that DOI consider requiring flare/vent meters to measure the gas lost. MMS agrees with that recommendation. However, MMS believes installing these meters on facilities that process less than 2,000 BOPD would not be cost effective, and might be an undue burden on smaller operators.
MMS is also proposing to add new definitions for “flaring” and “venting” to 30 CFR part 250 subpart A, and to revise the definition for “sensitive reservoir.”
The following is a brief section-by-section description of the substantive proposed changes to subpart K:
The proposed approval requirements are clearer than in the current rule, and include issues addressed in NTL 97-16. In addition to receiving approval from the Regional Supervisor, operators must notify operators of adjacent leases. The requirement to notify adjacent operators would be clearer, and there is a list of information the notification would have to include.
The proposed rule would require operators to receive approval before flaring or venting gas in volumes higher than those specified in their previously-approved plans. This would enable MMS to ensure that flaring and venting activities are in compliance with environmental laws.
The proposed rule would also allow the Regional Supervisor to specify flaring and venting volume limits (in addition to time limits) in order to prevent air quality degradation or the loss of reserves. This is sometimes necessary because offshore production facilities are now capable of flaring or venting extremely large volumes in a short amount of time.
Operators would be required to keep records on flaring, venting, and burning for 6 years to comply with 30 CFR Part 212—Records and Files Maintenance. The operators would be required to store these records on the facility for the first 2 years after the flaring, venting, or burning event. After that, the operator would be able to keep the records at a separate location, but they must be available for MMS review.
The proposed rule would clarify reporting procedures and require operators to report flared and vented volumes separately. The previously discussed GAO report concluded that MMS should collect flared and vented volumes separately. MMS tentatively agrees with this conclusion, and does not believe it will pose a significant burden on operators because they already report the volumes of gas flared and vented to MMS on Form MMS-4054 (Oil and Gas Operations Report). Operators would only need to identify whether the gas volumes were flared or vented.
The proposed rule would require operators to identify the facilities where the gas is flared or vented. This would enable MMS to directly compare volumes reported on Forms MMS-4054 with field records. This requirement would also reduce the burden on operators during royalty audits because operators would no longer have to reconstruct historical flare/vent allocations for MMS auditors.
The proposed rule would require operators to retain meter recordings on facilities that require flare/vent meters. This would allow MMS to compare eyewitness observations with field records and ensure that flaring and venting incidents are properly recorded. MMS does not believe this would be a significant burden on those facilities with flare/vent meters because these meters typically record such events automatically and operators usually maintain these electronic records for their own purposes.
In addition, the proposed rule would clarify when royalties are due on flared gas, vented gas, and burned liquid hydrocarbons under 30 CFR 202.100 Royalty on Oil and 30 CFR 202.150 Royalty on Gas. As in the current rule, royalties would not be due if the hydrocarbons were unavoidably lost. In most cases, MMS will consider hydrocarbons that are flared, vented or burned with MMS approval as “unavoidably lost” and the operator would not be required to pay royalties. However, MMS would retain the authority to determine whether or not the loss was avoidable or due to negligence, even if approved by MMS. For example, if you received MMS approval to flare 100 MCF of gas per day, then actually flared 100,000 MCF of gas per day under conditions that would not have been approved, MMS might determine that the entire volume flared was “avoidably lost” and royalties would be due on the entire volume. MMS would also be able to
This is necessary for the MMS Alaska Region to administer Section 7 Agreements between the Secretary of the Interior and the Governor of the State of Alaska. Under existing Section 7 Agreements, oil and gas reserves underlying a common geologic structure must be unitized and the allocation of production between Federal and State leases for royalty payment must be based on recoverable oil and gas. Under agreement with the State, this determination will be based on reservoir performance following completion of the development drilling program and sustained production. Annual reservoir management plans enable the MMS to monitor recoverable oil and assure proper allocation of reserves for royalty payment and to be consistent with the State of Alaska requirements.
This provision would also enable the MMS to manage its responsibility for conservation of resources on a real time basis. The number, type, spacing and sequencing of development wells (producers and injectors) will vary from the original approved development and production plan as more information on the reservoir is obtained. An annual reservoir management plan would enable the MMS to track development activities with the approved development and production plan and assure maximum recovery based on the most current knowledge of the reservoir.
In addition to comments on these proposed regulations, MMS is requesting comments on the following questions.
1. Are these regulations well organized and easy to read?
2. Is the submittal table useful?
3. Is the 2,000 BOPD requirement for installing flare/vent meters reasonable? Are the cost estimates accurate?
4. Would the requirement to install flare/vent meters pose a safety hazard by restricting flow during emergency facility blowdowns, or are accurate meters (such as ultrasonic meters) available that do not impede gas flow?
5. Should MMS require operators to flare natural gas instead of venting it, under approved flaring and venting conditions? This question is based on a recommendation from the GAO report on flaring and venting natural gas, and reflects concerns about the amount of greenhouse gas that is released into the environment by venting. MMS is studying this recommendation before proposing any regulatory change. We would like comments on this issue, including comments related to additional costs, environmental impacts, and conditions or situations where flaring may not be advisable.
Before including your address, phone number, e-mail 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.
This proposed rule is not a significant rule as determined by the Office of Management and Budget (OMB) and is not subject to review under E.O. 12866.
(1) The proposed rule would not have an annual economic effect of $100 million or more on the economy. It would 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. A cost-benefit and economic analysis is not required.
This proposed rule revises the requirements for oil and gas production. The changes in the rule are not significant enough to have an impact on the economy or an economic sector, productivity, jobs, the environment, or other units of government. Some of the current requirements would be relaxed. For example, limits on production rates were eliminated in most cases. This would allow the operators to produce the oil and gas at the rates that they determine are best, and would not have a significant effect on any sector of the economy.
(2) The proposed rule would not create a serious inconsistency or otherwise interfere with action taken or planned by another agency because MMS is the only Federal government agency directly involved in setting production requirements for the offshore oil and natural gas industry.
(3) This proposed rule would not alter the budgetary effects of entitlements, grants, user fees or loan programs, or the rights and obligations of their recipients.
(4) This proposed rule would not raise novel legal or policy issues. There are some changes in production requirements in this proposal, but most of the changes clarify existing MMS requirements. Some may require additional paperwork for the operators. Since the basic production requirements are not changed, and restrictions on production rates are decreased, this proposed rule should not raise novel legal or policy issues.
The Department of the Interior certifies that this proposed rule would not have a significant economic effect on a substantial number of small entities as defined under the RFA (5 U.S.C. 601
This rule applies to all lessees operating on the OCS. Lessees fall under the Small Business Administration's North American Industry Classification System (NAICS) code 211111, Crude Petroleum and Natural Gas Extraction. Under this NAICS code, companies with less than 500 employees are considered small businesses. MMS estimates that 130 lessees explore for and produce oil and gas on the OCS; approximately 70 percent of them (91 companies) fall into the small business category. The proposed regulation would therefore affect a substantial number of small entities. However, we have determined that it would not have a significant economic effect on these small entities.
One new requirement that would impose a cost to operators is a requirement to install flaring/venting meters on all facilities that process more than 2,000 BOPD. The GAO report on flaring and venting natural gas, released in July 2004, recommended that MMS require these meters to improve oversight. MMS agrees with this recommendation. MMS regulations allow flaring and venting in very limited circumstances. These meters would help MMS:
• Verify the amounts of natural gas that operators flare or vent into the environment;
• Prevent waste of resources;
• Collect the proper royalties on avoidably flared or vented gas;
• Determine if an operator is violating MMS regulations; and
• Assess the impacts on the environment.
In determining the criteria for which facilities must install the meters, MMS considered the cost of the meters and the amount of production needed to justify the cost. To ensure that the requirement to install flare/vent meters would not produce an undue burden on small companies, it was limited to those facilities that process more than an average of 2,000 BOPD.
MMS estimates that 34 companies would have to install meters on 112 facilities at an average cost of $77,000 per facility and a total cost to industry of $8,624,000 (112 × $77,000 = $8,624,000). Of those, nine companies are considered small businesses, based on the NAICS. These nine companies represent only 7 percent of the 130 operators on the OCS. We estimate that seven of these nine companies would need to install meters on one facility each; one company would need to install meters on two facilities; and one company would need to install meters on three facilities. This represents an average cost of $105,875 for each of the small companies (11 facilities × $77,000/9 companies). The average cost to non small companies would be $311,080 per company (101 facilities × $77,000/25 companies). In addition, this does not represent an unfair burden to small companies because the cost of these meters is small in comparison to the revenues generated by the amount of oil processed by those facilities.
Your comments are important. The Small Business and Agriculture Regulatory Enforcement Ombudsman and 10 Regional Fairness Boards were established to receive comments from small businesses about Federal agency enforcement actions. The Ombudsman will annually evaluate the enforcement activities and rate each agency's responsiveness to small business. If you wish to comment on the actions of MMS, call 1-888-734-3247. You may comment to the Small Business Administration without fear of retaliation. Disciplinary action for retaliation by an MMS employee may include suspension or termination from employment with the DOI.
The proposed rule is not a major rule under SBREFA (5 U.S.C. 804(2)). This proposed rule:
a. Would not have an annual effect on the economy of $100 million or more. This proposed rule revises the requirements for oil and gas production. The changes would not have an impact on the economy or an economic sector, productivity, jobs, the environment, or other units of government. Most of the new requirements are paperwork requirements, and would not add significant time to development and production processes. One new requirement would add new costs for some operators. Operators would be required to install flare/vent meters on any facility that processes more than an average of 2,000 BOPD. MMS estimates that 34 companies would have to install meters on 112 facilities at an average cost of $77,000 per facility and a total cost to industry of $8,624,000 (112 × $77,000 = $8,624,000).
b. Would not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.
In most cases, this proposed rule would eliminate the requirement for operators to set limits on production rates, allowing the operators to determine the best rate to produce their reservoirs. The limits on burning, flaring, and venting are clearer. These limits would encourage conservation of our natural resources, without putting undue production restrictions on operators. There would be a new requirement to install meters on facilities that process more than an average of 2,000 BOPD. As discussed above, this requirement would not significantly increase the cost of doing business offshore.
c. Would not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This proposed rule would eliminate the requirement for operators to set limits on production rates, allowing the operators to determine the best rate to produce their reservoirs. There are clearer limits on burning, flaring, and venting, which would encourage conservation of our natural resources.
This proposed rule would not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The proposed rule would not have a significant or unique effect on State, local, or tribal governments or the private sector. A statement containing the information required by UMRA (2 U.S.C. 1531
The proposed rule is not a governmental action capable of interference with constitutionally protected property rights. Thus, MMS did not need to prepare a Takings Implication Assessment according to
With respect to E.O. 13132, this proposed rule would not have federalism implications. This proposed rule would not substantially and directly affect the relationship between the Federal and State governments. To the extent that State and local governments have a role in OCS activities, this proposed rule would not affect that role.
MMS has the authority to regulate offshore oil and gas production. State governments do not have authority over offshore production in Federal waters.
With respect to E.O. 12988, the Office of the Solicitor has determined that the proposed rule would not unduly burden the judicial system and does not meet the requirements of sections 3(a) and 3(b)(2) of the Order. MMS drafted this proposed rule in plain language to provide clear standards. We consulted with the Department of the Interior's Office of the Solicitor throughout the drafting process for the same reasons.
The proposed rule contains a collection of information that has been submitted to OMB for review and approval under § 3507(d) of the PRA. As part of our continuing effort to reduce paperwork and respondent burdens, MMS invites the public and other Federal agencies to comment on any aspect of the reporting and recordkeeping burden. You may submit your comments on the information collection aspects of this proposed rule directly to the Office of Management and Budget (OMB), Office of Information and Regulatory Affairs, OMB Attention: Desk Officer for the Department of the Interior via OMB e-mail: (
The PRA provides that an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. OMB is required to make a decision concerning the collection of information contained in these proposed regulations 30-60 days after publication of this document in the
The title of the collection of information for the rule is “30 CFR 250, Subpart K, Oil and Gas Production Requirements.” The proposed regulations concern oil and gas production requirements, and the information is used in our efforts to conserve natural resources, prevent waste, and protect correlative rights, including the government's royalty interest.
Respondents are the approximately 130 Federal oil and gas and sulphur lessees. Responses to this collection are mandatory. The frequency of response is on occasion, monthly, semi-annually, annually, and as a result of situations encountered depending upon the requirement. The information collection (IC) does not include questions of a sensitive nature. MMS will protect proprietary information according to the Freedom of Information Act (5 U.S.C. 552) and its implementing regulations (43 CFR part 2), and 30 CFR 250.196, “Data and information to be made available to the public,” and 30 CFR part 252, “OCS Oil and Gas Information Program.” Proprietary information concerning geological and geophysical data will be protected according to 43 U.S.C. 1352.
The collection of information required by the current subpart K regulations is approved under OMB Control Number 1010-0041. The proposed rule imposes minor changes to the information collection burden. The changes are:
• Report to Minerals Revenue Management (MRM) measured gas flaring or venting and liquid hydrocarbon burning. Submit periodic reports of volumes of oil, gas, or other substances injected, produced, or produced for a second time. Both requirements and burdens are now reported to MRM and their respective burdens are covered under OMB Control Number 1010-0139 (-154 burden hours);
• Request Regional Supervisor approval for emitting more than 15 lbs. of SO
• Submit to Regional Supervisor air quality modeling analysis report. The proposed burden hours represent an adjustment to a current requirement for information that was not previously collected (+40 burden hours);
• For Alaska Region Only: Submit to Regional Supervisor annual reservoir management report and supporting information. (At this time, the state requires the same information and MMS receives a copy). Alaska has started producing in state waters. If new development occurs in Federal waters, a minimal burden for submitting an annual reservoir management report, and burden hours for annual revisions are being added (+161 burden hours).
• Maintain meter records for detailing gas flaring or venting, and liquid hydrocarbon burning for 6 years. These new burden requirements do not add additional burden hours.
• General departure or alternative compliance requests (+5 burden hours).
The currently approved information collection for this subpart (1010-0041) will be superseded by this collection when final regulations take effect.
Currently, regulations covered under OMB Control Number 1010-0041 have 43,065 annual burden hours. MMS estimates the total annual reporting and recordkeeping “hour” burden for the proposed rule to be 43,127 hours; this is an increase of 62 burden hours. With the exception of the recordkeeping requirement changes and the items identified as “new” in the following chart, the burden estimates shown are those that are estimated for the current subpart K regulations.
(a) MMS specifically solicits comments on the following questions:
(1) Is the proposed collection of information necessary for MMS to properly perform its functions, and will it be useful?
(2) Are the estimates of the burden hours of the proposed collection reasonable?
(3) Do you have any suggestions that would enhance the quality, clarity, or usefulness of the information to be collected?
(4) Is there a way to minimize the information collection burden on those who are to respond, including the use of appropriate automated electronic, mechanical, or other forms of information technology?
(b) In addition, the PRA requires agencies to estimate the total annual reporting and recordkeeping “non-hour cost” burden resulting from the collection of information. Other than the cost recovery fees listed in the burden table, and the fee for installing flaring/venting meters (§ 250.1163), we have not identified any other costs, and we solicit your comments on this item. For reporting and recordkeeping only, your response should split the cost estimate into two components: (1) Total capital and startup cost component and (2) annual operation, maintenance, and purchase of services components. Your estimates should consider the costs to generate, maintain, disclose or provide the information. You should describe the methods you use to estimate major cost factors, including system and technology acquisition, expected useful life of capital equipment, discount rate(s), and the period over which you incur costs. Capital and start-up costs include, among other items, computers and software you purchase to prepare for collecting information; monitoring, sampling, drilling, and testing equipment; and record storage facilities. Generally, our estimates should not include equipment or services purchased: before October 1, 1995; to comply with requirements not associated with the information collection; for reasons other than to provide information or keep records for the Government; or as part of customary and usual business or private practices.
We analyzed this proposed rule in accordance with the criteria of the NEPA and 516 Departmental Manual 6, Appendix 10.4C, “issuance, and/or modification of regulations.” MMS completed a Categorical Exclusion Review (CER) for this action on May 31, 2005, and concluded: “The proposed rulemaking does not represent an exception to the established criteria for categorical exclusion. Therefore, preparation of an environmental document will not be required, and further documentation of this CER is not required.”
Executive Order 13211 requires the agency to prepare a Statement of Energy Effects when it takes a regulatory action that is identified as a significant energy action. This proposed rule is not a significant energy action, and therefore would not require a Statement of Energy Effects because it:
a. Is not a significant regulatory action under E.O. 12866,
b. Is not likely to have a significant adverse effect on the supply, distribution, or use of energy, and
c. Has not been designated by the Administrator of the Office of Information and Regulatory Affairs, OMB, as a significant energy action.
Under the criteria in E.O. 13175, we have evaluated this proposed rule and determined that it has no potential effects on federally recognized Indian tribes. There are no Indian or tribal lands on the OCS.
Executive Order 12866 requires each agency to write regulations that are easy to understand. MMS invites your comments on how to make this proposed rule easier to understand, including answers to questions such as the following:
(1) Are the requirements in the proposed rule clearly stated?
(2) Does the proposed rule contain technical language or jargon that interferes with its clarity?
(3) Does the format of the proposed rule (grouping and order of sections, use of headings, paragraphs, etc.) aid or reduce its clarity?
(4) Is the description of the proposed rule in the “Supplementary Information” section of this preamble helpful in understanding the rule?
Send a copy of any comments that concern how we could make this proposed rule easier to understand to: Office of Regulatory Affairs; Department of the Interior, Room 7229; 1849 C Street, NW., Washington, DC 20240. You may also e-mail the comments to this address:
Continental shelf, Environmental impact statements, Environmental protection, Government contracts, Investigations, Oil and gas exploration, Penalties, Pipelines, Public lands—mineral resources, Public lands—rights-of-way, Reporting and recordkeeping requirements, Sulphur.
For the reasons stated in the preamble, Minerals Management Service (MMS) proposes to revise 30 CFR part 250 as follows:
1. The authority citation for part 250 continues to read as follows:
43 U.S.C. 1331
2. Amend § 250.105 to revise the definition of “Sensitive reservoir” and add in alphabetical order definitions for “Flaring” and “Venting” to read as follows:
3. In § 250.125, revise the table in paragraph (a) to read as follows:
(a) * * *
4. Revise subpart K to read as follows:
You must produce wells and reservoirs at rates that provide for economic development without harming ultimate recovery and without adversely affecting correlative rights.
(a) You must conduct well production tests as shown in the following table:
(b) You may request an extension from the Regional Supervisor if you cannot submit the results of a semiannual well test within the specified time.
(c) You must submit an original and one copy of the form required by paragraph (a) of this section, as listed in the table in § 250.1167. You must include one public information copy with each submittal in accordance with §§ 250.190 and 250.196, and mark that copy “Public Information.”
(a) When you conduct well tests you must:
(1) Recover fluid from the well completion equivalent to the amount of fluid introduced into the formation during completion, recompletion, reworking, or treatment operations before you start a well test;
(2) Produce the well completion under stabilized rate conditions for at least 6 consecutive hours before beginning the test period;
(3) Conduct the test for at least 4 consecutive hours;
(4) Adjust measured gas volumes to the standard conditions of 14.73 pounds per square inch absolute (psia) and 60°F for all tests; and
(5) Use measured specific gravity values to calculate gas volumes.
(b) You may request approval from the Regional Supervisor to conduct a well test using alternative procedures if you can demonstrate test reliability under those procedures.
(c) The Regional Supervisor may also require you to conduct the following tests and complete them within the specified time period:
(1) A retest or a prolonged test of a well completion if it is determined to be necessary for the proper establishment of a Maximum Production Rate (MPR) or a Maximum Efficient Rate (MER); and
(2) A multipoint back-pressure test to determine the theoretical open-flow potential of a gas well.
(d) An MMS representative may witness any well test. Upon request, you must provide advance notice to the Regional Supervisor of the times and dates of well tests.
(a) You must conduct a static bottomhole pressure survey under the following conditions:
(b) Your bottomhole pressure survey must meet the following requirements:
(1) You must shut-in the well for a minimum period of 4 hours to ensure stabilized conditions; and
(2) The bottomhole pressure survey must consist of a pressure measurement at mid-perforation, and pressure measurements and gradient information for at least four gradient stops coming out of the hole.
(c) You must submit to the Regional Supervisor the results of all static bottomhole pressure surveys on Form MMS-140, Bottomhole Pressure Survey Report, within 60 days after the date of the survey.
(d) The Regional Supervisor may grant a departure from the requirement to run a static bottomhole pressure survey. You must request a departure by letter, along with Form MMS-140, Bottomhole Pressure Survey Report. You must include sufficient justification to support the departure request.
(a) You must determine whether each reservoir is sensitive. You must classify the reservoir as sensitive if:
(1) Under initial conditions it is an oil reservoir with an associated gas cap;
(2) At any time there are near-critical fluids; or
(3) The reservoir is undergoing secondary or tertiary recovery.
(b) For the purposes of this subpart, near-critical fluids are those fluids that occur in high temperature, high-pressure reservoirs where it is not possible to define the liquid-gas contact or fluids in reservoirs that are near bubble point or dew point conditions.
(c) The Regional Supervisor may reclassify a reservoir when available information warrants reclassification.
(d) If available information indicates that a reservoir previously classified as non-sensitive is now sensitive, you must submit a request to the Regional Supervisor to reclassify the reservoir. You must include supporting information, as listed in the table in § 250.1167, with your request.
(e) If information indicates that a reservoir previously classified as sensitive is now non-sensitive, you may submit a request to the Regional Supervisor to reclassify the reservoir. You must include supporting information, as listed in the table in § 250.1167, with your request.
You must submit an original and three copies of Form MMS-127 and supporting information, as listed in the table in § 250.1167 to the Regional Supervisor. You must include one public information copy with each submittal in accordance with §§ 250.190 and 250.196, and mark that copy “Public Information.” You must submit this information:
(a) Within 45 days after beginning production from the reservoir or discovering that it is sensitive;
(b) At least once during the calendar year;
(c) Within 45 days after you revise reservoir parameters; and
(d) Within 45 days after the Regional Supervisor classifies the reservoir as sensitive under § 250.1154(c).
(a) You must obtain approval from the Regional Supervisor before you start producing from a well that has any portion of the completed interval less than 500 feet from a unit or lease line. Submit to MMS the service fee listed in § 250.125 and the Regional Supervisor will determine whether approval of your request will maximize ultimate recovery, avoids the waste of natural resources or whether it is necessary to protect correlative rights. You do not need to obtain approval if the adjacent leases or units have the same unit, lease, and royalty interests as the lease or unit you plan to produce. You do not need to obtain approval if the adjacent block is unleased.
(b) You must notify the operator(s) of adjacent property(ies) that are within 500 feet of the completion, if the adjacent acreage is a leased block in the Federal OCS. You must provide the Regional Supervisor proof of the date of the notification. The operators of the adjacent properties have 30 days after receiving the notification to provide the Regional Supervisor letters of acceptance or objection. If an adjacent operator does not respond within 30 days, the Regional Supervisor will presume there are no objections and proceed with a decision. The notification must include:
(1) The well name;
(2) The rectangular coordinates (x, y) of the location of the top and bottom of the completion or target completion reference to the North American Datum 1983, and the subsea depths of the top and bottom of the completion or target completion;
(3) The distance from the completion or target completion to the unit or lease line at its nearest point; and
(4) A statement indicating whether or not it will be a high-capacity completion having a perforated or open hole interval greater than 150 feet measured depth.
You must request and receive written approval from the Regional Supervisor before producing gas from each completion in an oil reservoir that is known to have an associated gas cap. If the oil reservoir is not initially known to have an associated gas cap, but your oil well begins to show characteristics of a gas well, you must request and receive written approval from the Regional Supervisor to continue producing the well. You must include the service fee listed in § 250.125 and the supporting information, as listed in the table in § 250.1167, with your request.
(a) Before you perforate a well, you must request and receive approval from the Regional Supervisor to commingle hydrocarbons produced from multiple reservoirs within a common wellbore. The Regional Supervisor will determine whether your request maximizes ultimate recovery and avoids the waste of natural resources. You must include the service fee listed in § 250.125 and the supporting information, as listed in the table in § 250.1167, with your request.
(b) If one or more of the commingled reservoirs is a competitive reservoir, you must notify the operators of all leases that contain the reservoir that you intend to downhole commingle the reservoirs. Your request for approval of downhole commingling must include proof of the date of this notification. The notified operators have 30 days after notification to provide the Regional Supervisor with letters of acceptance or objection. If the notified operators do not respond within the specified period, the Regional Supervisor will assume the operators do not object and proceed with a decision.
(a) The Regional Supervisor may set a Maximum Production Rate (MPR) for a producing well completion, or set a Maximum Efficient Rate (MER) for a reservoir, or both, if the Regional Supervisor determines that an excessive production rate could harm ultimate recovery. An MPR or MER will be based on well tests and any limitations imposed by well and surface equipment, sand production, reservoir sensitivity, gas-oil and water-oil ratios, location of perforated intervals, and prudent operating practices.
(b) If the Regional Supervisor sets an MPR for a producing well completion, or an MER for a reservoir, you may not exceed those rates except due to normal variations and fluctuations in production rates, as set by the Regional Supervisor.
(a) You must receive approval from the Regional Supervisor to flare or vent oil-well gas or gas-well gas at your facility, except in the following situations:
(b) You must inform the Regional Supervisor and receive approval to flare or vent gas before you exceed the volume specified in your Development and Production Plan submitted under subpart B of this part, even if the flaring or venting does not require approval under paragraph (a) of this section. The Regional Supervisor will determine whether your proposed flaring or venting complies with air emission thresholds under subpart C of this part.
(c) The Regional Supervisor may establish alternative approval procedures to cover situations where you cannot contact the MMS office, such as during non-office hours.
(d) The Regional Supervisor may specify a volume limit, or a shorter time limit than specified elsewhere in this part, in order to prevent air quality degradation or loss of reserves.
(e) The Regional Supervisor will evaluate your request for gas flaring or venting and determine if the loss of hydrocarbons is due to negligence, or could be avoided.
(f) If you flare or vent gas without the required approval, or if the Regional Supervisor determines that you were negligent or could have avoided flaring or venting the gas, the hydrocarbons will be considered avoidably lost or wasted. You must pay royalties on the loss or waste, according to part 202 of this title. You must value any gas or liquid hydrocarbons avoidably lost or wasted under the provisions of part 206 of this title.
You may flare or vent oil-well gas and gas-well flash gas for a period that the Regional Supervisor will specify, and which will not exceed 1 year, if the Regional Supervisor approves your request for one of the following reasons:
(a) You initiate an action which, when completed, will eliminate flaring and venting;
(b) You submit to the Regional Supervisor an evaluation supported by engineering, geologic, and economic data indicating that the oil and gas produced from the well(s) will not economically support the facilities necessary to sell the gas; or to use the gas on or for the benefit of, the lease; or
(c) The Regional Supervisor determines that an improperly working valve, pipe fitting, or similar component results in flaring or venting of less than 10 MCF per day, and that it is prudent to repair the leak at a later date. The Regional Supervisor may exempt this flaring or venting from the time limits set in § 250.1160.
(a) You must request and receive approval from the Regional Supervisor to burn any produced liquid hydrocarbons. The Regional Supervisor may allow you to burn condensate if you demonstrate that transporting it to market or re-injecting it is not feasible or poses a significant risk of harm to offshore personnel or the environment. In most cases, the Regional Supervisor will not allow you to burn more than 300 barrels of condensate in total during unloading or cleaning of a well, drill-stem testing, production testing, or other well-evaluation testing.
(b) The Regional Supervisor will evaluate your request for liquid hydrocarbon burning, and determine if the loss of hydrocarbons is due to negligence or could be avoided.
(c) If you burn liquid hydrocarbons without the required approval, or if the Regional Supervisor determines that you were negligent or could have avoided burning liquid hydrocarbons, the hydrocarbons will be considered avoidably lost or wasted. You must pay royalties on the loss or waste, according to part 202 of this title. You must value any liquid hydrocarbons avoidably lost or wasted under the provisions of part 206 of this title.
(a) If your facility processes more than an average of 2,000 BOPD during [MONTH AND YEAR IN WHICH FINAL RULE IS PUBLISHED], you must install flare/vent meters within 120 days after [THE MONTH AND YEAR IN WHICH THE FINAL RULE IS PUBLISHED]. If your facility processes more than an average of 2,000 BOPD during a calendar month after [MONTH AND YEAR IN WHICH FINAL RULE IS PUBLISHED], you must install flare/vent meters within 90 days after the end of the month in which the average amount of oil processed exceeds 2,000 BOPD.
(1) The flare/vent meters must measure all flared and vented gas within 2 percent accuracy.
(2) You must calibrate the meters regularly, in accordance with the manufacturer's recommendation, or at least once every 6 months, whichever is shorter.
(b) You must report all hydrocarbons produced from a well completion, including all gas flared, gas vented, and liquid hydrocarbons burned, to Minerals Revenue Management on Form MMS-4054 (Oil and Gas Operations Report), in accordance with § 216.53 of this title.
(1) You must report the amount of gas flared and the amount of gas vented separately.
(2) You may classify and report gas used to operate equipment on the facility (such as gas used to power engines, gas used as pilot lights, instrument gas, purge gas used to prevent oxygen from entering the flare or vent stack, sparge gas used to regenerate glycol, and blanket gas used to maintain pressure in low pressure vessels) as lease use gas.
(3) You must report the amount of gas flared and vented at each facility on a lease or unit basis. Gas flared and vented from multiple facilities on a single lease or unit must be reported separately.
(c) You must prepare and maintain records detailing gas flaring, gas venting, and liquid hydrocarbon burning for each facility. You must maintain these records for the period specified in part 212 of this title. You must keep these records on the facility for 2 years and have them available for inspection by MMS representatives. After 2 years, you must maintain the records, allow MMS representatives to inspect the records upon request, and provide copies to the Regional Supervisor upon request, but you are not required to keep them on the facility. The records must include, at a minimum:
(1) Daily volumes of gas flared, gas vented, and liquid hydrocarbons burned;
(2) Number of hours of gas flaring, gas venting, and liquid hydrocarbon burning, on a daily basis;
(3) A list of the wells contributing to gas flaring, gas venting, and liquid hydrocarbon burning, along with gas-oil ratio data;
(4) Reasons for gas flaring, gas venting, and liquid hydrocarbon burning; and
(5) Documentation of all required approvals.
(d) If your facility is required to have flare/vent meters, you must maintain the meter recordings for the period specified in §§ 212.50 and 212.51 of this title. You must keep these recordings on the facility for 2 years and have them available for inspection by MMS representatives. After 2 years, you must maintain the recordings, allow MMS representatives to inspect the recordings upon request, and provide copies to the Regional Supervisor upon request, but are not required to keep them on the facility. These recordings must include the begin times, end times, and volumes for all flaring and venting incidents.
(e) If your flaring or venting of gas, or burning of liquid hydrocarbons, required written or oral approval, you must submit documentation to the Regional Supervisor summarizing the location, dates, number of hours, and volumes of gas flared, gas vented, and liquid hydrocarbons burned under the approval, as required under § 250.140.
(a) You may not vent gas containing H
(b) You may flare gas containing H
(1) You may not emit more than 15 lbs of SO
(2) For safety or air pollution prevention purposes, the Regional Supervisor may further restrict the flaring of gas containing H
(3) If the Regional Supervisor determines that flaring at a facility or group of facilities may significantly affect the air quality of an onshore area, the Regional Supervisor may require you to conduct an air quality modeling analysis to determine the potential effect of facility emissions. The Regional Supervisor may require monitoring and reporting, or may restrict or prohibit flaring, under §§ 250.303 and 250.304.
(c) You must report flared and vented gas containing H
(1) The volume and duration of each flaring and venting occurrence;
(2) H
(3) The calculated amount of SO
(a) You must promptly initiate enhanced oil and gas recovery operations for all reservoirs where these operations would result in increased ultimate recovery of oil or gas under sound engineering and economic principles.
(b) Before initiating enhanced recovery operations, you must submit a proposed plan to the Regional Supervisor and receive approval for pressure maintenance, secondary or tertiary recovery, cycling, and similar recovery operations intended to increase the ultimate recovery of oil and gas from a reservoir. The proposed plan must include, for each project reservoir, a brief geologic and engineering overview, structure map, well log section, Form MMS-127, and any additional information required by the Regional Supervisor.
(c) You must report to Minerals Revenue Management the volumes of oil, gas, or other substances injected, produced, or produced for a second time under § 216.53 of this title.
(a) For any development in the Alaska OCS Region, you must submit an annual reservoir management report to the Regional Supervisor. The report must contain information detailing the activities performed during the previous year and planned for the upcoming year that will provide for:
(1) The prevention of waste;
(2) The protection of correlative rights; and
(3) A greater ultimate recovery of oil and gas.
(b) If your development is jointly regulated by MMS and the State of Alaska, MMS and the AOGCC will jointly determine appropriate reporting requirements to minimize or eliminate duplicate reporting requirements.
(c) Every time you are required to submit Form MMS-127 under § 250.1155, you must request an MER for each producing sensitive reservoir in the Alaska OCS Region, unless otherwise instructed by the Regional Supervisor.
You must submit the supporting information listed in the following table with the forms and for the approvals required under this subpart:
(f) Depending on the above requirement, you must submit appropriate payment of the service fee(s) listed in § 250.125.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to establish a safety zone in the navigable waters of the Sacramento River that will prohibit vessels and people from entering into or remaining within close proximity to the deep water channel. Pacific Gas and Electric Company (PG&E) will be removing a conductor from the Liberty Island towers, two of which cross over the deep water channel, on March 28, 2007. The proposed safety zone will close the deep water channel for approximately 30 minutes during the conductor removal.
Comments and related material must reach the Coast Guard on or before March 14, 2007.
You may mail comments and related material to United States Coast Guard Sector San Francisco, Waterways Safety Branch, Yerba Buena Island, Bldg. 278, San Francisco, California, 94130. The Waterways Safety Branch of Sector San Francisco maintains the public docket for this rulemaking. Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, will become part of this docket and will be available for inspection or copying at the Waterways Safety Branch of Sector San Francisco between 9 a.m. and 4 p.m., Monday through Friday, except Federal holidays.
Lieutenant Eric Ramos, U.S. Coast Guard Sector San Francisco, at (415) 556-2950 or Sector San Francisco 24-hour Command Center at (415) 399-3547.
We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (COTP SF 07-003), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8
We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to Coast Guard Sector San Francisco, Waterways Safety Branch at the address under
PG&E will be removing a conductor from the Liberty Island towers on March 28, 2007. Two of the towers cross the Sacramento deep water channel. PG&E will use a helicopter to cut the conductor off of one tower and it will fall into the water. They will then recover the cut conductor and place it on the bank before continuing to remove the rest of the conductors from the remaining towers that are over land.
This proposed safety zone will encompass the navigable waters of the Sacramento River from the surface to the sea floor, encompassing a circular area with a 500-yard radius at position 38°17.072′N / 121°39.619′W (NAD 83) for the removal of a conductor from a tower that crosses over the deep water channel. This proposed safety zone is necessary to protect persons and vessels from hazards, injury, and damage associated with the conductor removal.
This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.
We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation is unnecessary.
Although this rule will restrict access to the waters encompassed by the proposed safety zone, the effect of this rule is not expected to be significant because the local waterway users will be notified via public broadcast notice to mariners to ensure the proposed safety zone will result in minimum impact. The entities most likely to be affected are pleasure craft engaged in recreational activities.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and
The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule will not have a significant economic impact on a substantial number of small entities. This safety zone is not expected to have a significant economic impact on a substantial number of small entities for the following reasons. This rule will only be in effect for approximately 30 minutes. Although the safety zone will apply to the entire width of the channel, traffic may be allowed to pass through the zone with the permission of the Coast Guard patrol commander. Before the effective period, we will issue maritime advisories widely available to users of the river.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact (see
This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this proposed rule would not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This proposed rule would not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.
This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this proposed rule under Commandant Instruction M16475.lD and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have made a preliminary determination that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, we believe that this rule should be categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation.
A preliminary “Environmental Analysis Check List” is available in the docket where indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR Part 165 as follows:
1. The authority citation for Part 165 continues to read as follows:
33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
2. Add § 165.T11-171, to read as follows:
(a)
(b)
(c)
Environmental Protection Agency (EPA).
Extension of public comment period.
EPA is announcing the extension of the public comment period on the proposed reconsideration amendments to the new source performance standards (NSPS) for electric utility steam generating units and industrial-commercial-institutional steam generating units. EPA originally requested comments on the proposed rule by March 12, 2007 (February 9, 2007,72 FR 6320). EPA is extending the deadline to March 26, 2007, and is now requesting written comments by that date. EPA received a request for a 15 day extension to the comment period from the Utility Air Regulatory Group, the Council of Industrial Boiler Owners, and the Coke Oven Environmental Task Force. The reason given for requesting the extension was the need for additional time to gather data and review the proposed amendments. Since the original comment period was 30 days, EPA finds this request reasonable.
•
•
•
•
•
Mr. Christian Fellner, Energy Strategies Group, Sector Policies and Programs Division (D243-01), U.S. EPA, Research Triangle Park, NC 27711, telephone number (919) 541-4003, facsimile number (919) 541-5450, electronic mail (e-mail) address:
Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations, Reporting and recordkeeping requirements.
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
FRA proposes to revise the existing requirements related to sanders on locomotives. The proposed rule would modify the existing regulations by permitting additional flexibility in the use of locomotives with inoperative sanders. The proposal would provide railroads the ability to better utilize their locomotive fleets while ensuring that locomotives are equipped with operative sanders in situations where they provide the most benefit from a safety and operational perspective. The proposed rule would also make the regulations related to operative sanders more consistent with existing Canadian standards related to the devices.
(1) Written comments must be received by May 7, 2007. Comments received after that date will be considered to the extent possible without incurring additional expenses or delays.
(2) FRA anticipates being able to resolve this rulemaking without a public, oral hearing. However, if FRA receives a specific request for a public, oral hearing prior to April 5, 2007, one will be scheduled and FRA will publish a supplemental notice in the
Web site:
Fax: 202-493-2251.
Mail: Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-001.
Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC between 9 a.m. and 5 p.m. Monday through Friday, except Federal holidays.
Federal eRulemaking Portal: Go to
George Scerbo, Office of Safety Assurance and Compliance, Motive Power & Equipment Division, RRS-14, Mail Stop 25, Federal Railroad Administration, 1120 Vermont Avenue, NW., Washington, DC 20590 (telephone 202-493-6247), or Michael Masci, Trial Attorney, Office of Chief Counsel, Mail Stop 10, Federal Railroad Administration, 1120 Vermont Avenue, NW., Washington, DC 20590 (telephone 202-493-6037).
FRA has broad statutory authority to regulate railroad safety. The Locomotive Inspection Act (formerly 45 U.S.C. 22-34, now 49 U.S.C. 20701-20703) was enacted in 1911. It prohibits the use of unsafe locomotives and authorizes FRA to issue standards for locomotive maintenance and testing. In order to further FRA's ability to respond effectively to contemporary safety problems and hazards as they arise in the railroad industry, Congress enacted the Federal Railroad Safety Act of 1970 (Safety Act) (formerly 45 U.S.C. 421, 431
Pursuant to its general statutory rulemaking authority, FRA promulgates and enforces rules as part of a comprehensive regulatory program to address the safety of railroad track, signal systems, communications, rolling stock, operating practices, passenger train emergency preparedness, alcohol and drug testing, locomotive engineer certification, and workplace safety. In the area of locomotive safety, FRA has issued regulations, found at 49 CFR part 229 (“part 229”), addressing topics such as inspections and tests, safety requirements for brake, draft, suspension, and electrical systems, and cabs and cab equipment. All references to parts and sections in this document shall be to parts and sections located in Title 49 of the Code of Federal Regulations. FRA continually reviews its regulations and revises them as needed to keep up with emerging technology.
On July 12, 2004, the Association of American Railroads (AAR), on behalf of itself and its member railroads, petitioned the FRA to delete the requirement as contained in 49 CFR 229.131. The petition and supporting documentation asserted that contrary to popular belief, depositing sand on the rail will not have any significant influence on the emergency stopping distance of a train. Subsequent to the petition, FRA and interested industry members began identifying various issues related to locomotive safety standards with the intent that FRA would potentially address the issues through its Railroad Safety Advisory Committee (RSAC).
In March 1996, FRA established the RSAC, which provides a forum for developing consensus recommendations on rulemakings and other safety program issues. The Committee includes representation from all of the agency's major customer groups, including railroads, labor organizations, suppliers and manufacturers, and other interested parties. A list of member groups follows:
*Indicates associate membership.
On February 22, 2006, FRA presented, and the RSAC accepted, the task of reviewing existing locomotive safety needs and recommending consideration of specific actions useful to advance the safety of rail operations. The RSAC established the Locomotive Safety Standards Working Group (Working Group) to handle this task and develop recommendations for the full RSAC to consider. Members of the Working Group, in addition to FRA, included the following:
The task statement approved by the full RSAC sought immediate action from the Working Group regarding the need for and usefulness of the existing regulation related to locomotive sanders. The task statement established a target date of 90 days for the Working Group to report back to the RSAC with recommendations to revise the existing regulatory sander provision. The Working Group conducted two meetings that focused almost exclusively on the sander requirement. The meetings were held on May 8-10, 2006, in St. Louis, Missouri, and on August 9-10, 2006, in Fort Worth, Texas. Minutes of these meetings have been made part of the docket in this proceeding. After broad and meaningful discussion related to the potential safety and operational benefits provided by equipping locomotives with operative sanders, the Working Group reached consensus on a recommendation for the full RSAC.
On September 21, 2006, the full RSAC unanimously adopted the Working Group's recommendation on locomotive sanders as its recommendation to FRA. The RSAC recommendation included the Working Group's consensus rule text, and requested that FRA draft a regulatory proposal related to the use of sanders on locomotives performing switching service at outlying locations. The Working Group's discussion of outlying locations had been based on an apparent need to distinguish locations that did not have sufficient access to a sand delivery system from those that do have such access. FRA has reviewed and accepted RSAC's recommendation and has developed this regulatory proposal based on that recommendation. The specific regulatory language recommended by the RSAC has been amended slightly for clarity and consistency and FRA has independently developed provisions related to the use of sanders on locomotives used in switching service at outlying locations.
FRA agrees with the Working Group's determination that locomotive sanders provide limited safety benefits and that the primary benefits derived from the devices are operational. Accordingly, this proposal attempts to preserve the limited safety benefits while addressing the overly restrictive nature of the
Throughout the preamble discussion of this proposal, FRA refers to comments, views, suggestions, or recommendations made by members of the Working Group. When using this terminology, FRA is referring to views, statements, discussions or positions identified or contained in the minutes of the Working Group meetings. These documents have been made part of the docket in this proceeding and are available for public inspection as discussed in the
On July 12, 2004, the AAR, on behalf of itself and its member railroads, petitioned the FRA to delete the requirement as contained in 49 CFR 229.131, which states, “[e]xcept for MU locomotives, each locomotive shall be equipped with operable sanders that deposit sand on each rail in front of the first power operated wheel set in the direction of movement.” AAR's rationale for its petition was that, despite being in existence for many decades, this requirement does not provide any safety benefit. Enclosed with the petition was a presentation by CN to the 81st Annual Meeting of the Air Brake Association in September 1989. In that presentation, CN reported on a number of tests that measured the stopping distances of a train from emergency braking with and without sanding, with the conclusion that sanding from the locomotive consistently did not have any significant influence upon the emergency stopping distance of freight trains. Subsequently, FRA reviewed the overall operation of locomotive sanders to fully evaluate the petition. In addition to stopping distances, FRA examined other ramifications that the lack of sanding may have on the operation of locomotives and trains. For each technical aspect affected, FRA wanted to determine if it affects safety, operation efficiency, or both.
A generally recognized benefit of sanding is improved adhesion of the locomotive wheels to the rail. The maximum force or pull that a locomotive can generate in order to pull a train is limited by the weight of the locomotive and the amount of adhesion that it can maintain without wheel slippage. Once the wheel starts to slip, the pulling force is greatly reduced. Adhesion is critical for the locomotive pulling power on a steep grade. For a heavy freight train, the grade resistance will slow the train in an uphill move. As the speed drops, the tractive effort of the locomotive consist will go up. At a certain speed, the tractive effort may balance the total resistance including that from the grade. In that case, a constant speed can be maintained for the train to crest over the peak. However, at a low speed, the adhesion limit becomes an important factor because the maximum tractive effort that the locomotives can develop to pull the train is the product of the locomotive weight and the adhesion limit. Heavier six-axle locomotives can develop a higher tractive effort than the lighter four-axle locomotives of the same horsepower. If this maximum tractive effort is not sufficient to overcome the total resistance, the train will eventually stall on this grade. The presence of a stalled train on mainline track creates a safety issue as well as an apparent operational inconvenience. In addition, a stalled train at a grade crossing could tempt pedestrians to cross through the train. As the pedestrian crosses, the train could move and injure the pedestrian. The use of sand could prevent such a potentially dangerous situation.
If the total horsepower results in force output higher than the maximum tractive effort that the adhesion between rail and wheel can provide, wheel slip will occur resulting in the actual pulling force being limited by the maximum tractive effort. Under this condition, sanding will provide a higher adhesion coefficient, boosting the maximum tractive effort. In some previous studies with conventional DC motors, the adhesion limit with smooth wheels on smooth rails can be as low as 10 percent under wet rail condition. With sanding, the adhesion can be increased to 30 percent. The same principle applies to AC motors, except that the adhesion limits with and without sanding will both be higher because of the inherent advantage of AC motors. For dispatching purposes, the railroads produce tonnage-rating tables that are used to determine the number and the kind of locomotives to be assigned to a train given its length and weight. These tables are often developed with the assumption that sanding is available to boost the adhesion limit. Appropriate adhesion limits with the use of sanding are assumed for various types of locomotive equipment to calculate the available maximum tractive effort to ensure that trains will not stall on the ruling grade. This is particularly important for heavy merchandise trains, unit coal trains, and unit mineral trains. Speed is not very important for these trains. For better asset utilization and overall operation efficiency, railroads want to assign just enough locomotive units to enable the trains to climb up the ruling grade at low speed but not to stall. Sanding is very useful to increase the tractive effort. Using sanding to improve adhesion, railroads can reduce the number of locomotives assigned to a train, resulting in lower locomotive cost, one of the important factors in the overall cost structure of a rail operation.
