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Animal and Plant Health Inspection Service, USDA.
Interim rule and request for comments.
We are amending the citrus canker quarantine regulations to explicitly prohibit, with limited exceptions, the interstate movement of regulated nursery stock from a quarantined area. The interstate movement of regulated nursery stock from an area quarantined for citrus canker poses a high risk of spreading citrus canker outside the quarantined area. We are including two exceptions to the prohibition. We are allowing calamondin and kumquat plants, two types of citrus plants that are highly resistant to citrus canker, to move interstate from a quarantined area under a protocol designed to ensure that they are free of citrus canker prior to movement. We will also continue to allow the interstate movement of regulated nursery stock for immediate export, under certain conditions. This action is necessary to clarify our regulations and to address the risk associated with the interstate movement of regulated nursery stock from areas quarantined for citrus canker.
This interim rule is effective March 16, 2007. We will consider all comments that we receive on or before May 21, 2007.
You may submit comments by either of the following methods:
•
•
Mr. Stephen Poe, Senior Operations Officer, Emergency Domestic Programs, Plant Protection and Quarantine, APHIS, 4700 River Road Unit 137, Riverdale, MD 20737-1231; (301) 734-4387.
Citrus canker is a plant disease that affects plants and plant parts, including fresh fruit, of citrus and citrus relatives (Family
The regulations to prevent the interstate spread of citrus canker are contained in 7 CFR 301.75-1 through 301.75-14 (referred to below as the regulations). The regulations restrict the interstate movement of regulated articles from and through areas quarantined because of citrus canker and provide conditions under which regulated fruit and regulated seed may be moved from quarantined areas.
On August 1, 2006, we published an interim rule in the
The amendments we made to our regulations in the August 2006 interim rule were consistent with the recommendations of the Citrus Health Response Program, whose goal is to improve the ability of the commercial citrus industry to produce, harvest, process, and ship healthy fruit in the presence of citrus canker. This program provides general guidance to regulatory officials and all sectors of the citrus industry on ways to safeguard against citrus canker and other citrus pests of concern.
The Animal and Plant Health Inspection Service (APHIS) has historically not allowed the interstate movement of regulated nursery stock from areas quarantined for citrus canker, because that movement is considered to be the highest risk pathway for the
In § 301.75-2 of the regulations, paragraph (a) prohibits the interstate movement of regulated articles except in accordance with the regulations. In addition, the regulations in § 301.75-6 have set out threshold conditions that must be met for the movement of regulated articles under §§ 301.75-7 and 301.75-8 from areas quarantined for citrus canker. These include requirements for surveying every regulated plant and regulated tree in every nursery in the quarantined area containing regulated plants and regulated trees at intervals of no more than 45 days and for treating personnel, vehicles, and equipment.
The requirements in § 301.75-6 were intended to be threshold conditions for the interstate movement of regulated fruit, whose movement is subject to the additional conditions in § 301.75-7, and regulated seed, whose movement is subject to the additional conditions in § 301.75-8, from a quarantined area. The requirements of § 301.75-6, standing alone, did not serve to address the risk associated with the movement of regulated articles such as nursery stock from the quarantined area, however, since they did not include any provisions to ensure that the specific articles to be moved were free of citrus canker. In fact, these requirements were not intended to serve as necessary and sufficient conditions under which the movement of regulated articles