Sanding will increase the capability of a train to climb up the ruling grade. While lack of sanding will affect the efficiency of train operations and will become a safety issue if the train stalls on the track, the operational issue may be resolved if the locomotive engineer handles the situation to prevent undesirable consequences from wheel slipping. With automatic wheel slip control, the system will see wheel slip, cut power to the traction motor for a short duration, and reapply the power. If the engineer maintains the high throttle position, the traction motor will again overpower the adhesion, and the wheels will slip again. This continuous
Some members of the Working Group raised the concern that damage to rail from slipping wheels can lead to development of transverse defects and broken rails. Corrugation and shelling of the rail head can mask internal rail defects and can defeat internal rail flaw detection. These circumstances can lead to train derailments unless they are properly managed, and the heavy cumulative tonnages experienced by most rail now in service is already taxing the ability of the railroads to manage these issues successfully. Railroads are expected to manage these issues and have done so thus far. FRA invites comments on this issue.
As sanding may increase the coefficient of friction between wheel and rail, one may anticipate that sanding can reduce the stopping distance of a train from braking, especially on wet rail. However, the following factors should be considered before drawing such a conclusion:
• The increase in friction is on the first few sets of axles only (i.e., on the locomotives). Sanding will splash and be dispersed rather quickly from the rails once several wheels roll over it. Over 90 percent of the wheels in a train will likely not receive any benefit from sanding. Thus, it is unlikely that the stopping distance will be affected by it.
• Wet rail and dirty rail can be dried out and cleaned out rather quickly with the rolling of several axles on it. In numerous field tests, the second locomotive's tractive effort is always 20-30 percent higher than the first unit, especially on wet rail. This is an indication that the rail can be dried out and cleaned out just by one locomotive passing over it. Therefore, wet rail conditions will only affect one to two locomotives, and the rest of a train will be braked on relatively dry conditions, even though the rails are originally wet. Given the above explanation, sanding will hardly make any difference in the braking performance of all the cars behind the locomotives.
• Engineers have been trained to rely on dynamic brakes instead of the pneumatic brakes, unless during extreme emergency situations. In emergency braking, little difference will occur in stopping distance with or without sanding because, as explained earlier, sanding likely only affects, if any, the braking efforts of the first few axles.
• When insufficient adhesion prevails during braking, the wheels may slide. The coefficient of friction during this sliding will maintain the retardation rate of the trains.
Therefore, it is not surprising that the results of CN's testing show that the emergency braking stopping distances under various speeds and conditions were unchanged by sanding. However, the results of the test of the stopping distances of a short VIA passenger train with and without sanding were somewhat less expected. The conclusion for the VIA test was the same as that for the freight trains. As the train consist is very short for the passenger trains, typically as short as several vehicles, the factors described above are not all applicable to the passenger trains. It may be expected that some effect would occur on the stopping distance of a passenger train as a result of sanding. The vehicles in the tested passenger trains had mixed wheel and disk braking, but it is not clear as to how disk braking is affected by sanding. Nonetheless, the tests with VIA trains, submitted by the AAR with the petition, showed that sanding had no effect in the stopping distance of the trains. Even if sanding can affect the braking of these short passenger trains, we should note that the stopping distance of a short passenger train is extremely short compared to the heavy freight trains, and therefore the actual difference in the stopping distance will not be too significant. Some MU equipment always avoids sanding because this equipment is light and the number of axles in a train is usually small, thus, rail-shunting ability may get affected by sanding. This is the primary reason why the MU equipment is not equipped with sanders.
The braking distance tests submitted by the railroads did not include stopping distances for “lite” locomotive consists. Locomotives are frequently moved without cars in order to reposition power. Lite locomotives do not respond favorably to braking because of the ratio of axle load to available rail/wheel contact zone. Despite results in other brake tests, FRA would expect that sand applied on multiple axles could be an important contributor to maintaining satisfactory stopping distances of lite locomotive consists under unfavorable conditions (wet rail, etc.).
FRA also notes that the Working Group received little information related to actual use of sand in conjunction with extended range dynamic braking, which is now used extensively to slow trains and (with rolling resistance and perhaps the independent brake) bring them to a stop. Locomotive engineers may utilize dynamic brakes rather than the automatic train brake, where possible, in order to conserve fuel and avoid mechanical problems.
In order to determine what instructions each railroad gives to the locomotive engineers on the use of sanding, FRA obtained and reviewed the air braking and train handling manuals of NS, CSXT, UP, and BNSF. Past experience indicating that sanding affects the safety of the train operation, would likely be reflected in the instructions given to the engineers in these manuals. The results of the review of the latest version of the manuals revealed the following:
•
•
•
•
• As dynamic braking becomes ineffective near the stopping point, turn on the sand and develop enough brake cylinder pressure with the independent brake valve to prevent forward surge.
• Make a final brake pipe reduction to complete the stop with the service exhaust blowing at the stopping point.
• After stopping, move the dynamic brake controller to OFF and reduce the remote(s) DB to IDLE.
• Fully apply the independent brake and turn off the sand after the stop is completed.
Apparently, BNSF believes that the use of sanding with the independent brake at near zero speed will brake the locomotive more effectively so that a surge of the locomotives can be prevented when dynamic braking becomes ineffective. However, it is not a general practice for all railroads to operate that way.
The AAR Train Operation and Energy Simulation (TOES) Model makes no mention of the use of sand for braking purposes. This further points to the conclusion that sanding is not considered for emergency or other braking purposes.
In the Working Group, representatives of locomotive engineers supported retention of a requirement for provision of sand to support safe and efficient operations. FRA is conscious of the fact that, unlike other safety statutes, the Locomotive Inspection law, at 49 U.S.C. 20701, requires that each locomotive be “in proper condition” as well as “safe”. Railroad representatives agree that sand remains useful for adhesion in many circumstances and would not remove sanders from locomotives even if allowed to do so. These considerations argue for proceeding with caution as the regulation is revised.
Finally, it should be noted that there are a variety of situations in yard switching (where locomotives only may be relied upon for stopping a switching movement) and over the road (where it is necessary to cross a ruling grade with marginal motive power) where sand would ordinarily be relied upon. Members of the Working Group raised the possibility that a locomotive engineer might feel compelled to skirt other safeguards in order to overcome operational difficulties should sand be unavailable. This is a concern that should be factored in when determining how much latitude to provide in this rulemaking. FRA welcomes comment on this issue.
Relaxing the locomotive sanding requirement as proposed would maintain safety and would allow railroads to better utilize their locomotive fleets. The current requirement allows a locomotive found with a defective sander to continue in service to the next forward location where repairs can be made or the next calendar day inspection, which ever occurs first. Under the proposed requirement, a lead locomotive in an over-the-road train may continue to be utilized by the railroad for up to fourteen days; in the case of a trailing locomotive, it may continue to be utilized by the railroad until placed in a facility with a sand delivery system or departure from an initial terminal.
Sanding may reach optimal effectiveness even where one or more locomotive sanders in a consist is inoperative. Locomotives are routinely equipped with two sanders at each end. Often a consist will contain multiple locomotives. Each locomotive in a multiple-locomotive consist distributes sand to the rail. As a result, when each of the locomotives in a multiple locomotive consist are operating with all sanders operative, the train could potentially distribute more sand to the rail than it will utilize. At that point the effect of the sand on the train would be the same if one or two sanders in the consist were inoperative.
Requirements for sanders can be traced back to the steam locomotive era; at that time, sanding the rail was thought to enhance adhesion between the steam locomotive wheel and the rail. Modern diesel locomotives rely on wheel slip and wheel creep devices, as well as sand, to provide adhesion between the wheel and rail. Where sanders are inoperative on a diesel locomotive the total loss of adhesion would be less than it would have been for a steam locomotive. Notably, any reduced adhesion would limit the ability of the locomotive to pull its train. Loss of the ability to pull the train is a productivity concern that is not being addressed by this proposed rule.
Sanding the rail in braking mode provides little additional adhesion to a train, because train handling depends primarily on train brakes to maintain train dynamics. The locomotive braking has limited effect. As stated in the technical discussion above, by the time the locomotives in the consist have passed over the sanded rail, little to no sand remains on the rail and little or no benefit is provided to train braking.
FRA is proposing to add the term “sand delivery system” in this section. The term would mean a permanently stationed or fixed device designed to deliver sand to locomotive sand boxes that do not require the sand to be manually delivered or loaded. A sand delivery system will be considered permanently stationed if it is at a location at least five days a week for eight hours per day. FRA seeks views from interested parties regarding this definition.
FRA is also proposing to add the term “initial terminal.” The definition of this term would be identical to that currently contained in 49 CFR 232.5 and 238.5. The term would mean “a location where a train is originally assembled.”
FRA proposes to amend this section to exempt locomotives operated under proposed paragraphs 229.131(b) and (c)(1) from the movement for repair provision contained in Section 229.9. In general, Section 229.9 currently provides movement for repair requirements for part 229. Proposed paragraphs 229.131(b) and (c)(1) contain specific requirements relating to the movement and continued use of locomotives with defective sander equipment. Because the proposed paragraphs specifically address movement for repair, applying Section 229.9 would be superfluous or conflicting, and would no longer be necessary.
FRA also proposes to make a clarifying amendment to this section of part 229. Section 229.9 currently contains the following exception that reads: “[e]xcept as provided in * * *
FRA recognizes that this proposal would be less restrictive than the movement for repair provisions currently contained in Section 229.9. In most instances, locomotives will likely encounter an initial terminal less frequently than a daily inspection. This will facilitate more efficient railroad operations. Under the current provision, a railroad will take a locomotive out of service when a sander defect is found at the daily inspection. By requiring operative sanders less frequently, the new requirement allows the railroad to keep the locomotive in service more often. With more locomotives in service, the railroad will be able to better utilize its power throughout its fleet.
FRA agrees with the Working Group's determination that the four triggering events will ensure that sanders are repaired in a timely fashion while providing railroads the ability to better utilize their locomotive fleets. Under the existing rule, a locomotive can move only until the next daily inspection with inoperative sanders. Utilizing four different triggers allows the railroad a greater degree of operational flexibility. Each trigger provides a logical point at which sander maintenance should and can be conducted without impacting a railroad's operation to a significant degree. The initial terminal is an appropriate place to require operative sanders for the reasons stated in paragraph 229.131(a). When a locomotive is placed in a facility that has a sand delivery system it is appropriate to require a railroad to provide sander maintenance. Placed in a facility is intended to mean actually placed on trackage with access to the sand delivery system, and not merely passing through a location with a sand delivery system on the premises. Similarly, when a locomotive is given its required periodic inspection it is expected that the location will be capable of providing repairs and additional sand to the locomotive sanders with little burden. Permitting a lead locomotive to remain in service for no longer than fourteen days is reasonable as it permits the locomotive to reach the destination of a long-distance train run, ensures timely repairs to the sanders, and is consistent with the current Canadian requirement.
The term “trailing locomotive,” as used in this paragraph, specifically refers to a locomotive that is located behind the lead locomotive in a train or locomotive consist. A distributed power locomotive, as defined in Section 229.5, is a locomotive that is part of a distributed power system that provides control to a number of locomotives dispersed in a consist from command signals originating in the lead locomotive. The distributed power locomotives are also trailing locomotives because they are located behind the lead locomotive in the train. Including both the terms “trailing locomotives” and “distributed power locomotives” may add clarity by emphasizing all trailing locomotives are subject to the requirements of this paragraph. FRA seeks comment and views from interested parties regarding the relationship between these two terms and whether there is a need to use both terms in this paragraph.
Rather than attempt to define what constitutes an “outlying location,” FRA believes that the most appropriate method of distinguishing between switching locomotives and the locations where they operate, is to base the determination on the existence of a sand delivery system at the location. FRA believes that locomotives being used in switching service at a location with a sand delivery system should be able to be maintained and handled for repair in a more timely manner, with less disruption to railroad operations, than locomotives being used in switching service at locations without sand delivery systems. If there is no sand delivery system at a location, then the railroad is required to send maintenance vehicles or crews to the location or is required to move the locomotive to another location to effectuate necessary repairs. This can have a significant impact on the efficiency and continuity of switching operations at certain locations. Thus, paragraphs (c)(1) and (c)(2) separate the requirements for maintaining the sanders on locomotives being used in switching service based on the presence of a sand delivery system at the location where the locomotive is being used.
This rule has been evaluated in accordance with existing policies and procedures, and determined to be non-significant under both Executive Order 12866 and DOT policies and procedures (44 FR 11034; February 26, 1979). FRA has prepared and placed in the docket a regulatory analysis addressing the economic impact of this proposed rule. Document inspection and copying facilities are available at 1120 Vermont Avenue, 7th Floor, Washington, DC 20590. Photocopies may also be obtained by submitting a written request to the FRA Docket Clerk at Office of Chief Counsel, Federal Railroad Administration, 400 Seventh Street, SW., Washington, DC 20590.
As part of the regulatory impact analysis FRA has assessed quantitative measurements of cost and benefit streams expected from the adoption of this proposed rule. For the twenty year period the estimated quantified costs are minimal. For this period the estimated quantified benefits have a PV of $70.6 million
The major benefits anticipated from implementing this proposed rule include: a reduction in the number of times locomotives have sand loaded or the number of times the sanders are made operative. This reduction
The Regulatory Flexibility Act (5 U.S.C. 601
“Small entity” is defined in 5 U.S.C. 601 as a small business concern that is independently owned and operated, and is not dominant in its field of operation. The U.S. Small Business Administration (SBA) has authority to regulate issues related to small businesses, and stipulates in its size standards that a “small entity” in the railroad industry is a railroad business “line-haul operation” that has fewer than 1,500 employees and a “switching and terminal” establishment with fewer than 500 employees. SBA's “size standards” may be altered by Federal agencies, in consultation with SBA and in conjunction with public comment.
Pursuant to that authority FRA has published a final statement of agency policy that formally establishes “small entities” as being railroads that meet the line-haulage revenue requirements of a Class III railroad. See 68 FR 24891 (May 9, 2003). Currently, the revenue requirements are $20 million or less in annual operating revenue. The $20 million limit is based on the Surface Transportation Board's threshold of a Class III railroad carrier, which is adjusted by applying the railroad revenue deflator adjustment (49 CFR part 1201). The same dollar limit on revenues is established to determine whether a railroad shipper or contractor is a small entity.
For the proposed rule over 600 railroads could potentially be affected. The proposed rule would impact all locomotives except those propelled by steam power. Given this application, only railroads that operate steam locomotives exclusively, would be unaffected. For those railroads that would be affected the impact will be minimal, if any. The focus is on permitting additional flexibility in the use of locomotives with inoperative sanders. It is anticipated that the additional flexibility will produce mostly positive impacts, i.e., savings and injury reductions.
The AISE developed in connection with this NPRM concludes that this proposal would not have a significant economic impact on a substantial number of small entities. Thus, FRA certifies that this proposed rule is not expected to have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act or Executive Order 13272. In order to determine the significance of the economic impact for the final rule's Regulatory Flexibility Act requirements, FRA invites comments from all interested parties concerning the potential economic impact on small entities caused by this proposed rule. The Agency will consider the comments and data it receives in making a decision on the small entity impact for the final rule.
The proposed rule contains one section that would change the current regulation, Section 229.131. The proposed change would not change the current information collection activity. The information collection burden associated with the proposed rule already exists under Section 229.9. OMB clearance for the current rule has been granted and no further approval is sought at this time. If new information collection issues arise in the final rule stage, FRA will seek OMB approval.
FRA is not authorized to impose a penalty on persons for violating information collection requirements which do not display a current OMB control number, if required. The OMB control number assigned for information collection related to this proposed rule is OMB No. 2130-0004.
FRA has analyzed this proposed rule in accordance with the principles and criteria contained in Executive Order 13132, issued on August 4, 1999, which directs Federal agencies to exercise great care in establishing policies that have federalism implications.
FRA notes that the RSAC, which endorsed and recommended the majority of this proposed rule to FRA, has as permanent members two organizations representing State and local interests: AASHTO and the Association of State Rail Safety Managers (ASRSM). Both of these State organizations concurred with the RSAC recommendation endorsing this proposed rule. The RSAC regularly provides recommendations to the FRA Administrator for solutions to regulatory issues that reflect significant input from its State members. To date, FRA has received no indication of concerns about the Federalism implications of this rulemaking from these representatives or of any other representatives of State government. Consequently, FRA concludes that this proposed rule has no federalism implications, other than the preemption of state laws covering the subject matter of this proposed rule, which occurs by operation of law under 49 U.S.C. Section 20106 whenever FRA issues a rule or order.
FRA has evaluated this proposed regulation in accordance with its “Procedures for Considering Environmental Impacts” (FRA's Procedures) (64 FR 28545, May 26, 1999) as required by the National Environmental Policy Act (42 U.S.C. 4321
(c) Actions categorically excluded. Certain classes of FRA actions have been determined to be categorically excluded from the requirements of these Procedures as they do not individually or cumulatively have a significant effect on the human environment.
(20) Promulgation of railroad safety rules and policy statements that do not result in significantly increased emissions or air or water pollutants or noise or increased traffic congestion in any mode of transportation.
In accordance with section 4(c) and (e) of FRA's Procedures, the agency has further concluded that no extraordinary circumstances exist with respect to this regulation that might trigger the need for a more detailed environmental review. As a result, FRA finds that this proposed regulation is not a major Federal action significantly affecting the quality of the human environment.
Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency “shall, unless otherwise prohibited by law, assess the effects of Federal regulatory actions on State, local, and tribal governments, and the private sector (other than to the extent that such regulations incorporate requirements specifically set forth in law).” Section 202 of the Act (2 U.S.C. 1532) further requires that “before promulgating any general notice of proposed rulemaking that is likely to result in the promulgation of any rule that includes any Federal mandate that may result in expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $128,100,000 or more (adjusted annually for inflation) in any 1 year, and before promulgating any final rule for which a general notice of proposed rulemaking was published, the agency shall prepare a written statement” detailing the effect on State, local, and tribal governments and the private sector. The proposed rule would not result in the expenditure, in the aggregate, of $128,100,000 or more in any one year, and thus preparation of such a statement is not required.
FRA wishes to inform all potential commenters that anyone is able to search the electronic form of all comments received into any agency docket by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
Locomotives, Railroad safety, and Sanders.
For the reasons discussed in the preamble, FRA proposes to amend part 229 of chapter II, subtitle B of Title 49, Code of Federal Regulations, as follows:
1. The authority citation for part 229 continues to read as follows:
49 U.S.C. 20102-03, 20107, 20133, 20137-38, 20143, 20701-03, 21301-02, 21304; 28 U.S.C. 2401, note; and 49 CFR 1.49(c), (m).
2. Section 229.5 is amended by adding alphabetically the definitions of “initial terminal” and “sand delivery system” to read as follows:
3. Section 229.9 is amended by revising the introductory phrase contained in paragraph (a) to read as follows:
(a) Except as provided in paragraphs (b), (c), § 229.125(g), and § 229.131(b) and (c)(1), * * *
4. Section 229.131 is revised to read as follows:
(a) Prior to departure from an initial terminal, each locomotive, except for MU locomotives, shall be equipped with operative sanders that deposit sand on each rail in front of the first power operated wheel set in the direction of movement or shall be handled in accordance with the requirements contained in § 229.9.
(b) Locomotives being used in road service with sanders that become inoperative after departure from an initial terminal shall be handled in accordance with the following:
(1) Lead locomotives being used in road service that experience inoperative sanders after departure from an initial terminal may continue in service until the earliest of the following occurrences:
(i) Arrival at the next initial terminal;
(ii) Arrival at a location where it is placed in a facility with a sand delivery system;
(iii) The next periodic inspection under § 229.23; or,
(iv) Fourteen calendar days from the date the sanders are first discovered to be inoperative; and
(2) Trailing locomotives and distributed power locomotives being used in road service that experience inoperative sanders after departure from an initial terminal may continue in service until the earliest of the following occurrence:
(i) Arrival at the next initial terminal;
(ii) Arrival at a location where it is placed in a facility with a sand delivery system; or,
(iii) The next periodic inspection under § 229.23.
(c) Locomotives being used in switching service shall be equipped with operative sanders that deposit sand on each rail in front of the first power operated wheel set in the direction of movement. If the sanders become inoperative, the locomotives shall be handled in accordance with the following:
(1) Locomotives being used in switching service at a location not equipped with a sand delivery system may continue in service for seven calendar days from the date the sanders are first discovered inoperative or until its next periodic inspection under § 229.23, which ever occurs first; and
(2) Locomotives being used in switching service at locations equipped with a sand delivery system shall be handled in accordance with the requirements contained in § 229.9.
(d) Locomotives being handled under the provisions contained in paragraph (b) and (c)(1) of this section shall be tagged in accordance with § 229.9(a).
Fish and Wildlife Service, Interior.
Proposed rule; extension of comment period; correction.
We, the U.S. Fish and Wildlife Service (Service or we), extended the public comment period on the proposed rule to remove the Virginia northern flying squirrel (
The public comment period for the proposed rule published on December 19, 2006 (71 FR 75924) ends on April 23, 2007. If you previously submitted a comment through the regulations.gov Web site and did not receive an automatic confirmation that we received your comment, please either resubmit those comments or contact us. If you previously submitted a comment to us via mail, courier, or fax, you do not need to resubmit those comments as they have been incorporated into the public record and will be fully considered in the final determination. Any comments received after the closing date may not be considered in the final decision on the proposal.
You may submit comments on the proposed delisting by any one of several methods:
1. You may submit written comments and information to the Assistant Chief, Division of Endangered and Threatened Species, U.S. Fish and Wildlife Service, Northeast Regional Office, 300 Westgate Center Drive, Hadley, MA 01035.
2. You may hand-deliver written comments to our Northeast Regional Office, at the above address.
3. You may fax your comments to 413-253-8482.
4. You may e-mail your comments to
5. You may use the Federal eRulemaking Portal:
Comments and materials received will be available for public inspection, by appointment, during normal business hours at our Northeast Regional Office.
Diane Lynch at our Northeast Regional Office (telephone: 413-253-8628) or the Field Office Supervisor, West Virginia Field Office, 694 Beverly Pike, Elkins, WV 26241 (telephone: 304-636-6586).
On December 19, 2006, the Service published a proposed rule (71 FR 75924), under the authority of the Act, to remove the WVNFS from the Federal List of Endangered and Threatened Wildlife, due to recovery. On February 21, 2007, we published a 60-day comment period extension (72 FR 7852) to the proposed rule. However, we inadvertently left out the email address to which the public could send comments. We now correct that error.
Please see the comment period extension document (72 FR 7852) for a list of subjects for which we are seeking comments. The public comment period for the proposed rule ends on April 23, 2007.
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Fish and Wildlife Service, Interior.
Notice of 90-day and 12-month petition finding.
We, the U.S. Fish and Wildlife Service (Service), announce our 90-day and 12-month findings on a petition to revise critical habitat for the federally endangered Indiana bat (
The finding announced in this document was made on March 6, 2007. You may submit new information concerning this species or its habitat for our consideration at any time.
The complete supporting file for this finding is available for public inspection, by appointment, during normal business hours at the Bloomington Ecological Services Field Office, 620 South Walker Street, Bloomington, IN 47403-2121. New information, materials, comments, or questions concerning this species or its habitat may be submitted to us at any time.
Scott Pruitt, Field Supervisor of the Bloomington Ecological Services Field Office (see
Section 4(b)(3)(D) of the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), requires that we make a finding on whether a petition to revise critical habitat for a listed species presents substantial scientific information indicating that the revision may be warranted. Our listing regulations at 50 CFR 424.14(c)(2)(i) further require that, in making a finding on a petition to revise critical habitat, we consider whether the petition contains information indicating that areas petitioned to be added to critical habitat contain physical and biological features essential to, and that may require special management to provide for, the conservation of the species involved. To the maximum extent practicable, we are to make this finding within 90 days of our receipt of the petition, and we must promptly publish our finding in the
If we find that substantial information is presented, we are required to determine how we intend to proceed with the requested revision, and shall promptly publish notice of such intention in the
In making this finding, we relied on information provided by the petitioners and evaluated that information in accordance with 50 CFR 424.14(c). Our
We originally listed the Indiana bat as in danger of extinction under the Endangered Species Preservation Act of 1966 (32 FR 4001; March 11, 1967). This species is currently listed as endangered under the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.). We designated critical habitat for the Indiana bat on September 24, 1976 (41 FR 41914).
On October 18, 2002, we received a petition to revise critical habitat for the endangered Indiana bat from Southern Appalachian Biodiversity Project, Buckeye Forest Council, Kentucky Heartwood, Virginia Forest Watch, Brent Bowker, Shenandoah Ecosystems Defense Group, Indiana Forest Alliance, and Heartwood. The submission clearly identified itself as a petition and included the identification information of the petitioners required by 50 CFR 424.14(a). At that time, we notified the petitioners that we lacked funding to develop a 90-day finding on the petition. We also indicated that funding was not anticipated to be available until Fiscal Year 2004 or later and that we would not be able to process the petition until funding became available. On May 6, 2005, Heartwood, Southern Appalachian Biodiversity Project, Buckeye Forest Council, Kentucky Heartwood, Indiana Forest Alliance, Virginia Forest Watch, National Forest Protection Alliance, and Wild Virginia filed a complaint (
The Indiana bat is a temperate, insectivorous, migratory bat that occurs in 20 States in the eastern half of the United States. The Indiana bat hibernates colonially in caves and mines during winter. In spring, reproductive females migrate and form maternity colonies where they bear and raise their young in wooded areas, specifically behind exfoliating bark of large, usually dead, trees. Both males and females return to hibernacula (i.e., the caves and mines where Indiana bats hibernate) in late summer or early fall to mate and enter hibernation. As of October 2006, the Service had records of extant winter populations of approximately 281 hibernacula in 19 States and 269 maternity colonies in 17 States (King 2007, pp. 2-23). The 2005 winter census estimate of the population was 457,000, which is a 15 percent increase from the 2003 estimate (King 2007, p. 24).
The petition includes an incomplete list of areas currently designated as Indiana bat critical habitat. Wyandotte Cave and Ray's Cave in Indiana are not, however, included on that list. We clarify that Wyandotte Cave and Ray's Cave in Indiana are currently designated as critical habitat. We assume this omission is simply an oversight on the part of the petitioners. Therefore, when the petitioners reference current critical habitat in the petition we assume that they are referring to Big Wyandotte and Ray's Caves as well as all other designated critical habitat.
In addition, the petition states that “In the 1999 draft Indiana Bat (
The petition states that “Populations of Indiana bat continue to decline despite the 1976 designation of critical habitat by the USFWS.” The petition states that “The current critical habitat designation for the Indiana bat is having no effect on the species' survival.”
Information in our files shows that surveys since 2001 report increases in population numbers. Indiana bat population estimates are based on surveys conducted at Indiana bat hibernacula. During the 1950s, biologists began conducting winter bat surveys at irregular intervals and recording population estimates for a limited number of Indiana bat hibernacula (Hall 1962, pp.19-26). During the 1960s and most of the 1970s, winter surveys of the largest Indiana bat populations known at that time were relatively few, and many medium-sized and large winter populations had not yet been discovered. Since the release of the original Recovery Plan in 1983 (USFWS 1983, 80 pp.), with few exceptions, regular biennial surveys have been conducted in the most populous hibernacula. Rangewide population estimates over the three most recent biennial survey periods do not show the same declining trend seen in estimates spanning 1965 through 2000. There was approximately a 4-percent increase from the 2001 estimate of 381,000 bats to the 2003 estimate of 398,000 bats, and a 15-percent increase from the 2003 estimate of 398,000 bats to the 2005 estimate of 457,000 bats (King 2007, p. 24).
The petition states “Even in Priority 1 hibernacula (protected caves with recorded winter populations exceeding 30,000 bats) the species continues to decline.” It is not accurate to state
The petition states that “Research demonstrates that the pressure exerted on the survival of the Indiana bat comes from activities occurring outside of protected, wintering hibernacula, and that revision of critical habitat designations is over-due; advances in the study of Indiana bat populations (Murray et al. 1999) and the knowledge of Indiana bat summering habitat (Romme et al. 1995: Humphrey et al. 1997: and USFWS 1999a) provide for revision to the critical habitat designation without delay.”
(Note that the above quote cites Humphrey et al. 1997. However, the list of references provided with the petition does not include a citation for Humphrey et al. 1997, but does include a citation for Humphrey et al. 1977. We assume that the reference to the 1997 document in the text is a mistaken reference to the 1977 document.)
Based on our review of the literature cited we have found the petitioners' claim to be inaccurate. None of the references cited by the petitioners report on research linking declines in Indiana bat populations to activities occurring outside of the hibernacula. The Murray et al. (1999, pp. 105-112) paper reported on a study comparing mist nets and the Anabat II detector system (an ultrasonic bat detector) for surveying bat communities; the paper did not report on causes of population declines in Indiana bat populations (and, in fact, Indiana bats were infrequently encountered during this study). The other three papers contain references to population declines, but do not report on research linking declines to factors outside of hibernacula.
Romme et al. (1995, p. 1) stated: “Although a variety of factors undoubtedly have contributed to population losses, protection of hibernacula has been a management priority. Despite this protection, population declines have continued.” No specific research linking declines to activities outside hibernacula were cited in this paper; rather, the paper urged that factors in addition to hibernacula protection should be considered in Indiana bat conservation efforts.
Similarly, USFWS (1999a, p. 19) (which is an agency draft of a revised Indiana Bat Recovery Plan) also pointed out that the emphasis of Indiana bat conservation efforts up to that time had been hibernacula protection, and that populations continued to decline. However, the document stated that “not all causes of Indiana bat population declines have been determined” (USFWS 1999a, p. 15).
Humphrey et al. (1977, pp. 334-346) reported on the discovery, in Indiana in 1974, of the first known maternity colony of the Indiana bat. As this was the first known maternity colony, relatively little was known about summer habitat at that point in time. Prior to this discovery, it was not known that the Indiana bat's maternity colonies occur in trees. The authors noted that summer habitat is needed for the reproduction and survival of the Indiana bat and pointed out that the crucial events of gestation, postnatal development, and post-weaning maturation take place during this time. The authors also discussed that suitable summer habitat is destroyed by some human land uses and urged caution in managing those habitats.
Humphrey et al. (1977, p. 345) makes the observation that summer habitat does not appear to be limiting to the Indiana bat:
Despite the problems sometimes occurring in tree roosts, one great advantage is realized. Suitable foraging habitat occurs over a vast area of the eastern United States, and the bats can roost in a nearby tree so that flying to the feeding area is not costly. This means that
In summary, none of the information provided or references cited by the petitioners report on research that demonstrates that factors outside the hibernacula are linked to declines in populations of Indiana bats. Rather, the references suggest that conservation efforts beyond the efforts focused on hibernacula may be appropriate. While they point out that summer habitat is important to Indiana bats, the references do not provide evidence that revising critical habitat to include summer areas may be warranted.
The petitioners make multiple claims that the current critical habitat designation has failed to promote recovery of the Indiana bat, and that designation of critical habitat in the summer range of the species is needed for recovery. Specifically, the petitioners state that “Because there is no designated critical habitat in the Indiana bat's summer range, the USFWS continues to issue incidental take statements throughout the country, allowing many Indiana bats to be killed. For example, in southern Indiana, the USFWS allowed the permanent destruction of 121 ha (299 ac) of forest habitat in an area that has the highest known concentration of Indiana bat maternity roosts in the world (USFWS 1998). If the current protections fail to protect even this important area, expanded critical habitat is necessary.”
Designation of critical habitat would not address the issue of incidental take and the killing of Indiana bats. Take prohibition is addressed under section 9 of the Act, and we evaluate and address incidental take under sections 7 and 10 of the Act. The critical habitat analysis done under section 7 does not include consideration of take of the species itself, only habitat destruction or modification.
Furthermore, the example provided by the petitioners refers to Camp Atterbury Army National Guard Training Site. Camp Atterbury provides an excellent conservation example; current efforts at this site have been very effective in conserving the Indiana bat's summer habitat. Camp Atterbury comprises 13,409 ha (33,120 ac) in portions of Bartholomew (11,397 ha) (28,151 ac), Brown (1,609 ha) (3,974 ac), and Johnson (402 ha) (993 ac) Counties, Indiana. Approximately 10,927 ha (26,990 ac) of the site is forested. In August 1997, a mist net survey of 22 sites at Camp Atterbury was conducted to determine whether Indiana bats, as well as other bat species, were present on the installation. A total of 208 bats, representing 8 species, was captured, including 13 Indiana bats. In 1998, the Service and Department of Defense (DoD) consulted on the construction and operation of a training range at this base; the Service issued a biological opinion (cited by the petitioners as USFWS 1998b) and a subsequent amendment
The petitioners also state: “Because in [sic] the change in knowledge concerning the Indiana bat's summer habitat since 1996, it is necessary that the USFWS designate summer habitat for the Indiana bat.” We assume that the reference to 1996 is a mistaken reference to 1976, which is when we designated critical habitat for the Indiana bat. It is true that we have more knowledge of summer habitat than when we designated critical habitat in 1976, but it is not a logical extension that the knowledge necessitates the designation of critical habitat on the summer range of the species. Under section 3(5)(A) of the Act, critical habitat is defined as (i) the specific areas within the geographical area occupied by the species, at the time it is listed, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. The petitioners do not provide information that can reliably define the features of summer habitat that are essential to the conservation of the species, or information about what special management is required, nor provide evidence that specific areas of summer habitat may be essential to the conservation of the species as a whole. As we gather additional information on summer habitat and the distribution of the Indiana bat, we are finding that the bat is widely distributed in a variety of wooded areas. We agree that summer habitat is needed by the species, and we are successfully applying our expanding knowledge in efforts to conserve summer habitat for the Indiana bat, as demonstrated by the Camp Atterbury example discussed above. The petitioners provide no new information to support their claim that current conservation efforts are failing to conserve the Indiana bat on its summer range or to suggest that critical habitat designation of summer habitat may be warranted.
The petitioners note that recommendations in their petition are not complete. The petitioners alternate between requesting designation of specific forested areas and designation of all suitable habitat, but their request for the revision of critical habitat for the Indiana bat includes the following sites:
(1) Areas surrounding hibernacula currently designated as critical habitat.
(2) Suitable habitat in all counties where maternity colonies or “other summering Indiana bats” (which we assume means males and non-reproductive females) have been found in 9 States (Illinois, Iowa, Indiana, Kentucky, Michigan, Missouri, Ohio, Tennessee, and North Carolina). In addition, the petitioners request that we designate as critical habitat all optimal summer and fall roosting and foraging habitat throughout those States.
(3) Additional specific sites, including:
References cited by the petitioners document the presence of Indiana bats at specific sites, but the petitioners provide neither information that can reliably define the features of summer habitat that are essential to the conservation of the species, or what special management may be necessary, nor evidence that specific areas of summer habitat may be essential to the conservation of the species as a whole. There is currently no reliable method for determining or evaluating the relative value of these areas as summer habitat for the Indiana bat.
The petitioners define “essential” summer habitat for the Indiana bat as an area with at least 30 percent deciduous forest cover and water within 0.97 kilometers (0.6 miles) and optimal habitat as an area with greater than 60 percent canopy cover. They further describe optimal habitat as having more than 27 trees greater than or equal to 22 centimeters (cm) (8.7 inches) in diameter per 0.4 ha (ac), and suitable habitat as having as few as one tree greater than or equal to 22 cm (8.7 in) in diameter per 0.4 ha (ac). These definitions are based on a summer habitat model developed by Romme et al. (1995, pp. 27-38) that was based on habitat parameters that had been collected across the range of the species (up to the time the model was developed). The model cited by the petitioners has not been found to be useful in predicting habitat occupancy by Indiana bats (Carter 2005, pp. 83-85). While the limiting factors of this model are unclear, the fact that the species occurs across a large range and in a variety of wooded habitats likely contributes to the difficulty of developing successful models. The petitioners also cite Gardner et al. (1990, pp. 8-9) as documenting that most maternity roost trees are found in areas with more than 80 percent canopy cover. The work by Gardner et al. (1990) was conducted only in Illinois, and was pioneering research that greatly enhanced our understanding of the summer ecology of Indiana bats. The results, however, cannot be used to
The Service has summer records of Indiana bats from 296 counties in 20 States (King 2007, pp. 2-23). In addition to the specific areas identified above, the petitioners request that the Service revise critical habitat for the species to include all suitable habitat in all counties where there are summer records of the species in 9 States (Illinois, Iowa, Indiana, Kentucky, Michigan, Missouri, Ohio, Tennessee, and North Carolina); the Service has summer records from 235 counties in those States. As previously discussed, Indiana bats summer in a wide variety of wooded habitats, and the petitioners provide no reliable method to evaluate or measure the relative value of sites or features contained therein as Indiana bat summer habitat.
We have reviewed the petition, literature cited in the petition, and information in our files. After this review and evaluation, we find the petition does not present substantial information to indicate that revision of critical habitat to include summer areas for the Indiana bat may be warranted. Nevertheless, we have elected to respond as if a positive 90-day finding has been made and also render a 12-month finding for which we have determined not to proceed with the requested revision to Indiana bat critical habitat.
Under section 3(5)(A) of the Act, in order for the Service to consider an area for designation as critical habitat, we must either conclude that a specific area within the geographical area occupied by the species, at the time it is listed, contains those physical or biological features essential to the conservation of the species and which may require special management considerations or protection, or that a specific area outside the geographical area occupied by the species at the time it is listed is essential for the conservation of the species. The petitioners do not provide information that adequately defines the features of summer habitat that are essential to the conservation of the species, or provide information about what special management may be necessary, or provide evidence that specific areas of summer habitat may be essential to the conservation of the species.
Under the statute, the petition process for revisions to critical habitat varies from that for other petitions. Under the statute were we to make a positive finding, we need only to determine how we intend to proceed with the requested revisions. We have determined that even if a 90-day finding was warranted with respect to this petition, for the reasons stated below, we are not proceeding with revision of the critical habitat. In making this finding we are exercising our discretion, provided under section 4(b)(3)(D)(ii) of the Act, with respect to revision of critical habitat.
We cannot justify exercising our discretion to revise critical habitat for the Indiana bat because considerable time and effort would be needed to conduct new analyses and complete other procedural steps that would be associated with completing this discretionary action. Such an effort would come at the expense of critical habitat designations that the Service is required to make for other species. At the present time we have a backlog of actions involving non-discretionary designations of critical habitat for approximately 33 species. These include actions that are mandated by court orders and court-approved settlement agreements, as well as actions necessary to implement the requirements of the Act pertaining to critical habitat designations. It will take us a number of years to clear this backlog, and during that time we also need to meet non-discretionary requirements to designate critical as additional species are listed. Meeting these requirements, for which we have no discretion, is a higher priority than taking discretionary actions.
Based on our need to give priority to funding the large number of outstanding non-discretionary designations and to address new designations that will be required as additional species are listed, we find that the petitioned action to revise critical habitat for the Indiana bat is not warranted. The fact that we are making this finding and exercising our discretion not to revise critical habitat for the Indiana bat does not, however, alter the protection this species and its habitat will continue to receive under the Act. Specifically, it does not alter the requirement of section 7(a)(2) of the Act that all Federal agencies must insure the actions they authorize, fund, or carry out are not likely to “jeopardize the continued existence” of a listed species or result in the “destruction or adverse modification” of critical habitat. Further, the section 9 prohibition of take of the species, which applies regardless of land ownership or whether or not within designated critical habitat, is independent of whether critical habitat is revised to include summer habitat and is unchanged by this finding.
Although we will not commence a proposed revision of critical habitat in response to this petition, we will continue to monitor the Indiana bat population status and trends, potential threats, and ongoing management actions that might be important with regard to the conservation of the Indiana bat across its range. We will also be considering the recommendations covered in any final revisions to the recovery plan that is now being developed. We encourage interested parties to continue to gather data that will assist with the conservation of the species. If you wish to provide information regarding the Indiana bat, you may submit your information or materials to the Field Supervisor, Bloomington Ecological Services Field Office (see
A complete list of all references cited herein is available, upon request, from the Bloomington Ecological Services Field Office (see
The primary author of this notice is the staff of the U.S. Fish and Wildlife Service, Bloomington Ecological Services Field Office (see
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).
Agricultural Marketing Service, USDA.
Notice.
This notice announces the Department's view, based on a review by the Agricultural Marketing Service (AMS), that it is not necessary to conduct a referendum among producers and importers on continuation of the 1990 amendments to the Cotton Research and Promotion Act (Act). The 1990 amendments require the Secretary of Agriculture, once every 5 years, to conduct a review to determine whether to hold a referendum. The two major changes to the Cotton Research and Promotion Program made by the 1990 amendments were the elimination of assessment refunds to producers and a new assessment levied on imported cotton and the cotton content of imported products. Although USDA is of the view that a referendum is not needed, it will initiate a sign-up period as required by the Act, to allow cotton producers and importers to request a referendum.
Shethir Riva, Chief, Cotton Research and Promotion Staff, Cotton Program, AMS, USDA, STOP 0224, 1400 Independence Avenue, SW., Washington, DC 20250-0224, Telephone (202) 720-2259, Facsimile (202) 690-1718 or E-mail
In July 1991, the Agricultural Marketing Service (AMS) implemented the 1990 amendments to the Cotton Research and Promotion Act (Act). These amendments provided for: (1) Importer representation on the Cotton Board by an appropriate number of persons to be determined by the Secretary who import cotton or cotton products into the United States (U.S.) and are selected by the Secretary from nominations submitted by importer organizations certified by the Secretary of Agriculture; (2) assessments levied on imported cotton and cotton products at a rate determined in the same manner as for U.S. cotton; (3) increasing the amount the Secretary can be reimbursed for conducting a referendum from $200,000 to $300,000; (4) reimbursing government agencies who assist in administering the collection of assessments on imported cotton and cotton products; and (5) terminating the right of producers to demand a refund of assessments.
Results of the initial July 1991 referendum showed that of the 46,220 valid ballots received; 27,879 or 60 percent of the persons voting, favored the amendments to the Cotton Research and Promotion Order (Order), and 18,341 or 40 percent opposed the amendments. AMS developed implementing regulations for the import assessment effective August 1, 1992, the elimination of the producer refund effective September 1, 1991, and provided for importer representation on the Cotton Board effective January 1, 1993.
In 1996 and 2001, USDA issued the results of its 5-year reviews of the Cotton Research and Promotion Program. In both reviews, the Department prepared reports that described the impact of the Cotton Research and Promotion Program on the cotton industry and the views of those receiving its benefits, and in both instances, USDA announced its view not to conduct a referendum regarding the 1991 amendments to the Order (61 FR 52772 and 67 FR 1714) and subsequently held sign-up periods for all eligible persons to request a continuance referendum on the 1990 Act amendments. The results of both respective sign-up periods did not meet the criteria as established by the Act for a continuance referendum and, therefore, referenda were not conducted.
In 2006, the Department again prepared a 5-year report that described the impact of the Cotton Research and Promotion Program on the cotton industry. The review report is available upon written request to the Chief of the Cotton Research and Promotion Staff at the address provided above. Comments were solicited from all interested parties including from persons who pay the assessments as well as from organizations representing cotton producers and importers (71 FR 13808; March 17, 2006). Economic data was also reviewed in order to report on the general climate of the cotton industry. Finally, a number of independent sources of information were reviewed to help identify perspectives from outside the program including the results of independent program evaluations assessing the effects of the Cotton Research and Promotion Program activities on demand for Upland cotton, return-on-investment to cotton producers, the benefit-cost ratio to companies who import cotton products and raw cotton, and the overall rate-of-return and qualitative benefits and returns associated with the Cotton Research and Promotion Program.
The review report cited that the 1990 amendments to the Act were successfully implemented and are operating as intended. The report also noted that there is a general consensus within the cotton industry that the Cotton Research and Promotion Program and the 1990 amendments to the Act are operating as intended. Written comments, economic data, and results from independent evaluations support this conclusion. Industry comments cited examples of how the additional funding has yielded benefits by increasing the demand and consumption for cotton. Of the 15 comments received, only one commenter, who represents cotton importers, argued for a referendum on the 1990 Act amendments.
USDA found no compelling reason to conduct a referendum regarding the 1990 Act amendments to the Cotton Research and Promotion Order although some program participants support a referendum. Therefore, USDA will allow all eligible persons to request the conduct of a continuance referendum on the 1990 amendments through a sign-up period. Eligible producers and importers may sign-up to request such a referendum at the county office of the Farm Service Agency (FSA), or by mailing such a request to FSA. The
Currently, procedures for the conduct of a sign-up period appear at 7 CFR 1205.10-1205.30. These procedures will be updated as appropriate prior to the beginning of the sign-up period.
7 U.S.C. 2101-2118.
The Department of Commerce (DOC) will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
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 6625, 14th and Constitution Avenue, NW., Washington, DC 20230.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to David Rostker, OMB Desk Officer, e-mail address,
The Department of Commerce (DOC) will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
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 6625, 14th and Constitution Avenue, NW., Washington, DC 20230.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to David Rostker, OMB Desk Officer, e-mail address,
The Department of Commerce (DOC) will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
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
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to David Rostker, OMB Desk Officer, e-mail address,
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance of the following proposal for collection of information under the emergency provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
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 6625, 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 by March 28, 2007 to Jasmeet Seehra, OMB Desk Officer, FAX number (202) 395-5167 or via the Internet at
Proposed information collection; comment request.
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, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)).
Written comments must be submitted on or before May 7, 2007.
Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Yolando M. St. George, U.S. Census Bureau, HQ-6K181, Washington, DC 20233, Telephone (301) 763-6600.
The Census Bureau is planning to resubmit to the Office of Management and Budget for approval, the Quarterly Financial Report (QFR) Program information collection forms. In an effort to reduce the reporting burden for the QFR, the Census Bureau has consolidated two of its forms into one and eliminated form QFR 103 (NB). The QFR forms submitted for approval are: QFR 200 (MT) which consolidates the QFR 101 (MG) and QFR 102 (TR) long forms; and QFR 201 (MG), which is the renumbered QFR 101A (MG) short form. The eliminated form, QFR 103 (NB), was a classification form used to determine the North American Industry Classification System (NAICS) industry of respondents. The QFR is now using other sources available to the Census Bureau for classification.
The QFR Program has published up-to-date aggregate statistics on the financial results and position of U.S. corporations since 1947. The QFR is a principal economic indicator that also provides financial data essential to the calculation of key Government measures of national economic performance. The importance of this data collection is reflected by the granting of specific authority to conduct the program in Title 13 of the United States Code, Section 91, which requires that financial statistics of business operations be collected and published quarterly. Public Law 109-79 extended the authority of the Secretary of Commerce to conduct the QFR Program under Section 91 through September 30, 2015.
The current scope of the QFR includes corporations in the Mining, Manufacturing, Wholesale Trade, and Retail Trade sectors. The main purpose of the QFR is to provide timely, accurate data on business financial conditions for use by Government and private-sector organizations and individuals. The primary public users are U.S. Governmental organizations with economic policymaking responsibilities. In turn, these organizations play a major role in providing guidance, advice, and support to the QFR Program. The primary private-sector data users are a diverse group including universities, financial analysts, unions, trade associations, public libraries, banking institutions, and U.S. and foreign corporations.
The Census Bureau will primarily use mail out/mail back survey forms to collect the QFR data discussed in this notice. Companies will be asked to respond to the survey within 25 days of the end of the quarter for which the data are being requested. Letters and/or telephone calls encouraging participation will be directed to companies in the survey sample that have not responded by the designated
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
Import Administration, International Trade Administration, Department of Commerce.
On October 27, 2006, the Department of Commerce (“the Department”) published a notice of preliminary results of the full sunset review of the antidumping duty order on canned pineapple fruit (“CPF”) from Thailand (71 FR62994 ) pursuant to section 751 (c) of the Tariff Act of 1930, as amended (“the Act”). We provided interested parties an opportunity to comment on our preliminary results. We received a case brief from respondent interested parties, Pineapple Processors' Group, Thai Food Processors' Association, Thai Pineapple Canning Industry Corp., Ltd., Malee Sampran Public Co., Ltd. (“Malee”), The Siam Agro Industry Pineapples and Others Public Co., Ltd. (“SAICO”), Great Oriental Food Products Co., Ltd., Thai Pineapple Products and Other Fruits Co. Ltd., The Tipco Foods (Thailand) PCL, Pranburi Hotei Co. Ltd., and Siam Fruit Canning (1988) Co., Ltd. (collectively, “Respondents”). We received a rebuttal brief from the domestic interested party, Maui Pineapple Company (“Maui”). As a result of this sunset review, the Department finds that revocation of this order would be likely to lead to continuation or recurrence of dumping at the levels indicated in the “
March 6, 2007.
Martha Douthit, Myrna Lobo, or Dana Mermelstein, AD/CVD Operations, Office 6, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street & Constitution Avenue, NW, Washington, DC, 20230; telephone: 202-482-5050, 202-482-2371, and 202-482-1391, respectively.
On October 27, 2006, the Department of Commerce (the “Department”) published in the
The product covered by this order is CPF, defined as pineapple processed and/or prepared into various product forms, including rings, pieces, chunks, tidbits, and crushed pineapple, that is packed and cooked in metal cans with either pineapple juice or sugar syrup added. CPF is currently classifiable under subheadings 2008.20.0010 and 2008.20.0090 of the Harmonized Tariff Schedule of the United States (“HTSUS”). HTSUS 2008.20.0010 covers CPF packed in a sugar-based syrup; HTSUS 2008.20.0090 covers CPF packed without added sugar (i.e., juice-packed). Although these HTSUS subheadings are provided for convenience and for customs purposes, the written description of the scope is dispositive. There have been no scope rulings for the subject order.
All issues raised in this review are addressed in the “Issues and Decision Memorandum” for
Pursuant to section 751(c) of the Act, we determine that revocation of the antidumping duty order on CPF from Thailand would be likely to lead to continuation or recurrence of dumping at the following weighted-average margins:
This notice serves as the only reminder to parties subject to administrative protective order (“APO”) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely notification of return/ destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a violation which is subject to sanction.
We are issuing and publishing the final results of this full sunset review in accordance with sections 751(c), 752, and 777(1)(i) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
On November 7, 2006, the Department of Commerce (the Department) published the preliminary results of the antidumping (AD) administrative review on carbon and alloy steel wire rod (wire rod) from Trinidad and Tobago. The period of review (POR) is October 1, 2004, through September 30, 2005.
The Department has made some minor corrections to the margin program used for the preliminary results.
March 6, 2007.
Stephanie Moore or Dennis McClure, AD/CVD Operations, Office 3, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-3692 or (202) 482-5973, respectively.
On November 7, 2006, the Department published the preliminary results of the administrative review of the AD order on wire rod from Trinidad and Tobago.
The merchandise subject to this order is certain hot-rolled products of carbon steel and alloy steel, in coils, of approximately round cross section, 5.00 mm or more, but less than 19.00 mm, in solid cross-sectional diameter.
Specifically excluded are steel products possessing the above-noted physical characteristics and meeting the Harmonized Tariff Schedule of the United States (HTSUS) definitions for (a) stainless steel; (b) tool steel; (c) high nickel steel; (d) ball bearing steel; and (e) concrete reinforcing bars and rods. Also excluded are (f) free machining steel products (
Also excluded from the scope are 1080 grade tire cord quality wire rod and 1080 grade tire bead quality wire rod. This grade 1080 tire cord quality rod is defined as: (i) grade 1080 tire cord quality wire rod measuring 5.0 mm or more but not more than 6.0 mm in cross-sectional diameter; (ii) with an average partial decarburization of no more than 70 microns in depth (maximum individual 200 microns); (iii) having no non-deformable inclusions greater than 20 microns and no deformable inclusions greater than 35 microns; (iv) having a carbon segregation per heat average of 3.0 or better using European Method NFA 04-114; (v) having a surface quality with no surface defects of a length greater than 0.15 mm; (vi) capable of being drawn to a diameter of 0.30 mm or less with 3 or fewer breaks per ton; and, (vii) containing by weight the following elements in the proportions shown: (1) 0.78 percent or more of carbon, (2) less than 0.01 percent of aluminum, (3) 0.040 percent or less, in the aggregate, of phosphorus and sulfur, (4) 0.006 percent or less of nitrogen, and (5) not more than 0.15 percent, in the aggregate, of copper, nickel and chromium.
This grade 1080 tire bead quality rod is defined as: (i) grade 1080 tire bead quality wire rod measuring 5.5 mm or more but not more than 7.0 mm in cross-sectional diameter; (ii) with an average partial decarburization of no more than 70 microns in depth (maximum individual 200 microns); (iii) having no non-deformable inclusions greater than 20 microns and no
For purposes of the grade 1080 tire cord quality wire rod and the grade 1080 tire bead quality wire rod, an inclusion will be considered to be deformable if its ratio of length (measured along the axis - that is, the direction of rolling - of the rod) over thickness (measured on the same inclusion in a direction perpendicular to the axis of the rod) is equal to or greater than three. The size of an inclusion for purposes of the 20 microns and 35 microns limitations is the measurement of the largest dimension observed on a longitudinal section measured in a direction perpendicular to the axis of the rod. This measurement methodology applies only to inclusions on certain grade 1080 tire cord quality wire rod and certain grade 1080 tire bead quality wire rod that are entered, or withdrawn from warehouse, for consumption on or after July 24, 2003.
The designation of the products as “tire cord quality” or “tire bead quality” indicates the acceptability of the product for use in the production of tire cord, tire bead, or wire for use in other rubber reinforcement applications such as hose wire. These quality designations are presumed to indicate that these products are being used in tire cord, tire bead, and other rubber reinforcement applications, and such merchandise intended for the tire cord, tire bead, or other rubber reinforcement applications is not included in the scope. However, should petitioners or other interested parties provide a reasonable basis to believe or suspect that there exists a pattern of importation of such products for other than those applications, end-use certification for the importation of such products may be required. Under such circumstances, only the importers of record would normally be required to certify the end use of the imported merchandise.
All products meeting the physical description of subject merchandise that are not specifically excluded are included in this scope.
The products under review are currently classifiable under subheadings 7213.91.3010, 7213.91.3090, 7213.91.4510, 7213.91.4590, 7213.91.6010, 7213.91.6090, 7213.99.0031, 7213.99.0038, 7213.99.0090, 7227.20.0010, 7227.20.0020, 7227.20.0090, 7227.20.0095, 7227.90.6051, 7227.90.6053, 7227.90.6058, and 7227.90.6059 of the HTSUS. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of this order is dispositive.
Subsequent to the preliminary results, we discovered some minor technical problems with the computer program we used to calculate the margin. We found that several incorrect temporary data sets were used in the preliminary calculations. For the final results, we changed the names of the following temporary data sets in the margin program to correspond to the names in the comparison market program. In the margin program, we changed the names of the weighted-average cost data set, the weighted-average comparison market data set, and the weighted-average comparison market profit and selling expense data set. Correcting these problems does not change the
As noted above, there have been no changes from the
As a result of this review, we find that the following weighted-average dumping margin exists for the period October 1, 2004, through September 30, 2005:
The Department will determine, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries, pursuant to section 751(a)(1)(B) of the Tariff Act of 1930, as amended (the Act) and 19 CFR 351.212(b). The Department calculated importer-specific duty assessment rates on the basis of the ratio of the total antidumping duties calculated for the examined sales to the total entered value of the examined sales for that importer. Where the assessment rate is above
The Department clarified its “automatic assessment” regulation on May 6, 2003 (68 FR 23954). This clarification will apply to entries of subject merchandise during the POR produced by Mittal where Mittal did not know its merchandise was destined for the United States. In such instances, we will instruct CBP to liquidate unreviewed entries at the “All Others” rate if there is no rate for the intermediate company(ies) involved in the transaction. For a full discussion of this clarification, see
The following deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of wire rod from Trinidad and Tobago, entered or
This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping and/or countervailing duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the presumption that reimbursement of antidumping and/or countervailing duties occurred and the subsequent increase in antidumping duties by the amount of antidumping and/or countervailing duties reimbursed.
This notice also serves as a reminder to parties subject to administrative protective orders (APOs) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation that is subject to sanction.
We are issuing and publishing these results and notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, U.S. Department of Commerce.
On August 31, 2006, the Department of Commerce (“the Department”) published the preliminary results of the administrative review of the antidumping duty order on oil country tubular goods (“OCTG”), other than drill pipe, from Korea for the period (“POR”) August 1, 2004 through July 31, 2005.
March 6, 2007.
Scott Lindsay, Nicholas Czajkowski, or Dara Iserson, AD/CVD Operations, Office 6, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, N.W., Washington, DC 20230, telephone: (202) 482-0780, (202) 482-1395, or (202) 482-4052, respectively.
On August 31, 2006, the Department published in the
The products covered by this order are OCTG, hollow steel products of circular cross-section, including only oil well casing and tubing, of iron (other than cast iron) or steel (both carbon and alloy), whether seamless or welded, whether or not conforming to American Petroleum Institute (“API”) or non-API specifications, whether finished or unfinished (including green tubes and limited service OCTG products). This scope does not cover casing or tubing pipe containing 10.5 percent or more of chromium, or drill pipe. The products subject to this order are currently classified in the Harmonized Tariff Schedule of the United States (“HTSUS”) under sub-headings: 7304.29.10.10, 7304.29.10.20, 7304.29.10.30, 7304.29.10.40, 7304.29.10.50, 7304.29.10.60, 7304.29.10.80, 7304.29.20.10, 7304.29.20.20, 7304.29.20.30, 7304.29.20.40, 7304.29.20.50, 7304.29.20.60, 7304.29.20.80, 7304.29.30.10, 7304.29.30.20, 7304.29.30.30, 7304.29.30.40, 7304.29.30.50, 7304.29.30.60, 7304.29.30.80, 7304.29.40.10, 7304.29.40.20, 7304.29.40.30, 7304.29.40.40, 7304.29.40.50, 7304.29.40.60, 7304.29.40.80, 7304.29.50.15, 7304.29.50.30, 7304.29.50.45, 7304.29.50.60, 7304.29.50.75, 7304.29.60.15, 7304.29.60.30, 7304.29.60.45, 7304.29.60.60, 7304.29.60.75, 7305.20.20.00, 7305.20.40.00, 7305.20.60.00, 7305.20.80.00, 7306.20.10.30, 7306.20.10.90, 7306.20.20.00, 7306.20.30.00, 7306.20.40.00, 7306.20.60.10,
As a result of recent changes to the Harmonized Tariff Schedule, effective February 2, 2007, the subject merchandise is also classifiable under the following additional HTS item numbers: 7304.29.31.10, 7304.29.31.20, 7304.29.31.30, 7304.29.31.40, 7304.29.31.50, 7304.29.31.60, 7304.29.31.80, 7304.29.41.10, 7304.29.41.20, 7304.29.41.30, 7304.29.41.40, 7304.29.41.50, 7304.29.41.60, 7304.29.41.80, 7304.29.61.15, 7304.29.61.30, 7304.29.61.45, 7304.29.61.60, 7304.29.61.75, 7306.29.10.30, 7306.29.10.90, 7306.29.20.00, 7306.29.31.00, 7306.29.41.00, 7306.29.60.10, 7306.29.60.50, 7306.29.81.10, and 7306.29.81.50.
The HTSUS sub-headings are provided for convenience and customs purposes only. The written description remains dispositive of the scope of the order.
The issues raised in the case and rebuttal briefs by parties to this administrative review are addressed in the
Based on our analysis of the comments received, we have made changes in the calculations for the final dumping margin. The changes are discussed in detail in the
As a result of our review, we determine that the following weighted-average margins exist for the period August 1, 2004, through July 31, 2005:
The Department will determine, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries, pursuant to section 751(a)(1)(B) of the Act, and 19 CFR 351.212(b). The Department calculated importer- specific duty assessment rates (or, when the importer was unknown by the respondent, customer-specific duty assessment rates) on the basis of the ratio of the total amount of antidumping duties calculated for the examined sales observations involving each importer to the total entered value of the examined sales observations for that importer. The Department intends to issue assessment instructions to CBP 15 days after the date of publication of these final results of review.
The Department clarified its “automatic assessment” regulation on May 6, 2003. This clarification will apply to entries of subject merchandise during the POR produced by companies included in these final results of review for which the reviewed companies did not know their merchandise was destined for the United States. In such instances, we will instruct CBP to liquidate unreviewed entries at the “All Others” rate if there is no rate for the intermediate company(ies) involved in the transaction. For a discussion of this clarification,
The following antidumping duty cash deposit rates will be effective upon publication of the final results of this administrative review for all shipments of OCTG from Korea entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results, as provided for by section 751(a)(1) of the Act: (1) for SeAH, the cash deposit rate will be the rate shown above, (2) since the dumping margin for Husteel is
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective orders (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a). Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.
These final results of administrative review and this notice are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce
March 6, 2007.
Christopher Riker or Erin Begnal, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-3441 or (202) 482-1442, respectively.
On February 8, 2007, the Department of Commerce (“Department”) received a petition on imports of sodium hexametaphosphate (“SHMP”) from the People's Republic of China (“PRC”) filed in proper form by ICL Performance Products, LP and Innophos, Inc. (“Petitioners”). The period of investigation (“POI”) is July 1, 2006, through December 31, 2006.
In accordance with section 732(b) of the Tariff Act of 1930, as amended (“the Act”), Petitioners alleged that imports of SHMP from the PRC are being, or are likely to be, sold in the United States at less than fair value within the meaning of section 731 of the Act, and that such imports are materially injuring and threaten to materially injure an industry in the United States. The Department issued supplemental questions to Petitioners on February 12, 2007, and February 21, 2007. Petitioners filed their responses on February 16, 2007, and February 23, 2007.
The merchandise subject to this investigation is Sodium hexametaphosphate (“SHMP”). SHMP is a water-soluble polyphosphate glass that consists of a distribution of polyphosphate chain lengths. It is a collection of sodium polyphosphate polymers built on repeating NaPO
The product covered by this investigation includes SHMP in all grades, whether food grade or technical grade. The product covered by this investigation includes SHMP without regard to chain length i.e., whether regular or long chain. The product covered by this investigation includes SHMP without regard to physical form, whether glass, sheet, crushed, granule, powder, fines, or other form.
However, the product covered by this investigation does not include SHMP when imported in a blend with other materials in which the SHMP accounts for less than 50 percent by volume of the finished product.
During our review of the petition, we discussed the scope with Petitioners to ensure that it accurately reflects the product for which the domestic industry is seeking relief. Moreover, as discussed in the preamble to the Department's regulations, we are setting aside a period for interested parties to raise issues regarding product coverage. See Antidumping Duties; Countervailing Duties; Final Rule, 62 FR 27296, 27323 (May 19, 1997). The Department encourages all interested parties to submit such comments within 20 calendar days of publication of this initiation notice. Comments should be addressed to Import Administration's Central Records Unit in Room 1870, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230. The period of scope consultations is intended to provide the Department with ample opportunity to consider all comments and consult with interested parties prior to the issuance of the preliminary determination.
Section 732(b)(1) of the Act requires that a petition be filed by an interested party described in subparagraph (C), (D), (E), (F) or (G) of section 771(9) of the Act, by or on behalf of the domestic industry. In order to determine whether a petition has been filed by or on behalf of the domestic industry, the Department, pursuant to section 732(c)(4)(A) of the Act, determines whether a minimum percentage of the relevant industry supports the petition. A petition meets this requirement if the domestic producers or workers who support the petition account for: (i) At least 25 percent of the total production of the domestic like product; and (ii) more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the petition. Moreover, section 732(c)(4)(D) of the Act provides that, if the petition does not establish support of domestic producers or workers accounting for more than 50 percent of the total production of the domestic like product, the Department shall: (i) Poll the industry or rely on other information in order to determine if there is support for the petition, as required by subparagraph (A), or (ii) if there is a large number of producers in the industry the Department may determine industry support using a statistically valid sampling method.
Section 771(4)(A) of the Act defines the “industry” as the producers as a whole of a domestic like product. Thus, to determine whether a petition has the requisite industry support, the statute directs the Department to look to producers and workers who produce the domestic like product. The International Trade Commission (“ITC”), which is responsible for determining whether “the domestic industry” has been injured, must also determine what constitutes a domestic like product in order to define the industry. While both the Department and the ITC must apply the same statutory definition regarding the domestic like product (section 771(10) of the Act), they do so for different purposes and pursuant to a separate and distinct authority. In addition, the Department's determination is subject to limitations of time and information. Although this may result in different definitions of the like product, such differences do not render the decision of either agency contrary to law. See USEC, Inc. v. United States, 132 F. Supp. 2d 1, 8 (CIT 2001), citing
Section 771(10) of the Act defines the “domestic like product” as “a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation under this title.” Thus, the reference point from which the domestic like product analysis begins is “the article subject to an investigation,” (i.e., the class or kind of merchandise to be investigated, which normally will be the scope as defined in the petition).
With regard to the domestic like product, Petitioners do not offer a definition of domestic like product distinct from the scope of the investigation. Based on our analysis of the information submitted on the record, we have determined that SHMP constitutes a single domestic like product and we have analyzed industry support in terms of that domestic like product. For a discussion of the domestic like product analysis in this case, see Antidumping Investigation Initiation Checklist: Sodium Hexametaphosphate from the People's Republic of China (“PRC”) at Attachment I (“Initiation Checklist”), on file in the Central Records Unit, Room B-099 of the main Department of Commerce building.
Our review of the data provided in the petition, supplemental submissions, and other information readily available to the Department indicates that Petitioners have established industry support representing at least 25 percent of the total production of the domestic like product, and more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for or opposition to the petition, requiring no further action by the Department pursuant to section 732(c)(4)(D) of the Act. Therefore, the domestic producers (or workers) who support the petition account for at least 25 percent of the total production of the domestic like product, and the requirements of section 732(c)(4)(A)(i) of the Act are met. Furthermore, the domestic producers who support the petition account for more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the petition. Thus, the requirements of section 732(c)(4)(A)(ii) of the Act also are met. Accordingly, the Department determines that the petition was filed on behalf of the domestic industry within the meaning of section 732(b)(1) of the Act. See Initiation Checklist at Attachment I (Industry Support).
The Department finds that Petitioners filed the petition on behalf of the domestic industry because they are an interested party as defined in sections 771(9)(C) of the Act and they have demonstrated sufficient industry support with respect to the antidumping investigation that they are requesting the Department initiate. See Initiation Checklist at Attachment I (Industry Support).
Petitioners provided numerous U.S. price quotes for SHMP manufactured in the PRC and offered for sale in the United States. However, the Department notes that a number of these prices, as quoted, were prior to the POI. Therefore, the Department has only examined prices within the POI or more contemporaneous. These prices were for SHMP within the scope of this Petition, for delivery to the U.S. customer within the POI. Petitioners deducted the costs associated with exporting and delivering the product, including ocean freight and insurance charges, foreign inland freight costs, and foreign brokerage and handling from the prices. See Initiation Checklist at 6-7.
In addition, while Petitioners also calculated margins using a U.S. price based on the average unit values (“AUVs”) of imports during the POI available from the International Trade Commission for HTSUS subheading 2835.39.5000, because adequate pricing information is available using the above-detailed price quotations, the Department need not address the AUV margin calculations for this initiation, consistent with the Department's prior practice. See Notice of Initiation of Antidumping Duty Investigation: Tetrahydrofurfuryl Alcohol from the People's Republic of China, 68 FR 42686 (July 18, 2003). However, should the need arise to use any of this information as facts available under section 776 of the Act in our preliminary or final determinations, we may re-examine the information and revise the margin calculations, if appropriate.
Petitioners stated that the PRC is a non-market economy (“NME”) and no determination to the contrary has been made by the Department to date. Recently, the Department examined the PRC's market status and determined that NME status should continue for the PRC. See Memorandum from the Office of Policy to David M. Spooner, Assistant Secretary for Import Administration, regarding The People's Republic of China Status as a Non-Market Economy (May 15, 2006). In addition, in a recent antidumping duty investigation, the Department also determined that the PRC is a NME. See, e.g., Notice of Final Determination of Sales at Less Than Fair Value and Final Partial Affirmative Determination of Critical Circumstances: Diamond Sawblades and Parts Thereof from the People's Republic of China, 71 FR 29303 (May 22, 2006).
In accordance with section 771(18)(C)(i) of the Act, the presumption of NME status remains in effect until revoked by the Department. The presumption of NME status for the PRC has not been revoked by the Department and remains in effect for purposes of the initiation of this investigation. Accordingly, the normal value of the product is appropriately based on factors of production valued in a surrogate market economy country in accordance with section 773(c) of the Act. In the course of this investigation, all parties will have the opportunity to provide relevant information related to the issues of the PRC's NME status and the granting of separate rates to individual exporters.
Petitioners selected India as the surrogate country. Petitioners argued that, pursuant to section 773(c)(4) of the Act, India is an appropriate surrogate because it is a market-economy country that is at a comparable level of economic development to the PRC and is a significant producer of SHMP. Based on the information provided by Petitioners, we believe that its use of India as a surrogate country is
Petitioners provided dumping margin calculations using the Department's NME methodology as required by 19 CFR 351.202(b)(7)(i)(C) and 19 CFR 351.408. Petitioners calculated normal values based on consumption rates for producing SHMP experienced by U.S. producers for producing SHMP in an integrated facility and a non-integrated facility. See Initiation Checklist. In accordance with section 773(c)(4) of the Act, Petitioners valued factors of production, where possible, on reasonably available, public surrogate country data. To value certain factors of production, Petitioners used official Indian government import statistics, excluding those values from countries previously determined by the Department to be NME countries and excluding imports into India from Indonesia, the Republic of Korea and Thailand, because the Department has previously excluded prices from these countries because they maintain broadly-available, non-industry specific export subsidies. See, e.g., Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, from the People's Republic of China: Final Results of 1999-2000 Administrative Review, Partial Rescission of Review, and Determination Not to Revoke Order in Part, 66 FR 57420 (November 15, 2001), and accompanying Issues and Decision Memorandum at Comment 1. For valuing other factors of production, Petitioners used the same sources, where appropriate, recently used in the Preliminary Determination of Sales at Less Than Fair Value and Partial Affirmative Determination of Critical Circumstances: Certain Polyester Staple Fiber from the People's Republic of China, 71 FR 77373 (December 26, 2006), and inflated these values to be contemporaneous with the POI where necessary.
For inputs valued in Indian rupees and not contemporaneous with the POI, Petitioners used information from the wholesale price indices (“WPI”) in India as published by the Reserve Bank of India (“RBI”) for input prices during the period preceding the POI. In addition, Petitioners made currency conversions, where necessary, based on the average rupee/U.S. dollar exchange rate for the POI, as reported on the Department's Web site. See
For the normal value calculations, Petitioners derived the figures for factory overhead, selling, general and administrative expenses (“SG&A”), and profit from the financial ratios of two Indian producers of SHMP or comparable merchandise.
Based on the data provided by Petitioners, there is reason to believe that imports of SHMP from the PRC are being, or are likely to be, sold in the United States at less than fair value. Based upon comparisons of supported export prices to the two normal values, calculated in accordance with section 773(c) of the Act, the estimated calculated dumping margins for SHMP from the PRC range from 76.69 percent to 103.62 percent. See Initiation Checklist at 9-10 for these calculations.
Petitioners allege that the U.S. industry producing the domestic like product is being materially injured, or is threatened with material injury, by reason of the individual and cumulated imports of the subject merchandise sold at less than NV. Petitioners contend that the industry's injured condition is illustrated by the decline in customer base, market share, domestic shipments, prices and financial performance. We have assessed the allegations and supporting evidence regarding material injury and causation, and we have determined that these allegations are properly supported by adequate evidence and meet the statutory requirements for initiation. See Initiation Checklist at Attachment II.
The Department recently modified the process by which exporters and producers may obtain separate-rate status in NME investigations. See Policy Bulletin 05.1: Separate-Rates Practice and Application of Combination Rates in Antidumping Investigations involving Non-Market Economy Countries (Separate Rates and Combination Rates Bulletin), (April 5, 2005), available on the Department's Web site at
For NME investigations, it is the Department's practice to request quantity and value information from all known exporters identified in the petition. Although many NME exporters respond to the quantity and value information request, at times some exporters may not have received the quantity and value questionnaire or may not have received it in time to respond by the specified deadline. Therefore, in addition, the Department typically requests the assistance of the NME government in transmitting the Department's quantity and value questionnaire to all companies who manufacture and export subject merchandise to the United States, as well as to manufacturers who produce the subject merchandise for companies who were engaged in exporting subject
The Department requires that the respondents submit a response to both the quantity and value questionnaire and the separate-rates application by the respective deadlines in order to receive consideration for separate-rate status. Appendix I of this notice contains the quantity and value questionnaire that must be submitted by all NME exporters no later than April 4, 2007. In addition, the Department will post the quantity and value questionnaire along with the filing instructions on the Import Administration's Web site,
The Department will calculate combination rates for certain respondents that are eligible for a separate rate in this investigation. The Separate Rates and Combination Rates Bulletin, states:
{w}hile continuing the practice of assigning separate rates only to exporters, all separate rates that the Department will now assign in its NME investigations will be specific to those producers that supplied the exporter during the period of investigation. Note, however, that one rate is calculated for the exporter and all of the producers which supplied subject merchandise to it during the period of investigation. This practice applies both to mandatory respondents receiving an individually calculated separate rate as well as the pool of non-investigated firms receiving the weighted-average of the individually calculated rates. This practice is referred to as the application of “combination rates” because such rates apply to specific combinations of exporters and one or more producers. The cash-deposit rate assigned to an exporter will apply only to merchandise both exported by the firm in question
Based upon our examination of the petition on SHMP from the PRC, we find that this petition meets the requirements of section 732 of the Act. Therefore, we are initiating an antidumping duty investigation to determine whether imports of SHMP from the PRC are being, or are likely to be, sold in the United States at less than fair value. Unless postponed, we will make our preliminary determinations no later than 140 days after the date of these initiations. See section 733(b)(1)(A) of the Act.
In accordance with section 732(b)(3)(A) of the Act, a copy of the public version of the petition has been provided to the government of the PRC.
We have notified the ITC of our initiation, as required by section 732(d) of the Act.
The ITC will preliminarily determine, within 25 days after the date on which it receives notice of this initiation, whether there is a reasonable indication that imports of SHMP from the PRC are causing material injury, or threatening to cause material injury, to a U.S. industry. See section 733(a)(2)(A)(i) of the Act. A negative ITC determination will result in the investigation being terminated; otherwise, this investigation will proceed according to statutory and regulatory time limits.
This notice is issued and published pursuant to section 777(i) of the Act.
Where it is not practicable to examine all known producers/exporters of subject merchandise because of the large number of exporters or producers included in the investigation, section 777A(c)(2) of the Tariff Act of 1930 (as amended) permits us to investigate (1) a sample of exporters, producers, or types of products that is statistically valid based on the information available at the time of selection, or (2) exporters and producers accounting for the largest volume and value of the subject merchandise that can reasonably be examined.
In the chart below, please provide the total quantity and total value of all your sales of merchandise covered by the scope of this investigation (
Total Quantity:
• Please report quantity on a metric ton basis. If any conversions were used, please provide the conversion formula and source.
Terms of Sales:
• Please report all sales on the same terms (
Total Value:
• All sales values should be reported in U.S. dollars. Please indicate any exchange rates used and their respective dates and sources.
Export Price Sales:
• Generally, a U.S. sale is classified as an export price sale when the first sale to an unaffiliated person occurs before importation into the United States.
• Please include any sales exported by your company directly to the United States.
• Please include any sales exported by your company to a third-country market economy reseller where you had knowledge that the merchandise was destined to be resold to the United States.
• If you are a producer of subject merchandise, please include any sales manufactured by your company that were subsequently exported by an affiliated exporter to the United States.
• Please do not include any sales of merchandise manufactured in Hong Kong in your figures.
Constructed Export Price Sales:
• Generally, a U.S. sale is classified as a constructed export price sale when the first sale to an unaffiliated person occurs after importation. However, if the first sale to the unaffiliated person is made by a person in the United States affiliated with the foreign exporter, constructed export price applies even if the sale occurs prior to importation.
• Please include any sales exported by your company directly to the United States.
• Please include any sales exported by your company to a third-country market economy reseller where you had knowledge that the merchandise was destined to be resold to the United States.
• If you are a producer of subject merchandise, please include any sales manufactured by your company that were subsequently exported by an affiliated exporter to the United States.
• Please do not include any sales of merchandise manufactured in Hong Kong in your figures.
Further Manufactured:
• Further manufacture or assembly costs include amounts incurred for direct materials, labor and overhead, plus amounts for general and administrative expense, interest expense, and additional packing expense incurred in the country of further manufacture, as well as all costs involved in moving the product from the U.S. port of entry to the further manufacturer.
Import Administration, International Trade Administration, Department of Commerce.
March 6, 2007.
On January 25, 2007, the Department of Commerce received a request to conduct a new-shipper review of the antidumping duty order on solid urea from Russia. In accordance with section 751(a)(2)(B) of the Tariff Act of 1930, as amended, and 19 CFR 351.214(d) (2005), we are initiating an antidumping duty new-shipper review.
Thomas Schauer or Minoo Hatten at (202) 482-0410 and (202) 482-1690, respectively, Office 5, AD/CVD Operations, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230.
On May 26, 1987, the Department of Commerce (the Department) published its final determination in the investigation of solid urea from the Union of Soviet Socialist Republics (Soviet Union), finding dumping margins of 68.26 percent for Soyuzpromexport, 53.23 percent for Phillip Brothers, and 68.26 as the country-wide rate (52 FR 19557). On July 14, 1987, following an affirmative injury determination by the International Trade Commission, the Department issued an antidumping duty order on solid urea from the Soviet Union. Following the break-up of the Soviet Union, the antidumping duty order on solid urea from the Soviet Union was transferred to the individual members of the Commonwealth of Independent States. See
On January 25, 2007, the Department received a timely request for a new-shipper review of the antidumping duty order on solid urea from Russia from MCC EuroChem (EuroChem). On January 31, 2007, EuroChem submitted additional certifications to supplement its request for a new-shipper review in response to our telephone call of the same. See memorandum to file dated January 31, 2007. EuroChem certified that it is both the producer and exporter of the subject merchandise upon which the request for a new-shipper review is based.
Pursuant to section 751(a)(2)(B)(i)(I) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.214(b)(2)(i), EuroChem certified that it did not export solid urea to the United States during the period of investigation (POI). In addition, pursuant to section 751(a)(2)(B)(i)(II) of the Act and 19 CFR 351.214(b)(2)(iii)(A), EuroChem certified that, since the initiation of the investigation, it has never been affiliated with any Russian exporter or producer who exported solid urea to the United States during the POI, including those not individually examined during the investigation.
In addition to the certifications described above, pursuant to 19 CFR 351.214(b)(2)(iv), EuroChem submitted documentation establishing the date on which EuroChem first shipped solid urea for export to the United States and the date on which the solid urea was first entered, or withdrawn from warehouse, for consumption, the volume of its first shipment, and the date of its first sale to an unaffiliated customer in the United States.
The Department conducted a query of the U.S. Customs and Border Protection (CBP) database to confirm that EuroChem's shipment of subject merchandise had entered the United States for consumption and had been suspended for antidumping duties. The Department also corroborated EuroChem's assertion that it made no subsequent shipments to the United States by reviewing CBP data.
On February 16, 2007, the Ad Hoc Committee of Domestic Nitrogen Producers (the petitioner) submitted a letter arguing that the respondent was not eligible for a new-shipper review because the producer of the subject merchandise to be reviewed, OJSC Nevinnomysskiy Azot (Nevinka), was affiliated with the exporter and producers during the POI. The petitioner also argued that the request was incomplete because EuroChem did not also file a certification from Nevinka certifying that it never shipped subject merchandise to the United States during the POI.
Pursuant to section 751(a)(2)(B) of the Act and 19 CFR 351.214(d)(1), the Department finds that EuroChem's request meets the threshold requirements for initiation of a new-
The period of review for this new-shipper review is July 1, 2006, through December 31, 2006. See 19 CFR 351.214(g)(1)(ii)(A). The Department intends to issue the preliminary results of this review no later than 180 days from the date of initiation and final results of this review no later than 270 days from the date of initiation. See section 751(a)(2)(B)(iv) of the Act.
On August 17, 2006, the Pension Protection Act of 2006 (H.R. 4) was signed into law. Section 1632 of H.R. 4 temporarily suspends the authority of the Department to instruct U.S. Customs and Border Protection to collect a bond or other security in lieu of a cash deposit in new-shipper reviews. Therefore, the posting of a bond under section 751(a)(2)(B)(iii) of the Act in lieu of a cash deposit is not available in this case. Importers of subject merchandise manufactured and exported by EuroChem must continue to pay a cash deposit of estimated antidumping duties on each entry of subject merchandise at the current all-others rate of 68.26 percent.
Interested parties requiring access to proprietary information in this new-shipper review should submit applications for disclosure under administrative protective order in accordance with 19 CFR 351.305 and 351.306.
This initiation and notice are published in accordance with section 751(a)(2)(B) of the Act and 19 CFR 351.214 and 351.221(c)(1)(i).
National Institute of Standards and Technology, Department of Commerce.
Notice of Public Meeting.
Pursuant to the Federal Advisory Committee Act, 5 U.S.C. app. 2, notice is hereby given that the Manufacturing Extension Partnership National Advisory Board (MEPNAB), National Institute of Standards and Technology (NIST), will meet Wednesday, March 21, 2007, from 9 a.m. to 4:30 p.m. The MEPNAB is composed of six members appointed by the Director of NIST who were selected for their expertise in the area of industrial extension and their work on behalf of smaller manufacturers. The Board was established to fill a need for outside input on MEP. MEP is a unique program consisting of centers across the United States and Puerto Rico, with partnerships at the State, Federal, and local levels. The Board works closely with MEP to provide input and advice on MEP's programs, plans, and policies. The purpose of this meeting is to provide the board with the latest program developments including NIST Update, MEP Overview, presentations on MEP Partnerships and Program Evaluation. The agenda may change to accommodate Board business.
The meeting will convene March 21, 2007 at 9 a.m. and will adjourn at 4:30 p.m. on March 21, 2007.
The meeting will be held at the Atrium Court Hotel, 3 Research Court, Rockville, Maryland 20850. Anyone wishing to attend this meeting should contact NIST MEP by March 14, 2007. Please submit your name, time of arrival, e-mail address and phone number to Susan Hayduk no later than Monday, March 19, 2007. Ms. Hayduk's e-mail address is
Karen Lellock, Manufacturing Extension Partnership, National Institute of Standards and Technology, Gaithersburg, Maryland 20899-4800, telephone number (301) 975-4269.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of SEDAR Workshops for Gulf of Mexico and South Atlantic gag grouper and Gulf of Mexico red grouper.
The SEDAR assessments of the Gulf of Mexico stock of gag grouper, the South Atlantic stock of gag grouper, and the Gulf of Mexico stock of red grouper will receive additional scientific scrutiny through a supplemental SEDAR Review Workshop and Evaluation Workshop.
The Evaluation Workshop will take place March 19 - 22, 2007. The Review Workshop will take place May 8 - 10, 2007. See
The Evaluation Workshop will be held at the Southeast Fisheries Science Center, Miami Laboratory, 75 Virginia Beach Drive, Miami, FL 33149. The Review Workshop will be held in the Tampa, FL area at a location to be provided in a later notice.
John Carmichael, SEDAR Coordinator, 4055 Faber Place, Suite 201, North Charleston, SC 29405; telephone: (843) 571-4366.
The Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils, in conjunction with NOAA Fisheries and the Atlantic and Gulf States Marine Fisheries Commissions have implemented the SEDAR process, a multi-step method for determining the status of fish stocks in the Southeast Region. SEDAR assessments are developed through an open workshop process that involves a variety of participants. Participants for SEDAR Workshops, appointed by the regional Fishery Management Councils, the Southeast Regional Office (SERO), and the Southeast Fishery Science Center (SEFSC), include data collectors and database managers; stock assessment scientists, biologists, and researchers;
Assessments of Gulf of Mexico and South Atlantic stocks of gag grouper were developed through SEDAR 10, completed in July 2006. The assessment of Gulf of Mexico red grouper was developed through SEDAR 12, completed in February 2007. It is acknowledged that methods of assessing Southeastern fish stocks and addressing issues within available datasets improve with each SEDAR assessment, and recent assessment updates have allowed incorporation of such changes. There are similarities in the data sources used to develop SEDAR 10 and 12 assessments, potential similarities in basic species biology, and considerable overlap in fisheries that harvest these species within the respective Council areas of jurisdiction. Therefore, the Steering Committee has determined that a special review of these recent grouper assessments is required to ensure that uncertainties are treated appropriately and that any potential differences in methods or data treatments are thoroughly justified.
This special inquiry will be prepared through 2 SEDAR workshops: an evaluation workshop and review workshop. The evaluation workshop will consist of SEFSC and Council appointees familiar with the assessments and the fisheries which will be convened to review the assessments and possibly recommend additional sensitivity analyses. The Review Workshop will consist of an SEFSC appointed Chair, two independent reviewers appointed through the Center for Independent Experts (CIE), and up to two additional representatives appointed by the Gulf and South Atlantic Councils. The product of the Evaluation Workshop will be a report addressing key assessment uncertainties and recommending potential additional assessment analyses for consideration by the Review panel. The product of the Review Panel will be an independent evaluation of the recommendations and conclusions of the Evaluation Panel and any subsequent assessment analyses.
An appointed panel will review the SEDAR 10 assessments of Gulf of Mexico and South Atlantic gag grouper and the SEDAR 12 assessment of Gulf of Mexico red grouper. Participants will evaluate key data and methodological decisions and the justifications of those decisions as provided in the SEDAR 10 and 12 assessment reports. The panel will prepare a written report addressing Terms of Reference approved by the SEDAR Steering Committee.
The Review Workshop is an independent peer review of the recommendations of the Evaluation Panel and any subsequent analyses recommended by the Evaluation Panel. Workshop Panelists will review the SEDAR 10 and 12 assessments and the findings of the Evaluation Panel and document their comments and recommendations in a Consensus Summary Report.
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to the Council office (see
United States Patent and Trademark Office, Commerce.
Notice.
The United States Patent and Trademark Office (“USPTO”) hereby provides sixty (60) days notice of the microfilming and removal of the paper search collection of registered marks consisting only of words from the USPTO's Trademark Search Facility in Arlington, VA. This Notice does not concern the paper search collection of registered marks that consist of or include design elements.
Removal of the paper search collection of registered word-only marks shall be effected beginning sixty (60) days from the date of this Notice.
Jennifer Chicoski, Office of the Commissioner for Trademarks, 571-272-8943.
Under 35 U.S.C. 41(i), the USPTO must maintain a collection of United States trademark applications and registrations for use by the public in paper, microform, or electronic form. The provision authorizing an electronic search collection was added by § 4804(d)(1) of the American Inventors Protection Act of 1999 (“AIPA”), Title IV, Subtitle B, of Pub. L. 106-113, 113 Stat. 1501, 1501A-589. The USPTO currently maintains a searchable electronic database of registered marks and marks in pending applications, as well as text and images of marks in abandoned, cancelled and expired records dating back to 1984. Government insignia protected by U.S. law or by Article 6ter of the Paris Convention, and insignia that various federally and state recognized Native American tribes have identified as their official tribal insignia are also included. Trademark examining attorneys have relied exclusively on the electronic search system since before 1990.
Section 4804(d)(2) of the AIPA provides that the USPTO can eliminate the paper or microform search collection only pursuant to notice and opportunity for public comment, and only after submitting a report to the Committees on the Judiciary of the Senate and the House of Representatives detailing its plan for removal, and certifying that the implementation of such plan will not negatively impact the public. On May 9, 2003, the USPTO certified to Congress that the USPTO could cease to maintain a paper search collection of marks that consist only of words, without harm to the public. The 2003 report and certification are currently available on the USPTO Web site at
While the 2003 report and certification remain effective, the United States subsequently entered a stipulated settlement in
In a June 23, 2006,
Accordingly, the USPTO hereby gives notice that beginning sixty (60) days from the date of this Notice, the USPTO will begin removing the paper collection of active and expired trademark registrations that consist only of words. All papers will be microfilmed before being discarded, and the microform collection will be available to the public in the Public Search Facility at 600 Dulany Street, Alexandria, Virginia. This will ensure that all information currently available in the paper search collection remains available to the public.
The next meeting of the U.S. Commission of Fine Arts is scheduled for 15 March 2007, at 10 a.m. in the Commission's offices at the National Building Museum, Suite 312, Judiciary Square, 401 F Street, NW., Washington, DC 20001-2728. Items of discussion affecting the appearance of Washington, DC, may include buildings, parks and memorials.
Draft agendas and additional information regarding the Commission are available on our Web site:
Department of the Army, DoD.
Notice of open meeting.
Pursuant to the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Sunshine in the Government Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-102-3.150, the following meeting notice is announced:
To request advance approval or obtain further information, contact Colonel Henry M. St-Pierre.
This meeting is open to the public. Interested persons may submit a written statement for consideration by the U.S. Army War College Subcommittee. Written statements should be no longer than two type-written pages and must address: the issue, discussion, and a recommended course of action. Supporting documentation may also be included as needed to establish the appropriate historical context and to provide any necessary background information.
Individuals submitting a written statement must submit their statement to the Designated Federal Officer at the address detailed below, at any point, however, if a written statement is not received at least 10 calendar days prior to the meeting, which is the subject of this notice, then it may not be provided to or considered by the U.S. Army War College Subcommittee until its next open meeting.
The Designated Federal Officer will review all timely submissions with the U.S. Army War College Subcommittee Chairperson, and ensure they are provided to members of the U.S. Army War College Subcommittee before the meeting that is the subject of this notice. After reviewing the written comments, the Chairperson and the Designated Federal Officer may choose to invite the submitter of the comments to orally present their issue during an open portion of this meeting or at a future meeting.
The Designated Federal Officer, in consultation with the U.S. Army War College Subcommittee Chairperson, may, if desired, allot a specific amount of time for members of the public to present their issues for review and discussion by the U.S. Army War College Subcommittee.
Department of the Army, U.S. Army Corps of Engineers, DoD.
Notice of Intent.
Pursuant to Section 102(2)(c) of the National Environmental Policy Act (NEPA) of 1969 as implemented by the Council on Environmental Quality regulations (40 CFR Parts 1500-1508) and Public Law 102-484 Section 2834, as amended by Public Law 104-106 Section 2867, the Department of the Army hereby gives notice of intent to prepare an Environmental Impact Statement (EIS) for the subject Dredged Material Management Plan (DMMP). The Buffalo District of the U.S. Army Corps of Engineers (USACE) will be the lead agency in preparing the EIS.
The EIS will consider Federal actions associated with the development of a DMMP for the Federal harbor at Lorain in Lorain County, OH. The DMMP is a study conducted to develop a long-term (20-year) strategy for providing viable dredged material placement alternatives that would meet the needs of maintaining the Federal navigation channels at Lorain Harbor. The overall goal of the DMMP is to develop an economical and environmentally sustainable plan for maintaining channels necessary for commercial navigation at Lorain Harbor. The plan considers a range of management strategies including reduced dredging and the use of dredged material as a beneficial resource.
U.S. Army Corps of Engineers, Buffalo District, CELRB-PM-PB, 1776 Niagara Street, Buffalo, NY 14207-3199.
Ms. Michele Hope, Project Manager, telephone (716) 879-4124, or Mr. William Butler, NEPA Coordinator, telephone: (716) 879-4268.
Lorain Harbor is a deep-draft commercial harbor located in Lorain County, OH that encompasses the lower three miles of the Black River and its mouth at Lake Erie. On average, the Federal channels at the harbor are dredged every two years. From 1979 through 2005, all material dredged from the harbor was determined to be unsuitable for open-lake placement. Consequently, in 1979, under the authority of Section 123 of the River and Harbor Act of 1970, USACE completed construction of a confined disposal facility (CDF) for the placement of the material. At present, the harbor's existing CDF is currently filled to approximately 90 percent of its total capacity. As a short-term measure to accommodate anticipated dredging needs in 2008 and 2010, the Corps of Engineers plans to conduct Operations and Maintenance activities that will consist of, among other things, the movement of material within the CDF to construct an interior berm within the facility in early 2007. This berm would increase the capacity of the facility to accept dredged material for another one or two dredging events. Additional berm-related work in 2009 and 2011 would extend the capacity of the facility through 2013. However, to address long-term dredging and dredged material management needs into 2014 and beyond, additional placement sites for dredged material must also be made available.
The Draft EIS is tentatively scheduled to be available for public review in September 2007.
The Final EIS is tentatively scheduled to be available for public review in February 2008.
Department of the Navy, DoD.
Notice.
This notice provides information on the surplus property at Naval Weapons Station Seal Beach Detachment, Concord, CA.
Ms. Kimberly Kesler, Director, Base Realignment and Closure Program Management Office, 1455 Frazee Road, San Diego, CA 92108-4310, telephone 619-532-0993; or Ms. Laura Duchnak, Director, Base Realignment and Closure Program Management Office, West, 1455 Frazee Road, San Diego, CA 92108-4310, telephone 619-532-0994.
In 2005, Naval Weapons Station Seal Beach Detachment, Concord, CA, was designated for closure under the authority of the Defense Base Closure and Realignment Act of 1990, Public Law 101-510, as amended (the Act). Pursuant to this designation, on January 23, 2006, land and facilities at this installation were declared excess to the Department of the Navy (DON) and available to other Department of Defense components and other Federal agencies. The DON has evaluated all timely Federal requests and has made a decision on property required by the Federal Government.
a.
In general, the remaining 5,028 acres of property will be available when the installation operationally closes in September 2008.
b.
(1) Administrative/Training facilities (5 structures). Comments: Approximately 10,020 square feet.
(2) Inert Storage facilities (13 structures). Comments: Approximately 125,000 square feet. Includes inert storage buildings used to store non-explosive ordnance items and materials.
(3) Paved areas (roads and surface areas). Comments: Approximately 781,519 square yards of roads and other surface areas, i.e., sidewalks, parking lots, etc., including approximately 1,642,212 square feet of airfield runway.
(4) Explosive Ordnance Magazines (217 structures). Comments: Approximately 879,000 square feet. Previously used as ammunition storage, high explosive storage, missile magazines, etc.
(5) Operational and Maintenance facilities (40 structures). Comments: Approximately 150,000 square feet. Includes test buildings, ammunition rework shops, maintenance shops, ancillary personnel support facilities, etc.
(6) Miscellaneous facilities (19 structures). Comments: Approximately 11,567 square feet, including security gatehouses, guard towers, etc.
(7) Rail facilities. Comments: Approximately 55 miles of railroad track and 41 barricaded railroad siding structures.
(8) Utility facilities. Comments: Measuring systems vary; includes gas, telephone, electric, storm drainage, water, sewer, fire protection systems, etc.
Redevelopment Planning. Pursuant to Section 2905 (b)(7)(F) of the Act, the LRA will conduct a community outreach effort with respect to the surplus property, and will publish in a newspaper of general circulation in the communities within the vicinity of Naval Weapons Station Seal Beach Detachment, Concord, CA, the time period during which the LRA will receive notices of interest from State and local governments, representatives of the homeless, and other interested parties. This publication shall include the name, address, telephone number, and the point of contact for the LRA who can provide information on the prescribed form and contents of the notices of interest.
Department of the Navy, DoD.
Notice.
This notice provides information on withdrawal of surplus property at Naval Station Pascagoula, MS, Sandhill Landing Housing Area.
Ms. Kimberly Kesler, Director, Base Realignment and Closure Program Management Office, 1455 Frazee Road, San Diego, CA 92108-4310, telephone 619-532-0993; or Mr. James E. Anderson, Director, Base Realignment and Closure Program Management Office, Southeast, 4130 Faber Place Drive, Suite 202, North Charleston, SC 29405, telephone 843-743-2147.
In 2005, Naval Station Pascagoula, including the Lakeside Manor and Sandhill Landing Housing areas, was designated for closure under the authority of the Defense Base Closure and Realignment Act of 1990, Public Law 101-510, as amended (the Act). On May 10, 2006, the Department of the Navy (DON) published a Notice in the
a.
b.
(1) Housing units (160 units). Comments: 94 three-bedroom townhouse apartments and 66 four-bedroom apartments.
(2) Paved areas. Comments: Approximately 16,443 square yards of roads, parking lots, sidewalks, etc.
(3) Recreational facilities include basketball and tennis courts, tot lots, picnic areas, and playgrounds. Comments: Measuring systems vary.
Office of Special Education and Rehabilitative Services, Department of Education.
Notice of proposed priorities.
The Assistant Secretary for the Office of Special Education and Rehabilitative Services (OSERS) proposes two priorities under the Centers for Independent Living (CIL) Program—Training and Technical Assistance. The Assistant Secretary may use one or more of these priorities for competitions in fiscal year (FY) 2007 and in later years. We take this action to improve the efficiency, quality of evaluation, and outcomes for individuals with significant disabilities as a result of the delivery of independent living services of the CILs and to improve the performance of Statewide Independent Living Councils (SILCs).
We must receive your comments on or before April 5, 2007.
Address all comments about these proposed priorities to Sean Barrett, U.S. Department of Education, 400 Maryland Avenue, SW., Room 5042, Potomac Center Plaza, Washington, DC 20202-2800. If you prefer to send your comments through the Internet, use the following address:
You must include the term “IL T&TA” in the subject line of your electronic message.
Sean Barrett.
If you use a telecommunications device for the deaf (TDD), you may call (866) 889-6737.
Individuals with disabilities may obtain this document in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) on request to the contact person listed under
We invite you to submit comments regarding these proposed priorities. To ensure that your comments have maximum effect in developing the notice of final priorities, we urge you to identify clearly the specific proposed priority that each comment addresses.
We invite you to assist us in complying with the specific requirements of Executive Order 12866 and its overall requirement of reducing regulatory burden that might result from these proposed priorities. Please let us know of any further opportunities we should take to reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the program.
During and after the comment period, you may inspect all public comments about these proposed priorities in Room 5042, Potomac Center Plaza, 550 12th Street, SW., Washington, DC, between the hours of 8:30 a.m. and 4 p.m., Eastern time, Monday through Friday of each week except Federal holidays.
On request, we will supply an appropriate aid, such as a reader or print magnifier, to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for these proposed priorities. If you want to schedule an appointment for this type of aid, please contact the person listed under
We will announce the final priorities in a notice in the
This notice does not solicit applications. In any year in which we choose to use one or more of these proposed priorities, we invite applications through a notice in the
Under the CIL Program, the Department currently funds two training and technical assistance grants: one that supports training and technical assistance to CILs and SILCs on the issue of service delivery to young people with disabilities as they transition from school to living independently and one that provides general, comprehensive training and technical assistance to both CILs and SILCs.
The two priorities proposed in this notice would be used for competitions in which the Department would make awards to applicants to provide general, comprehensive training and technical assistance to CILs and to SILCs. Rather than requiring all applicants to demonstrate how they will meet the training and technical assistance needs of
We have determined from our annual survey of CILs and SILCs, and from our ongoing monitoring and technical assistance activities, that a significant proportion of CILs and SILCs require intensive training and technical assistance on the most fundamental organizational and operational aspects of program compliance, as well as on issues related to improved performance.
The training and technical assistance needs of CILs and SILCs differ widely because their program responsibilities and challenges are distinct. We believe that conducting competitions using two separate priorities would allow both CILs and SILCs to obtain the intensive, specialized assistance they need by focusing applicants on the particular training and technical assistance needs of each.
In addition to the difference in the character of the training and technical assistance required by CILs and SILCs, there would be a significant difference in the number of CILs and SILCs receiving the training under the two priorities. Under the CILs Training and Technical Assistance Center priority, a grantee would provide training and technical assistance to over 330 CILs across the country and any eligible agencies, defined in section 726 of the Rehabilitation Act of 1973, as amended, who request training and technical assistance. The grantee under the SILC Training and Technical Assistance Center priority, on the other hand, would serve 56 SILCs. We believe that two competitions may encourage a greater number of applicants with varied experience in the operation of CILs to apply and permit us to maximize the innovative ideas, approaches and organizational strengths offered by applicants.
Centers for independent living (CILs) are consumer-controlled, community-based, cross-disability, nonresidential private nonprofit agencies that are designed and operated within a local community by individuals with disabilities and provide an array of independent living services, including the core services of information and referral, advocacy, peer support, and independent living skills building. The training and technical assistance needs of CILs are ongoing and evolve as new centers are funded, existing centers expand and change, and personnel at existing centers change.
The training and technical assistance needs of CILs are identified through CIL responses to a survey in their annual performance reports and through the Department's monitoring and technical assistance efforts. These training and technical assistance needs include needs in areas that are critical for all CILs as well as needs in areas that are center-specific.
This priority supports a CILs Training and Technical Assistance Center (CILs T&TA Center) to improve the performance of CILs by providing training and technical assistance to the CILs on the programmatic and financial aspects of their operations, including information on effective practices and proven solutions to common problems. CILs are distributed across the Nation and vary in size, stage of development, service area characteristics, and urgency of need for training and technical assistance. Therefore, the training and technical assistance provided by the CILs T&TA Center must be sensitive to this diversity and must encompass a broad range of topics.
The CILs T&TA Center must make available to all CILs a broad array of resources, training, and technical assistance. In addition, the CILs T&TA Center must address the specific needs of CILs by providing those CILs that require it with intensive, individualized, on-site training and technical assistance that meets their needs. In this regard, the CILs T&TA Center must be prepared to respond promptly to the Department's identification of particular training and technical assistance needs in general and those of particular CILs.
In coordination with the Department, the CILs T&TA Center must—
(a) Develop and provide training and technical assistance, based on the CILs’ annual performance report survey and other available data, on topics related to the provision and expansion of independent living (IL) services (primarily the IL core services), fiscal and management practices, compliance with CIL standards and assurances, increased program efficiency, rigorous evaluation, and improved outcomes as measured by long-term goals and indicators;
(b) Develop and implement a plan to ensure that training and technical assistance efforts will reach all federally funded CILs and other eligible agencies;
(c) Refer CILs and eligible agencies to non-IL specific training and technical assistance available through government or non-government resources;
(d) Utilize a broad range of available, accessible technologies and methodologies to provide training and technical assistance to CILs and eligible agencies in the most effective and cost efficient manner;
(e) Provide focused, intensive and rapid training and technical assistance to CILs identified by the Department as needing, or to CILs requesting, such assistance;
(f) Identify and develop accessible training and technical assistance materials and disseminate these materials to CILs and eligible agencies; and
(g) Coordinate and collaborate with other training projects funded by the Department to ensure that training activities are complementary and non-duplicative and that dissemination activities are effective and efficient. At a minimum, the CILs T&TA Center must coordinate with any SILC Training and Technical Assistance Center funded under the Statewide Independent Living Councils (SILCs) Training and Technical Assistance Center priority.
States are required to establish a Statewide Independent Living Council (SILC) in order to receive Federal funding to support and coordinate independent living (IL) services in the State. A SILC's duties include jointly developing and signing the State Plan for Independent Living (SPIL) with the designated State unit; monitoring, reviewing, and evaluating the implementation of the SPIL; and coordinating activities with the State Rehabilitation Council and other councils addressing the needs of specific disability populations and issues under other Federal law. A majority of a SILC's members are individuals with disabilities who are not employed by a CIL or a State agency; other members include centers for independent living (CIL) representatives, State agency representatives, and other appropriate individuals.
SILC members are appointed on a rotating basis, serve in a volunteer capacity, often maintain other employment, and have widely varying experiences with disability programs. In addition, SILCs typically experience a significant amount of membership turnover. The training and technical assistance needs of SILCs are identified through SILC responses to a survey in their annual performance reports and through the Department's monitoring and technical assistance efforts. These training and technical assistance needs include needs in areas that are critical for all SILCs as well as needs in areas that are SILC specific.
This priority supports a SILCs Training and Technical Assistance Center (SILCs T&TA Center) to improve the performance of SILCs through greater access to timely and relevant training and technical assistance regarding SILC duties and operation.
In coordination with the Department, the SILCs T&TA Center must—
(a) Develop and provide training and technical assistance, based on the SILCs' annual performance report survey and other available data, on topics directly related to SILC legal responsibilities, including SILC organization and operation and the development of the SPIL;
(b) Develop and implement a plan to provide to all SILCs the training and technical assistance identified in paragraph (a) of this priority;
(c) Refer SILCs to non-IL specific training and technical assistance available through government or non-government resources;
(d) Utilize a broad range of available, accessible technologies and methodologies to provide training and technical assistance to SILCs in the most effective and cost efficient manner;
(e) Identify and develop accessible training and technical assistance materials and disseminate these materials to the SILCs;
(f) Provide technical assistance to SILCs to enhance SILC partnerships with State vocational rehabilitation agencies, CILs, and other organizations, with a focus on sharing successful operational experiences of other SILCs;
(g) Coordinate and collaborate with other training projects funded by the Department to ensure that training activities are complementary and non-duplicative and dissemination activities are effective and efficient. At a minimum, the SILCs T&TA Center must coordinate with any CILs Training and Technical Assistance Center funded under the Centers for Independent Living (CILs) Training and Technical Assistance Center priority.
This notice of proposed priorities has been reviewed in accordance with Executive Order 12866. Under the terms of the order, we have assessed the potential costs and benefits of this regulatory action.
The potential costs associated with the notice of proposed priorities are those resulting from statutory requirements and those we have determined as necessary for administering this program effectively and efficiently.
In assessing the potential costs and benefits—both quantitative and qualitative—of this notice of proposed priorities, we have determined that the benefits of the proposed priorities justify the costs.
We have also determined that this regulatory action does not unduly interfere with State, local, and tribal governments in the exercise of their governmental functions.
Because the Department is proposing two priorities that may be used in two competitions, rather than one, the potential for increased application costs exists for an applicant that chooses to apply for both grants under both priorities. However, both priorities share the same overall objective—improved performance in the CIL program—and applications under both priorities would likely include common elements. This may minimize any increased costs associated with the two priorities.
For an applicant that chooses to apply for only one grant, the two-priority approach would have the potential of reducing the application costs. The Department believes that the potential benefits to the CIL program from a more focused, specialized approach to training and technical assistance for CILs and SILCs would outweigh any possible increase in associated application costs.
This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive order is to foster an intergovernmental partnership and a strengthened federalism. The Executive order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance.
This document provides early notification of our specific plans and actions for this program.
You may view this document, as well as all other Department of Education documents published in the
To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC, area at (202) 512-1530.
The official version of this document is the document published in the
29 U.S.C. 796f(b).
We are inviting applications for CFDA number 84.264B for Department of Education Regions II, IV, and X only.
The Department is not bound by any estimates in this notice.
29 U.S.C. 709(a)(2) and 29 U.S.C. 772.
The regulations in 34 CFR part 79 apply to all applicants except federally recognized Indian tribes.
The regulations in 34 CFR part 86 apply to institutions of higher education only.
We are inviting applications for CFDA number 84.264B for Department of Education Regions II, IV, and X only.
The Department is not bound by any estimates in this notice.
1.
2.
Under 34 CFR 75.562(c), an indirect cost reimbursement on a training grant is limited to the recipient's actual indirect costs, as determined by its negotiated indirect cost rate agreement, or eight percent of a modified total direct cost base, whichever amount is less. Indirect costs in excess of the eight percent limit may not be charged directly, used to satisfy matching or cost-sharing requirements, or charged to another Federal award.
1.
You may also contact ED Pubs at its Web site:
If you request an application from ED Pubs, be sure to identify this competition as follows: CFDA number 84.264B.
Individuals with disabilities may obtain a copy of the application package in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) by contacting the Grants and Contracts Services Team, U.S. Department of Education, 400 Maryland Avenue, SW., room 5075, Potomac Center Plaza, Washington, DC 20202-2550.
2.
3.
Applications for grants under this competition must be submitted electronically using the Grants.gov Apply site (Grants.gov). For information (including dates and times) about how to submit your application electronically, or by mail or hand delivery if you qualify for an exception to the electronic submission requirement, please refer to section IV. 6.
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
4.
5.
6.
a.
We will reject your application if you submit it in paper format unless, as described elsewhere in this section, you qualify for one of the exceptions to the electronic submission requirement
You may access the electronic grant application for the Rehabilitation Continuing Education Programs-Community Rehabilitation Programs at
• When you enter the Grants.gov site, you will find information about submitting an application electronically through the site, as well as the hours of operation.
• Applications received by Grants.gov are time and date stamped. Your application must be fully uploaded and submitted, and must be date and time stamped by the Grants.gov system no later than 4:30 p.m., Washington, DC time, on the application deadline date. Except as otherwise noted in this section, we will not consider your application if it is date and time stamped by the Grants.gov system later than 4:30 p.m., Washington, DC time, on the application deadline date. When we retrieve your application from Grants.gov, we will notify you if we are rejecting your application because it was date and time stamped by the Grants.gov system after 4:30 p.m., Washington, DC time, on the application deadline date.
• The amount of time it can take to upload an application will vary depending on a variety of factors including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through Grants.gov.
• You should review and follow the Education Submission Procedures for submitting an application through Grants.gov that are included in the application package for this competition to ensure that you submit your application in a timely manner to the Grants.gov system. You can also find the Education Submission Procedures pertaining to Grants.gov at
• To submit your application via Grants.gov, you must complete all steps in the Grants.gov registration process (see
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you qualify for an exception to the electronic submission requirement, as described elsewhere in this section, and submit your application in paper format.
• You must submit all documents electronically, including all information you typically provide on the following forms: Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications. Please note that two of these forms—the SF 424 and the Department of Education Supplemental Information for SF 424—have replaced the ED 424 (Application for Federal Education Assistance).
• You must attach any narrative sections of your application as files in a .DOC (document), .RTF (rich text), or .PDF (Portable Document) format. If you upload a file type other than the three file types specified in this paragraph or submit a password-protected file, we will not review that material.
• Your electronic application must comply with any page limit requirements described in this notice.
• After you electronically submit your application, you will receive from Grants.gov an automatic notification of receipt that contains a Grants.gov tracking number. (This notification indicates receipt by Grants.gov only, not receipt by the Department.) The Department then will retrieve your application from Grants.gov and send a second notification to you by e-mail. This second notification indicates that the Department has received your application and has assigned your application a PR/Award number (an ED-specified identifying number unique to your application).
• We may request that you provide us original signatures on forms at a later date.
If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the Grants.gov system, we will grant you an extension until 4:30 p.m., Washington, DC time, the following business day to enable you to transmit your application electronically or by hand delivery. You also may mail your application by following the mailing instructions as described elsewhere in this notice.
If you submit an application after 4:30 p.m., Washington, DC time, on the application deadline date, please contact the person listed elsewhere in this notice under
The extensions to which we refer in this section apply only to the unavailability of, or technical problems with, the Grants.gov system. We will not grant you an extension if you failed to fully register to submit your application to Grants.gov before the application deadline date and time or if the technical problem you experienced is unrelated to the Grants.gov system.
•
• You do not have access to the Internet; or
• You do not have the capacity to upload large documents to the Grants.gov system;
• No later than two weeks before the application deadline date (14 calendar days or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), you mail or fax a written statement to the Department, explaining which of the two grounds for an exception prevent you from using the Internet to submit your application.
If you mail your written statement to the Department, it must be postmarked no later than two weeks before the application deadline date. If you fax your written statement to the Department, we must receive the faxed statement no later than two weeks before the application deadline date.
Address and mail or fax your statement to: Christine Marschall, U.S. Department of Education, 400 Maryland Avenue, SW., room 5053, Potomac Center Plaza, Washington, DC 20202-2800.
Your paper application must be submitted in accordance with the mail or hand delivery instructions described in this notice.
b.
Regardless of which address you use, you must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
If your application is postmarked after the application deadline date, we will not consider your application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
c.
The Application Control Center accepts hand deliveries daily between 8 a.m. and 4:30 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
(1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number including suffix letter, if any of the competition under which you are submitting your application; and
(2) The Application Control Center will mail to you a notification of receipt of your grant application. If you do not receive this notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245-6288.
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
4.
If you use a telecommunications device for the deaf (TDD), you may call the Federal Relay Service (FRS) at 1-800-877-8339.
Individuals with disabilities may obtain this document in an alternative format (
To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC, area at (202) 512-1530.
The official version of this document is the document published in the
Office of Special Education and Rehabilitative Services, Department of Education.
Notice of request for comments and recommendations on the Rehabilitation Services Administration (RSA) Rehabilitation Training Program.
The Assistant Secretary for Special Education and Rehabilitative Services solicits comments and recommendations concerning the RSA Rehabilitation Training program.
We must receive your comments at one of the addresses provided in the
Address all comments and recommendations to: Timothy Muzzio at the Rehabilitation Services Administration, through the Internet at the following address:
You must include the term “Comments on the RSA Rehabilitation Training Program” in the subject line of your electronic message.
If you prefer, you may address your comments to Dr. Muzzio, U.S. Department of Education, 400 Maryland Avenue, SW., Potomac Center Plaza, room 5157, Washington, DC 20202-2800. Please submit your comments only one time, in order to ensure that we do not receive duplicate copies.
Timothy C. Muzzio, U.S. Department of Education, 400 Maryland Ave., SW., Potomac Center Plaza, room 5052, Washington, DC 20202. Telephone (202) 245-7458. Fax: (202) 245-6824. Internet:
If you use a telecommunications device for the deaf (TDD), you may call (202) 205-5538.
Individuals with disabilities may obtain this document in an alternative format (
We invite you to submit comments and recommendations regarding the RSA Rehabilitation Training program. We encourage you to make your comments and recommendations as specific as possible. Also, if appropriate to your comment or recommendation, please identify the specific provision in the statute authorizing the RSA Rehabilitation Training program or the particular category of training that is the subject of your comment or recommendation; identify the issue, if any, outlined elsewhere in this notice, to which your comment or recommendation pertains; clearly describe your comment or recommendation; provide a rationale supporting each recommendation; and specify how the proposed change will improve the overall program.
Please include the following with your comments and recommendations: A description of your involvement in vocational rehabilitation (VR) or the RSA Rehabilitation Training program, as well as your role, if any (
During and after the comment period, you may inspect all public comments about this notice in room 5053, Potomac Center Plaza, 550 12th Street, SW., Washington, DC, between the hours of 8:30 a.m. and 4 p.m., Eastern Time, Monday through Friday of each week except Federal holidays.
On request, we will supply an appropriate aid, such as a reader or print magnifier, to an individual with a disability who needs assistance to review the comments and recommendations. If you want to schedule an appointment for this type of aid, please contact the person listed under
The RSA Rehabilitation Training program is
The Secretary is authorized to award grants and contracts to pay part of the costs of projects for the following types of projects:
(1) Grants that provide training, traineeships, and related activities, including the provision of technical assistance, to assist in increasing the numbers of qualified personnel trained in providing rehabilitation services and other services provided under the Act to individuals with disabilities.
(2) Grants to train qualified interpreters to meet the communication needs of individuals who are deaf or hard of hearing and individuals who are deaf-blind.
(3) Grants to provide technical assistance to State-designated agencies and community rehabilitation programs.
(4) Grants to provide in-service training for rehabilitation personnel, consistent with the needs identified through the comprehensive system for personnel development required by section 101(a)(7) of the Act.
The Department may provide financial assistance through six training programs:
(1) Rehabilitation Long-Term Training.
(2) Rehabilitation Continuing Education Programs.
(3) State Vocational Rehabilitation Unit In-Service Training.
(4) Training of Interpreters for Individuals Who Are Deaf and Individuals Who Are Deaf-Blind.
(5) Rehabilitation Short-Term Training.
(6) Experimental and Innovative Training.
In fiscal year 2006, the RSA training program was funded at $38,437,740. The program allocated its funds as follows:
RSA is considering whether to redesign the RSA Rehabilitation Training program in order to—
(1) Increase the number of qualified individuals who are available to work in the State vocational rehabilitation agencies and associated programs; and
(2) Maximize the efficiency and responsiveness of programs that provide education to meet the training and education needs in the rehabilitation field.
We are interested in obtaining public input to help identify any current program needs and possible future strategies for program improvement. We are particularly interested in comments from individuals with disabilities; their parents, families, guardians, advocates, and authorized representatives; and those entities and individuals serving individuals with disabilities under the Act, including State vocational rehabilitation agencies, centers for independent living, and educators who prepare individuals who work in the vocational rehabilitation field.
We are specifically interested in comments that address the following issues:
1. The need for more vocational rehabilitation counselors and how the training authority can be used to help State agencies meet the demand for rehabilitation professionals. Specifically, we seek input on the following:
a. How to more effectively recruit individuals into the rehabilitation professions and counselor training programs and State VR agencies.
b. How to increase the capacity of training programs to produce more graduates.
c. How to improve the scholarship program to help meet national demand for rehabilitation professionals by State VR agencies.
d. How to improve the geographic availability of scholarships to students.
e. Other related issues.
2. Rehabilitation Continuing Education Programs (RCEPs) and in-service training grants to State VR agencies. These two grant programs address overlapping issues. In addition, the program funds two types of RCEPs, one type serving primarily State VR agencies and the other serving primarily community rehabilitation programs. We seek input on the following:
a. The role and effectiveness of the RCEP program in meeting the needs of State VR agencies and community rehabilitation programs for training.
b. How to improve coordination among in-service training programs.
c. The effectiveness of the in-service training program in meeting the training needs identified in the Comprehensive System of Personnel Development.
d. Other related issues.
3. The need for and recommended approaches for providing technical assistance and training to State agencies to improve program outcomes.
4. Other issues regarding the RSA Rehabilitation Training program.
To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC, area at (202) 512-1530.
The official version of this document is the document published in the
29 U.S.C. 701
Department of Energy.
Notice.
The Department of Energy (DOE) is publishing a notice of system of records, DOE-63, “Personal Identity Verification (PIV) Files.” The system is created for the secure storage of information from and about applicants for a DOE PIV credential (security badge) that is issued in compliance with Homeland Security Presidential Directive (HSPD) 12, Policy for a Common Identification Standard for Federal Employees and Contractors. The
The proposed new system of records will become effective without further notice, on April 20, 2007, unless in advance of that date, DOE receives adverse comments and determines that this record should not become effective on that date.
Written comments should be directed to the following address: Director, Office of Policy; HS-71/Germantown Building; U.S. Department of Energy; 1000 Independence Avenue, SW.; Washington, DC 20585-1290.
Abel Lopez, Director; Freedom of Information Act and Privacy Act Group, MA-74/Forrestal Building, U.S. Department of Energy, 1000 Independence Avenue, SW., Washington, DC 20585, 202-586-5955; or Jack Cowden, Director, Office of Health, Safety and Security, HS-71/Germantown Building, U.S. Department of Energy, 1000 Independence Avenue, SW., Washington, DC 20585-1290, 301-903-4291; or Frederick Catoe, Office of the Chief Information Officer, IM-32/Forrestal Building, U.S. Department of Energy, 1000 Independence Avenue, SW., Washington, DC 20585, 202-586-1090; or Isiah Smith, Office of the General Counsel, GC-77/Forrestal Building, U.S. Department of Energy, 1000 Independence Avenue, SW., Washington, DC 20585, 202-586-8618.
As required by the Privacy Act of 1974 [Title 5, United States Code (USC), Section 552a], and Office of Management and Budget (OMB) Circular A-130, “Management of Federal Information Resources,” DOE is publishing this notice of a new system of records pertaining to the personal identity verification (PIV) of those applying for PIV credentials that meet the Federal agency identity credential requirements.
On August 27, 2004, the President signed HSPD-12, Policy for a Common Identification Standard for Federal Employees and Contractors. This Directive established a Government-wide policy that mandated secure and reliable forms of identification to be issued by the Federal Government to its employees and its contractor employees. To implement this policy, Federal Information Processing Standards Publication 201 (FIPS Pub 201), Personal Identity Verification (PIV) of Federal Employees and Contractors, was issued in March 2006, and defined a reliable Government-wide PIV system for use in controlling access to Federal facilities. OMB subsequently clarified implementation of HSPD-12 and FIPS Pub 201 in OMB Memo 05-24, Implementation of Homeland Security Presidential Directive (HSPD) 12—Policy for a Common Identification Standard for Federal Employees and Contractors, August 5, 2005. On November 22, 2005, DOE issued DOE Notice 206.3, Personal Identity Verification, which provides specific direction to DOE elements for implementing the requirements of HSPD-12 and FIPS Pub 201.
PIV information and records collected to determine eligibility for the PIV credential will be maintained in DOE-63 and will be retrieved by the applicant's name or a unique number associated with the applicant. The PIV information includes the applicant's name, Social Security number, date of birth, place of birth, signature, status as Federal or contractor employee or prospective employee, and sponsor's or employer's name, address, and telephone number. The records are the PIV credential request submitted by the applicant's sponsor and may include any of the following: copies of identity source documents; data from source documents used to positively identify the individual; copies of applicant's photograph; copies of the applicant's background investigation forms [e.g., Standard Form 85 (SF 85), Questionnaire for Non-Sensitive Positions; SF 85P, Questionnaire for Public Trust Positions; SF 86, Questionnaire for National Security Positions; SF 87, Fingerprint Chart; FD-258, Fingerprint Card; Optional Form 306 (OF 306), Declaration for Federal Employment; SF 171, Application for Federal Employment; OF 612, Optional Application for Federal Employment]; a resume´ or similar document; background investigation reports; adjudication documents; verification of previous adjudication decision by DOE or another Federal agency; disposition of applicant's PIV processing; correspondence and related documents to and from other Federal agencies for reciprocity purposes; and appeal documents. The above information will be used to positively identify individuals and determine the eligibility of those individuals for access to DOE facilities in accordance with HSPD-12.
The PIV process involves the following offices/locations: DOE Headquarters; Ames Site Office; Ames Laboratory; Argonne Site Office; Argonne National Laboratory; Berkeley Site Office; Bonneville Power Administration; Brookhaven Site Office; Brookhaven National Laboratory; Carlsbad Field Office; Chicago Office; Environmental Management Consolidated Business Center; Fermi Site Office; Fermi National Accelerator Laboratory; General Atomics; Golden Field Office; Grand Junction Office; Idaho National Laboratory; Lawrence Berkeley National Laboratory; National Energy Technology Laboratory-ARC; National Energy Technology Laboratory-Fairbanks; National Energy Technology Laboratory-Morgantown; National Energy Technology Laboratory-Pittsburgh; National Energy Technology Laboratory-Tulsa; National Renewable Energy Laboratory Area Office; National Nuclear Security Administration Service Center; Oak Ridge Institute of Science and Education; Oak Ridge National Laboratory; Oak Ridge Office; Ohio Field Office; Pacific Northwest Site Office; Pacific Northwest National Laboratory; Portsmouth/Paducah Project Office; Princeton Plasma Physics Laboratory; Princeton Site Office; Richland Operations Office; Savannah River Office; Savannah River Site Office; Southeastern Power Administration; Stanford Linear Accelerator Center; Stanford Site Office; Strategic Petroleum Reserve Project Management Office; Thomas Jefferson National Accelerator Facility; Thomas Jefferson Site Office; Western Area Power Administration.
DOE is submitting the report required by OMB Circular A-130 concurrently with the publication of this notice. The text of this notice contains the information required by the Privacy Act of 1974 [5 U.S.C. 552a(e)(4)].
Personal Identity Verification (PIV) Files/
Unclassified.
U.S. Department of Energy, 1000 Independence Avenue, SW, Washington, DC 20585
U.S. Department of Energy, Ames Site Office, 9800 S. Cass Avenue, Argonne, IL 60439
U.S. Department of Energy, Ames Laboratory, 311 TASF, Ames, IA 50011-3020
U.S. Department of Energy, Argonne Site Office, 9800 S. Cass Avenue, Argonne, IL 60439
U.S. Department of Energy, Argonne National Laboratory, 9700 S. Cass Avenue, Argonne, IL 60439
U.S. Department of Energy, Berkeley Site Office, 1 Cyclotron Road, Berkeley, CA 94720
U.S. Department of Energy, Bonneville Power Administration, P.O. Box 3621, Portland, OR 97208-3621
U.S. Department of Energy, Brookhaven Site Office, 53 Bell Avenue, Building 464, Upton, NY 11973
U.S. Department of Energy, Brookhaven National Laboratory, P.O. Box 5000, Upton, NY 11973-5000
U.S. Department of Energy, Carlsbad Field Office, WIPP Information Center, 4021 National Parks Highway Carlsbad, NM 88221
U.S. Department of Energy, Chicago Operations Office, 9800 South Cass Avenue, Argonne, IL 60439
U.S. Department of Energy, Environmental Management Consolidated Business Center, 250 E. 5th Street, Suite 500, Cincinnati, OH 45202
U.S. Department of Energy, Fermi National Accelerator Laboratory, P.O. Box 500, Batavia, IL 60510-0500
U.S. Department of Energy, Fermi Site Office, P.O. Box 2000, Batavia, IL 60510-0500
U.S. Department of Energy, General Atomics, 3550 General Atomics Court, San Diego, CA 92121
U.S. Department of Energy, Golden Field Office, Mail Stop 1501, 1617 Cole Boulevard, Golden, Colorado 80401
U.S. Department of Energy, Grand Junction Office, 2597 B 3/4 Road, Grand Junction, CO 81503
U.S. Department of Energy, Idaho National Laboratory, PO Box 1625, Idaho Falls, ID 83415
U.S. Department of Energy, Lawrence Berkeley National Laboratory, 1 Cyclotron Road, Berkeley, CA 94720
U.S. Department of Energy, National Energy Technology Laboratory-ARC, 1450 Queen Avenue SW, Albany, OR 97321
U.S. Department of Energy, National Energy Technology Laboratory-Fairbanks, 2175 University Avenue South, Suite 201, Fairbanks, AK 99709
U.S. Department of Energy, National Energy Technology Laboratory-Morgantown, 3610 Collins Ferry Road P.O. Box 880 Morgantown, WV 26507-0880
U.S. Department of Energy, National Energy Technology Laboratory-Pittsburgh, 626 Cochrans Mill Road, P.O. Box 10940, Pittsburgh, PA 15236-0940
U.S. Department of Energy, National Energy Technology Laboratory-Tulsa, One West Third Street, Suite 1400 Tulsa, OK 74103-3519
U.S. Department of Energy, National Nuclear Security Administration Service Center, P.O. Box 5400, Albuquerque, NM 87185-5400
U.S. Department of Energy, National Renewable Energy Laboratory Area Office, 1617 Cole Boulevard, Golden, CO 80401
U.S. Department of Energy, Oak Ridge Institute of Science and Education, 130 Badger Avenue, Oak Ridge, TN 37831
U.S. Department of Energy, Oak Ridge National Laboratory, P.O. Box 2008,Oak Ridge, TN 37831
U.S. Department of Energy, Oak Ridge Office, P.O. Box 2001, Oak Ridge, TN 37831
U.S. Department of Energy, Ohio Field Office, 175 Tri-County Parkway, Springdale, Ohio 45246-3222
U.S. Department of Energy, Pacific Northwest National Laboratory, P.O. Box 999, K1-46, Richland, WA 99352
U.S. Department of Energy, Pacific Northwest Site Office, P.O. Box 350, MS K 8-50, Richland, WA 99354
U.S. Department of Energy, Portsmouth/Paducah Project Office, 1017 Majestic Drive, Suite 200, Lexington, Kentucky 40513
U.S. Department of Energy, Princeton Plasma Physics Laboratory, P.O. Box 451, Princeton, NJ 08543
U.S. Department of Energy, Princeton Site Office, P.O. Box 102, Princeton, NJ 08042
U.S. Department of Energy, Richland Operations Office, P.O. Box 550, Richland, WA 99352
U.S. Department of Energy, Savannah River Operations Office, P.O. Box A, Aiken, SC 29802
U.S. Department of Energy, Savannah River Site Office, P.O. Box A, Aiken, SC 29801
U.S. Department of Energy, Southeastern Power Administration, 1166 Athens TechRoad, Elberton, GA 30635-4578
U.S. Department of Energy, Stanford Linear Accelerator Center, 2575 Sand Hill Road, MS 75, Menlo Park, CA 94025
U.S. Department of Energy, Stanford Site Office, 2575 Sand Hill Road, MS 8-A Menlo Park, CA 94025
U.S. Department of Energy, Strategic Petroleum Reserve Project Management Office, 900 Commerce Road East New Orleans, LA 70123-3401
U.S. Department of Energy, Thomas Jefferson National Accelerator Facility, 12000 Jefferson Avenue, Newport News, VA 23606
U.S. Department of Energy, Thomas Jefferson Site Office, 12000 Jefferson Avenue, Newport News, VA 23606
U.S. Department of Energy, Western Area Power Administration, P.O. Box 281213, Lakewood, CO 80228-8213
Individuals who have applied for a Department of Energy (DOE) PIV credential under the PIV process.
The records maintained in this system of records include all documents submitted during application for the PIV credential or copies of those documents, and any resulting investigative, adjudicative, appeal, or reciprocity documentation. The PIV information contained in the records includes the applicant's name, social security number, date of birth, place of birth, signature, status as Federal or contractor employee or prospective employee, and sponsor's or employer's name, address, and telephone number. The records are the PIV credential request submitted by the applicant's sponsor and may include depending on the applicant's history and actions any of the following: copies of identity source documents; data from source documents used to positively identify the applicant; copies of applicant's photograph; copies of the applicant's background investigation forms [e.g., Standard Form 85 (SF 85), Questionnaire for Non-Sensitive Positions; SF 85P, Questionnaire for Public Trust Positions; SF 86, Questionnaire for National Security Positions; SF 87, Fingerprint Chart; FD-258, Fingerprint Card; Optional Form 306 (OF 306), Declaration for Federal Employment; SF 171, Application for Federal Employment; OF 612, Optional Application for Federal Employment; a resume´ or similar document]; adjudication documents; verification of previous adjudication decision by DOE or another Federal agency; disposition of applicant's PIV processing; correspondence and related documents to and from other Federal agencies for reciprocity purposes; and appeal documents. The above information will be used to positively identify individuals and determine the eligibility of those individuals for access to DOE facilities in accordance with HSPD-12.
Executive Order 10450 Section 9(c) stipulates that reports and other investigative material and information that originated from the background investigation (BI) will remain the property of the investigative agency that conducted the investigation. DOE Privacy Act Officers will forward requests for BI results to the agency that conducted the
42 U.S.C. 7101 et seq., 50 U.S.C. 2401 et seq., 5 U.S.C. 552a (the Privacy Act of 1974), Homeland Security Presidential Directive 12, “Policy for a Common Identification Standard for Federal Employees Contractors,” August 27, 2004, and Title 5, Code of Federal Regulation, Parts 5 and 736.
The records are maintained and used by DOE to determine the eligibility of individuals for a PIV credential that provides access to DOE owned or leased facilities in accordance with HSPD-12.
A record from this system may be disclosed as a routine use:
1. For the purpose of an investigation, settlement of claims, or the preparation and conduct of litigation to a (1) person representing DOE in the investigation, settlement or litigation, and to individuals assisting in such representation; (2) others involved in the investigation, settlement, and litigation, and their representatives and individuals assisting those representatives; (3) witness, potential witness, or their representatives and assistants, and any other person who possesses information pertaining to the matter, when it is necessary to obtain information or testimony relevant to the matter.
2. To the Department of Justice when: (a) DOE or any component thereof; or (b) any employee of DOE in his or her official capacity; or (c) any employee of DOE in his or her individual capacity where DOE or the Department of Justice has agreed to represent the employee; or (d) the Federal Government, is a party to litigation or has an interest in such litigation, and after careful review, DOE determines that the records are both relevant and necessary to the litigation and the use of such records by the Department of Justice is therefore deemed by DOE to be for a purpose compatible with the purpose for which DOE collected the records.
3. To a court or adjudicative body in a proceeding when: (a) DOE or any component thereof; (b) any employee of DOE in his or her official capacity; (c) any employee of DOE in his or her individual capacity where DOE or the Department of Justice has agreed to represent the employee; or (d) the Federal Government is a party to litigation or has an interest in such litigation and, after careful review, DOE determines that the records are both relevant and necessary to the litigation and the use of such records is therefore deemed by DOE to be for a purpose that is compatible with the purpose for which DOE collected the records.
4. To a Federal, State, local, foreign, tribal, or other public authority that the system of records contains information relevant to the retention of an employee, the retention of a security clearance, the letting of a contract, or the issuance or retention of a license, grant, or other benefit. No disclosure will be made unless the information has been determined to be sufficiently reliable to support a referral to another office within DOE or to another Federal agency for criminal, civil, administrative personnel or regulatory action.
5. Except for self-admissions of illegal use of drugs or drug activity on questionnaire Forms SF 85, SF 85P, and SF 86, when a record on its face, or in conjunction with other records, indicates a violation or potential violation of law, whether civil, criminal, or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule, or order issued pursuant thereto, disclosure may be made to the appropriate public authority, whether Federal, foreign, State, local, or tribal, or otherwise, responsible for enforcing, investigating or prosecuting such violation or charged with enforcing or implementing the statute, or rule, regulation, or order issued pursuant thereto, if the information disclosed is relevant to any enforcement, regulatory, investigative or prosecutorial responsibility of the receiving entity.
6. To a member of Congress or to a Congressional staff member in response to an inquiry of the Congressional office made at the written request of the constituent about whom the record is maintained. The member of Congress must provide a copy of the constituent's request for assistance.
7. To DOE contractors in the performance of their contracts, and their officers and employees who have a need for the record in the performance of their duties. Those provided information under this routine use are subject to the same limitations applicable to Department officers and employees under the Privacy Act.
8. To the National Archives and Records Administration for records management inspections under 44 U.S.C. 2904 and 2906.
9. To any source or potential source from which the information is requested in the course of an investigation concerning the retention of an employee or other personnel action (other than hiring), or the retention of a security clearance, contract, grant, license, or other benefit, to the extent necessary to identify the individual, inform the source of the nature and purpose of the investigation, and to identify the type of information requested.
10. To a Federal, State, or local agency, or other appropriate entities or individuals, or through established liaison channels to selected foreign governments, in order to enable an intelligence agency to carry out its responsibilities under the National Security Act of 1947, as amended, the CIA Act of 1949, as amended, Executive Order 12333 or any successor order, applicable national security directives, or classified implementing procedures approved by the Attorney General and promulgated pursuant to such statutes, orders, or directives.
11. To notify another Federal agency, or verify whether, a PIV credential is no longer valid.
Records may be stored as paper files and/or electronic media.
Records may be retrieved by name, Social Security number, or unique PIV file number.
Paper records, when not in use, are maintained in a combination-locked cabinet or safe, or in an equally secure area. Electronic records are controlled through established DOE cyber security directives or procedures, and they are password protected. Both paper and electronic records are protected by screening the personnel who have regular access to them and by physically protecting the locations where they are kept. Access to paper or electronic records is limited to those whose official duties require access to the records and who have a need-to-know. Data from the system of records that is personally identifiable information which may be electronically transmitted is protected by encryption.
Records retention and disposal authorities are in the National Archives and Records Administration (NARA) General Records Schedule and in supplemental DOE record schedules that have been approved by NARA.
Headquarters: Director, Office of Security and Safety Performance Assurance, U.S. Department of Energy, SP-1/Forrestal Building, 1000 Independence Avenue, SW., Washington, DC 20585.
Field Offices: The managers of the System Locations listed with their addresses above are the system managers for their respective portions of the system.
In accordance with the DOE regulation implementing the Privacy Act at Title 10, Code of Federal Regulations (CFR), Part 1008, a request by an individual to determine if a system of records contains information about him/her should be directed to the Director, Freedom of Information Act and Privacy Act Group, MA-74/Forrestal Building, U.S. Department of Energy, 1000 Independence Avenue, SW., Washington, DC 20585, or to the Privacy Act Officer at the appropriate location identified under System Locations above. For records maintained in the field including, but not limited to, Laboratories, Area Offices, or Site Offices, the request should be directed to the Privacy Act Officer that has jurisdiction over that office or facility. The request should include the requester's complete name, time period for which records are sought, and the office location(s) where the requester believes the records are located.
Same as Notification Procedures above. Records are generally kept at locations where the work is performed. In accordance with the DOE Privacy Act regulation at 10 CFR1008, proper identification is required before a request is processed.
Same as Notification Procedures above.
Documents completed or furnished by the applicant; Department of Energy; Office of Personnel Management; Federal Bureau of Investigation; other Federal agencies.
None.
Environmental Protection Agency (EPA).
Notice of proposed agreement; request for public comment.
In accordance with the requirements of section 122(h)(1) of the Comprehensive Environmental Response Compensation, and Liability Act of 1980, as amended (“CERCLA”), 42 U.S.C. 9622(h)(1), notice is hereby given of the proposed administrative settlement under section 122(h) of CERCLA, 42 U.S.C. 9622(h) between the U.S. Environmental Protection Agency (“EPA”) and Beaver Wood Products Incorporated, Loretta Grosswiler, and Richard Grosswiler (“Beaver Wood Products”) (collectively, “Settling Parties”). Settling Parties consent to and will not contest the authority of the United States to enter into this Agreement or to implement or enforce its terms. In return, Settling Parties will receive Covenants Not to Sue from EPA. EPA has incurred response costs at the Site in an amount totaling $5,299,434.69. The EPA alleges that the Settling Parties are a responsible parties pursuant to Section 107(a) of CERCLA, 42 U.S.C. 9607(a), and are jointly and severally liable for response costs incurred and to be incurred at or in connection with the Site. EPA has reviewed the Financial Information submitted to determine whether Settling Parties are financially able to pay Site response costs. Based upon this Financial Information, EPA has determined that Settling Parties have no current financial ability to pay for response costs incurred and to be incurred at the Site. However, if the future Net Sales Proceeds for Transfer of all or any portion of the Site Property equal or exceed $482,000.00, Settling Parties shall pay to EPA 65% of all Net Sales Proceeds equaling or exceeding $482,000.00. Additionally, within 90 days after closing on the Transfer of the Property, and if Settling Parties are in compliance with all requirements of this Agreement, EPA shall file a Release of Notice of Federal Lien on the Site Property. Further, Settling Parties agree to provide access to the Site and to any other property owned or controlled by Settling Parties for the purpose of conducting any necessary Site activity. Settling Parties shall refrain from using the Site, or such other property, in any manner that would interfere with or adversely affect the implementation, integrity, or protectiveness of the Site response. Such restrictions are defined as Land Use Restrictions and are included as an Appendix to this Agreement. Settling Parties agree to fulfill all Notice and Recording requirements. Within 45 days of entry of this Agreement, Settling Parties shall execute and record the Land Use Restrictions in the Office of the Clerk and Recorder of Flathead County, Montana and within 30 days of recording the Land Use Restrictions, Settling Parties shall provide EPA with a certified copy of the original recorded Land Use Restrictions, showing the clerk's recording stamps. Notwithstanding any provision of this Agreement, EPA retains all of its access authorities and rights, including enforcement authorities related thereto, under CERCLA, RCRA, and any other applicable statutes or regulations. This covenant not to sue is conditioned upon the satisfactory performance by Settling Parties of their obligations under this Agreement. This covenant not to sue is also conditioned upon the veracity and completeness of the Financial Information provided to EPA by Settling Parties. Settling Parties recognize that this Agreement has been negotiated in good faith and that this Agreement is entered into without the admission or adjudication of any issue of fact or law.
Comments must be submitted on or before April 5, 2007. For thirty (30) days following the date of publication of this notice, the Agency will receive written comments relating to the agreement. The Agency will consider all comments received and may modify or withdraw its consent to the agreement if comments received disclose facts or considerations that indicate that the agreement is inappropriate, improper, or inadequate.
The Agency's response to any comments, the proposed agreement and additional background information relating to the agreement is available for public inspection at the EPA Superfund Record Center, 1595 Wynkoop Street, Denver, Colorado. Comments and requests for a copy of the proposed agreement should be addressed to Michael Rudy, Enforcement Specialist, Environmental Protection Agency—Region 8, Mail Code 8ENF-RC, 1595 Wynkoop Street, Denver, Colorado 80202-1129, and should reference the Beaver Wood Products Site, Flathead County, Montana.
Michael Rudy, Enforcement Specialist, Environmental Protection Agency—Region 8, Mail Code 8ENF-RC, at the above address, (303) 312-6332.
Environmental Protection Agency (EPA).
Notice; request for public comment.
In accordance with section 122(h) of the Comprehensive Environmental Response, Compensation, and Liability Act, as amended (“CERCLA”), 42 U.S.C. 9622(i), notice is hereby given of a proposed administrative settlement concerning the Star Lake Canal Superfund Site, with the Calabrian Corporation.
The settlement requires the settling parties to pay a total of $20,000 as payment of response costs to the Hazardous Substances Superfund. The settlement includes a covenant not to sue pursuant to section 107 of CERCLA, 42, U.S.C. 9607.
For thirty (30) days following the date of publication of this notice, the Agency will receive written comments relating to this notice and will receive written comments relating to the settlement. The Agency will consider all comments received and may modify or withdraw its consent to the settlement if comments received disclose facts or considerations which indicate that the settlement is inappropriate, improper, or inadequate. The Agency's response to any comments received will be available for public inspection at 1445 Ross Avenue, Dallas, Texas 75202-2733.
Comments must be submitted on or before April 5, 2007.
The proposed settlement and additional background information relating to the settlement are available for public inspection at 1445 Ross Avenue, Dallas, Texas 75202-2733. A copy of the proposed settlement may be obtained from Lydia Johnson, 1445 Ross Avenue, Dallas, Texas 75202-2733 or by calling (214) 665-8419. Comments should reference the Star Lake Canal Superfund Site, Jefferson County, Texas, and EPA Docket Number 06-03-07, and should be addressed to Lydia Johnson at the address listed above.
Edwin Quinones, 1445 Ross Avenue, Dallas, Texas 75202-2733 or call (214) 665-8035.
Farm Credit Administration.
Notice is hereby given, pursuant to the Government in the Sunshine Act (5 U.S.C. 552b(e)(3)), of the regular meeting of the Farm Credit Administration Board (Board).
Roland E. Smith, Secretary to the Farm Credit Administration Board, (703) 883-4009, TTY (703) 883-4056.
Farm Credit Administration, 1501 Farm Credit Drive, McLean, Virginia 22102-5090.
This meeting of the Board will be open to the public (limited space available). In order to increase the accessibility to Board meetings, persons requiring assistance should make arrangements in advance. The matters to be considered at the meeting are:
• February 8, 2007 (Open)
• FCA Bookletter BL-043—Revised Guidance on Farm Credit Bank and Association Nominating Committees
• FCSBA Quarterly Report
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States. Additional information on all bank holding companies may be obtained from the National Information Center website at
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than April 2, 2007.
Board of Governors of the Federal Reserve System, March 1, 2007.
The Depository Library Council to the Public Printer (DLC) will meet on Sunday, April 15, 2007, through Wednesday, April 18, 2007 in Denver, Colorado. The sessions will take place from 8 a.m. to 5 p.m. on Sunday through Tuesday, and 8 a.m. to 12 noon on Wednesday. The meeting will be held at the Adam's Mark Hotel, 1550 Court Place, Denver, Colorado. The purpose of this meeting is to discuss the Federal Depository Library Program. All sessions are open to the public. The sleeping rooms available at the Adam's Mark Hotel will be at the Government rate of $127.00 (plus applicable state and local taxes, currently 14.85%) a night for a single or double. The Adam's Mark Hotel is in compliance with the requirements of Title III of the Americans with Disabilities Act and meets all Fire Safety Act regulations.
Office of Public Health and Science, Office of the Secretary, HHS.
Notice.
Pursuant to section 10(a) of the Federal Advisory Committee Act, U.S.C. Appendix 2, notice is hereby given that the Secretary's Advisory Committee on Human Research Protections (SACHRP), will hold its twelfth meeting. The meeting will be open to the public.
The meeting will be held on Thursday, March 29, 2007 from 8:30 a.m. until 5:15 p.m. and Friday, March 30, 2007 from 8:30 a.m. until 4 p.m.
The Sheraton National Hotel, 900 South Orme Street, Arlington, VA 22204. Phone: (703) 521-1900.
Bernard Schwetz, D.V.M., PhD, Director, Office for Human Research Protections (OHRP), or Catherine Slatinshek, Executive Director, Secretary's Advisory Committee on Human Research Protections; Department of Health and Human Services, 1101 Wootton Parkway, Suite 200, Rockville, MD 20852; (240) 453-8139;
Under the authority of 42 U.S.C. 217a, section 222 of the Public Health Service Act, as amended, SACHRP was established to provide expert advice and recommendations to the Secretary of Health and Human Services and the Assistant Secretary for Health on issues and topics pertaining to or associated with the protection of human research subjects.
On March 29, 2007, SACHRP will receive and discuss updated information and a report from the Subpart A Subcommittee and issues involving the application of subpart A of 45 CFR part 46 in the current research environment. This subcommittee was established by SACHRP at its October 4-5, 2004 meeting. The Committee will receive a report and task list from the newly formed Subcommittee on Issues Impacting those with Impaired Decision-Making Capacity. This subcommittee was formed as a result of discussions during the July 31-August 1, 2006 SACHRP meeting. In addition, the Committee will hear presentations from panelists who will examine issues related to the inclusion of subjects who are unable or have limited ability to provide informed consent to participate in research.
On March 30, 2007, the Committee will receive presentations and hear discussions from representatives of a panel that will examine conflict of interest issues and institutional policies that address conflict of interest as it pertains to IRB review. The Committee will also hear presentations from panelists on topics pertaining to investigator responsibilities and certification, and whether new or expanded guidance should be considered to address new issues that have emerged in this area.
Public attendance at the meeting is limited to space available. Individuals who plan to attend the meeting and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the designated contact persons. Members of the public will have the opportunity to provide comments on both days of the meeting. Public comment will be limited to five minutes per speaker. Any members of the public who wish to have printed materials distributed to SACHRP members for this scheduled meeting should submit materials to the Executive Director, SACHRP, prior to the close of business Friday, March 23, 2007. Information about SACHRP and the draft meeting agenda will be posted on the SACHRP Web site at:
In compliance with the requirement of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 for opportunity for public comment on proposed data collection projects, the Centers for Disease Control and Prevention (CDC) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the data collection plans and instruments, call 404-639-5960 and send comments to Joan Karr, CDC Acting Reports Clearance Officer, 1600 Clifton Road, MS-D74, Atlanta, GA 30333 or send an e-mail to
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 of the proposed collection of information; (c) ways to enhance the quality, utility, and
Study to Examine Web-Based Administration of the Youth Risk Behavior Survey—New—National Center for Chronic Disease Prevention and Health Promotion (NCCDPHP), Centers for Disease Control and Prevention (CDC).
The Youth Risk Behavior Survey (YRBS) has been conducted biennially since 1991 using paper-and-pencil questionnaires in schools. Because of technological improvements in survey research methods, CDC is considering changing to Web-based administration of the YRBS. Because YRBS is the only national source of data for at least 10 national health objectives in Healthy People 2010, it is critical to understand (1) whether it is feasible to change to web-based administration, and (2) how a change to web-based administration, both with and without the use of skip patterns in the questionnaire, might affect prevalence estimates of the priority health risk behaviors reported in the YRBS.
CDC is proposing two studies to address these issues. The first study is a survey of U.S. high school principals, using a questionnaire designed to assess the feasibility and burden of web-based administration in schools. The second study is a survey of approximately 6000 9th- and 10th-grade students attending schools in the United States, using the YRBS questionnaire. In the second study, students will be assigned randomly to one of the following conditions: (1) Paper-and-pencil group administration without skip patterns, (2) web-based group administration without skip patterns, (3) web-based group administration with skip patterns, and (4) web-based individual administration without skip patterns. An additional 1500 9th- and 10th-grade students assigned to condition #4 will participate in a sub-study to assess how incentives affect participation rates.
There are no costs to respondents except their time to participate in the survey and, in the case of school administrators, to assist in school recruitment.
The Director, Management Analysis and Services Office, has been delegated the authority to sign
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC) announces a meeting of the aforementioned Special Emphasis Panel.
The Director, Management Analysis and Services Office, has been delegated the authority to sign
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a guidance for industry entitled “Orally Inhaled and Intranasal Corticosteroids: Evaluation of the Effects on Growth in Children.” This guidance provides recommendations regarding the design, conduct, and evaluation of clinical trials to assess the effects of orally inhaled and intranasal corticosteroids on growth in children. For this class of drug products, measurement of growth is considered a sensitive surrogate of, and an important sentinel for, the potential to cause systemic effects. Growth studies designed and carried out following the recommendations in this guidance can provide adequate and well-controlled data that are consistent among drug products and can be included in product labeling. This guidance finalizes the draft guidance published on November 6, 2001.
Submit written or electronic comments on agency guidances at any time.
Submit written requests for single copies of this guidance to the Division of Drug Information (HFD-240), Center for Drug Evaluation and Research, Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857. Send one self-addressed adhesive label to assist that office in processing your requests. Submit written comments on the guidance to the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Submit electronic comments to
Peter Starke, Center for Drug Evaluation and Research (HFD-7), Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 22, rm. 3300, Silver Spring, MD 20993-0002, 301-796-2300.
FDA is announcing the availability of a guidance for industry entitled “Orally Inhaled and Intranasal Corticosteroids: Evaluation of the Effects on Growth in Children.” This guidance provides recommendations for the design, conduct, and evaluation of clinical studies to assess the effects of orally inhaled and intranasal corticosteroids on linear growth (“growth study”). The guidance was developed by the Division of Pulmonary and Allergy Products in consultation with the Division of Metabolism and Endocrinology Products and the Office of Biostatistics to encourage the collection of evidence that can consistently and accurately describe the effects of intranasal and orally inhaled corticosteroids on growth velocity in children.
In July 1998, the Pulmonary and Allergy Drugs Advisory Committee and the Metabolic and Endocrine Drugs Advisory Committee were jointly convened to discuss the implications of findings in previous clinical studies that indicated that inhaled corticosteroids can, as a class of drug products, affect linear growth in pediatric patients. The joint committee concluded that data were sufficient to justify inclusion of a precautionary statement in the labeling for this class of drug products, but the data were inadequate to precisely determine the decrement in growth velocity resulting from the use of these drug products. Members of the joint committee recommended that companies filing new drug applications for all newly approved corticosteroid products conduct further studies, as post-approval phase 4 commitments, to assess the effects of nasally and orally inhaled corticosteroids on growth velocity in prepubertal children. On November 6, 2001 (66 FR 56109), FDA published for comment in the
Comments received from industry, professional societies, and consumer groups on the draft guidance have been taken into consideration in finalizing this guidance. Changes are based on thorough review of all comments received, growth studies submitted since publication of the draft guidance, and previously submitted growth data. Changes or updates were made to all sections of the guidance, and are briefly summarized here.
A new overview section and updated background and data analysis sections include a more thorough discussion of the objective of and the appropriate statistical comparisons for a growth study. These changes will affect future labeling for such studies. Recommendations for sample size calculations and primary and secondary “sensitivity” analyses have been reviewed and modified based on review of growth studies submitted since publication of the draft guidance as well as previously submitted data. The general study recommendations and protocol design sections include a discussion of the appropriate patient populations to be studied and modifications to recommendations for the inclusion and exclusion criteria, assessments of adherence, and spacer use.
This guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance represents the agency's current thinking on the evaluation of the effects of orally inhaled and intranasal corticosteroids on growth in children. 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 statutes and regulations.
Interested persons may submit to the Division of Dockets Management (see
Persons with access to the Internet may obtain the document at either
Substance Abuse and Mental Health Services Administration, HHS.
Notice.
The Department of Health and Human Services (HHS) notifies Federal agencies of the laboratories currently certified to meet the standards of Subpart C of the Mandatory Guidelines for Federal Workplace Drug Testing Programs (Mandatory Guidelines). The Mandatory Guidelines were first published in the
A notice listing all currently certified laboratories is published in the
If any laboratory has withdrawn from the HHS National Laboratory Certification Program (NLCP) during the past month, it will be listed at the end, and will be omitted from the monthly listing thereafter.
This notice is also available on the Internet at
Mrs. Giselle Hersh or Dr. Walter Vogl, Division of Workplace Programs, SAMHSA/CSAP, Room 2-1035, 1 Choke Cherry Road, Rockville, Maryland 20857; 240-276-2600 (voice), 240-276-2610 (fax).
The Mandatory Guidelines were developed in accordance with Executive Order 12564 and section 503 of Pub. L. 100-71. Subpart C of the Mandatory Guidelines, “Certification of Laboratories Engaged in Urine Drug Testing for Federal Agencies,” sets strict standards that laboratories must meet in order to conduct drug and specimen validity tests on urine specimens for Federal agencies. To become certified, an applicant laboratory must undergo three rounds of performance testing plus an on-site inspection. To maintain that certification, a laboratory must participate in a quarterly performance testing program plus undergo periodic, on-site inspections.
Laboratories which claim to be in the applicant stage of certification are not to be considered as meeting the minimum requirements described in the HHS Mandatory Guidelines. A laboratory must have its letter of certification from HHS/SAMHSA (formerly: HHS/NIDA) which attests that it has met minimum standards.
In accordance with Subpart C of the Mandatory Guidelines dated April 13, 2004 (69 FR 19644), the following laboratories meet the minimum standards to conduct drug and specimen validity tests on urine specimens:
* The Standards Council of Canada (SCC) voted to end its Laboratory Accreditation Program for Substance Abuse (LAPSA) effective May 12, 1998. Laboratories certified through that program were accredited to conduct forensic urine drug testing as required by U.S. Department of Transportation (DOT) regulations. As of that date, the certification of those accredited Canadian laboratories will continue under DOT authority. The responsibility for conducting quarterly performance testing plus periodic on-site inspections of those LAPSA-accredited laboratories was transferred to the U.S. HHS, with the HHS' NLCP contractor continuing to have an active role in the performance testing and laboratory inspection processes. Other Canadian laboratories wishing to be considered for the NLCP may apply directly to the NLCP contractor just as U.S. laboratories do.
Upon finding a Canadian laboratory to be qualified, HHS will recommend that DOT certify the laboratory (
Department of Homeland Security, US-VISIT.
Submission for OMB Review; 30-day notice of information collections under review; comment request.
The Department of Homeland Security (DHS), US-VISIT Program, has submitted 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). The information collection was previously published in the
The purpose of this notice is to allow an additional 30 days for public comments.
Comments are encouraged and will be accepted until April 5, 2007. This process is conducted in accordance with 5 CFR 1320.10.
Comments and questions about this Information Collection Request should be forwarded to the Office of Information and Regulatory Affairs, Attn: Paula Braun, Desk Officer, Department of Homeland Security, US-VISIT, and sent via electronic mail to
The Office of Management and Budget is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submissions of responses.
Steve Yonkers, Privacy Officer, US-VISIT Program, Department of Homeland Security, Washington, DC 20528; telephone 202-298-5200 (this is not a toll free number).
Office of the Secretary, DHS.
Notice of determination.
This determination is effective February 20, 2007.
8 U.S.C. 1182(d)(3)(B)(i).
Following consultations with the Secretary of State and the Attorney General, I hereby conclude, as a matter of discretion in accordance with the authority granted to me by Sec. 212(d)(3)(B)(i) of the Immigration and Nationality Act (“the Act”), considering the national security and foreign policy interests deemed relevant in these consultations, that subsection 212(a)(3)(B)(iv)(VI) of the Act shall not apply with respect to material support provided to the Alzados by an alien who satisfies the agency that he:
(a) Is seeking a benefit or protection under the Act and has been determined to be otherwise eligible for the benefit or protection;
(b) Has undergone and passed relevant background and security checks;
(c) Has fully disclosed, in all relevant applications and interviews with U.S. Government representatives and agents, the nature and circumstances of each provision of such material support; and
(d) Poses no danger to the safety and security of the United States.
Implementation of this determination will be made by U.S. Citizenship and Immigration Services (USCIS), in consultation with U.S. Immigration and Customs Enforcement (ICE). USCIS has discretion to determine whether the criteria are met.
I may revoke this exercise of authority as a matter of discretion and without notice at any time with respect to any and all persons subject to it. Any determination made under this exercise of authority as set out above shall apply to any subsequent benefit or protection application, unless such exercise of authority has been revoked.
This exercise of authority shall not be construed to prejudice, in any way, the ability of the U.S. Government to commence subsequent criminal or civil proceedings in accordance with U.S. law involving any beneficiary of this exercise of authority (or any other person). This exercise of authority is not intended to create any substantive or procedural right or benefit that is legally enforceable by any party against the United States or its agencies or officers or any other person.
In accordance with Sec. 212(d)(3)(B)(ii) of the Act, a report on the aliens to whom this exercise of authority is applied, on the basis of case-by-case decisions by the U.S. Department of Homeland Security, shall be provided to the specified congressional committees not later than 90 days after the end of the fiscal year.
This determination is based on an assessment related to the national security and foreign policy interests of the United States as they apply to the particular persons described herein and shall not have any application with respect to other persons or to other provisions of U.S. law.
Office of the Secretary, DHS.
Notice of determination.
This determination is effective February 20, 2007.
8 U.S.C. 1182(d)(3)(B)(i).
Following consultations with the Secretary of State and the Attorney General, I hereby conclude, as a matter of discretion in accordance with the authority granted to me by Sec. 212(d)(3)(B)(i) of the Immigration and Nationality Act (“the Act”), considering the national security and foreign policy interests deemed relevant in these consultations, that subsection 212(a)(3)(B)(iv)(VI) of the Act shall not apply with respect to material support provided to the Kayan New Land Party (KNLP) by an alien who satisfies the agency that he:
(a) Is seeking a benefit or protection under the Act and has been determined to be otherwise eligible for the benefit or protection;
(b) Has undergone and passed relevant background and security checks;
(c) Has fully disclosed, in all relevant applications and interviews with U.S. Government representatives and agents,
(d) Poses no danger to the safety and security of the United States.
Implementation of this determination will be made by U.S. Citizenship and Immigration Services (USCIS), in consultation with U.S. Immigration and Customs Enforcement (ICE). USCIS has discretion to determine whether the criteria are met.
I may revoke this exercise of authority as a matter of discretion and without notice at any time with respect to any and all persons subject to it. Any determination made under this exercise of authority as set out above shall apply to any subsequent benefit or protection application, unless such exercise of authority has been revoked.
This exercise of authority shall not be construed to prejudice, in any way, the ability of the U.S. Government to commence subsequent criminal or civil proceedings in accordance with U.S. law involving any beneficiary of this exercise of authority (or any other person). This exercise of authority is not intended to create any substantive or procedural right or benefit that is legally enforceable by any party against the United States or its agencies or officers or any other person.
In accordance with Sec. 212(d)(3)(B)(ii) of the Act, a report on the aliens to whom this exercise of authority is applied, on the basis of case-by-case decisions by the U.S. Department of Homeland Security, shall be provided to the specified congressional committees not later than 90 days after the end of the fiscal year.
This determination is based on an assessment related to the national security and foreign policy interests of the United States as they apply to the particular persons described herein and shall not have any application with respect to other persons or to other provisions of U.S. law.
Office of the Secretary, DHS.
Notice of determination.
This determination is effective February 20, 2007.
8 U.S.C. 1182(d)(3)(B)(i).
Following consultations with the Secretary of State and the Attorney General, I hereby conclude, as a matter of discretion in accordance with the authority granted to me by Sec. 212(d)(3)(B)(i) of the Immigration and Nationality Act (“the Act”), considering the national security and foreign policy interests deemed relevant in these consultations, that subsection 212(a)(3)(B)(iv)(VI) of the Act shall not apply with respect to material support provided to the Karenni National Progressive Party (KNPP) by an alien who satisfies the agency that he:
(a) Is seeking a benefit or protection under the Act and has been determined to be otherwise eligible for the benefit or protection;
(b) Has undergone and passed relevant background and security checks;
(c) Has fully disclosed, in all relevant applications and interviews with U.S. Government representatives and agents, the nature and circumstances of each provision of such material support; and
(d) Poses no danger to the safety and security of the United States.
Implementation of this determination will be made by U.S. Citizenship and Immigration Services (USCIS), in consultation with U.S. Immigration and Customs Enforcement (ICE). USCIS has discretion to determine whether the criteria are met.
I may revoke this exercise of authority as a matter of discretion and without notice at any time with respect to any and all persons subject to it. Any determination made under this exercise of authority as set out above shall apply to any subsequent benefit or protection application, unless such exercise of authority has been revoked.
This exercise of authority shall not be construed to prejudice, in any way, the ability of the U.S. Government to commence subsequent criminal or civil proceedings in accordance with U.S. law involving any beneficiary of this exercise of authority (or any other person). This exercise of authority is not intended to create any substantive or procedural right or benefit that is legally enforceable by any party against the United States or its agencies or officers or any other person.
In accordance with Sec. 212(d)(3)(B)(ii) of the Act, a report on the aliens to whom this exercise of authority is applied, on the basis of case-by-case decisions by the U.S. Department of Homeland Security, shall be provided to the specified congressional committees not later than 90 days after the end of the fiscal year.
This determination is based on an assessment related to the national security and foreign policy interests of the United States as they apply to the particular persons described herein and shall not have any application with respect to other persons or to other provisions of U.S. law.
Office of the Secretary, DHS.
Notice of determination.
This determination is effective February 20, 2007.
8 U.S.C. 1182(d)(3)(B)(i).
Following consultations with the Secretary of State and the Attorney General, I hereby conclude, as a matter of discretion in accordance with the authority granted to me by Sec. 212(d)(3)(B)(i) of the Immigration and Nationality Act (“the Act”), considering the national security and foreign policy interests deemed relevant in these consultations, that subsection 212(a)(3)(B)(iv)(VI) of the Act shall not apply with respect to material support provided to the Karen National Union/Karen National Liberation Army (KNU/KNLA) by an alien who satisfies the agency that he:
(a) Is seeking a benefit or protection under the Act and has been determined to be otherwise eligible for the benefit or protection;
(b) Has undergone and passed relevant background and security checks;
(c) Has fully disclosed, in all relevant applications and interviews with U.S. Government representatives and agents, the nature and circumstances of each provision of such material support; and
(d) Poses no danger to the safety and security of the United States.
Implementation of this determination will be made by U.S. Citizenship and Immigration Services (USCIS), in consultation with U.S. Immigration and Customs Enforcement (ICE). USCIS has discretion to determine whether the criteria are met.
I may revoke this exercise of authority as a matter of discretion and without notice at any time with respect to any and all persons subject to it. Any determination made under this exercise of authority as set out above shall apply to any subsequent benefit or protection application, unless such exercise of authority has been revoked.
This exercise of authority shall not be construed to prejudice, in any way, the ability of the U.S. Government to commence subsequent criminal or civil proceedings in accordance with U.S. law involving any beneficiary of this exercise of authority (or any other person). This exercise of authority is not intended to create any substantive or procedural right or benefit that is legally enforceable by any party against the United States or its agencies or officers or any other person.
In accordance with Sec. 212(d)(3)(B)(ii) of the Act, a report on the aliens to whom this exercise of authority is applied, on the basis of case-by-case decisions by the U.S. Department of Homeland Security, shall be provided to the specified congressional committees not later than 90 days after the end of the fiscal year.
This determination is based on an assessment related to the national security and foreign policy interests of the United States as they apply to the particular persons described herein and shall not have any application with respect to other persons or to other provisions of U.S. law.
Office of the Secretary, DHS.
Notice of determination.
This determination is effective February 20, 2007.
8 U.S.C. 1182(d)(3)(B)(i).
Following consultations with the Secretary of State and the Attorney General, I hereby conclude, as a matter of discretion in accordance with the authority granted to me by Sec. 212(d)(3)(B)(i) of the Immigration and Nationality Act (“the Act”), considering the national security and foreign policy interests deemed relevant in these consultations, that subsection 212(a)(3)(B)(iv)(VI) of the Act shall not apply with respect to material support provided to the Mustangs by an alien who satisfies the agency that he:
(a) Is seeking a benefit or protection under the Act and has been determined to be otherwise eligible for the benefit or protection;
(b) Has undergone and passed relevant background and security checks;
(c) Has fully disclosed, in all relevant applications and interviews with U.S. Government representatives and agents, the nature and circumstances of each provision of such material support; and
(d) Poses no danger to the safety and security of the United States.
Implementation of this determination will be made by U.S. Citizenship and Immigration Services (USCIS), in consultation with U.S. Immigration and Customs Enforcement (ICE). USCIS has discretion to determine whether the criteria are met.
I may revoke this exercise of authority as a matter of discretion and without notice at any time with respect to any and all persons subject to it. Any determination made under this exercise of authority as set out above shall apply to any subsequent benefit or protection application, unless such exercise of authority has been revoked.
This exercise of authority shall not be construed to prejudice, in any way, the ability of the U.S. Government to commence subsequent criminal or civil proceedings in accordance with U.S. law involving any beneficiary of this exercise of authority (or any other person). This exercise of authority is not intended to create any substantive or procedural right or benefit that is legally enforceable by any party against the United States or its agencies or officers or any other person.
In accordance with Sec. 212(d)(3)(B)(ii) of the Act, a report on the aliens to whom this exercise of authority is applied, on the basis of case-by-case decisions by the U.S. Department of Homeland Security, shall be provided to the specified congressional committees not later than 90 days after the end of the fiscal year.
This determination is based on an assessment related to the national security and foreign policy interests of the United States as they apply to the particular persons described herein and shall not have any application with respect to other persons or to other provisions of U.S. law.
Office of the Secretary, DHS.
Notice of determination.
This determination is effective February 20, 2007.
8 U.S.C. 1182(d)(3)(B)(i).
Following consultations with the Secretary of State and the Attorney General, I hereby conclude, as a matter of discretion in accordance with the authority granted to me by Sec. 212(d)(3)(B)(i) of the Immigration and Nationality Act (“the Act”), considering the national security and foreign policy interests deemed relevant in these consultations, that subsection 212(a)(3)(B)(iv)(VI) of the Act shall not apply with respect to material support provided to the Arakan Liberation Party (ALP) by an alien who satisfies the agency that he:
(a) Is seeking a benefit or protection under the Act and has been determined to be otherwise eligible for the benefit or protection;
(b) Has undergone and passed relevant background and security checks;
(c) Has fully disclosed, in all relevant applications and interviews with U.S. Government representatives and agents, the nature and circumstances of each provision of such material support; and
(d) Poses no danger to the safety and security of the United States.
Implementation of this determination will be made by U.S. Citizenship and Immigration Services (USCIS), in consultation with U.S. Immigration and Customs Enforcement (ICE). USCIS has discretion to determine whether the criteria are met.
I may revoke this exercise of authority as a matter of discretion and without notice at any time with respect to any and all persons subject to it. Any determination made under this exercise of authority as set out above shall apply to any subsequent benefit or protection application, unless such exercise of authority has been revoked.
This exercise of authority shall not be construed to prejudice, in any way, the
In accordance with Sec. 212(d)(3)(B)(ii) of the Act, a report on the aliens to whom this exercise of authority is applied, on the basis of case-by-case decisions by the U.S. Department of Homeland Security, shall be provided to the specified congressional committees not later than 90 days after the end of the fiscal year.
This determination is based on an assessment related to the national security and foreign policy interests of the United States as they apply to the particular persons described herein and shall not have any application with respect to other persons or to other provisions of U.S. law.
Office of the Secretary, DHS.
Notice of determination.
This determination is effective February 20, 2007.
8 U.S.C. 1182(d)(3)(B)(i).
Following consultations with the Secretary of State and the Attorney General, I hereby conclude, as a matter of discretion in accordance with the authority granted to me by Sec. 212(d)(3)(B)(i) of the Immigration and Nationality Act (“the Act”), considering the national security and foreign policy interests deemed relevant in these consultations, that subsection 212(a)(3)(B)(iv)(VI) of the Act shall not apply with respect to material support provided to the Chin National Front/Chin National Army (CNF/CNA) by an alien who satisfies the agency that he:
(a) Is seeking a benefit or protection under the Act and has been determined to be otherwise eligible for the benefit or protection;
(b) Has undergone and passed relevant background and security checks;
(c) Has fully disclosed, in all relevant applications and interviews with U.S. Government representatives and agents, the nature and circumstances of each provision of such material support; and
(d) Poses no danger to the safety and security of the United States.
Implementation of this determination will be made by U.S. Citizenship and Immigration Services (USCIS), in consultation with U.S. Immigration and Customs Enforcement (ICE). USCIS has discretion to determine whether the criteria are met.
I may revoke this exercise of authority as a matter of discretion and without notice at any time with respect to any and all persons subject to it. Any determination made under this exercise of authority as set out above shall apply to any subsequent benefit or protection application, unless such exercise of authority has been revoked.
This exercise of authority shall not be construed to prejudice, in any way, the ability of the U.S. Government to commence subsequent criminal or civil proceedings in accordance with U.S. law involving any beneficiary of this exercise of authority (or any other person). This exercise of authority is not intended to create any substantive or procedural right or benefit that is legally enforceable by any party against the United States or its agencies or officers or any other person.
In accordance with Sec. 212(d)(3)(B)(ii) of the Act, a report on the aliens to whom this exercise of authority is applied, on the basis of case-by-case decisions by the U.S. Department of Homeland Security, shall be provided to the specified congressional committees not later than 90 days after the end of the fiscal year.
This determination is based on an assessment related to the national security and foreign policy interests of the United States as they apply to the particular persons described herein and shall not have any application with respect to other persons or to other provisions of U.S. law.
Office of the Secretary, DHS.
Notice of determination.
This determination is effective February 20, 2007.
8 U.S.C. 1182(d)(3)(B)(i).
Following consultations with the Secretary of State and the Attorney General, I hereby conclude, as a matter of discretion in accordance with the authority granted to me by Sec. 212(d)(3)(B)(i) of the Immigration and Nationality Act (“the Act”), considering the national security and foreign policy interests deemed relevant in these consultations, that subsection 212(a)(3)(B)(iv)(VI) of the Act shall not apply with respect to material support provided to the Chin National League for Democracy (CNLD) by an alien who satisfies the agency that he:
(a) Is seeking a benefit or protection under the Act and has been determined to be otherwise eligible for the benefit or protection;
(b) Has undergone and passed relevant background and security checks;
(c) Has fully disclosed, in all relevant applications and interviews with U.S. Government representatives and agents, the nature and circumstances of each provision of such material support; and
(d) Poses no danger to the safety and security of the United States.
Implementation of this determination will be made by U.S. Citizenship and Immigration Services (USCIS), in consultation with U.S. Immigration and Customs Enforcement (ICE). USCIS has discretion to determine whether the criteria are met.
I may revoke this exercise of authority as a matter of discretion and without notice at any time with respect to any and all persons subject to it. Any determination made under this exercise of authority as set out above shall apply to any subsequent benefit or protection application, unless such exercise of authority has been revoked.
This exercise of authority shall not be construed to prejudice, in any way, the ability of the U.S. Government to commence subsequent criminal or civil proceedings in accordance with U.S. law involving any beneficiary of this exercise of authority (or any other person). This exercise of authority is not intended to create any substantive or
In accordance with Sec. 212(d)(3)(B)(ii) of the Act, a report on the aliens to whom this exercise of authority is applied, on the basis of case-by-case decisions by the U.S. Department of Homeland Security, shall be provided to the specified congressional committees not later than 90 days after the end of the fiscal year.
This determination is based on an assessment related to the national security and foreign policy interests of the United States as they apply to the particular persons described herein and shall not have any application with respect to other persons or to other provisions of U.S. law.
Office of the Secretary, DHS.
Notice of determination.
This determination is effective February 26, 2007.
8 U.S.C. 1182(d)(3)(B)(i).
Following consultations with the Secretary of State and the Attorney General, I hereby conclude, as a matter of discretion in accordance with the authority granted to me by Sec. 212(d)(3)(B)(i) of the Immigration and Nationality Act (“the Act”), considering the national security and foreign policy interests deemed relevant in these consultations, that subsection 212(a)(3)(B)(iv)(VI) of the Act shall not apply with respect to material support provided under duress to a terrorist organization as described in subsection 212(a)(3)(B)(vi)(III) if warranted by the totality of the circumstances.
This exercise of authority as a matter of discretion shall apply to an alien who satisfies the agency that he:
(a) Is seeking a benefit or protection under the Act and has been determined to be otherwise eligible for the benefit or protection;
(b) Has undergone and passed relevant background and security checks;
(c) Has fully disclosed, in all relevant applications and interviews with U.S. Government representatives and agents, the nature and circumstances of each provision of such material support; and
(d) Poses no danger to the safety and security of the United States.
Implementation of this determination will be made by U.S. Citizenship and Immigration Services (USCIS), in consultation with U.S. Immigration and Customs Enforcement (ICE). USCIS has discretion to determine whether the criteria are met.
When determining whether the material support was provided under duress, the following factors, among others, may be considered: whether the applicant reasonably could have avoided, or took steps to avoid, providing material support, the severity and type of harm inflicted or threatened, to whom the harm was directed, and, in cases of threats alone, the perceived imminence of the harm threatened and the perceived likelihood that the harm would be inflicted.
When considering the totality of the circumstances, factors to be considered, in addition to the duress-related factors stated above, may include, among others: the amount, type and frequency of material support provided, the nature of the activities committed by the terrorist organization, the alien's awareness of those activities, the length of time since material support was provided, the alien's conduct since that time, and any other relevant factor.
I may revoke this exercise of authority as a matter of discretion and without notice at any time with respect to any and all persons subject to it. Any determination made under this exercise of authority as set out above shall apply to any subsequent benefit or protection application, unless it has been revoked.
This exercise of authority shall not be construed to prejudice, in any way, the ability of the U.S. Government to commence subsequent criminal or civil proceedings in accordance with U.S. law involving any beneficiary of this exercise of authority (or any other person). This exercise of authority is not intended to create any substantive or procedural right or benefit that is legally enforceable by any party against the United States or its agencies or officers or any other person. This exercise of authority does not affect the continued applicability of any other security-related ground of inadmissibility in section 212 of the Act, including subsections 212(a)(3)(B)(iv)(I) through (V), which continue to render inadmissible those who have engaged in terrorist activity as enumerated by those subsections.
In accordance with Sec. 212(d)(3)(B)(ii) of the Act, a report on the aliens to whom this exercise of authority is applied, on the basis of case-by-case decisions by the U.S. Department of Homeland Security shall be provided to the specified congressional committees not later than 90 days after the end of the fiscal year.
This determination is based on an assessment related to the national security and foreign policy interests of the United States as they apply to the particular aliens described herein and shall not have any application with respect to other persons or to other provisions of U.S. law.
Office of the Secretary, Department of Homeland Security.
Notice of Federal Advisory Committee meeting.
The Data Privacy and Integrity Advisory Committee will meet on March 21, 2007 in Washington, DC. This meeting will be open to the public.
The Data Privacy and Integrity Advisory Committee will meet on Wednesday, March 21, 2007 from 9 a.m. to 12:30 p.m. and 2:15 p.m. to 3:30 p.m. Please note that the meeting may close early if the committee has completed its business.
The meeting will be held at the Crowne Plaza Washington National Airport, 1480 Crystal Drive, Arlington, Virginia. Send written material, comments, and requests to make oral presentations to Rebecca J. Richards, Executive Director, Data Privacy and Integrity Advisory Committee, Department of Homeland Security, Washington, DC 20528. Written materials, comments, and requests to make oral presentations at the meeting should reach the contact person listed by March 16, 2007. Requests to have a copy of your material distributed to each member of the committee prior to
•
•
•
•
Hugo Teufel III, Chief Privacy Officer, or Rebecca J. Richards, Executive Director, Data Privacy and Integrity Advisory Committee, Department of Homeland Security, Washington, DC 20528, by telephone (571) 227-3813, by fax (571) 227-4171, or by e-mail
Notice of this meeting is given under the Federal Advisory Committee Act, 5 U.S.C. App. (Pub. L. 92-463).
During the meeting, the DHS Chief Privacy Officer will provide an update on the activities of the DHS Privacy Office. In the morning and afternoon sessions, invited speakers will discuss policy development, data integrity, and IT transformation at DHS, as well as DHS' plans to implement the REAL ID Act. The Subcommittees will update the Committee on the work currently being conducted. A tentative agenda has been posted on the Privacy Advisory Committee Web site at
At the discretion of the Chair, members of the public may make brief (i.e., no more than three minutes) oral presentations from 4 p.m.-4:30 p.m. If you would like to make an oral presentation at the meeting, please register in advance or sign up on the day of the meeting. If you would like a copy of your material(s) distributed to each member of the committee in advance, please submit 22 copies to Rebecca J. Richards by March 16, 2007.
For information on facilities or services for individuals with disabilities or to request special assistance at the meeting, contact Rebecca J. Richards as soon as possible.
This Memorandum of Understanding (MOU) establishes a process to implement the provisions of Section 657 of the Energy Policy Act of 2005 (EPA), Public Law 109-58, 119 Stat. 594, 814 (2005). Section 657 states:
Before issuing a license for a utilization facility, the Nuclear Regulatory Commission shall consult with the Department of Homeland Security concerning the potential vulnerabilities of the location of the proposed facility to terrorist attack.
Pursuant to Section 103 of the Atomic Energy Act of 1954, as amended, 42 U.S.C. 2133, the NRC is responsible for licensing and regulating the construction and operation of commercial nuclear power plants (known as “utilization facilities”) in the United States to protect the health and safety of the public and to promote the common defense and security. In conducting its review of applications for such facilities pursuant to the Commission's implementing regulations in 10 CFR Parts 50 and 52, the NRC must, among other matters, determine the suitability of the site for the proposed facility.
Among the provisions pertaining to the determination of site suitability, issues associated with the common defense and security are, as a general matter, addressed through the requirements of 10 CFR 100.21(f). This provision requires applicants to demonstrate that the site characteristics of the proposed location are such “that adequate security plans and measures can be developed.” In conducting its technical review of this portion of the application, the NRC addresses potential vulnerabilities of the location of the proposed facility to terrorist attack; this evaluation focuses on assessing the impact of the following factors:
(1) Pedestrian and vehicular land approaches, (2) railroad approaches, (3) waterborne approaches, (4) potential “high-ground” adversary advantage areas, (5) nearby road and/or transportation routes, and (6) nearby hazardous materials facilities, airports, dams, military and chemical facilities, and pipelines.
Commencing in FY07, a substantial number of applications for new nuclear power plants is expected.
The Department of Homeland Security (DHS), pursuant to the Homeland Security Act (HSA) of 2002, Public Law 107-296, 116 Stat. 2135; Homeland Security Presidential Directive 7 (HSPD-7); and the National Infrastructure Protection Plan (NIPP) of 2006, has the authority and responsibility to lead the unified national effort to secure America by preventing, deterring, and responding to terrorist attacks and other threats and hazards to the Nation, including protecting the Nation's critical infrastructure (CI) and key resources (KR), such as the subject “utilization facilities.”
The NRC will “consult” with the DHS under Section 657 of the EPA as follows:
Before issuing a license for a utilization facility, the NRC will request, and the DHS will review and provide to the NRC comment on the potential vulnerabilities of the location of the proposed facility to terrorist attack. This review and comment will be based on information, including the application, provided by the NRC, and any other factors, consistent with DHS authorities, the DHS considers vital to
Within ten (10) days after acceptance and docketing of an application, the NRC will provide the DHS with the application and any other information it deems relevant. The NRC will communicate promptly any schedule delay.
Within 90 days of receipt of the application materials, the DHS will respond to the NRC in writing. This response will include any and all DHS comments concerning the potential vulnerabilities of the location of the proposed facility to terrorist attack. If within 60 days of receipt of the application materials the DHS anticipates that it cannot complete its review within the 90-day time frame, the DHS will contact the NRC to discuss a mutually agreeable date by which it will respond to the NRC's request for consultation.
The NRC and the DHS recognize that certain portions of the information exchanged pursuant to this Memorandum of Understanding may be Safeguards Information in accordance with section 147 of the Atomic Energy Act of 1954, as amended; classified information; or other sensitive information that must be properly identified and protected from public disclosure in accordance with applicable requirements.
The NRC Point of Contact for this agreement is: Team Leader, New Reactor Security Team, Reactor Security Branch, NSIR.
The DHS Point of Contact for this agreement is: Lead, Nuclear Sector Branch, CNPPD.
All activities pursuant to this MOU are subject to the availability of appropriated funds and each agency's budget priorities.
This MOU shall not be construed to provide a private right of action for or by any person or entity.
This MOU is effective upon signature by both parties. It will remain in effect until terminated by one of the parties following 30 days advance written notice to the other party.
Modifications to this MOU may be made by written agreement of both parties.
Approved for the U.S. Nuclear Regulatory Commission.
Approved for the Department of Homeland Security.
Office of the Chief Information Officer, HUD.
Notice.
The proposed information collection requirement described below has been submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
Public Housing Agencies (PHAs) use this information in budget submissions which are reviewed and approved by HUD field offices as the basis for obligating operating subsidies. This information is necessary to calculate the eligibility for operating subsidies under the Operating Fund Program regulation, as amended. The Operating Fund Program is designed to provide the amount of operating subsidy that would be needed for well-managed PHAs.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB approval Number (2577-0029) and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503;
Lillian Deitzer, Departmental Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410; e-mail
This notice informs the public that the Department of Housing and Urban Development has submitted to OMB a request for approval of the information collection described below. This notice is soliciting comments from members of the public and affecting agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond; including technology, e.g., permitting electronic submission of responses.
This notice also lists the following information:
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 35, as amended.
Office of the Assistant Secretary for Policy Development and Research, HUD.
Notice.
This notice revises the definition of “effective date” in a notice published in the
For questions on how areas are designated, on geographic definitions, and on the new provisions for multiphase projects, contact Michael K. Hollar, Economist, Economic Development and Public Finance Division, Office of Policy Development and Research, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410-6000, telephone (202) 402-5878, or send an e-mail to
This notice revises the definition of “effective date” in a notice published in the
The U.S. Department of the Treasury (Treasury) and its Internal Revenue Service (IRS) are authorized to interpret and enforce the provisions of the Internal Revenue Code (the Code), including the LIHTC found at Section 42 of the Code. The requirement for HUD to designate DDAs and QCTs is found in Section 42(d)(5)(C) of the Code. State and local LIHTC-allocating agencies are responsible for allocating LIHTC to eligible projects according to approved Qualified Allocation Plans (QAPs). Most LIHTC-allocating agencies include in their QAPs a limitation on the amount of LIHTC that may be awarded to a particular applicant, project, and/or location in any year. When applicants plan LIHTC-financed developments that would require amounts of LIHTC in excess of the individual allocation limits defined in the applicable QAP (or in smaller states, that are larger than the annual per capital credit allocation authority), they are forced to divide their developments, and their LIHTC applications, into phases over 2 or more years in order to obtain all the tax credits needed to complete the project. If such developments are located in DDAs or QCTs, there is a possibility that the location of the development may lose its DDA/QCT status after the first phase has been allocated LIHTC, but before subsequent phases have received their allocation or applied for LIHTC. As the financing for developments in these situations is generally predicated on the additional LIHTC available because of the developments' location in DDAs/QCTs, the subsequent phases may become infeasible.
HUD's intent in revising designations of DDAs and QCTs is to direct scarce public resources, in the form of additional LIHTC subsidy, to projects in those locations with the greatest need for this additional subsidy as defined by statute. However, HUD does not intend for these changes in designations to ultimately prevent the development of affordable housing, particularly in cases where developments have been required to be done in phases by LIHTC-allocating agency limits on annual allocation amounts to individual applicants.
HUD, therefore, is establishing in this notice a definition of “multiphase projects” and specifying how effective dates in its notices designating DDAs and QCTs are to be applied to such projects. In addition, HUD is clarifying what is meant by “certified in writing” for purposes of demonstrating compliance with effective dates for DDA and QCT designations.
For purposes of this notice, a “multiphase project” is defined as a set of buildings to be constructed or rehabilitated under the rules of the LIHTC and meeting the following criteria as certified in writing by the applicable LIHTC-allocating agency:
(1) In the first application for tax credit, the applicant must include an indication of the multiphase nature of the project (
(2) At the time credits are allocated to the first phase of the project, there must be common control (ownership, leasehold, or option to buy or lease) of all land where the buildings shall be constructed or rehabilitated (the site);
(3) The aggregate amount of LIHTC applied for on behalf of, or that would eventually be allocated to, the buildings on the site exceeds the one-year limitation on credits per applicant, as defined in the QAP of the LIHTC-allocating agency, or the annual per capita credit authority of the LIHTC-allocating agency, and is the reason the applicant must request multiple allocations over 2 or more years; and
(4) All applications for LIHTC for buildings on the site are made in immediately consecutive years.
In the case of a multiphase project, the applicable DDA or QCT status of the site of the project for all phases of the project is that which was applicable when the project received its first allocation of LIHTC, as certified in writing by the LIHTC-allocating agency. For purposes of Section 42(h)(4)(B) of the Internal Revenue Code, the applicable DDA or QCT status of the site of the project for all phases of the project is that which was applicable when the building(s) in the first phase were placed in service or when the bonds were issued as certified in writing by the LIHTC-allocating agency.
For purposes of demonstrating that the effective date provisions in HUD DDA and QCT notices are met, “certified in writing” means that the LIHTC-allocating agency has provided a signed letter to the applicant stating that the LIHTC-allocating agency has found that the applicant meets the conditions set forth in HUD's notice.
Under this definition and application of effective date, a multiphase project located in a DDA or QCT when the first allocation of credit is made would be treated as if in a DDA or QCT throughout all phases of the project even if the DDA or QCT designation were subsequently changed. Under clause one of the definition, the applicant's first application notice must include the multiphase nature of the project. If the applicant failed to identify all phases of the multiphase development in the first application, then solely for purposes of applications made in 2007, a project that otherwise meets clauses 2 through 4 will qualify if all phases of the development occur on a contiguous parcel of land. Applications made by a different applicant after the DDA or QCT status of the site has been removed would not be eligible even if the applicants had obtained control of part of a site that would otherwise be eligible under the definition. Under clause 2 of the definition of a multiphase project, any buildings on land where control was obtained after the allocation of credit to the first phase of the project would not be eligible for treatment as in a DDA or QCT. Under clause 3 of the definition, if a project is built in phases to accommodate the capacity of the developer or some other reason, and not because the aggregate amount of credit required to fund the development exceeds annual limitations specified in the QAP (or the annual per capita credit authority of the LIHTC-allocating agency), the project is not eligible for continued treatment as in a DDA or QCT. Under clause 4, if an intervening year passes between application phases, the subsequent phase(s) of the project is (are) not eligible for continued treatment as in a DDA or QCT.
The section entitled “Effective Date” of the notice designating DDAs and QCTs for 2007 published in the
For DDAs designated by reason of being in areas determined by the President to warrant individual or individual and public assistance from the federal government under the Stafford Act by reason of Hurricanes Katrina, Rita, or Wilma (the GO Zone Designation), the designation is effective:
(1) For housing credit dollar amounts allocated and buildings placed in service during the period beginning on January 1, 2006, and ending on December 31, 2008; or
(2) for purposes of Section 42(h)(4)(B) of the Internal Revenue Code, for buildings placed in service during the period beginning on January 1, 2006, and ending on December 31, 2008, but only with respect to bonds issued after December 31, 2005.
The 2007 lists of QCTs and the 2007 lists of DDAs that are not part of the GO
(1) For allocations of credit after December 31, 2006; or
(2) for purposes of Section 42(h)(4)(B) of the Code, if the bonds are issued and the building is placed in service after December 31, 2006.
If an area is not on a subsequent list of DDAs or QCTs, the 2007 lists are effective for the area if:
(1) The allocation of credit to an applicant is made no later than the end of the 365-day period after the submission to the credit-allocating agency of a complete application by the applicant, and the submission is made before the effective date of the subsequent lists; or
(2) for purposes of Section 42(h)(4)(B) of the Code, if:
(a) The bonds are issued or the building is placed in service no later than the end of the 365-day period after the applicant submits a complete application to the bond-issuing agency, and
(b) the submission is made before the effective date of the subsequent lists, provided that both the issuance of the bonds and the placement in service of the building occur after the application is submitted.
An application is deemed to be submitted on the date it is filed if the application is determined to be complete as certified in writing by the credit-allocating or bond-issuing agency. A “complete application” means that no more than
In the case of a “multiphase project,” the DDA or QCT status of the site of the project that applies for all phases of the project is that which applied when the project received its first allocation of LIHTC as certified in writing by the LIHTC-allocating agency. For purposes of Section 42(h)(4)(B) of the Internal Revenue Code, the DDA or QCT status of the site of the project that applies for all phases of the project is that which applied when the first of the following occurred as certified in writing by the LIHTC-allocating agency: (a) The building(s) in the first phase were placed in service or (b) the bonds were issued.
For purposes of this notice, a “multiphase project” is defined as a set of buildings to be constructed or rehabilitated under the rules of the LIHTC and meeting the following criteria as certified in writing by the applicable LIHTC-allocating agency:
(1) In the first application for tax credit, the applicant must include an indication of the multiphase nature of the project (
(2) At the time credits are allocated to the first phase of the project, there must be common control (ownership, leasehold, or option to buy or lease) of all land where the buildings shall be constructed or rehabilitated (the site);
(3) The aggregate amount of LIHTC applied for on behalf of, or that would eventually be allocated to, the buildings on the site exceeds the one-year limitation on credits per applicant as defined in the QAP of the LIHTC-allocating agency, or the annual per capita credit authority of the LIHTC allocating agency, and is the reason the applicant must request multiple allocations over 2 or more years; and
(4) All applications for LIHTC for buildings on the site are made in immediately consecutive years.
For purposes of demonstrating compliance with the effective date provisions of this notice, “certified in writing” means that the LIHTC-allocating agency has provided a signed letter to the applicant stating that the LIHTC-allocating agency has found that the applicant meets the conditions set forth in this notice.
The designations of QCTs under Section 42 of the Internal Revenue Code published on December 12, 2002 (67 FR 76451) for the U.S. Virgin Islands, and on December 19, 2003 (68 FR 70982) for American Samoa, Guam, and the Northern Mariana Islands, remain in effect.
Members of the public are hereby reminded that the Secretary of Housing and Urban Development, or the Secretary's designee, has sole legal authority to designate DDAs and QCTs by publishing lists of geographic entities as defined by, in the case of DDAs, the several states and the governments of the insular areas of the United States and, in the case of QCTs, by the Census Bureau; and to establish the effective dates of these lists. The Secretary of the Treasury, through the IRS thereof, has sole legal authority to interpret, and to determine and enforce compliance with, the Internal Revenue Code and associated regulations including
In addition, the section entitled “Interpretive Examples of Effective Date” of the notice designating DDAs and QCTs for 2007 published on September 28, 2006 (71 FR 57234) is hereby amended with the addition of the following (in each case the description applied to a DDA is equally applicable to a QCT):
(Case G) Project G is a multiphase project located in a 2006 regular DDA that is NOT a designated regular DDA in 2007. The first phase of Project G received an allocation of credits in 2006 pursuant to an application filed March 15, 2006. An application for tax credits for the second phase Project G is filed with the allocating agency by the same entity on March 15, 2007. The second phase of Project G is located on a contiguous site controlled by the applicant at the time credits were allocated to the first phase. Credits are allocated to the second phase of Project G on October 30, 2007. The aggregate amount of credits allocated to the two phases of Project G exceeds the amount of credits that may be allocated to an applicant in one year under the allocating agency's QAP and is the reason that the application contains multiple phases. The second phase of Project G is therefore eligible for the increase in basis accorded a project in a 2006 regular DDA because it meets all of the conditions to be a part of a multiphase project.(Case H) Project H is a multiphase project located in a 2006 regular DDA that is NOT a designated regular DDA in 2007. The first phase of Project H received an allocation of credits in 2006 pursuant to an application filed March 15, 2006. An application for tax credits for the second phase Project H is filed with the allocating agency by the same entity on March 15, 2008. The second phase of Project H is located on a site that was not controlled by the applicant at the time credits were allocated to the first phase. Credits are allocated to the second phase of Project H on October 30, 2008. The aggregate amount of credits allocated to the two phases of Project H exceeds the amount of credits that may be allocated to an applicant in one year under the allocating agency's QAP. The second phase of Project H is therefore NOT eligible for the increase in basis accorded a project in a 2006 regular DDA because it does not meet all of the conditions for a multiphase project as defined in this notice. Project H is not on land controlled by the applicant at the time credits were allocated to the first phase. Also, the application for credits for the second phase of Project H was not made in the year immediately following the first phase application year.
In accordance with 40 CFR 1508.4 of the regulations of the Council on Environmental Quality and 24 CFR 50.19(c)(6) of HUD's regulations, the policies and procedures contained in this notice provide for the establishment of fiscal requirements or procedures that do not constitute a development decision affecting the physical condition of specific project areas or building sites and, therefore, are categorically excluded from the requirements of the National Environmental Policy Act, except for extraordinary circumstances, and no Finding of No Significant Impact is required.
Executive Order 13132 (entitled “Federalism”) prohibits an agency from publishing any policy document that has federalism implications if the document either imposes substantial direct compliance costs on state and local governments and is not required by statute, or the document preempts state law, unless the agency meets the consultation and funding requirements of section 6 of the executive order. This notice merely modifies the content of a previous notice designating DDAs and QCTs as required under Section 42 of the Internal Revenue Code, as amended, for the use by political subdivisions of the states in allocating the LIHTC. As a result, this notice is not subject to review under the order.
Bureau of Reclamation, Interior.
Notice of renewal of a currently approved collection (OMB No. 1006-0023).
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Your written comments must be received on or before May 7, 2007.
You may send written comments to the Bureau of Reclamation, Attention: 84-53000, P.O. Box 25007, Denver, CO 80225-0007. You may request copies of the proposed forms by writing to the above address or by contacting Stephanie McPhee at: (303) 445-2897.
Stephanie McPhee at: (303) 445-2897.
(a) Whether the proposed collection of information is necessary for the proper performance of our functions, including whether the information will have practical use;
(b) the accuracy of our burden estimate for the proposed collection of information;
(c) ways to enhance the quality, usefulness, and clarity of the information to be collected; and
(d) ways to minimize the burden of the collection of information on respondents, including the use of automated collection techniques or other forms of information technology.
We will summarize all comments received regarding this notice. We will publish that summary in the
Before including your address, telephone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Bureau of Reclamation, Interior.
Notice of renewal of a currently approved collection (OMB No. 1006-0005).
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Your written comments must be received on or before May 7, 2007.
You may send written comments to the Bureau of Reclamation, Attention: 84-53000, P.O. Box 25007, Denver, CO 80225-0007. You may request copies of the proposed revised forms by writing to the above address or by contacting Stephanie McPhee at: (303) 445-2897.
Stephanie McPhee at: (303) 445-2897.
(a) Whether the proposed collection of information is necessary for the proper performance of our functions, including whether the information will have practical use;
(b) the accuracy of our burden estimate for the proposed collection of information;
(c) ways to enhance the quality, usefulness, and clarity of the information to be collected; and
(d) ways to minimize the burden of the collection of information on respondents, including the use of automated collection techniques or other forms of information technology.
We will summarize all comments received regarding this notice. We will publish that summary in the
Before including your address, telephone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Bureau of Reclamation, Interior.
Notice of renewal of a currently approved collection (OMB No. 1006-0006).
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), the Bureau of Reclamation (we, our, or us) intends to submit a request for renewal (with revisions) of an existing approved information collection to the Office of Management and Budget (OMB): Certification Summary Form, Reporting Summary Form for Acreage Limitation, 43 CFR part 426 and 43 CFR part 428, OMB Control Number: 1006-0006. This information collection is required under the Reclamation Reform Act of 1982 (RRA), Acreage Limitation Rules and Regulations, 43 CFR part 426, and Information Requirements for Certain Farm Operations In Excess of 960 Acres and the Eligibility of Certain Formerly Excess Land, 43 CFR part 428. We request your comments on the revised RRA forms and specific aspects of the information collection.
Your written comments must be received on or before May 7, 2007.
You may send written comments to the Bureau of Reclamation, Attention: 84-53000, P.O. Box 25007, Denver, CO 80225-0007. You may request copies of the proposed revised forms by writing to the above address or by contacting Stephanie McPhee at: (303) 445-2897.
Stephanie McPhee at: (303) 445-2897.
(a) Whether the proposed collection of information is necessary for the proper performance of our functions, including whether the information will have practical use;
(b) The accuracy of our burden estimate for the proposed collection of information;
(c) Ways to enhance the quality, usefulness, and clarity of the information to be collected; and
(d) Ways to minimize the burden of the collection of information on respondents, including the use of automated collection techniques or other forms of information technology.
We will summarize all comments received regarding this notice. We will publish that summary in the
Before including your address, telephone number, e-mail 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.
By Notice dated October 11, 2006, and published in the
The company plans to manufacture small quantities of the listed controlled substances for use in diagnostic products.
No comments or objections have been received. DEA has considered the factors in 21 U.S.C. 823(a) and determined that the registration of Varian, Inc., Lake Forest to manufacture the listed basic classes of controlled substances is consistent with the public interest at this time. DEA has investigated Varian, Inc., Lake Forest to ensure that the company's registration is consistent with the public interest. The investigation has included inspection and testing of the company's physical security systems, verification of the company's compliance with state and local laws, and a review of the company's background and history. Therefore, pursuant to 21 U.S.C. 823, and in accordance with 21 CFR 1301.33, the above named company is granted registration as a bulk manufacturer of the basic classes of controlled substances listed.
On February 6, 2006, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, issued an Order to Show Cause to ATF Fitness Products, Inc. (Respondent) of Oakmont, Pa. The Show Cause Order proposed to deny Respondent's pending application for
The Show Cause order alleged that ephedrine is a precursor chemical that is “commonly diverted” for use in the manufacture of methamphetamine, a Schedule II controlled substance
Relatedly, the Show Cause Order alleged that “[t]here is no legitimate therapeutic market for this type of product” at the type of stores Respondent “propose[s] to supply,” and that Respondent would be “fueling the diversion of precursor chemicals into the illicit manufacture of methamphetamine.”
Finally, the Show Cause Order alleged that in October 2004, the Food and Drug Administration conducted an inspection of Respondent.
The Show Cause Order, which also informed Respondent of its right to a hearing, was served by certified mail, return receipt requested. On February 13, 2006, Respondent received the Show Cause Order as evidenced by the signed return receipt card. Since that time, neither Respondent, nor anyone purporting to represent it, has responded. Because (1) more than thirty days have passed since Respondent's receipt of the Show Cause Order, and (2) no request for a hearing has been received, I conclude that Respondent has waived its right to a hearing.
Ephedrine is a list I chemical that, while having a therapeutic use, is easily extracted from lawful products and used in the illicit manufacture of methamphetamine, a schedule II controlled substances.
Respondent is a Pennsylvania corporation which is located at 140 Pennsylvania Avenue, Oakmont, Pa. Respondent's founder and president is Mr. James Vercellotti.
Respondent previously held a DEA Certificate of Registration to distribute list I chemicals. The registration, however, expired on June 30, 2001. On September 5, 2001, two DEA Diversion Investigators (DIs) conducted a regulatory investigation at Respondent's Oakmont facility. On that date, Respondent's chief financial officer told the DIs that Respondent had submitted a renewal application.
During the visit, William Charlesworth, Respondent's vice president, informed the DIs that Respondent had previously purchased bulk ephedrine powder and manufactured a combination ephedrine product, Sci-Fit Ephedrine HCL, for Asthma Relief. Respondent's officials further maintained that they were under the assumption that their distributor's registration authorized them to engage in manufacturing. The DIs subsequently advised an official of Respondent that while a manufacturer's registration authorizes its holder to distribute, a distributor's registration does not authorize its holder to manufacture.
On September 8, 2001, Mr. Charlesworth telephoned one of the DIs and informed him that Respondent was withdrawing its renewal application in part because list I products comprised less than one percent of its sales. Respondent subsequently submitted a letter to DEA withdrawing its application.
On May 5, 2004, Respondent submitted a new application for a registration to distribute ephedrine. On September 28, 2004, two DIs returned to Respondent's facility to conduct a pre-registration investigation and met again with its president. Respondent's president told the DIs that it was a wholesale distributor of over-the-counter fitness products including food supplements and that it had customers nationwide including GNC, a chain of nutritional supplement retailers, and Walgreens, a chain of pharmacies. Respondent's president also told the DIs that the firm had been in business for fourteen years and that it expected that list I products would provide less than two percent of its sales.
Respondent provided the DIs with a list of fifty potential list I customers. Subsequently, a DI contacted ten of Respondent's customers. Seven of the stores stated that they did not plan to purchase ephedrine products; only two of the stores indicated that they would purchase the products from Respondent. Respondent's president further stated that it would require its List I customers to provide complete identification information prior to selling the products to them and that its sales manager would verify the existence of each business and its need for the products.
Following the on-site inspection, DEA was notified that the Food and Drug Administration (FDA) had conducted an inspection of Respondent's facility. During the inspection, FDA found that Respondent had in its possession approximately $13,500 worth of products, which either contained MaHuang Extract, a source of ephedrine alkaloids, or claimed to when they did not. Eight months earlier, FDA had issued a final rule banning these products on the ground that they are adulterated and present an unreasonable risk of illness or injury under section 402(f)(1)(A) of the Federal Food, Drug, and Cosmetic Act (FDA Act), 21 U.S.C. 342(f)(1)(A).
According to the FDA, Respondent's officials asserted that they intended to export the product. Respondent's officials could not, however, provide the documentation required to demonstrate its compliance with section 801(e)(1) of the FDA Act, 21 U.S.C. 381(e)(1). FDA officials also concluded that some of the products were mislabeled in violation of federal law because they claimed to contain ingredients that were not actually present. On February 25, 2005, the U.S. Attorney's Office for the Western District of Pennsylvania filed a complaint for forfeiture of the products and U.S. Marshals seized them.
Subsequently, the FDA found that Respondent had in its possession
Under 21 U.S.C. 823(h), an applicant to distribute List I chemicals is entitled to be registered unless the registration would be “inconsistent with the public interest.” In making this determination, Congress directed that I consider the following factors:
(1) Maintenance by the applicant of effective controls against diversion of listed chemicals into other than legitimate channels;
(2) Compliance by the applicant with applicable Federal, State, and local law;
(3) Any prior conviction record of the applicant under Federal or State laws relating to controlled substances or to chemicals controlled under Federal or State law;
(4) Any past experience of the applicant in the manufacture and distribution of chemicals; and
(5) Such other factors as are relevant to and consistent with the public health and safety.
“These factors are considered in the disjunctive.”
Here, I conclude that an analysis of each factor is unnecessary and that Respondent's application should be denied based on Factor Two, its record of non-compliance with applicable laws.
As recognized in numerous final orders, the illicit manufacture and abuse of methamphetamine have had pernicious effects on families and communities throughout the nation. Preventing the diversion of list I chemicals into the illicit manufacture of methamphetamine is of critical importance in protecting the public from the devastation wreaked by this drug.
While the investigative file in this case contains no evidence establishing the risk of diversion by establishments such as those which Respondent proposed to distribute its products to, the firm's record of non-compliance with other federal laws does not inspire confidence in its willingness to faithfully obey DEA regulations. Here, the investigative file establishes two separate instances in which Respondent violated the FDA Act. Moreover, FDA found these violations well after the rule banning ephedrine alkaloids went into effect.
In section 303(h) of the CSA, Congress broadly directed that the Attorney General consider “compliance by the applicant with applicable Federal, State, and local law,” 21 U.S.C. 823(h)(2), in determining whether to grant a list I distributor's registration. In contrast to the provision applicable to a practitioner's registration, Congress did not limit the subject matter of the laws that are properly considered in determining whether an applicant's compliance record supports granting it a registration.
Moreover, Respondent's apparent willingness to sell products which have been banned (as evidenced by the fact that banned products were found not once, but twice at its facility) and/or its inability to properly document its compliance with the FDA act (with respect to its assertion that it intended to export the products found in the first incident), are sufficiently probative of the manner in which it would likely fulfill its obligations as a registrant under the Controlled Substances Act.
Pursuant to the authority vested in me by 21 U.S.C. 823(h), and 28 CFR 0.100(b) & 0.104, I order that the application of Respondent ATF Fitness Products, Inc., for a DEA Certificate of Registration as a distributor of list I chemicals be, and it hereby is, denied. This order is effective April 5, 2007.
On February 6, 2006, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, issued an Order to Show Cause to Georgia Convenience Wholesale, Inc., (Respondent) of Doraville, Georgia. The Show Cause Order proposed to deny Respondent's pending application for a Certificate of Registration to distribute list I chemicals on the ground that its registration “would be inconsistent with the public interest.” Show Cause Order at 1 (citing 21 U.S.C. 823(h)).
The Show Cause Order specifically alleged that on April 19, 2005, Respondent applied for a registration to distribute list I chemicals including pseudoephedrine, ephedrine and phenylpropanolamine (PPA), and that these products “are commonly used to illegally manufacture methamphetamine, a Schedule II controlled substance.” Show Cause Order at 1-2. The Show Cause Order alleged that Respondent was proposing to distribute these products to convenience stores, and that “law enforcement officials have observed that an overwhelming proportion of precursors found at illicit methamphetamine sites have involved non-traditional pseudoephedrine and ephedrine brands sold through convenience stores.”
The Show Cause Order further alleged that during a pre-registration investigation, Respondent's owner/operator was not aware that PPA had been withdrawn from the over-the-counter market.
On or about February 24, 2006, the Show Cause Order, which also notified Respondent of its right to request a hearing, was served by certified mail,
Respondent is a Georgia corporation which is located at 4030 Pleasantdale Road, Doraville, Georgia. Respondent is a wholesale distributor of general merchandise to convenience stores, gas stations, candy stores, dollar stores, party stores, and liquor stores in the Atlanta, Georgia metropolitan area. Respondent has been in business since May 2005.
On April 19, 2005, Respondent's president, Mr. Mohammad S. Yaqoob, applied for a DEA Certificate of Registration to distribute list I chemicals. Specifically, Respondent applied to distribute ephedrine, methylephedrine, n-methlypseudoephedrine, norpseudoephedrine, phenylpropanolamine (PPA), and pseudoephedrine.
As explained in numerous DEA final orders, both pseudoephedrine and ephedrine currently have therapeutic uses.
Methamphetamine is a powerful and highly addictive central nervous system stimulant.
On June 9, 2005, two DEA Diversion Investigators (DIs) went to Respondent's proposed registered location to conduct a pre-registration investigation. The DIs met with Mr. Yaqoob, who informed the investigators that he had purchased the business on May 1, 2005. The DIs also met with Mr. Omar, Respondent's Vice-President.
Both Mr. Yaqoob and Mr. Omar told the DIs that each had previously owned a gas station and had sold list I chemical products. Mr. Yaqoob informed the DIs that Respondent's list I customers would be convenience stores and gas stations. Numerous DEA orders have found that these establishments are non-traditional (or gray market) retailers of list I chemical products.
Mr. Yaqoob also provided the DIs with a list of the list I chemical products Respondent intended to distribute. The list was comprised entirely of traditional cold and sinus medicines that contain pseudoephedrine. When one of the DIs asked Mr. Yaqoob why he had originally requested authorization to handle other list I chemicals, Mr. Yaqoob stated that he had not known exactly which drug codes were needed to handle pseudoephedrine so he asked for the additional codes. Mr. Yaqoob, however, had submitted a letter, which is dated prior to the onsite inspection, withdrawing Respondent's request to handle PPA, methylephedrine, n-methlypseudoephedrine, and norpseudoephedrine.
The investigation determined that Respondent's business is located in a large brick building which has an alarm system with motion detectors, glass break strips, and metal contact strips, and is monitored by a security company. Moreover, the doors were equipped with metal cross bars and dead bolt locks. Finally, the list I products were to be stored in a separate room (which was to remain locked at all times) and not in the warehouse. Furthermore, Respondent appeared to have adequate procedures for handling the list I products, as well as for identifying and verifying new customers.
Under 21 U.S.C. 823(h), an applicant to distribute list I chemicals is entitled to be registered unless the registration would be “inconsistent with the public interest.” In making this determination, Congress directed that I consider the following factors:
(1) Maintenance by the applicant of effective controls against diversion of listed chemicals into other than legitimate channels;
(2) Compliance by the applicant with applicable Federal, State, and local law;
(3) Any prior conviction record of the applicant under Federal or State laws relating to controlled substances or to chemicals controlled under Federal or State law;
(4) Any past experience of the applicant in the manufacture and distribution of chemicals; and
(5) Such other factors as are relevant to and consistent with the public health and safety.
“These factors are considered in the disjunctive.”
In this case, I acknowledge that factors one, two, and three would not bar Respondent's registration. I find dispositive, however, that Respondent lacks relevant experience in the wholesale distribution of list I chemicals (factor four) and that it intends to distribute list I chemicals to the gray market (factor five), a market in which the risk of diversion is substantial. Consistent with DEA precedents, I hold that Respondent's registration would be inconsistent with the public interest.
This investigative file does not establish that Respondent would fail to maintain adequate procedures to protect against diversion. Moreover, the file establishes that Respondent would provide adequate security of list I chemical products to protect them from theft. Thus, this factor does not support a finding that Respondent's registration would be inconsistent with the public interest.
There is no evidence that Respondent is not in compliance with applicable Federal, State, or local laws. Relatedly, there is no evidence that Respondent, or any person affiliated with it, has ever been convicted of a crime under either Federal or State laws relating to
DEA precedent establishes that “an applicant's lack of experience in distributing list I chemicals creates a greater risk of diversion and thus weighs heavily against the granting of an application.”
Distributors of list I chemicals are subject to a comprehensive and complex regulatory scheme.
Accordingly, for an applicant's (or its key employee's) experience to be relevant, the key employee must have been actively involved in the fulfillment of a registrant's regulatory obligations as a wholesale distributor and demonstrate adequate knowledge of the applicant's proposed products.
Numerous DEA orders recognize that convenience stores and gas-stations constitute the non-traditional retail market for legitimate consumers of products containing pseudoephedrine and ephedrine.
Significantly, all of Respondent's proposed customers participate in the non-traditional market for ephedrine and pseudoephedrine products. DEA orders recognize that there is a substantial risk of diversion of list I chemicals into the illicit manufacture of methamphetamine when these products are sold by non-traditional retailers.
Because of the methamphetamine epidemic's devastating impact on communities and families throughout the country, DEA has repeatedly denied an application when an applicant proposed to sell into the non-traditional market and analysis of one of the other statutory factors supports the conclusion that granting the application would create an unacceptable risk of diversion. Thus, in
Here, Respondent's key persons have no experience in the wholesale distribution of list I chemical products and yet the firm intends to distribute these products to non-traditional retailers, a market in which the risk of diversion is substantial.
Pursuant to the authority vested in me by 21 U.S.C. 823(h), and 28 CFR 0.100(b) and 0.104, I order that the application of Georgia Convenience Wholesale, Inc., for a DEA Certificate of Registration as a distributor of list I chemicals be, and it hereby is, denied. This order is effective April 5, 2007.
On May 25, 2005, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, issued an Order to Show Cause to MK Distributing (Respondent) of Arvada, Colorado. The Show Cause Order proposed to deny Respondent's pending application for a DEA Certificate of Registration as a distributor of list I chemicals, on the ground that its registration would be inconsistent with the public interest.
More specifically, the Show Cause Order alleged that on November 18, 2003, Respondent's owner, Frederick H. Gates, had applied for a registration to distribute ephedrine and pseudoephedrine, which are precursor chemicals used in the illicit manufacture of methamphetamine.
The Show Cause Order further alleged that on April 1, 2003, Mr. Gates had purchased Respondent and that between that date and October 2003, Respondent had distributed 18,351 bottles and 3,720 packets of combination ephedrine (25 mg) products under the DEA registration of its previous owner.
The Show Cause Order also alleged that between May and October 2003, Respondent sold 1,056 bottles and 672 packets of ephedrine to the Barn Store, a small independent grocer, and that these sales were “far in excess of legitimate demand for these products.”
On June 6, 2005, the Show Cause Order, which also notified Respondent of its right to request a hearing, was served by certified mail, return receipt requested, as evidenced by the signed return receipt card. Since that time, neither Respondent, nor anyone purporting to represent it, has responded. Because (1) more than thirty days have passed since service of the Show Cause Order, and (2) no request for a hearing has been received, I conclude that Respondent has waived its right to a hearing.
Both ephedrine (in combination with guaifenesin) and pseudoephedrine currently have therapeutic uses and are generally available as non-prescription products.
Methamphetamine is a powerful and addictive central nervous system stimulant.
In numerous cases, DEA has shown through expert testimony that only a small percentage of pseudoephedrine sales occur at gas stations and convenience stores and that these stores constitute a non-traditional market for the legitimate commerce in these products.
Respondent is a Colorado corporation which is located at 6150 W. 55th Avenue, Arvada, Colorado. On November 18, 2003, Respondent's owner, Mr. Frederick H. Gates, submitted an application for a registration to distribute the list I chemicals ephedrine and pseudoephedrine. Respondent is a wholesaler of pornographic magazines, DVDs, videos, toys and novelty items in the Colorado Springs area. Respondent's customer base is largely comprised of non-traditional retailers of list I chemical products.
Respondent was previously owned by Mike and Jane Kleppen, who incorporated the firm in November 2001; this entity held a DEA registration to distribute list I chemicals which was last renewed on December 9, 2002. According to the investigative file, on April 1, 2003, the Kleppens sold the business to either Mr. Gates or another firm owned by him. The Kleppens did not, however, surrender MK Distributing's DEA registration.
Between April 1, 2003, and October 8, 2003, Respondent continued to distribute large quantities of combination ephedrine products using the registration issued to MK Distributing under its previous owners. On the latter date, two DEA Diversion Investigators (DIs) went to MK
The DIs informed Ms. Kleppen that the new company was not authorized to use the registration. One of the DIs then asked Ms. Kleppen to voluntarily surrender the DEA registration; Ms. Kleppen agreed and signed a voluntary surrender form. Ms. Kleppen then surrendered the list I products that were in Respondent's warehouse.
Ms. Kleppen told the DIs that the original certificate of registration was at her residence and that there were additional list I products on Respondent's four delivery vans. Accordingly, the following day, the DIs returned to Respondent and obtained the original certificate from Ms. Kleppen. Ms. Kleppen then turned over to the DIs additional list I products, which were subsequently returned to the supplier.
As stated above, on November 18, 2003, Mr. Gates (Respondent's new owner) applied for a registration. On July 1, 2004, the same two DIs returned to Respondent's warehouse to conduct a pre-registration investigation. During this visit, Mr. Gates told the DIs that he expected that list I products would be approximately ten percent of Respondent's total sales. When asked what ephedrine was used for, Mr. Gates told the DIs that it was used by truck drivers to stay alert, for weight loss, and methamphetamine.
As part of the application process, Respondent was required to complete a questionnaire. On this questionnaire, Mr. Gates stated that “[t]he new owners of MK Distributing, LLC[,] have sold 18,351 bottles of Ephedrine 25 mg, and 3,720 packets of ephedrine 25 mg before DEA investigators * * * pulled” the registration. Mr. Gates also provided a list of the monthly purchases of list I products by Respondent's customers from May through October 2003.
A representative sampling of this information shows that Respondent was selling massive amounts of combination ephedrine products to its gas station/convenience store customers.
According to the investigative file, the DIs were told by an employee at one store that the retail price of the sixty-count bottles was $7.99. This figure is consistent with other information that DEA has obtained during investigations in Colorado.
At an average retail price of $7.99 per bottle, the monthly average sales of the above stores were: Kwik-Way Dublin, $1151; Corner Store, $1534; LiL T Foods, $1045; Broken Wheel, $1833; PHA, $1918; Centron, $1106; R & S, $1323; South Circle, $1227; and Conoco Union, $1587.
Because these sales so greatly exceed the monthly expected sales range to meet legitimate demand, I further find that most of Respondent's products were diverted into the illicit manufacture of methamphetamine. Moreover, even if these stores sold Respondent's products at a lower retail price (such as the price found in
Under 21 U.S.C. 823(h), an applicant to distribute list I chemicals is entitled to be registered unless the registration would be “inconsistent with the public interest.” In making this determination, Congress directed that I consider the following factors:
(1) Maintenance by the applicant of effective controls against diversion of listed chemicals into other than legitimate channels;
(2) Compliance by the applicant with applicable Federal, State, and local law;
(3) Any prior conviction record of the applicant under Federal or State laws relating to controlled substances or to chemicals controlled under Federal or State law;
(4) Any past experience of the applicant in the manufacture and distribution of chemicals; and
(5) Such other factors as are relevant to and consistent with the public health and safety.
“These factors are considered in the disjunctive.”
In this case, I conclude that an analysis of factors one, two, and three is not necessary. I hold that factors four (Respondent's experience) and five (Respondent's intent to distribute to the non-traditional market) conclusively establish that granting Respondent's application would be inconsistent with the public interest.
As found above, the illicit manufacture and abuse of methamphetamine have had pernicious effects on families and communities throughout the nation. Cutting off the supply source of methamphetamine traffickers is of critical importance in protecting the public from the devastation wreaked by this drug.
While combination ephedrine products have a legitimate medical use as a bronchodilator to treat asthma, DEA orders have established that convenience stores and gas-stations constitute the non-traditional retail market for legitimate consumers of products containing ephedrine.
DEA orders thus recognize that the sale of combination ephedrine (and pseudoephedrine) products by non-traditional retailers is an area of particular concern in preventing diversion of these products into the illicit manufacture of methamphetamine.
Relatedly, DEA has repeatedly revoked the registrations of list I chemical distributors who supplied the non-traditional market for selling quantities of products that clearly exceeded legitimate demand and were likely diverted into the illicit manufacture of methamphetamine.
The representative sampling of Respondent's customers showed that the lowest average estimated monthly retail sale per store was $ 1045; four of the stores had average monthly retail sales of more than $ 1500. Moreover, the average estimated monthly sale for all stores in the sample was $ 1414. These figures grossly exceed the monthly expected sales range of $ 0 to $ 25 (with an average of $ 12.58) by convenience stores to meet legitimate demand for these products.
Indeed, as found above, a monthly retail sale of $ 60 of ephedrine products at a convenience store should “occur about once in a million times in random sampling.”
I therefore conclude that the only plausible explanation for these extraordinary sales is that Respondent's products were being diverted into the illicit manufacture of methamphetamine.
“The diversion of list I chemicals into the illicit manufacture of methamphetamine poses the same threat to public health and safety whether a registrant sell the products knowing they will be diverted, sells them with a reckless disregard for the diversion, or sells them being totally unaware that the products were being diverted.”
Accordingly, pursuant to the authority vested in me by 21 U.S.C. 823(h), as well as 28 CFR 0.100(b) & 0.104, I order that the application of MK Distributing, Inc., for a DEA Certificate of Registration as a distributor of list I chemicals, be, and it hereby is, denied. This order is effective April 5, 2007.
Notice.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95) [44 U.S.C. 3506(c)(2)(A)]. This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. Currently, the Employment Standards Administration is soliciting comments concerning the proposed collection: Notice of Law Enforcement Officer's Injury or Occupational Disease (CA-721) and Notice of Law Enforcement Officer's Death (CA-722). A copy of the proposed
Written comments must be submitted to the office listed in the addresses section below on or before May 7, 2007.
Ms. Hazel M. Bell, U.S. Department of Labor, 200 Constitution Ave., NW., Room S-3201, Washington, DC 20210, telephone (202) 693-0418, fax (202) 693-1451, e-mail:
The Office of Workers' Compensation Programs (OWCP) administers the Federal Employees' Compensation Act (FECA). The Act provides that non-Federal law enforcement officers and/or their survivors injured or killed under certain circumstances are entitled to benefits of the Act to the same extent as employees in the Federal government. The Notice of Law Enforcement Officer's Injury or Occupational Disease (CA-721) and the Notice of Law Enforcement Officer's Death (CA-722) are the forms used by non-Federal law enforcement officers and their survivors to claim compensation under FECA. This information collection is currently approved for use through August 31, 2007.
The Department of Labor is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submissions of responses.
The Department of Labor seeks the extension of approval to collect this information to determine eligibility for benefits.
Comments submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
Notice.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95) [44 U.S.C. 3506(c)(2)(A)]. This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. Currently, the Employment Standards Administration is soliciting comments concerning the proposed collection: Survivor's Form for Benefits (CM-912). A copy of the proposed information collection request can be obtained by contacting the office listed below in the addresses section of this Notice.
Written comments must be submitted to the office listed in the addresses section below on or before May 7, 2007.
Ms. Hazel M. Bell, U.S. Department of Labor, 200 Constitution Ave., NW., Room S-3201, Washington, DC 20210, telephone (202) 693-0418, fax (202) 693-1451, e-mail
This collection of information is required to administer the benefit payment provisions of the Black Lung Act for survivors of deceased miners. Completion of this form constitutes the application for benefits by survivors and assists in determining the survivor's entitlement to benefits. Form CM-912 is authorized for use by the Black Lung Benefits Act 30 U.S.C. 901, et seq., 20 CFR 410.221 and CFR 725.304 and is used to gather information from a survivor of a miner to determine if the survivor is entitled to benefits. This information collection is currently approved for use through August 31, 2007.
The Department of Labor is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or
The Department of Labor seeks the extension of approval to collect this information in order to gather information to determine eligibility for benefits of a survivor of a Black Lung Act beneficiary.
Comments submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
Notice.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95) [44 U.S.C. 3506(c)(2)(A)]. This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. Currently, the Employment Standards Administration is soliciting comments concerning the proposed collection: Energy Employees Occupational Illness Compensation Program Act Forms (EE-1 English and EE-1 Spanish, EE-2 English and EE-2 Spanish, EE-3 English and EE-3 Spanish, EE-4 English and EE-4 Spanish, EE-7 English and EE-7 Spanish, EE-8, EE-9, EE-10, EE-12, EE-13, EE-20). A copy of the proposed information collection request can be obtained by contacting the office listed below in the addressee section of this Notice.
Written comments must be submitted to the office listed in the addresses section below on or before May 7, 2007.
Ms. Hazel M. Bell, U.S. Department of Labor, 200 Constitution Ave., NW., Room S-3201, Washington, DC 20210, telephone (202) 693-0418, fax (202) 693-1451, e-mail
The Office of Workers' Compensation Programs (OWCP) is the primary agency responsible for the administration of the Energy Employees Occupational Illness Compensation Program Act of 2000 as amended (EEOICPA or Act), 42 U.S.C. 7384
The Department of Labor is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submissions of responses.
The Department of Labor seeks approval for the revision of this information collection in order to carry out its responsibility to determine a claimant's eligibility for compensation under the EEOICPA.
Comments submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
National Aeronautics and Space Administration (NASA).
Notice of information collection under OMB review.
The National Aeronautics and Space Administration, 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 (Pub. L. 104-13, 44 U.S.C. 3506(c)(2)(A)).
All comments should be submitted within 30 calendar days from the date of this publication.
All comments should be addressed to Desk Officer for NASA; Office of Information and Regulatory Affairs; Room 10236; New Executive Office Building; Washington, DC 20503.
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Walter Kit, NASA PRA Officer, NASA Headquarters, 300 E Street, SW., JE000, Washington, DC 20546, (202) 358-1350,
Information collection is required to evaluate bids and proposals from offerors to award contracts with an estimated value of more than $500,000 for required goods and services in support of NASA's mission.
NASA collects this information electronically where feasible, but information may also be collected by mail or fax.
Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of NASA, including whether the information collected has practical utility; (2) the accuracy of NASA's estimate of the burden (including hours and cost) of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including automated collection techniques or the use of other forms of information technology.
National Aeronautics and Space Administration (NASA).
Notice of information collection under OMB review.
The National Aeronautics and Space Administration, 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 (Pub. L. 104-13, 44 U.S.C. 3506(c)(2)(A)).
All comments should be submitted within 30 calendar days from the date of this publication.
All comments should be addressed to Desk Officer for NASA; Office of Information and Regulatory Affairs; Room 10236; New Executive Office Building; Washington, DC 20503.
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Walter Kit, NASA PRA Officer, NASA Headquarters, 300 E Street SW., JE000, Washington, DC 20546, (202) 358-1350,
Information collection is required to effectively manage and administer contracts with an estimated value more than $500,000 for required goods and services in support of NASA's mission.
NASA collects this information electronically where feasible, but information may also be collected by mail or fax.
Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of NASA, including whether the information collected has practical utility; (2) the accuracy of NASA's estimate of the burden (including hours and cost) of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including automated collection techniques or the use of other forms of information technology.
National Aeronautics and Space Administration (NASA).
Notice of information collection under OMB review.
The National Aeronautics and Space Administration, 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 (Pub. L. 104-13, 44 U.S.C. 3506(c)(2)(A)).
All comments should be submitted within 30 calendar days from the date of this publication.
All comments should be addressed to Desk Officer for NASA; Office of Information and Regulatory Affairs; Room 10236; New Executive Office Building; Washington, DC 20503.
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Walter Kit, NASA PRA Officer, NASA Headquarters, 300 E Street SW., JE000, Washington, DC 20546, (202) 358-1350,
Information collection is required to evaluate bids and proposals from offerors to award Purchase Orders and to use bank cards for required goods and services with an estimated value less than $100,000 in support of NASA's mission.
NASA collects this information electronically where feasible, but information may also be collected by mail or fax.
Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of NASA, including whether the information collected has practical utility; (2) the accuracy of NASA's estimate of the burden (including hours and cost) of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including automated collection techniques or the use of other forms of information technology.
National Aeronautics and Space Administration (NASA).
Notice of information collection under OMB review.
The National Aeronautics and Space Administration, 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 (Pub. L. 104-13, 44 U.S.C. 3506(c)(2)(A)).
All comments should be submitted within 30 calendar days from the date of this publication.
All comments should be addressed to Desk Officer for NASA;
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Walter Kit, NASA PRA Officer, NASA Headquarters, 300 E Street SW., JE000, Washington, DC 20546, (202) 358-1350,
Information collection is required to evaluate bids and proposals from offerors to award contracts with an estimated value less than $500,000 for required goods and services in support of NASA's mission.
NASA collects this information electronically where feasible, but information may also be collected by mail or fax.
Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of NASA, including whether the information collected has practical utility; (2) the accuracy of NASA's estimate of the burden (including hours and cost) of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including automated collection techniques or the use of other forms of information technology.
National Aeronautics and Space Administration (NASA).
Notice of information collection.
The National Aeronautics and Space Administration, 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 (Pub. L. 104-13, 44 U.S.C. 3506(c)(2)(A)).
All comments should be submitted within 30 calendar days from the date of this publication.
All comments should be addressed to Desk Officer for NASA; Office of Information and Regulatory Affairs; Office of Management and Budget; Room 10236; New Executive Office Building; Washington, DC, 20503.
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Mr. Walter Kit, NASA PRA Officer, NASA Headquarters, 300 E Street, SW., JE000, Washington, DC 20546, (202) 358-1350,
Information is needed to guide implementation of GLOBE (Global Learning and Observations to Benefit the Environment) based on feedback from participating teachers, students, and partners in order to help meet the Program’s goal of improving student achievement in mathematics and science.
The GLOBE Partner survey is Web-based on-line instrument. The survey gathers data on all activities related to GLOBE implementation for the year prior to administration of the survey.
Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of NASA, including whether the information collected has practical utility; (2) the accuracy of NASA's estimate of the burden (including hours and cost) of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including automated collection techniques or the use of other forms of information technology.
Comments submitted in response to this notice will be summarized and included in the request for OMB approval of this information collection. They will also become a matter of public record.
Nuclear Regulatory Commission.
Notice of Issuance.
The U.S. Nuclear Regulatory Commission (NRC) has issued Generic Letter (GL) 2007-01 to all holders of operating licenses for nuclear power reactors, except those who have permanently ceased operation and have certified that fuel has been removed from the reactor vessel. The NRC is issuing this GL to:
(1) Inform licensees that the failure of certain power cables can affect the functionality of multiple accident mitigation systems or cause plant transients,
(2) Inform licensees that in the absence of adequate monitoring of cable insulation, equipment could fail abruptly during service, causing plant transients or disabling accident mitigation systems,
(3) Ask licensees to provide information on the monitoring of
Require that addressees submit a written response to the NRC in accordance with NRC regulations in Title 10 of the Code of Federal Regulations Section 50.54(f).
This
The GL was issued on February 7, 2007.
Not applicable.
Kimberley Corp, (301) 415-1091 or by email kar1@nrc.gov or Matthew McConnell at (301) 415-1597 or e-mail mxm4@nrc.gov.
NRC Generic Letter 2007-01 may be examined, and/or copied for a fee, at the NRC's Public Document Room (PDR) at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible electronically from the ADAMS Public Electronic Reading Room on the Internet at the NRC Web site,
If you do not have access to ADAMS or if you have problems in accessing the documents in ADAMS, contact the NRC Public Document Room reference staff at 1-800-397-4209 or 301-415-4737 or by e-mail to pdr@nrc.gov.
For The Nuclear Regulatory Commission.
The Advisory Committee on Nuclear Waste (ACNW) will hold its 177th meeting on March 20-22, 2007, Room T-2B3, 11545 Rockville Pike, Rockville, Maryland.
The schedule for this meeting is as follows:
Procedures for the conduct of and participation in ACNW meetings were published in the
Further information regarding topics to be discussed, whether the meeting has been canceled or rescheduled, the Chairman's ruling on requests for the opportunity to present oral statements and the time allotted, therefore can be obtained by contacting Mr. Dias.
ACNW meeting agenda, meeting transcripts, and letter reports are available through the NRC Public Document Room (PDR) at
Video Teleconferencing service is available for observing open sessions of ACNW meetings. Those wishing to use this service for observing ACNW meetings should contact Mr. Theron Brown, ACNW Audiovisual Technician (301-415-8066), between 7:30 a.m. and 3:45 p.m. ET, at least 10 days before the meeting to ensure the availability of this service. Individuals or organizations requesting this service will be responsible for telephone line charges and for providing the equipment and facilities that they use to establish the video teleconferencing link. The availability of video teleconferencing services is not guaranteed.
The Advisory Committee on Nuclear Waste (ACNW) will hold a Planning and Procedures meeting on March 20, 2007, Room T-2B1, 11545 Rockville Pike, Rockville, Maryland. The entire meeting will be open to public attendance, with the exception of a portion that may be closed pursuant to 5 U.S.C. 552b(c)(2) and (6) to discuss organizational and personnel matters that relate solely to internal personnel rules and practices of ACNW, and information the release of which would constitute a clearly unwarranted invasion of personal privacy.
The agenda for the subject meeting shall be as follows:
The Committee will discuss proposed ACNW activities and related matters. The purpose of this meeting is to gather information, analyze relevant issues and facts, and formulate proposed positions and actions, as appropriate, for deliberation by the full Committee.
Members of the public desiring to provide oral statements and/or written comments should notify the Designated Federal Official, Mr. Antonio F. Dias (Telephone: 301/415-6805) between 8:15 a.m. and 5 p.m. (ET) five days prior to the meeting, if possible, so that appropriate arrangements can be made. Electronic recordings will be permitted only during those portions of the meeting that are open to the public.
Further information regarding this meeting can be obtained by contacting the Designated Federal Official between 8:15 a.m. and 5 p.m. (ET). Persons planning to attend this meeting are urged to contact the above named individual at least two working days prior to the meeting to be advised of any potential changes in the agenda.
Nuclear Regulatory Commission.
Weeks of March 5, 12, 19, 26, April 2, 9, 2007.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
This meeting will be webcast live at the Web address—
This meeting will be webcast live at the Web address—
This meeting will be webcast live at the Web address—
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the Week of March 12, 2007.
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the Week of April 2, 2007.
There are no meetings scheduled for the Week of April 9, 2007.
*The schedule for Commission meetings is subject to change on short notice. To verify the status of meetings call (recording)—(301) 415-1292. Contact person for more information: Michelle Schroll, (301) 415-1662.
The NRC Commission Meeting Schedule can be found on the Internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings, or need this meeting notice or the transcript or other information from the public meetings in another format (
This notice is distributed by mail to several hundred subscribers; if you no longer wish to receive it, or would like to be added to the distribution, please contact the Office of the Secretary, Washington, DC 20555 (301-415-1969). In addition, distribution of this meeting notice over the Internet system is available. If you are interested in receiving this Commission meeting schedule electronically, please send an electronic message to
Notice is hereby given that the Director, Office of Nuclear Reactor Regulation, has issued a director's decision with regard to a petition dated May 16, 2006, filed by Mr. Glenn Adler on behalf of Service Employees International Union, hereinafter referred to as the Petitioner. The petition was supplemented by letter dated June 26, 2006, and provided to the U.S. Nuclear Regulatory Commission (NRC) during a meeting with the agency's petition review board (PRB) on June 27, 2006. Transcripts of the meeting are available, as an attachment to the PRB meeting summary, via the Agencywide Documents Access and Management System (ADAMS) on the agency's Web site at
The Petitioner requested that the NRC issue a demand for information (DFI) to STP Nuclear Operating Company (STPNOC), licensee for STP, to provide the results of assessments of the safety-conscious work environment (SCWE) at STP conducted since January 1, 2004; summaries of action plans and results of actions to remedy the problems revealed by the assessments, including documents mentioned at an August 2005 meeting convened to discuss the STP SCWE; summaries of action plans and results of efforts to remedy problems revealed by such assessments in 2001 and 2003; and all correspondence between the NRC, STPNOC, and Wackenhut Corporation concerning the 2001, 2003, and 2005 comprehensive cultural surveys (CCAs).
As the basis for the petition, the Petitioner stated that, in 1998 the NRC found that STP had violated Federal law by subjecting four employees to a “hostile work environment” after the employees raised safety concerns. The Petitioner noted that the NRC issued an order requiring STP to hire an independent contractor to conduct periodic CCAs.
The Petitioner stated that the licensee hired Synergy Consulting Services Corporation. The Wackenhut Corporation took over security at STP in July 2001, after winning a 3-year contract for security, with an option for 2 additional years. The Petitioner further noted that in the 2001 and 2003 CCAs, Wackenhut scored poorly on independent surveys assessing the STPNOC nuclear safety culture, SCWE, general culture and work environment, leadership, management, and supervisory skills and practices.
The Petitioner stated that, despite apparently repeated efforts by STPNOC to remedy the poor performance of Wackenhut, a more recent survey revealed that Wackenhut's performance problems continued, as indicated in the 2005 CCA, and that the STPNOC action plans apparently were not successful with respect to Wackenhut and other entities.
The Petitioner stated that obtaining the documents it identified will facilitate the NRC to be better informed about improvement in the licensee's SCWE at STPNOC. In addition, the NRC will be better able to assess the effectiveness of previous steps taken with Wackenhut and other entities for whom problems persisted, despite repeated efforts to remedy them.
On June 27, 2006, the Petitioner and the licensee's attorney met with the staff's PRB. The meeting gave the Petitioner and the licensee's attorney an opportunity to provide additional information and to clarify issues raised in the petition. The summary of the meeting and its transcript are available in ADAMS, as stated above.
On November 21, 2006, the NRC sent a copy of the proposed director's decision to the Petitioner and the licensee for comment. At the request of the Petitioner, the NRC extended the end of the comment period from December 21, 2006, to January 12, 2007. However, the NRC staff did not receive any comments. The NRC has included the latest update of the results of its ongoing oversight at STP, and made some editorial changes to the text of this director's decision.
The director's decision [DD-07-01] explains the reasons for this decision pursuant to Title 10 of the Code of Federal Regulations (10 CFR), Section 2.206, the complete text of which is available on the agency's Web site via ADAMS and at the Commission's Public Document Room, located at One White Flint North, Public File Area O1 F21, 11555 Rockville Pike (first floor), Rockville, Maryland, and from the ADAMS Public Library component on the NRC's Web site,
The NRC staff denied the Petitioner's request for a DFI to STPNOC. Issuance of a DFI is not warranted because the NRC has already reviewed and has ready access to all the information for which the Petitioner had requested a DFI. NRC has also denied your request to docket the documents for which you requested DFI. The NRC will docket only documents which are submitted to the NRC. However, NRC is denying your request for a DFI, and NRC did not require submission of the documents in its Confirmatory Order Modifying License (Effective Immediately) of June 9, 1998. Instead, STPNOC maintains the documents for ready access by the NRC at the site.
A copy of the director's decision will be filed with the Secretary of the Commission for the Commission's review in accordance with 10 CFR 2.206 of the Commission's regulations. As provided for by this regulation, the director's decision will constitute the final action of the Commission 25 days after the date of the decision, unless the Commission, on its own motion, institutes a review of the director's decision in that time.
For the Nuclear Regulatory Commission.
By telephone vote on February 27, 2007, the Board of Governors of the United States Postal Service voted unanimously to close to public observation its meeting held in Washington, DC, via teleconference. The Board determined that prior public notice was not possible.
Requests for information about the meeting should be addressed to the Secretary of the Board, Wendy A. Hocking, at (202) 268-4800.
Notice is hereby given that the Securities and Exchange Commission (“Commission”) has issued an Order, pursuant to Sections 17(d)
Accordingly, NASD shall assume, in addition to the regulatory responsibility it has under the Act, the regulatory responsibilities allocated to it under the Plan. At the same time, ISE is relieved of those regulatory responsibilities allocated to NASD under the Plan.
Section 19(g)(1) of the Act,
To implement Section 17(d)(1), the Commission adopted two rules: Rule 17d-1
On January 17, 2007, the Commission published notice of the Plan filed by ISE and NASD.
The Commission finds that the proposed Plan is consistent with the factors set forth in Section 17(d) of the Act
The Commission notes that, under the Plan, ISE and NASD have allocated regulatory responsibility for all ISE rules that are substantially similar to NASD rules in that ISE's rule would not require NASD to develop one or more new examination standards, modules, procedures, or criteria in order to analyze the application of the rule, or a dual member's activity, conduct, or output in relation to such rule (“Common Rules”). These Common Rules are specifically listed in the Certification. In addition, under the Plan, the NASD would assume regulatory responsibility for any provisions of the federal securities laws and the rules and regulations thereunder that are set forth in the Certification.
The Plan further provides that NASD shall not assume regulatory responsibility, and ISE will retain full responsibility, for: (1) Surveillance and enforcement with respect to trading activities or practices involving ISE's own marketplace; (2) registration pursuant to ISE's applicable rules of associated persons (
According to the Plan, ISE will perform a review of the Certification, at least annually, or more frequently if required by changes in either the rules of ISE or NASD, to add ISE rules not included on the then-current list of Common Rules that are substantially similar to NASD rules (
The Commission is hereby declaring effective and approving a plan that, among other things, allocates regulatory responsibility to NASD for the oversight and enforcement of all ISE rules that are substantially similar to the rules of NASD for common members of ISE and NASD. Therefore, modifications to the Certification need not be filed with the Commission as an amendment to the Plan, provided that the Parties are only adding to, deleting from, or confirming changes to ISE rules in the Certification in conformance with the definition of Common Rules provided in the Plan. However, should ISE or NASD decide to add an ISE rule to the Certification that is not substantially similar to an NASD rule; delete an ISE rule from the Certification that is substantially similar to an NASD rule; or leave on the Certification an ISE rule that is no longer substantially similar to an NASD rule, then such a change would constitute an amendment to the Plan, which must be filed with the Commission pursuant to Rule 17d-2 under the Act and noticed for public comment.
The Plan also permits ISE and NASD to terminate the Plan, subject to notice, for various reasons. The Commission notes, however, that while the Plan permits the Parties to terminate the Plan, the Parties cannot by themselves reallocate the regulatory responsibilities set forth in the Plan, since Rule 17d-2 under the Act requires that any allocation or re-allocation of regulatory responsibilities be filed with the Commission.
This Order gives effect to the Plan filed with the Commission in File No. 4-529. The Parties shall notify all members affected by the Plan of their rights and obligations under the Plan.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The proposed rule change consists of amendments to NYSE Rules 134 (Differences and Omissions-Cleared Transactions) and 411 (Erroneous Reports). The proposed amendments seek to incorporate recognized trading errors into NYSE Rule 134. The Exchange further seeks to expand the use of the Floor broker's error account to include certain situations involving “not held” orders. Furthermore, the proposed rule change would amend NYSE Rule 411 to allow erroneous reports of an execution involving an incorrect security, incorrect side of the market, incorrect price or whether an execution actually took place, to be treated as an erroneous trade.
The text of the proposed rule change appears below. Proposed new language is
(d)
(iii) Records as to all errors shall
(a)
(iii)
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.
This filing seeks to codify current recognized trading errors and to expand the use of the Floor broker's error account to include certain situations involving not held
Under the current rules
Similar to the second category of recognized trading errors noted above, that apply only to held orders, there can be instances where a not held order is accepted from a customer but is lost or misplaced or remains unexecuted as a result of a system malfunction and thus the Floor broker fails to execute the not held order when the order would have been executable in the prevailing market. If at the time the Floor broker identifies the execution failure, the customer's order can be executed in the market at an equal or better price than the customer could have received had the order been executed in the prevailing market, then the Floor broker will execute the order. In the event the market is adverse to the customer's interest at the time the error is identified, under the current rules and interpretation,
In practice, the issuance of a difference check or commission adjustment to resolve any monetary disadvantage suffered by the customer as a result of the Floor broker's failure to execute a not held order due to administrative mistake or system malfunction has proved cumbersome. Many institutional investors do not want the administrative burden of processing a difference check or commission adjustment. More importantly, the issuance of the difference check or commission adjustment is ultimately not in the best interest of the customer because the administrative cost associated with the processing of the difference check or commission adjustment is ultimately borne by the customer and thus the remedy does not serve to make the customer whole.
The proposed amendment seeks to define a trading error to include
In addition, under the proposed amendment the definition of an error includes when a Floor broker: (i) Neglects to execute a not held order when market conditions permit;
Pursuant to the above proposed definition of trading errors, a Floor broker would be allowed to use his or her error account to execute a customer's not held order in alignment with the Consolidated Tape, when the Floor broker incorrectly executed a customer's not held order: (i) In the incorrect security; (ii) on the wrong side of the market; or (iii) at a price outside the price instructions when the prevailing market is adverse to the customer's interest at the time that the error is discovered.
a.
Order: Buy 10,000
If between 11:20 a.m. and 11:45 a.m. the customer's order in XYZ was executable in its entirety, then the customer buys 10,000 XYZ in its entirety and error account is short 10,000 XYZ at the 11:20 a.m. price.
b.
c. Not Held Orders—Outside of Price Instructions
In instances where the Floor broker executes the customer's order at the incorrect price, the proposed rule change seeks to allow the Floor broker to take the position into the Floor broker's error account. The Floor broker would then be allowed to execute the customer's order consistent with the executions, sizes and prices as printed on the Consolidated Tape, if between the time that the Floor broker committed the error and when the error was discovered, the stock traded within the customer's order price. For example:
If XYZ traded within the customer's limit anytime from 3 p.m. to the close, the error account sells 10,000 consistent with the executions, sizes and prices as printed on the Consolidated Tape and customer order is executed.
d. Not Held Orders—Over Buy or Over Sell
In instances where the Floor broker executes a quantity greater than contained in the order instructions, the proposed rule change seeks to allow the Floor broker to take the position into the Floor broker's error account. When executing a held or not held order a Floor broker may incorrectly calculate the quantity of shares remaining to fill the order and execute a quantity of shares greater than the instructed amount. For example:
Bought 5,000 XYZ at $80.49 at 3:10 p.m.
Bought 15,000 XYZ at $80.48 at 3:30 p.m.
Bought 15,000 XYZ at $80.47 at 3:31 p.m.
Bought 5,000 XYZ at $80.48 at 3:36 p.m.
Bought 5,000 XYZ at $80.48 at 3:37 p.m. (Order filled)
Bought 5,000 XYZ at $80.50 at 3:48 p.m. (Overbuy)
The last execution of 5,000 shares of XYZ at $80.50 which exceed the quantity specified by the customer is taken into the Floor broker error account.
e.
The duplicate purchase is taken into the Floor broker's error account.
f.
In instances where the Floor broker fails to execute an order as a result of an administrative error, such as the loss or misplacement of an order or a system malfunction and the current market conditions are adverse to the customer's interests, the proposed rule change seeks to allow the Floor broker to use his or her error account as the contra party to the misplaced order in alignment with the New York portion of the Consolidated Tape. The Floor broker would be required to execute the customer's order in alignment with half the volume of every New York portion of the Consolidated Tape print up to the size of the customer order, from the time that the order was entered up to the time that the Floor broker realized that the order was lost, misplaced or not executed because of a system malfunction.
20,000 shares traded a minute after order entry time on the NYSE as reported to the Consolidated Tape. Floor broker sells 10,000 shares to customer at the same price of the 20,000 share execution.
Next transaction in XYZ on the New York portion of the Consolidated Tape was 30,000 shares executed. Floor broker sells 15,000 shares to customer from error account at same price as 30,000 share execution.
Next transaction on New York portion of the Consolidated Tape in XYZ was 50,000 shares traded. Floor broker sells 25,000 shares to customer at the same price as the 50,000 share execution.
Customer order is now complete.
In order to prevent abuse of the proposed new rules, the filing also seeks to amend NYSE Rule 134(d)(iii) to require a Floor broker to make and keep contemporaneous and detailed records documenting the circumstances surrounding errors. A Floor broker would be required to make and keep a time stamped record
The burden of proof would be on the Floor broker to substantiate that a legitimate error occurred.
When a Floor broker commits an error as to security, side or price, there are instances where the Floor broker issues a report to the customer as a result of the execution. The report is issued to the customer prior to the Floor broker identifying that an error occurred. Currently, pursuant to NYSE Rule 411, in instances where a Floor broker issued a report to a customer based on a transaction that was made outside of the customer's instructions on a not held order as discussed above, the Floor broker would be required to rescind the report leaving the customer's order unexecuted and disadvantaging the customer. The actual execution price and size are binding, and the trade clears and settles in accordance with the terms of the transaction as executed. The member and the customer resolve any monetary issues between themselves.
In instances where a Floor broker executed an order in accordance with its terms but the execution details were reported in error, members and member organizations must always accept a corrected report. In the event the erroneous report was made to a non-member, then the non-member may choose to refuse acceptance of a corrected report. In those instances, the Floor broker is allowed to treat the erroneous report to a non-member as though it were an erroneous trade.
Pursuant to the proposed rule change, a Floor broker would treat “erroneous reports” as erroneous trades when the price and size of the order would have been executable in the market at or near the time of the erroneous transaction. NYSE Rule 411 (Erroneous Reports), in part, addresses these situations and establishes procedures for members and member organizations to follow in handling erroneous report situations; however erroneous reports issued to
The proposed rule change would allow the erroneous report based on a transaction that was made in error as to security, side or price to stand, provided the price and size of the erroneous report were within the range of prices and sizes in the specified security reported to the NYSE portion of the Consolidated Tape on the day in which the order was executed.
The Exchange believes that the proposed rule change is consistent with the provisions of Section 6(b)(5) of the Act
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has neither solicited nor received written comments on the proposed rule change.
Within 35 days of the date of publication of this notice in the
A. By order approve 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 Nancy M. Morris, Secretary, Securities and Exchange Commission, Station Place, 100 F Street, NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-NYSE-2006-28. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
The U.S. Small Business Administration, National Small Business Development Center Advisory Board will be hosting a public meeting via conference call to discuss such matters that may be presented by members, staff of the U.S. Small Business Administration, or interested others. The conference call will be held on Tuesday, March 20, 2007 at 1 p.m. Eastern Standard Time.
The purpose of the meeting is to discuss the internal Board issues; the March 5th agency meeting with senior program management; the Association of Small Business Development Center (ASBC) Board March meeting; and congressional visits conducted by board members.
Anyone wishing to make an oral presentation to the Board must contact Erika Fischer, Senior Program Analyst, U.S. Small Business Administration, Office of Small Business Development Centers, 409 3rd Street, SW., Washington, DC 20416, telephone (202) 205-7045 or fax (202) 481-0681.
The Office of Citizen Exchanges consults with and supports American public and private nonprofit organizations in developing and implementing multi-phased, often multi-year, exchanges of professionals, community leaders, scholars and academics, public policy advocates, non-governmental organization activists, and others. These exchanges address issues of crucial importance to the United States and to other countries; they promote focused, substantive, and cooperative interaction among counterparts; and they entail both theoretical and experiential learning for all participants. A primary goal is the development of sustained, international, institutional and individual linkages. In addition to providing a context for professional development and collaborative problem-solving, these projects are intended to introduce foreign participants and their American counterparts to one another's political, social, and economic structures, facilitating improved communication and enhancing mutual understanding. The exchange proposal should include focused interaction with local citizens in all countries and activities to orient participants to one another's society and culture.
The initiative “Faith and Community: A Dialogue” will support international exchanges of clerics, scholars of religion, educators, and community leaders/activists—influential and recognized for their ability to communicate, through sermons, in scholarly writing, or through community leadership and educational activities—between the United States and countries with significant Muslim populations. The objectives of the exchange are (1) to enhance the non-American participants' understanding of the place of religion, particularly of Islam, in the life of American communities; (2) to develop a common language for American and non-American participants to examine issues of relevance to their respective societies and to develop effective approaches to dealing with them; (3) to offer an understanding of Islamic practice within a multi-cultural, multi-faith, democratic context; and (4) to broaden the understanding of American scholars, clerics, and laypersons of Islam and of its place in diverse non-American societies.
We solicit projects that focus on a particular theme of relevance to faith and community groups in the proposed participating countries. Possible themes might be civil discourse in a multi-faith context; the role of law in resolving conflicts and preserving freedom of expression within and among minority/faith communities; the role of faith communities in providing community services; educating for respect and co-existence; or the role of law in protecting religious expression in diverse societies. We welcome proposals for projects on other themes of relevance to participating countries for which the proposing institution has, or can mobilize, American participants with intellectual expertise and an interest in international dialogue on the selected theme. Proposals should explicitly identify how the American organization will identify counterpart experts in participating countries and state the specific outcome to be achieved by each phase or component of the proposed project.
The project, to be conducted over a period of 18 to 24 months, will involve several exchange visits. Initially, one or two American scholars/project organizers may travel to designated partner countries to deepen their familiarity with the particular issues faced by counterpart institutions and communities in those countries and to identify individuals who might serve as advisers or be selected as participants in the project and to gain their interest in the exchange. Subsequently, approximately 12 non-American scholars and clerics will travel to the United States for a period of three to four weeks. The non-American participants will visit Islamic centers, consult with American Muslim scholars and clerics, visit and become familiar with libraries and archives of Islamic documents, make presentations and participate in discussions at non-Muslim religious institutions and at secular institutions that represent America's guarantee of human dignity and freedom of worship, engage in inter-religious dialogue, and participate in workshops and seminars, both public and at institutions dedicated to scholarship and research. Finally, a group of American scholars and clerics will travel to the home countries of the non-American participants, meet with counterparts, visit institutions, and, ideally, cooperate with participants in the original U.S. visit in presenting a seminar, a series of workshops, etc., in order to expand the network of individuals directly affected by the exchange. This series of visits would then be repeated in the following year. Participants in the second year of exchanges might be the same if the goal is to deepen the dialogue, or, if the goal is to accomplish broader participation, participants should be selected to reflect that objective. During each phase of the exchange, traveling participants should be encouraged to have in-depth
This initiative is worldwide in scope, with primary focus on countries with significant Muslim populations. For the FY07 competition, in order to assure balance with already existing exchange programs under this rubric, we shall be particularly interested in exchanges focused on the following geographic areas: (1) Francophone West Africa (Senegal; Mauritania; Niger; Mali; Guinea; Burkina Faso; Chad), (2) North Africa (Morocco; Algeria; Tunisia), (3) Southeastern Europe (Albania; Bosnia and Herzegovina; Croatia; Macedonia; Montenegro; Serbia), (4) Southeast Asia (Malaysia; the Philippines; Thailand), and (5) The countries of the Arabian Gulf (Saudi Arabia; Kuwait; Qatar; Bahrain; the United Arab Emirates; Oman; Yemen). Exchange proposals that focus on two or more countries in a region or those that focus on single-country exchanges are equally welcome. For projects in Southeast Europe, participants may be educators and others who influence youth, journalists specializing in social/inter-communal issues, as well as clerics, scholars, and community activists/leaders. Projects for this region may also focus more intensely on inter-faith dialogue and include activities encouraging tolerance, respect among communities, and joint-faith community outreach activities.
The Office of Citizen Exchanges encourages applicants to be creative in planning project implementation. Activities for all regions may include both theoretical orientation/philosophical background sessions and experiential, community-based initiatives designed to achieve objectives or produce a specific product (magazine, study guide, educational outreach material, etc.) to be used in local communities. Applicants should, in their proposals, identify any partner organizations and/or individuals overseas or in the U.S. with which/whom they are proposing to collaborate and justify the collaboration on the basis of the proposed partner's experience, accomplishments, etc.
Applications should include a description of a merit-based, focused participant selection process. Applicants should anticipate consulting with the Public Affairs Sections of U.S. Embassies in selecting participants, with the Embassy retaining the right to nominate participants, to advise the grantee regarding participants recommended by other entities, and to determine the appropriateness of granting visas.
The Public Affairs Sections (PAS) of the U.S. Embassies often play an important role in project implementation. The PAS will initially evaluate project proposals, and, once a grant is awarded, the PAS may, in consultation with the grantee organization, coordinate planning with the grantee organization and in-country partners, facilitate in-country activities, nominate participants and vet grantee nominations, observe in-country activities, and debrief participants. The PAS will also evaluate project impact. The Bureau of Educational and Cultural Affairs is responsible for producing and signing DS-2019 Forms. These forms will be provided the foreign participants by the U.S. Mission as part of the process of obtaining the necessary J-1 visas for entry to the United States on a government-funded project. Grantee organizations must submit data on proposed participants electronically.
Though project administration and implementation are the responsibility of the grantee institution, the grantee is expected to inform the PAS in participating countries of its operations and procedures and to coordinate with PAS officers in the development of project activities. The PAS should be consulted regarding country priorities, political and cultural sensitivities, security issues, and logistic and programmatic issues.
III.1.
III.2.
III.3.
a. Bureau grant guidelines require that organizations with less than four years experience in conducting international exchanges be limited to $60,000 in Bureau funding. ECA anticipates awarding, in the course of this competition, grants ranging from $350,000 to $500,000 to support program and administrative costs required to implement this exchange program. Therefore, organizations with less than four years experience in conducting international exchanges are ineligible to receive an award under this competition.
b. Technical Eligibility: Proposals must comply with the requirements included in this Request for Grant Proposals in order to be considered technically eligible for consideration in the review process.
Please read the complete announcement, either at
IV.1.
The Solicitation Package may be downloaded from:
IV.2. To receive a hard copy of the Application Package via U.S. Postal Service, contact Thomas Johnston, Office of Citizen Exchanges, ECA/PE/C/NEA-AF, Room 216, U.S. Department of State, SA-44, 301 4th Street, SW., Washington, DC 20547, Telephone (202) 453-8162; Fax (202) 453-8168; e-mail
IV.3.
IV.3a. You are required to have a Dun and Bradstreet Data Universal Numbering System (DUNS) number to apply for a grant or cooperative agreement from the U.S. Government. This number is a nine-digit identification number, which uniquely identifies business entities. Obtaining a DUNS number is easy and there is no charge. To obtain a DUNS number, access
IV.3b. All proposals must contain an executive summary, a proposal narrative, and a budget. Please refer to the Application Package, containing the mandatory Proposal Submission Instructions (PSI) document, for additional formatting and technical requirements.
IV.3c. You must have nonprofit status with the IRS at the time of application. If your organization is a private nonprofit which has not received a grant or cooperative agreement from ECA in the past three years, or if your organization received nonprofit status from the IRS within the past four years, you must submit the necessary documentation to verify nonprofit status as directed in the PSI document. Failure to do so will cause your proposal to be declared technically ineligible.
IV.3d. Please take into consideration the following information when preparing your proposal narrative:
IV.3d.1.
The Bureau of Educational and Cultural Affairs places great emphasis on the secure and proper administration of Exchange Visitor (J visa) Programs and adherence by grantee program organizations and program participants to all regulations governing the J visa program status. Therefore, proposals should
The Office of Citizen Exchanges of ECA will be responsible for issuing DS-2019 forms to participants in this program.
A copy of the complete regulations governing the administration of Exchange Visitor (J) programs is available at
United States Department of State, Office of Exchange Coordination and Designation, ECA/EC/ECD—SA-44, Room 734, 301 4th Street, SW., Washington, DC 20547. Telephone: (202) 203-5029. FAX: (202) 453-8640.
IV.3d.2.
IV.3d.3.
Successful monitoring and evaluation depend heavily on setting clear goals and outcomes at the outset of a program. Your evaluation plan should include a description of your project's objectives, your anticipated project outcomes, and how and when you intend to measure these outcomes (performance indicators). The more that outcomes are “smart” (specific, measurable,
Your monitoring and evaluation plan should clearly distinguish between program
We encourage you to assess the following four levels of outcomes, as they relate to the program goals set out in the RFGP (listed here in increasing order of importance):
1.
2.
3.
4.
Consideration should be given to the appropriate timing of data collection for each level of outcome. For example, satisfaction is usually captured as a short-term outcome, whereas behavior and institutional changes are normally considered longer-term outcomes.
Overall, the quality of your monitoring and evaluation plan will be judged on how well it (1) specifies intended outcomes; (2) gives clear descriptions of how each outcome will be measured; (3) identifies when particular outcomes will be measured; and (4) provides a clear description of the data collection strategies for each outcome (i.e., surveys, interviews, or focus groups). (Please note that evaluation plans that deal only with the first level of outcomes [satisfaction] will be deemed less competitive under the present evaluation criteria.)
Grantees will be required to provide reports analyzing their evaluation findings to the Bureau in their regular program reports. All data collected, including survey responses and contact information, must be maintained for a minimum of three years and provided to the Bureau upon request.
IV.3e. Please take the following information into consideration when preparing your budget:
IV.3e.1. Applicants must submit a comprehensive budget for the entire project. There must be a summary budget as well as breakdowns reflecting both administrative and program budgets. Applicants may provide separate sub-budgets for each program component, phase, location, or activity to provide clarification. Budgets that limit administrative costs to approximately 25% of the funding sought from ECA will be given priority consideration.
IV.3e.2. Allowable costs for the program include the following:
(1) Direct program expenses
(2) Administrative costs
(3) Allowable indirect costs
Please refer to the Solicitation Package for complete budget guidelines and formatting instructions.
IV.3f.
Application Deadline Date: May 8, 2007.
Reference Number: ECA/PE/C/NEA-AF-07-20.
Methods of Submission: Applications may be submitted in one of two ways:
1. In hard-copy, via a nationally recognized overnight delivery service (i.e., DHL, Federal Express, UPS, Airborne Express, or U.S. Postal Service Express Overnight Mail, etc.), or
2. Electronically through
Along with the Project Title, all applicants must enter the above Reference Number in Box 11 on the SF-424 contained in the mandatory Proposal Submission Instructions (PSI) of the solicitation document.
IV.3f.1.
When preparing your submission please make sure to include one extra copy of the completed SF-424 form and place it in an envelope addressed to “ECA/EX/PM”.
The original and ten (10) copies of the application should be sent to: U.S. Department of State, SA-44, Bureau of Educational and Cultural Affairs, Ref.: ECA/PE/C/NEA-AF-07-20, Program Management, ECA/EX/PM, Room 534, 301 4th Street, SW., Washington, DC 20547.
Applicants submitting hard-copy applications must also submit the “Executive Summary” and “Proposal Narrative” sections of the proposal in text (.txt) format on a PC-formatted disk. The Bureau will provide these files electronically to the appropriate Public Affairs Section(s) at the U.S. embassy(ies) for its(their) review.
IV.3f.2.
Several of the steps in the Grants.gov registration process could take several weeks. Therefore, applicants should check with appropriate staff within their organizations immediately after reviewing this RFGP to confirm or determine their registration status with Grants.gov. Once registered, the amount of time it can take to upload an application will vary depending on a variety of factors including the size of the application and the speed of your internet connection. Therefore, we strongly recommend that you not wait until the application deadline to begin
Direct all questions regarding Grants.gov registration and submission to: Grants.gov Customer Support.
Contact Center Phone: 800-518-4726.
Business Hours: Monday-Friday, 7 a.m.-9 p.m. Eastern Time. e-mail:
Applicants have until midnight (12 a.m.), Washington, DC time of the closing date to ensure that their entire application has been uploaded to the Grants.gov site. There are no exceptions to the above deadline. Applications uploaded to the site after midnight of the application deadline date will be automatically rejected by the grants.gov system, and will be technically ineligible.
Applicants will receive a confirmation e-mail from grants.gov upon the successful submission of an application. ECA will
It is the responsibility of all applicants submitting proposals via the Grants.gov web portal to ensure that proposals have been received by Grants.gov in their entirety, and ECA bears no responsibility for data errors resulting from transmission or conversion processes.
IV.3g.
The Bureau will review all proposals for technical eligibility. Proposals will be deemed ineligible if they do not fully adhere to the guidelines stated herein and in the Solicitation Package. All eligible proposals will be reviewed by the program office, as well as the Public Diplomacy section overseas, where appropriate. Eligible proposals will be subject to compliance with Federal and Bureau regulations and guidelines and forwarded to Bureau grant panels for advisory review. Proposals may also be reviewed by the Office of the Legal Adviser or by other Department elements. Final funding decisions are at the discretion of the Department of State's Assistant Secretary for Educational and Cultural Affairs. Final technical authority for grant awards resides with the Bureau's Grants Officer.
Technically eligible applications will be competitively reviewed according to the criteria stated below.
VI.1a.
Unsuccessful applicants will receive notification of the results of the application review from the ECA program office coordinating this competition.
VI.2.
Terms and Conditions for the Administration of ECA agreements include the following:
Office of Management and Budget Circular A-122, “Cost Principles for Nonprofit Organizations.”
Office of Management and Budget Circular A-21, “Cost Principles for Educational Institutions.”
OMB Circular A-87, “Cost Principles for State, Local and Indian Governments”.
OMB Circular No. A-110 (Revised), Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals, and other Nonprofit Organizations.
OMB Circular No. A-102, Uniform Administrative Requirements for Grants-in-Aid to State and Local Governments.
OMB Circular No. A-133, Audits of States, Local Government, and Non-profit Organizations.
Please reference the following Web sites for additional information:
VI.3.
1. Semi-annual program and financial reports, which include a description of program activities implemented in the course of the six-month period and an accounting of expenditures.
2. A final program and financial report no more than 90 days after the expiration date of the award.
3. Grantees will be required to provide reports analyzing their evaluation findings to the Bureau in their regular program reports. (Please refer to IV. Application and Submission Instructions (IV.3.d.3) above for Program Monitoring and Evaluation information.
All data collected, including survey responses and contact information, must be maintained for a minimum of three years and provided to the Bureau upon request.
All reports must be sent to the ECA Grants Officer and ECA Program Officer listed in the final assistance award document.
Organizations awarded grants will be required to maintain specific data on program participants and activities in an electronically accessible database format that can be shared with the Bureau as required. As a minimum, the data must include the following:
(1) Name, address, contact information and biographic sketch of all persons who travel internationally on funds provided by the grant.
(2) Itineraries of international and domestic travel, providing dates of travel and cities in which any exchange experiences take place. Final schedules for in-country and U.S. activities must be received by the ECA Program Officer at least three work days prior to the official opening of the activity.
For questions about this announcement, contact: Thomas Johnston, Office of Citizen Exchanges, ECA/PE/C/NEA-AF, Room 216, U.S. Department of State, SA-44, 301 4th Street, SW., Washington, DC 20547, Telephone: (202) 453-8162; Fax: (202) 453-8168; e-mail:
Please read the complete announcement before sending inquiries or submitting proposals. Once the RFGP deadline has passed, Bureau staff may not discuss this competition with applicants until the proposal review process has been completed.
The terms and conditions published in this RFGP are binding and may not be modified by any Bureau representative. Explanatory information provided by the Bureau that contradicts published language will not be binding. Issuance of the RFGP does not constitute an award commitment on the part of the Government. The Bureau reserves the right to reduce, revise, or increase proposal budgets in accordance with the needs of the program and the availability of funds. Awards made will be subject to periodic reporting and evaluation requirements per section VI.3 above.
Federal Aviation Administration (FAA), DOT.
Notice of meeting.
The FAA is issuing this notice to advise the public of a meeting of the Executive Committee of the Aviation Rulemaking Advisory Committee.
The meeting will be on April 11, 2007, at 10 a.m.
The meeting will take place at the Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591, 10th floor, MacCracken Room.
Gerri Robinson, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591, telephone (202) 267-9678; fax (202) 267-5075; e-mail
Under section 10(a)(2) of the Federal Advisory Committee Act (5 U.S.C. App. 2), we are giving notice of a meeting of the Executive Committee of the Aviation Rulemaking Advisory Committee taking place on April 11, 2007, at the Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591. The agenda includes:
The public must arrange by April 4 to present oral statements at the meeting. The public may present written statements to the executive committee by providing 25 copies to the Executive Director, or by bringing the copies to the meeting.
If you are in need of assistance or require a reasonable accommodation for this meeting, please contact the person listed under the heading
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice; request for information.
In accordance with the Paperwork Reduction Act of 1995, FMCSA announces its plan to submit the Information Collection Request (ICR) described below to the Office of Management and Budget (OMB) for review and approval. This information collection pertains to the requirements set forth in 49 CFR parts 391 and 398 for the following activities: (1) A medical examination form and certificate to be completed by a licensed medical examiner; (2) The submission of an application to FMCSA for the Agency to resolve conflicts of medical evaluations between medical examiners; (3) A driver qualification (DQ) file for: (a) Motor carriers to include the medical certificate; (b) motor carriers of migrant workers to include a doctor's certificate
Please send your comments by April 5, 2007. OMB must receive your comments by this date in order to act quickly on the ICR.
You may submit comments to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 Seventeenth Street, NW., Washington, DC 20503, Attention: DOT/FMCSA Desk Officer.
Dr. Mary D. Gunnels, Chief, Physical Qualifications Division, (202) 366-4001,
Title 49 U.S.C. 31136 requires the Secretary of Transportation (Secretary) to prescribe regulations to ensure that the physical qualifications of commercial motor vehicle (CMV) operators are adequate to enable them to operate CMVs safely. In addition, 49 U.S.C. 31502 authorizes the Secretary to prescribe requirements for qualifications of employees of a motor carrier when needed to promote safety of operation. Information about an individual's physical condition must be collected in order for the FMCSA, States and motor carriers to verify that the individual meets the physical qualification standards for CMV drivers set forth in 49 CFR 391.41; and for the FMCSA to determine whether the individual is physically able to operate a CMV safely. This information collection is comprised of the components listed in the summary above.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice; Denial of petition for determination.
FMCSA denies a petition from the Oregon Department of Transportation (ODOT) for a determination that the State may continue to require interstate motor carriers to display weight-mile tax credentials (WMTCs) in commercial motor vehicles (CMVs) in Oregon. The Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) prohibits States from requiring motor carriers to display in, or on, CMVs any form of identification other than forms required by the Secretary of Transportation. However, SAFETEA-LU also provides that a State may continue to require display of credentials that the Secretary determines are appropriate. ODOT requested that FMCSA determine that its WMTCs are appropriate under SAFETEA-LU. FMCSA denies ODOT's request because it could find no evidence to support a determination that the display of the WMTCs is appropriate. Therefore, the State of Oregon may no longer require interstate motor carriers to display WMTCs.
This decision is effective March 6, 2007.
Mr. Thomas Yager, Chief, Driver and Carrier Operations Division, Office of Bus and Truck Standards and Operations, MC-PSD, Federal Motor Carrier Safety Administration, 400 Seventh Street, SW., Washington, DC 20590-0001. Telephone: 202-366-4009. E-mail:
Section 4306 of SAFETEA-LU prohibits States from requiring motor carriers to display in or on commercial motor vehicles any form of identification other than forms required by the Secretary of Transportation [49 U.S.C. 14506(a)]. However, § 14506(b)(3) provides, in part, that “a State may continue to require display of credentials that are required * * * under a State law regarding motor vehicle license plates or other displays that the Secretary determines are appropriate.”
ODOT requested that FMCSA determine that the State's WMTCs are appropriate in the context of 49 U.S.C. 14506(a). Oregon has been requiring motor carriers to obtain weight-mile tax credentials since 1947.
Oregon Revised Statutes (ORS) 825.454 authorizes ODOT to require the use of identification devices, such as cab cards, stamps or carrier identification numbers, to identify, and be carried in or placed upon, each motor vehicle authorized to be operated in Oregon. ODOT may require annual application for identification devices and it may charge a fee not to exceed $8 for each device issued on an annual basis. ORS 825.450 requires ODOT to issue a permanent credential and ORS 825.470 authorizes issuance of temporary credentials. Until 2001, ODOT required out-of-state carriers to display a special Oregon license plate on each truck registered to operate in the State. State legislation passed in 2001 eliminated the need for out-of-state based vehicles to display the Oregon license plate and substituted the simpler requirement to carry a permanent or temporary paper credential.
ODOT states the current WMTCs identify a motor carrier's Oregon account, facilitate reporting and payment of the tax, and assist in tracking vehicle-miles traveled over Oregon highways. ODOT also believes truck drivers want to have the credential at hand when fueling in Oregon, because fuel providers use it to verify that a vehicle is exempt from Oregon fuel tax. ODOT advises that approximately 15,000 out-of-state based carriers operate 283,000 trucks that carry a permanent Oregon tax credential. It also advises that approximately 10,000 trucks with a 10-day temporary credential operate within the State at any given time. A copy of ODOT's petition for determination is available for review in the docket for this notice.
On June 13, 2006, FMCSA published a notice in the
Eleven comments were submitted to the docket. The comments were almost evenly divided between supporters and opponents of Oregon's request for exception. Six commenters supported ODOT's request; this includes a comment filed by ODOT. Five commenters opposed the request and urged FMCSA to deny it.
The commenters' discussions, both for and against granting the exemption request, centered on the following issues:
• Intended versus unintended consequences of denying ODOT's request;
• Denying ODOT's request could result in complications for motor carriers;
• Denying ODOT's request could result in complications for Oregon;
• Benefits associated with the weight-mile tax credential;
• Ease of obtaining the credential; and
• Consideration of grandfather privileges.
The ODOT suggests, in its July 6, 2006, filing to the docket, that Congress may have unintentionally included Oregon's weight-tax credential when enacting the provisions of 49 U.S.C. 14506. However, ODOT admits there is no specific discussion of its weight-tax credential in the Congressional record. ODOT suggests that the only evidence of legislative intent may be found in a March 8, 2006, bipartisan letter, filed in the docket on June 13, 2006, from Oregon's Congressional delegation to the Secretary of Transportation expressing concern about the preemption and support for the State's request. ODOT goes on to suggest that its weight-tax credentialing program may have been confused with the International Fuel Tax Agreement and International Registration Plan. This argument is supported by the Oregon Concrete & Aggregate Producers Association, Inc., the American Automobile Association (AAA) of Oregon/Idaho, and AAA of Washington, DC.
The Owner-Operator Independent Drivers Association, Inc. (OOIDA) states that ODOT provides no compelling information in its argument which would suggest Congressional intent. The OOIDA suggests that ODOT's weight-mile tax credential is precisely the type of document Congress had in mind when it was considering section 4306. The OOIDA states, “There is nothing in SAFETEA-LU that singles out Oregon for either attention or a special exemption.”
In comments to the docket, the American Trucking Associations cite legislation that it suggests shows Congress's intent to lessen the paperwork requirements on interstate motor carriers by individual States.
The ODOT suggests in its comments that many interstate motor carriers use the credential to obtain the benefit of not having to pay a fuel-tax when purchasing diesel fuel in the State. The ODOT suggests that not having the credential to present to suppliers at the time of purchase will result in an unnecessary administrative burden when reclaiming the fuel tax. Other commenters did not address this issue.
The OOIDA states in its comments that over the past two decades, Congress and the Department of Transportation have simplified multiple-licensing, registration, and reporting requirements that States imposed on interstate commerce. Also, OOIDA states that it and other industry associations have concluded that there is no net benefit to requiring display of the ODOT weight-mile tax credential.
The United Parcel Service (UPS) states that Federal and State regulatory agencies, in conjunction with the motor carrier industry, have worked to reduce vehicle paperwork requirements to only those which are truly safety-related (hazardous materials, emergency, vehicle inspection, etc.). Furthermore, UPS argues that Oregon already verifies electronically the compliance of motor carriers with its financial responsibility requirements and is well positioned to expand that system to weight-distance tax compliance.
The Oregon Concrete & Aggregate Producers Association, Inc. advises that it and its members do not find that being required to maintain the weight-mile tax credential is burdensome. The AAA organizations also suggest the weight-mile tax credential requirement is not burdensome, primarily because of the ease of obtaining the credential electronically.
The ODOT states that if not granted the exception, enforcing the weight-mile tax will be more challenging and opportunities for tax evasion will increase. It suggests that evasion by motor carriers in purchasing the weight-mile tax credential will result in a loss of funding for the State.
Opponents of the exception all suggest that ODOT can develop technological means that would allow for immediate verification by enforcement officials as to whether or not a motor carrier has complied with Oregon's weight-mile tax laws.
The ODOT and all of the commenters that support the weight-mile tax credential suggest that one of its benefits is to ensure that motor carriers meet their cost responsibility for road use in Oregon.
The ODOT also contends that the weight-mile tax credential has a safety-related benefit, resulting in Oregon's Motor Carrier Management Information System non-match rate
The OOIDA and UPS both contend that ODOT could and should rely solely on the U.S. DOT number, as required by 49 CFR 390.21, to accurately identify motor carriers operating in its State, and that the weight-mile tax credential does not significantly add any value to this process. The OOIDA argues that Oregon wants to maintain the “easy revenue” derived from fining drivers who misplace the paper credentials.
The ODOT and the commenters who support the weight-mile tax credential advise that it can be obtained electronically without elaborate administrative processes. However, ODOT states that only those motor carriers registered to use its Trucking Online Internet-based service can obtain the weight-mile tax credential online.
No commenter that opposes the credential contradicted the assertion of the ease of electronic filing. Several, however, including OOIDA, ATA, and UPS, contend that the overall process of applying for and obtaining the paper credential is an administrative burden and serves no purpose other than to generate revenue for the State. Each contends that motor carriers that fail to produce the weight-mile tax credential at time of inspection are issued citations even though the carrier may be registered with the State.
ODOT contends that it should be granted grandfather privileges for requiring the weight-mile tax credential because it has been requiring the road user taxes since 1947. However, it offers no evidence that Congress intended to grant such privileges regarding section 4306, as pointed out by OOIDA in its comments.
The FMCSA has decided to deny ODOT's request that the Agency determine that the State's WMTCs are appropriate in the context of 49 U.S.C. 14506(a). The Agency considered all comments submitted to the docket, including the ODOT's assertion that
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice; withdrawal of regulatory guidance.
FMCSA withdraws all prior regulatory guidance, previously in the
Mr. Luke Loy, Federal Motor Carrier Safety Administration, Office of Policy and Program Development, Vehicle and Roadside Operations Division, Washington, DC 20590, phone (202) 366-0676, fax (202) 366-8842, e-mail
On November 17, 1993, the Federal Highway Administration (FHWA)
The FMCSA subsequently issued an Enforcement Policy memorandum on September 14, 2004, directing Federal enforcement staff, and requesting State and local enforcement officials, temporarily to allow surge brakes on CMVs operated in interstate commerce, under certain conditions, pending completion of a notice-and-comment rulemaking proceeding through which a determination would be made whether surge brakes should be allowed on a permanent basis. A copy of that Enforcement Policy memorandum is in the docket cited at the beginning of this notice.
A final rule issued by FMCSA, published elsewhere in today's issue of the
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Correction of Public Hearing Time.
In notice document Volume 72 Number 16 beginning on page 3473 on the issue date of January 25, 2007, make the following correction to the meeting time posted:
1. On page 3473, under Public Hearing, the beginning time is corrected to read as 8:30 a.m.
49 U.S.C. 30111, 30168; delegation of authority at 49 CFR 1.50 and 501.8.
National Highway Traffic Safety Administration, DOT.
Notice of receipt of petition for decision that nonconforming 2004 Volkswagen Passat sedan and wagon model passenger cars are eligible for importation.
This document announces receipt by the National Highway Traffic Safety Administration (NHTSA) of a petition for a decision that 2004 Volkswagen Passat sedan and wagon model passenger cars that were not originally manufactured to comply with all applicable Federal motor vehicle safety standards (FMVSS) are eligible for importation into the United States because (1) they are substantially similar to vehicles that were originally manufactured for importation into and
The closing date for comments on the petition is April 5, 2007.
Comments should refer to the docket number and notice number, and be submitted to: Docket Management, Room PL-401, 400 Seventh St., SW., Washington, DC 20590. [Docket hours are from 9 a.m. to 5 p.m.]. Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
Coleman Sachs, Office of Vehicle Safety Compliance, NHTSA (202-366-3151).
Under 49 U.S.C. 30141(a)(1)(A), a motor vehicle that was not originally manufactured to conform to all applicable FMVSS shall be refused admission into the United States unless NHTSA has decided that the motor vehicle is substantially similar to a motor vehicle originally manufactured for importation into and sale in the United States, certified under 49 U.S.C. 30115, and of the same model year as the model of the motor vehicle to be compared, and is capable of being readily altered to conform to all applicable FMVSS.
Petitions for eligibility decisions may be submitted by either manufacturers or importers who have registered with NHTSA pursuant to 49 CFR Part 592. As specified in 49 CFR 593.7, NHTSA publishes notice in the
J.K. Technologies, LLC, of Baltimore, Maryland (“J.K.”) (Registered Importer 90-006) has petitioned NHTSA to decide whether nonconforming 2004 Volkswagen Passat sedan and wagon model passenger cars are eligible for importation into the United States. The vehicles which J.K. believes are substantially similar are 2004 Volkswagen Passat sedan and wagon model passenger cars that were manufactured for importation into, and sale in, the United States and certified by their manufacturer as conforming to all applicable FMVSS.
The petitioner claims that it carefully compared non-U.S. certified 2004 Volkswagen Passat sedan and wagon model passenger cars to their U.S.-certified counterparts, and found the vehicles to be substantially similar with respect to compliance with most FMVSS.
J.K. submitted information with its petition intended to demonstrate that non-U.S. certified 2004 Volkswagen Passat sedan and wagon model passenger cars, as originally manufactured, conform to many FMVSS in the same manner as their U.S. certified counterparts, or are capable of being readily altered to conform to those standards.
Specifically, the petitioner claims that non-U.S. certified 2004 Volkswagen Passat sedan and wagon model passenger cars are identical to their U.S. certified counterparts with respect to compliance with Standard Nos. 102
In addition, the petitioner claims that the vehicles comply with the Bumper Standard found in 49 CFR Part 581.
The petitioner also contends that the vehicles are capable of being readily altered to meet the following standards, in the manner indicated:
Standard No. 101
Standard No. 108
Standard No. 110
Standard No. 111
Standard No. 114
Standard No. 118
Standard No. 208
The petitioner states that the crash protection system used in these vehicles consists of dual front airbags and knee bolsters, and combination lap and shoulder belts at the front and rear outboard seating positions. These manual systems are automatic, self-tensioning, and are released by means of a single red push-button.
Standard No. 225
Standard No. 301
Standard No. 401
The petitioner additionally states that a vehicle identification plate must be affixed to the vehicles near the left windshield post to meet the requirements of 49 CFR Part 565.
Interested persons are invited to submit comments on the petition described above. Comments should refer to the docket number and be submitted to: Docket Management, Room PL-401, 400 Seventh St., SW., Washington, DC 20590. [Docket hours are from 9 a.m. to 5 p.m.]. It is requested but not required that 10 copies be submitted.
All comments received before the close of business on the closing date indicated above will be considered, and will be available for examination in the docket at the above address both before and after that date. To the extent possible, comments filed after the closing date will also be considered. Notice of final action on the petition will be published in the
49 U.S.C. 30141(a)(1)(A) and (b)(1); 49 CFR 593.8; delegations of authority at 49 CFR 1.50 and 501.8.
Customs and Border Protection, Department of Homeland Security; Department of the Treasury.
Final rule.
This document amends title 19 of the Code of Federal Regulations (19 CFR) to set forth special requirements for the entry of certain cement products from Mexico requiring a United States Department of Commerce import license. The cement products in question are those listed in the Agreement on Trade in Cement, entered into between the Office of the United States Trade Representative, the United States Department of Commerce, and Mexico's Secretaria de Economia, on March 6, 2006. The changes implemented by this document require an importer to submit to Customs and Border Protection (CBP) an import license number on the entry summary (CBP Form 7501) or on the application for foreign trade zone (FTZ) admission and/or status designation (CBP Form 214), for any cement product for which the United States Department of Commerce requires an import license under its cement licensing and import monitoring program. Additionally, an importer must submit a hard copy of the original valid Mexican export license with the entry documentation or provide such document to the FTZ operator, unless directed otherwise by CBP.
April 5, 2007.
Alice Buchanan, Office of International Trade, Tel: (202) 344-2697.
On March 6, 2006, the Office of the United States Trade Representative (USTR), the United States Department of Commerce (Commerce), and the Ministry of Economy of the United Mexican States (Secretaria de Economia) signed a bilateral Trade in Cement Agreement (Agreement) concerning trade in cement between the United States and Mexico. The Agreement applies only to cement from Mexico as defined in Section I.L. of the Agreement. A copy of the Agreement is available on the Commerce Web site:
On May 31, 2006, the International Trade Administration of the Department of Commerce published a document in the
Comments were solicited on the proposal.
Two comments were received in response to the solicitation of public comment in 71 FR 31125. A description of the comments received, together with CBP's analyses, is set forth below.
Two commenters inquired as to where on the CBP Form 7501 the import license number should be identified.
The import license number must be reported in column 33 of the newly reformatted CBP Form 7501 (or column 34 of the previous version of the CBP Form 7501, which remains valid). If the entry summary requires more than one cement import license, each license number must be reported within the column on the line item covering the subject cement. On the CBP Form 214, the import license number must be reported in box 16. If the CBP Form 214 is submitted in an electronic format (CBP Form e-214), the import license number must be reported as per instructions provided to the trade and made available for public viewing at
One commenter inquired as to how long an importer must maintain copies of the import license, and in what format the records must be maintained (
Copies of Mexican Cement Import Licenses must be retained pursuant to the provisions set forth in part 163 of title 19 of the CFR. Section 163.4 (19 CFR 163.4) prescribes a record retention period of 5 years from the date of entry. Section 163.5 (19 CFR 163.5) prescribes methods for the storage of records. Specifically, § 163.5(a) states that persons required to maintain records (as per § 163.2) must retain the original, whether paper or electronic, for the prescribed retention period. The term “original,” when used in the context of the maintenance of records, is defined in § 163.1(h) (19 CFR 163.1(h)) as pertaining to records that are “in the condition in which they were made or received.” The import license numbers at issue are to be generated via an automated Mexican Cement Import Licensing System (for a complete description, see 71 FR 30837, dated May 31, 2006), which provides a single opportunity to print the electronically generated import license number. For security reasons, the system does not allow users to retrieve previously issued
In another document published in today's edition of the
In conjunction with the final regulations adopted by the Department of Commerce, CBP, after analysis of the comments received in response to CBP's proposed rule and upon further consideration, has determined to adopt as a final rule the amendments proposed in the Notice of Proposed Rulemaking published in the
In the final rule, CBP will permit importers to report the import license number on either a paper or electronic version of the application for admission to a FTZ (CBP Form 214/e-214). This change from the proposal is being made to reflect that certain CBP ports are currently accepting electronic versions of the application for FTZ admission and/or status designation (CBP Form e-214) in lieu of paper copies. Paper copies of the CBP Form 214 will still be accepted; however, CBP is urging all members of the trade community to file electronic versions of the CBP Form e-214 where possible. Existing operational ports are listed at the CBP Web site located at
Section 12.55 is restructured in this final rule to present a more logical organization. The recordkeeping provision in paragraph (c) is retitled as “Import license information” in the final rule. Paragraph (d), entitled, “Export license information,” now includes a reference to recordkeeping requirements relevant to export licenses.
The language of § 12.155(d) in the proposed rule is changed in the final rule to clarify that importers of Mexican cement must submit an original, physical copy of a valid Mexican export license to CBP with the entry summary documentation, unless otherwise directed by CBP. This language is added in the event CBP is able to process these types of entries electronically in the future. This provision is also changed in the final rule to clarify that the original physical copy of a valid Mexican export license must be provided to the FTZ operator with the CBP Form 214 in the case of a FTZ admission (unless otherwise directed by CBP) and, in such case, upon withdrawal from the FTZ no paper export license will be required to be submitted to CBP with the merchandise's subsequent entry summary documentation. Similarly, the language in proposed § 12.155(b)(1) is changed in the final rule to clarify that no import license will be required on the CBP Form 7501 for Mexican cement that was previously admitted to a FTZ and for which an import license number was already provided to CBP on the CBP Form 214.
The “List of Records Required for the Entry of Merchandise” set forth in the Appendix to part 163 of title 19 of the CFR (19 CFR part 163) is also amended by this document to reflect the entry document requirements mandated by the Agreement. This document amends section IV of the Appendix by adding a new § 12.155 that lists the Mexican Cement export license and import license as new entry records.
Pursuant to provisions of the Regulatory Flexibility Act (5 U.S.C. 601
This amendment does not meet the criteria for a “significant regulatory action” as specified in Executive Order 12866.
This document is being issued in accordance with 19 CFR 0.1(a)(1).
Bonds, Customs duties and inspection, Entry of merchandise, Imports, prohibited merchandise, Reporting and recordkeeping requirements, Restricted merchandise.
Customs duties and inspection, Reporting and recordkeeping requirements.
5 U.S.C. 301; 19 U.S.C. 66, 1202 (General Note 3(i), Harmonized Tariff Schedule of the United States (HTSUS)), 1624;
(a)
(b)
(1) On the entry summary, at the time of filing, in the case of merchandise entered or withdrawn from warehouse for consumption in the customs territory of the United States, except for Mexican cement that was previously admitted to a FTZ and for which an import license number was already provided to CBP on the CBP Form 214. If the entry summary requires more than one cement import
(2) On CBP Form 214 or on an electronic version of CBP Form 214 (CBP Form e-214), as required by CBP, at the time of filing under part 146 of this chapter, in the case of an application for foreign trade zone (FTZ) admission and/or status designation.
(c)
(d)
(e)
5 U.S.C. 301; 19 U.S.C. 66, 1484, 1508, 1509, 1510, 1624.
Import Administration, International Trade Administration, Department of Commerce.
Final rule.
Import Administration (IA) issues this final rule to add new regulations implementing the Mexican Cement Import Licensing System in accordance with the Agreement between the Office of the United States Trade Representative and the Department of Commerce of the United States of America and the Ministry of Economy of the United Mexican States (Secretaría de Economía) on Trade in Cement (Agreement), signed March 6, 2006. This final rule requires all importers of cement from Mexico covered by the scope of the Agreement to obtain an import license from the Department of Commerce (Commerce) prior to completing their U.S. Customs and Border Protection (CBP) entry summary documentation. To obtain the import license, the importer, or the importer's broker or agent, must complete a form supplying certain information to Commerce about the Mexican Cement importation. The import license number will be generated immediately upon submitting the information and will be needed to complete the CBP entry documentation. IA will use the information recorded on the import license form as the basis for monitoring compliance with the Agreement.
In addition, IA informs the public of the approval by the Office of Management and Budget (OMB) of the collection-of-information requirements contained in this final rule and publishes the OMB control numbers for those collections.
This final rule is effective April 5, 2007. Filers will be able to obtain their user identification numbers on or after March 16, 2007 and apply for import licenses on or after April 5, 2007.
Sally C. Gannon (202) 482-0162; Judith Wey Rudman (202) 482-0192; or Jonathan Herzog (202) 482-4271. Additional information is available on Commerce's import licensing Web site
IA issues this final rule to add new regulations implementing the Mexican Cement Import Licensing System (MCILS) in accordance with the Agreement, signed March 6, 2006. This final rule requires all importers of cement from Mexico covered by the scope of the Agreement to obtain an import license from Commerce prior to completing their CBP entry summary documentation. To obtain an import license, the importer, or the importer's broker or agent, must complete a form providing certain information to Commerce about the Mexican Cement importation. The import license number will be generated immediately upon submitting the information and will be needed to complete the CBP entry summary documentation. IA will use the information recorded in the import license form as the basis for monitoring compliance with the Agreement.
The proposed rule was published on May 31, 2006 (71 FR 30836) (“proposed rule”), inviting parties to submit comments through June 30, 2006. The rationale and authority for the program were provided in the preamble to the proposed rule and are not repeated here.
The Southern Tier Cement Committee (STCC) and Holcim (US), Inc. (Holcim) comment that, due to the limited amount of public, non-proprietary information expected to be generated by the MCILS, little aggregate information will be available for publication on IA's Web site. Therefore, according to the STCC and Holcim, it is important that Commerce provide interested parties timely access to the information derived from the MCILS in accordance with the administrative protective order in effect for this Agreement in order that the parties may review whether the Mexican exporters are complying with the terms of the Agreement. Similarly, GCC Cemento, S.A. de C.V. and GCC Rio Grande, Inc. (collectively GCCC) ask Commerce to clarify the sort of aggregate information that would be made available to the public and to confirm that business proprietary data would not be revealed.
Commerce has added 19 CFR 361.101(a)(5) to this final rule to address concerns about access to information and the use of business proprietary information.
The STCC comments that, unlike 19 CFR 360.102(b), which governs Commerce's Steel Import Monitoring and Analysis (SIMA) licensing system, 19 CFR 361.102(a)(2) does not include the language, “It is the responsibility of the applicant to keep the information up-to-date,” when discussing the information necessary to obtain a user identification number. The STCC asks that this language be added in order to ensure that the applicants for an import license from the MCILS will be aware of their responsibility to keep their information current.
GCCC comments that Commerce used the phrase “all imports of Mexican Cement” in 19 CFR 361.101(a)(3), and the phrase “all entries for consumption of covered Mexican Cement products” in 19 CFR 361.101(b) when describing what products will require an import license. GCCC comments that Commerce should clarify whether all imports of Mexican Cement or all entries of Mexican Cement for consumption would require an import license. Specifically, GCCC asks whether a sample for testing purposes, which is not an entry for consumption, would require an import license.
Commerce has also clarified 19 CFR 361.101(b) to state that all shipments of covered Mexican Cement into FTZs, known as FTZ admissions, will require an import license prior to the filing of FTZ admission documents as stated in 19 CFR 361.101(c).
GCCC comments that, in the proposed rule, both the preamble and 19 CFR 361.101(a)(4) state that a single import license may cover multiple products as long as certain information on the import license remains the same. However, GCCC notes that the information which must remain the same differs between the two provisions and requests that Commerce clarify what information is required to be the same in order for an import license to cover multiple products.
GCCC comments that 19 CFR 361.103(b) and (c)(xiii) of the proposed rule are ambiguous as to whether the CBP entry number is required to be reported on the application for an import license if known at the time of completing the application. GCCC requests that Commerce clarify whether the CBP entry number is required to be reported on the application for an import license if it is known at the time of application.
GCCC notes that 19 CFR 361.103(c)(xii) of the proposed rule states that an applicant must indicate the address of the silo/warehouse where the Mexican Cement will be kept until shipment to the first unaffiliated purchaser. According to GCCC, Mexican Cement that is stored in a silo or warehouse may be shipped to either an affiliated purchaser for resale or consumption, or to an unaffiliated purchaser. Therefore, GCCC requests that 19 CFR 361.103(c)(xii) of the proposed rule be amended to reflect this alternative.
GCCC also comments, with regard to 19 CFR 361.103(xii) of the proposed rule, that Mexican Cement may be stored in a silo or warehouse in one region and then later shipped to a different region, if the final customer is not known at the time of entry and application for the import license. Therefore, GCCC requests that Commerce confirm that in such a situation, the final destination should be identified as the silo or warehouse
In its entirety, the Agreement establishes a three-part monitoring system that includes export licenses issued by the Government of Mexico, an import license issued by Commerce, and monthly sales reports provided by the Mexican exporters and related importers. In accordance with Appendix 22 of the Agreement, any Mexican party exporting Mexican Cement to the United States is required to obtain an export license which states the “Sub-Region of Final Destination” to which the Mexican Cement is being exported. The export license number is to be reported on the import license issued by Commerce. Further, in accordance with Appendix 20 of the Agreement, to obtain an import license from Commerce, the importer must provide the “Sub-Region of Final Destination” in addition to the “Final Destination.” “Sub-Region of Final Destination” is defined in Appendix 20 as the “Sub-region where either the Mexican Cement will be consumed by an affiliated company to make concrete or concrete products or the Sub-region of the first unaffiliated purchaser of Mexican Cement.” The Sub-Region of Final Destination reported on the Mexican export license must match the Sub-Region of Final Destination reported on the import license. Thus, when reporting “Final Destination” as set out in 19 CFR 361.103(c)(xii) of the final rule, the final destination, including the silo or warehouse in which the Mexican Cement may be stored, may not differ from the Sub-Region of Final Destination reported on both the export and import licenses. In a situation where the end customer is not known at the time of importation and the product is stored in a silo or warehouse, if the Mexican Cement is sold into a Sub-region other than that listed on the export and import licenses, Commerce may commence an investigation pursuant to the terms of the Agreement, including, but not limited to, initiating a changed circumstances review in accordance with Section VII of the Agreement.
GCCC comments that when the company ships Mexican Cement, the tonnage in a shipment may be covered by two separate Mexican Export Licenses, if the tonnage limit for one Mexican Export License is reached and a new Mexican Export License is needed to cover the additional quantity. Therefore, GCCC requests that Commerce confirm whether it will require the importer to identify the tonnage and value that correspond to each Export License, or if it will require the importer to list the total quantity and value for the entire shipment and list both Mexican Export License Numbers on its application for an import license.
Cemex, S.A. de C.V. (Cemex) comments that the proposed rule does not explicitly say whether a single import license may be used for more than one entry if all of the information on the import license is the same and requests that Commerce explicitly state in the final rule if a single import license may be used for more than one entry.
Further, a separate import license is also required for each entry made pursuant to separate export licenses. Therefore, a separate import license is required for every entry of Mexican Cement. Commerce has added language clarifying these requirements in 19 CFR 361.101(a)(4) and (d) of the final rule.
GCCC comments that because only Commerce will have access to the completed import licenses after the date they are issued, Commerce should state how long it intends to maintain the import licenses. GCCC requests that Commerce maintain copies for the entire period that the Agreement is in effect. Cemex comments that the proposed rule does not provide a time frame in which Commerce will be required to issue a copy of an import license to a requesting party. Cemex suggests that Commerce be required to issue a copy of an import license within 24 hours of when it is requested, and that it would be useful if there were an expedited procedure for obtaining a copy in a shorter period of time where the absence of a copy of the import license is impeding entry of Mexican Cement.
GCCC raises two questions. First, 19 CFR 361.103(e) of the proposed rule states that applicants may cancel import licenses which contain errors prior to entry and file for a new import license with corrected information. GCCC asks whether there is a way to correct inadvertent errors to the import license after entry. Second, GCCC asks how Commerce will address situations in which an importer obtains an import license, but is notified of a cancelled sale after the entry date.
Further, all Mexican Cement imported into the United States covered by the scope of the Agreement is required to have an import license. This requirement includes any Mexican Cement imported into the United States pursuant to a sale that is cancelled after entry.
The STCC comments that there appears to be a typographical error in 19 CFR 361.104 of the proposed rule.
The Chief Counsel for Regulation certified to the Chief Counsel for Advocacy of the Small Business Administration that the proposed rule, if adopted, will not have a significant impact on a substantial number of small entities as that term is defined in the Regulatory Flexibility Act, 5 U.S.C. 601
Commerce is unable to determine the number of brokerage companies and importers that would be impacted by this rule as Commerce does not collect this information. However, based on historical data, Commerce estimates that there are few brokerage companies and importers that would be considered small entities under Small Business Administration's standard (5 U.S.C. 603(b)(3)). Typically, larger brokers handle Mexican Cement shipments because of the capital that is needed upfront to handle bonds and other costs. Each importer or broker must fill out the import license form for each entry of the subject merchandise. Based on CBP entry summary information, we estimate that 12,150 import licenses will be issued each year. Of this number, only a small percentage of import licenses would be requested by a small entity as a result of this rule.
Even if this rule impacted a large number of small entities, these entities would not incur significant costs to comply with the proposed regulations. Most brokerage companies that are currently involved in filing required documentation for importing goods into the United States, specifically CBP documentation, are accustomed to CBP's automated systems. Today, more than 99 percent of CBP filings are handled electronically. Therefore, the web-based nature of this simple import license application should not impose a significant cost to any firm in completing this new requirement. However, should a company prefer or need to apply for an ID or import license by other than electronic means, a fax/phone option will be available at Commerce during regular business hours. There is no cost to register for a company-specific user identification number and no cost to apply for an import license.
Each import license form is expected to take at most about 10 minutes to complete using much of the same information the brokers will use to complete their CBP entry summary documentation. The response time should not vary widely because the same information is used to fill out other required CBP documents. The estimated average cost to private sector respondents is $20.00 per hour.
Based on the estimated 12,150 import licenses that will be issued each year, the total cost to respondents as a result of this rule is $40,500.00. Based on historic CBP information, there are few small entities that would be affected by this rule. Therefore, of this amount, only a small percentage of the total cost would be incurred by small entities. Based on these figures, this action will not have a significant economic impact on a substantial number of small entities. No comments were received regarding the economic impact of this rule. As a result, no Final Regulatory Flexibility Analysis was prepared.
This final rule contains collection-of-information requirements subject to review and approval by OMB under the Paperwork Reduction Act. These requirements have been approved by OMB under the Paperwork Reduction Act (OMB No.: 0625-0259; Expiration Date: December 31, 2009). The public reporting burden for these collections of information is estimated at 10 minutes. Parties must maintain copies in accordance with CBP's existing requirements. The import licensing system requests information already required of an importer, approval is automatic, and the importer will have ample opportunity and time to apply. These estimates of time required to complete an application include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.
All responses to this collection of information are mandatory, and will be provided to the extent allowed by law. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the Paperwork Reduction Act unless that collection displays a valid OMB Control Number. Send comments on the reporting burden estimate or any other aspect of the requirements in this final rule to OMB at the Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC 20503 (Attention: ITA Desk Officer).
It has been determined that this rule is significant for purposes of Executive Order 12866 of September 30, 1993 (“Regulatory Planning and Review”) (58 FR 51735 (October 4, 1993)).
This rule does not contain policies with federalism implications as that term is defined in section 1(a) of Executive Order 13132, dated August 4, 1999 (64 FR 43255 (August 10, 1999)).
13 U.S.C. 301(a) and 302.
(a)
(2) Mexican Cement is defined as gray portland cement and clinker from Mexico. Gray portland cement is a hydraulic cement and the primary component of concrete. Clinker, an intermediate material produced when manufacturing cement, has no use other than being ground into finished cement. Specifically included within the scope of this definition are pozzolanic blended cements and oil well cements. Specifically excluded are white cement and Type “S” masonry cement. Gray portland cement is currently classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) item number 2523.29 and cement clinker is currently classifiable under HTSUS item number 2523.10. Gray portland cement has also been entered under HTSUS item number 2523.90 as “other hydraulic cements.” These HTSUS subheadings are provided for convenience and USCBP purposes; the written definition is controlling for purposes of this Agreement.
(3) The Mexican Cement Import Licensing System includes an online registration system. All imports of Mexican Cement covered by the scope of the Agreement, including samples, whether or not for consumption, are subject to the Mexican Cement Import Licensing requirements. Information gathered from these import licenses will be used to ensure that the terms of the Agreement are complied with and enforced.
(4) A single import license may cover multiple products if the following information reported on the import license remains the same: Company Name, Address, City, State, Zip, Contact Name, Contact Phone, Contact Fax, Contact E-mail, Importer Name, Exporter Name, Manufacturer Name, Country of Origin, Country of Exportation, Expected Port of Entry, Expected Date of Importation, Expected Date of Export, Customs Entry Number (if known), Date License Valid From, Date License Valid Through, Date of Application, Subregion of Final Destination, Type of Affiliation, U.S. Affiliate's Name, Address, County, City, State, Zip, Mexican Export License Number, and Disaster Relief Statement. Separate import licenses will be required for each type of Mexican Cement entry if the above information differs. As a result, a single USCBP entry summary may require more than one Mexican Cement import license. The applicable import license(s) must cover the total quantity of Mexican Cement entered and should cover the same information provided on USCBP Form 7501.
(5) Access to Information. (i) Information gathered by the Mexican Cement Import Licensing System will be treated as business proprietary information and will be subject to the administrative protective order in place for this Agreement. Commerce may elect to publish certain aggregate information collected by the Mexican Cement Import License System on the Import Administration Web site. Any information Commerce elects to publish will not include business proprietary information nor information from specific ports of entry or companies.
(ii) In accordance with 19 CFR 351.305, interested parties who have been approved for access to business proprietary information under the administrative protective order in effect for this Agreement will receive a quarterly report of all information gathered by the Mexican Cement Import License System.
(b)
(c)
(d)
(a)
(2) This user identification number will be required in order to log on to the Mexican Cement import license issuance system. A single user identification number will be issued to an importing company, brokerage house or importer's agent. Operating units within the company (
(b)
(a)
(b)
(c)
(i) Applicant company name and address;
(ii) Applicant contact name, phone number, fax number and e-mail address;
(iii) Importer name;
(iv) Exporter name;
(v) Manufacturer name;
(vi) Country of origin;
(vii) Country of exportation;
(viii) Expected date of export;
(ix) Expected date of import;
(x) Expected port of entry;
(xi) Sub-Region of Final Destination: Indicate the Sub-region where either the Mexican Cement will be consumed by an affiliated company to make concrete or concrete products or the Sub-region of the first unaffiliated purchaser of the Mexican Cement.
(xii) Final Destination: Indicate the complete name and address (including county) of either the affiliated company that will consume the Mexican Cement or the first unaffiliated purchaser of the Mexican Cement. If either is not known when the Import License is issued, indicate the address (including county) where the Mexican Cement will be siloed/warehoused until the time of shipment to the first unaffiliated purchaser.
(xiii) USCBP entry number, if known;
(xiv) Current Harmonized Tariff System of the United States (HTSUS) number (from Chapter 25 of the HTSUS);
(xv) Quantity (in metric tons);
(xvi) Customs value (U.S. $);
(xvii) Whether the entry is made pursuant to the disaster relief provisions of the Agreement; and
(xviii) Mexican Export License Number.
(2) Certain fields will be automatically completed by the automatic import license system based on information submitted by the filer (
(3) Upon completion of the form, the importer, customs broker or the importer's agent will certify as to the accuracy and completeness of the information and submit the form electronically. After submitting the completed form, the system will automatically issue a Mexican Cement import license number. The refreshed form containing the submitted information and the newly issued import license number will appear on the screen (the “import license form”). If needed, copies of completed import license forms can be requested from Commerce during normal business hours.
(d)
(e)
No fees will be charged for obtaining a user identification number or issuing a Mexican Cement import license.
The automatic licensing system will generally be accessible 24 hours a day, 7 days a week but may be down at selected times for server maintenance. If the system is down for an extended period of time, parties will be able to obtain import licenses from Commerce directly via fax during regular business hours.
Office of the Secretary, HUD.
Notice of waivers and alternative requirements.
As described in the
Clifford Taffet, Acting Director, Disaster Recovery and Special Issues Division, Office of Block Grant Assistance, Department of Housing and Urban Development, Room 7286, 451 Seventh Street, SW., Washington, DC 20410, telephone number (202) 708-2684. Persons with hearing or speech impairments may access this number via TTY by calling the Federal Information Relay Service at (800) 877-8339. FAX inquiries may be sent to Mr. Taffet at (202) 708-1744. (Except for the “800” number, these telephone numbers are not toll-free.)
The first federal fiscal year 2006 supplemental appropriation for the Community Development Block Grant (CDBG) program was the Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006 (Pub. L. 109-148, approved December 30, 2005). The second 2006 supplemental appropriation was Chapter 9 of Title II of the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Hurricane Recovery, 2006 (Pub. L. 109-234, approved June 15, 2006) which appropriates $5.2 billion in Community Development Block Grant funds for necessary expenses related to disaster relief, long-term recovery, and restoration of infrastructure directly related to the consequences of the covered disasters. The 2006 Acts authorize the Secretary to waive, or specify alternative requirements for, any provision of any statute or regulation that the Secretary administers in connection with the obligation by the Secretary or use by the recipient of these funds and guarantees, except for requirements related to fair housing, nondiscrimination, labor standards, and the environment, upon a request by the State and a finding by the Secretary that such a waiver would not be inconsistent with the overall purpose of the statute. The following waivers and alternative requirements for funds provided under either 2006 Act are in response to requests from the State of Louisiana. A waiver or alternative requirement will apply to assistance provided under either Act unless otherwise specified in this Notice.
The Secretary finds that the following waivers and alternative requirements, as described below, are not inconsistent with the overall purpose of Title I of the Housing and Community Development Act of 1974, as amended, or the Cranston-Gonzalez National Affordable Housing Act, as amended.
Under the requirements of the Department of Housing and Urban Development Act, as amended (42 U.S.C. 3535(q)), regulatory waivers must be published in the
Except as described in this and other notices applicable to this grant, statutory and regulatory provisions governing the Community Development Block Grant program for states, including those at 24 CFR part 570, shall apply to the use of these funds. In accordance with the appropriations acts, HUD will reconsider every waiver in this Notice on the two-year anniversary of the day this Notice is published.
In general, waivers already granted to the state of Louisiana and alternative requirements already specified for CDBG disaster recovery grant funds provided under Public Law 109-148 and Public Law 109-234 apply. The notices in which these prior waivers and alternative requirements applicable to Louisiana appear are 71 FR 7666, published February 13, 2006; 71 FR 34451, published June 14, 2006; and 71 FR 63337, published October 30, 2006.
The provisions of this Notice do not apply to funds provided under the regular CDBG program. The provisions provide additional flexibility in program design and implementation and implement statutory requirements unique to these appropriations.
Normally, HUD provides funds to a research institution or a university either to increase its capacity to carry out a CDBG activity such as rehabilitation of housing, to carry out specific research, or to provide training. By contrast, the RCEE program is directed at stabilizing and increasing research and education sector employment and functions themselves. The state has stated that this sector was a significant regional job generator before the covered disasters, that
To accomplish its stated intention, the State is funding strategic planning followed by a pilot assistance program for research institutions located in the most impacted areas. At HUD's request, the state has agreed that this planning process will identify critical performance measures for this program so that all parties involved can assess the usefulness of the RCEE model as part of overall disaster recovery.
The RCEE program design does not break down neatly into CDBG eligibility categories. Portions of the RCEE program are eligible CDBG activities, such as training (public services) and strategic planning. Other portions, especially the stipends and other direct support for retaining key faculty researchers, are outside the usual CDBG realm, although modeled on other government research and endowment grant programs. Program staff will be coordinating the various types of assistance into a coherent whole, moving between supporting eligible and currently ineligible activities.
To avoid bureaucratic hair-splitting that does not advance long-term disaster recovery or protect against fraud, waste, or abuse of funds, HUD is providing a waiver and alternative requirement to create the eligible activity called Louisiana Research Commercialization and Educational Enhancement to include all activities carried out in accordance with the RCEE program described in the HUD-approved Action Plan, beginning with the amendment introducing this program, approved January 3, 2007. (The allowable cost provisions of applicable OMB Circulars still apply, as do statutory prohibitions on duplications of benefit with other forms of assistance, such as Federal programs.)
HUD has reviewed other housing assistance programs that measure benefit differently: By the housing unit. Under the unit approach, one or more of the units in a structure must house income-eligible families, but the remainder of the units may be market rate, so long as the proportion of assistance provided compared to the overall project budget is no more than the proportion of units that will be occupied by income-eligible households compared to the number of units in the overall project. In other words, the rule under the structure approach is that a dollar of CDBG assistance to a structure means that 51 percent of the units must meet income requirements. Under the proportional units approach, the number of income-eligible units is proportional to the amount of assistance provided. Based on HUD experience, the second approach is generally more compatible with large-scale development of mixed-income housing.
There is HUD precedent for using the proportional unit basis in two programs familiar to the state: (1) The CDBG program rule has a built-in exception that allows limited use of the unit basis for multi-unit non-elderly new construction structures with between 20 and 50 percent low- and moderate- income occupancy, and (2) the HOME Investment Partnerships program, HUD's primary housing production program, successfully uses its own variation on the proportional unit approach. After review of the state's Action Plan for Disaster Recovery and learning more about the state's intention to encourage mixed-income housing development, HUD has determined that it is consistent with the overall purposes of the 1974 Act to provide the state the requested additional flexibility in measuring program benefit.
Therefore, the waiver and alternative requirements allow the state a choice. The state may measure benefit within a housing development project (1) according to the existing CDBG requirements, (2) according to the HOME program requirements at 24 CFR 92.205(d) or (3) according to the modified CDBG alternative requirements specified in this notice, which extend the CDBG exception noted above. The state must select and use just one method for each project.
For these purposes, the term “project” will have the same meaning as in the HOME program at 24 CFR 92.2. Unlike the HOME program, the CDBG program does not regulate the maximum amount of assistance per unit, require unit and income reviews in the years following initial occupancy, require a specific form of subsidy layering review, or define affordability. The state is reminded, however, that CDBG does require that costs be necessary and reasonable and that the state must develop procedures and documentation to ensure that its housing investments meet this requirement. The state must also meet all civil rights and fair housing requirements.
In its Road Home programs, the State has set a high priority on deep affordability for some rental units and on placing these units within mixed-income communities wherever feasible. The state has included new scoring factors in the Piggyback tax credit selection process that reflect these priorities and that emphasize long-term viability and reduce operating costs. According to the state, the biggest remaining challenge in providing rental units affordable to very low-income households is the difference between what tenants can afford to pay and the projected cost of operating the units.
The state has researched existing housing models, and concluded that the Piggyback model and the small rental and homeless programs described in the Road Home are needed to ensure production of affordable units. The state believes it has a critical need for income-targeted rental housing
HUD agrees that keeping housing affordable to very low-income households over time may require additional operating subsidy after construction is complete. To allow the state flexible options, HUD will allow CDBG assistance for subsidizing operating costs using PBRA and funding initial operating reserves in the context of the Road Home rental programs as described in the Action Plan. The Department encourages the State to avoid using CDBG for operating subsidies if other financing is available or if the project can reasonably be structured to achieve and maintain its target affordability without the operating subsidy.
HUD recommends that the State establish written requirements for income eligibility, maximum rents, utility allowances, structure quality, and affirmative marketing of projects. HUD also recommends that inflation adjustments set by the State generally not exceed the Section 8 allowable adjustments.
HUD recommends that, in implementing PBRA funding, the State acquire and maintain the expertise equivalent to the role of a tax credit administrator whose responsibilities will include, but not be limited to, making PBRA payments to procured developers and compliance control of eligibility determinations. Due to the distinctive and potentially high-risk nature of this eligibility waiver, HUD recommends that such expertise be maintained throughout the life of the program to ensure the prevention of fraud, abuse of funds, and duplication of benefits. HUD reminds the state of the regulatory requirement for annual financial audits of its programs, and of the
The State needs an eligibility waiver for the rental assistance and utility payments that are paid for up to two years on behalf of homeless and at-risk households. The proposed program also includes rental and utility deposits and back payments for housing when the State determines that such payments are necessary to help prevent a family from becoming homeless. To the extent the existing CDBG program rules explicitly allow payments for these purposes, the program establishes a shorter time limitation (three months) and generally discourages or disallows back payments.
The State's proposed program will measurably advance the Department's priority on supporting forward-thinking solutions to help communities that are struggling to house and serve persons and families that are homeless or at risk of homelessness because of the effects of Hurricanes Katrina and Rita. Therefore, this Notice grants the eligibility waiver as requested.
For the national objective documentation for the business assistance activities, the state has asked to be able to apply individual salaries or wages per job and the income limits for a household of one, rather than the usual CDBG standard of total household income and the limits by total household size. The state asserts that its proposed documentation will be simpler and quicker for its participating lenders to administer, easier to verify, and will not misrepresent the amount of low- and moderate-income benefit provided.
Further, for the Bridge Loan Program and for infrastructure projects carried out to create or retain jobs or businesses, the state argues for this approach because it considers these critical recovery activities that need the most streamlined approach to documentation that is consistent with prudent management. On review and following several discussions with state staff, HUD accepts the state's arguments for the activities and programs cited above, and is granting the waiver as requested.
HUD is granting this waiver because of the magnitude of the disaster. However, because the validity of this approach has not been verified systematically, HUD may not grant similar waivers in the future.
The public benefit provisions set standards for individual economic development activities (such as a single loan to a business) and for economic development activities in the annual aggregate. Currently, public benefit standards limit the amount of CDBG assistance per job retained or created, or the amount of CDBG assistance per low- and moderate-income person to which goods or services are provided by the activity. Essentially, the public benefit standards are a proxy for all the other possible public benefits provided by an assisted activity. These dollar thresholds were set more than a decade ago and under disaster recovery conditions (which often require a larger investment to achieve a given result), can be too low and thus impede recovery by limiting the amount of assistance the grantee may provide to a critical activity. The State has made public in its Action Plan the disaster recovery needs each activity is addressing and the public benefits expected.
After consideration, this Notice waives the public benefit standards for the cited activities, except that the State shall report and maintain documentation on the creation and retention of (a) total jobs, (b) number of jobs within certain salary ranges, (c) the average amount of assistance per job and activity or program, and (c) the types of jobs. As a conforming change for the same activities or programs, HUD is also waiving paragraph (g) of 24 CFR 570.482 to the extent its provisions are related to public benefit.
CDBG funds are federal financial assistance so their use in projects that involve acquisition of property for a federally assisted project, or that involve acquisition, demolition, or rehabilitation that force a person to move permanently, are subject to the URA and the government-wide implementing regulations found at 49 CFR part 24. The URA provides assistance and protections to individuals and businesses affected by federal or federally assisted projects. HUD is waiving the following URA requirements to help promote accessibility to suitable decent, safe, and sanitary housing for victims of Hurricanes Katrina and Rita:
The acquisition requirements of the URA and implementing regulations so that they do not apply to an arm's length voluntary purchase carried out by a person that does not have the power of eminent domain, in connection with the purchase of properties for the projects listed in the waiver below. According to the state, the failure to suspend these requirements would impede disaster recovery. This waiver would not affect any lawful occupants of the affected projects, in terms of relocation assistance and payments, and would only waive certain transaction-related requirements vis a vis the project owners.
1.
a. those governing the funds appropriated under Public Law 109-148 and Public Law 109-234 and already published in the
b. those governing the Community Development Block Grant program for states, including those at 42 U.S.C. 5301 et seq. and 24 CFR part 570.
2.
3.
4.
(a)(i) The CDBG assistance defrays the development costs of a housing project providing eligible permanent residential units that, upon completion, will be occupied by low- and moderate-income households; and
(ii) if the project is rental, the units occupied by low and moderate income households will be leased at affordable rents. The grantee or unit of general local government shall adopt and make public its standards for determining “affordable rents” for this purpose; and
(iii) The proportion of the total cost of developing the project to be borne by CDBG funds is no greater than the proportion of units in the project that will be occupied by low- and moderate-income households; or
(b) When CDBG funds defray the development costs of eligible permanent residential units, such funds shall be considered to benefit low and moderate income persons if the grantee follows the provisions of 24 CFR 92.205(d); or
(c) The requirements of 24 CFR 570.483(b)(3) are met.
(d) The state must select and use just one method for each project.
(e) The term “project” will be defined as in the HOME program at 24 CFR 92.2.
(f) If the state applies option (a) or (b) above to a housing project, 24 CFR 570.483(b)(3) is waived for that project.
5.
6.
7.
8.
9.
10.
The Catalog of Federal Domestic Assistance numbers for the disaster recovery grants under this Notice are as follows: 14.219; 14.228.
A Finding of No Significant Impact (FONSI) with respect to the environment has been made in accordance with HUD regulations at 24 CFR part 50, which implement section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332). The FONSI is available for public inspection between 8 a.m. and 5 p.m. weekdays in the Office of the Rules Docket Clerk, Office of General Counsel, Department of Housing and Urban Development, Room 10276, 451 Seventh Street, SW., Washington, DC 20410-0500.
Office of the Secretary, HUD.
Notice of waivers and alternative requirements.
As described in the Supplementary Information section of this Notice, HUD is authorized by statute to waive statutory and regulatory requirements and specify alternative requirements for this purpose, upon the request of the state grantees. This Notice describes the additional waivers for the disaster recovery grants made to the State of Mississippi under the subject appropriations acts.
Clifford Taffet, Acting Director, Disaster Recovery and Special Issues Division, Office of Block Grant Assistance, Department of Housing and Urban Development, Room 7286, 451 Seventh Street, SW., Washington, DC 20410, telephone number (202) 708-2684. Persons with hearing or speech impairments may access this number via TTY by calling the Federal Information Relay Service at (800) 877-8339. FAX inquiries may be sent to Mr. Taffet at (202) 708-1744. (Except for the “800” number, these telephone numbers are not toll-free.)
The first federal fiscal year 2006 supplemental appropriation for the Community Development Block Grant (CDBG) program was in the Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006 (Pub. L. 109-148, approved December 30, 2005) which appropriated $11.5 billion for necessary expenses related to disaster relief, long-term recovery, and restoration of infrastructure in the most impacted and distressed areas related to the consequences of the covered disasters.
The second 2006 supplemental appropriation was in Chapter 9 of Title II of the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Hurricane Recovery, 2006 (Pub. L. 109-234, approved June 15, 2006) which appropriated $5.2 billion in Community Development Block Grant funds also for necessary expenses related to disaster relief, long-term recovery, and restoration of infrastructure in the most impacted and distressed areas related to the consequences of the covered disasters. The 2006 Acts each authorize the Secretary to waive, or specify alternative requirements for, any provision of any statute or regulation that the Secretary administers in connection with the obligation by the Secretary or use by the recipient of these funds and guarantees, except for requirements related to fair housing, nondiscrimination, labor standards, and the environment, upon a request by the State and a finding by the Secretary that such a waiver would not be inconsistent with the overall purpose of the statute. The following additional waivers and alternative requirements for funds provided under either or both 2006 Acts are in response to requests from the State of Mississippi. (A waiver or alternative requirement will apply to assistance provided under either Act unless otherwise specified in this Notice.)
The Secretary finds that the following waivers and alternative requirements, as described below, are not inconsistent with the overall purpose of Title I of the Housing and Community Development Act of 1974, as amended (42 U.S.C. 5301 et seq.) (the 1974 Act), or the Cranston-Gonzalez National Affordable Housing Act, as amended (42 U.S.C. 12721 et seq.).
Under the requirements of the Department of Housing and Urban Development Act, as amended (42 U.S.C. 3535(q)), regulatory waivers must be published in the
Except as described in this and other notices applicable to these grants, statutory and regulatory provisions governing the Community Development Block Grant program for states, including those at 24 CFR part 570, shall apply to the use of these funds. In accordance with the appropriations acts cited above, HUD will reconsider every waiver in this Notice on the two-year anniversary of the day this Notice is published.
In general, waivers already granted to the State of Mississippi and alternative requirements already specified for CDBG disaster recovery grant funds provided under Public Law 109-148 and Public Law 109-234 apply. The notices in which these prior waivers and alternative requirements applicable to Mississippi appear are 71 FR 7666, published February 13, 2006; 71 FR 34457, published June 14, 2006; 71 FR 62372, published October 24, 2006, and 71 FR 63337, published October 30, 2006.
The provisions of this Notice do not apply to funds provided under the annual CDBG program. The provisions provide additional flexibility in program design and implementation for the disaster recovery grants.
The public benefit provisions set standards for individual economic development activities (such as a single loan to a business) and for economic development activities in the annual aggregate. Currently, public benefit standards limit the amount of CDBG assistance per job retained or created, or the amount of CDBG assistance per low- and moderate-income person to which goods or services are provided by the activity. Essentially, the public benefit standards are a proxy for all the other possible public benefits provided by an assisted activity. These dollar thresholds were set more than a decade ago and under disaster recovery conditions (which often require a larger investment to achieve a given result), can be too low and thus impede recovery by limiting the amount of assistance the grantee may provide to a
After consideration, this Notice waives the public benefit standards for the cited activities, except that the State shall report and maintain documentation on the creation and retention of (a) total jobs, (b) number of jobs within certain salary ranges, (c) the average amount of assistance per job and activity or program, and (d) the types of jobs. As a conforming change for the same activities or programs, HUD is also waiving paragraph (g) of 24 CFR 570.482 to the extent its provisions are related to public benefit.
In considering the waiver request, HUD applied the logic and principles used in the October 24 waiver to the economic development activities under the State's Economic Development program, approved December 19, 2006.
HUD also considered that the State has, to some extent, followed the Department's recommendation that it make a reasonable effort to address the recovery needs of its low- and moderate-income residents. The State designed its economic development grants and loans selection criteria to consider benefit to persons of low and moderate income. Further, it has funded Phase II of the homeowner assistance program and reconstruction of public housing, both designed to primarily or entirely benefit income eligible persons. However, the State has not yet published Action Plan amendments describing the uses of all grant funds.
HUD considered the data and the state's justification for its request. Considering that the State has not yet budgeted all of its grant funds in the Action Plan, it has a large amount of unbudgeted funds, it will be reallocating previously budgeted funds, and a substantial number of low- and moderate-income persons were impacted by the disaster, HUD decided that it still does not have enough information to conclude that the State has compelling need for a waiver of overall benefit for the entire grant at this time.
Based on the compelling need presented for the activities already included in the Action Plan for Disaster Recovery for the grant made under Pub. L. 109-148, HUD is modifying the waiver granted in the October 24 Notice to grant the state a waiver of the requirement that at least 50 percent of the supplemental CDBG grant funds provided under Pub. L. 109-148 primarily benefit persons of low and moderate income, to the extent necessary to permit Mississippi to carry out the activities contained in its Action Plan amendment dated December 15, 2006, provided that the State must give reasonable priority for the balance of its funds to activities that will primarily benefit persons of low and moderate income. HUD expects the grantee to maintain low- and moderate-income benefit documentation for each activity providing such benefit. This waiver of overall benefit does not cover activities added or modified under a substantial amendment to the activities mentioned in the Action Plan submission listed above.
Previously, the State agreed to examine other housing needs and to pursue other sources of funding to provide assistance for other compelling housing needs, such as for homeless and special needs populations, for low-income renters, and for uninsured low-income homeowners. HUD notes that Phase II addresses some of these needs. The Department expects the State to continue these efforts.
1.
a. Those governing the funds appropriated under Public Law 109-148 and already published in the
b. Those governing the Community Development Block Grant program for states, including those at 42 U.S.C. 5301 et seq. and 24 CFR part 570.
2.
3.
4.
5.
a. The State must give reasonable priority for the balance of its funds to activities which will primarily benefit persons of low and moderate income; and
b. The State will maintain documentation of the low- and moderate-income benefit attributable to each assisted activity, if feasible, and report on such benefit to HUD as part of the regular quarterly reports.
6.
The Catalog of Federal Domestic Assistance numbers for the disaster recovery grants under this Notice are as follows: 14.219; 14.228.
A Finding of No Significant Impact (FONSI) with respect to the environment has been made in accordance with HUD regulations at 24 CFR part 50, which implement section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332).
The FONSI is available for public inspection between 8 a.m. and 5 p.m. weekdays in the Office of the Rules Docket Clerk, Office of General Counsel, Department of Housing and Urban Development, Room 10276, 451 Seventh Street, SW., Washington, DC 20410-0500.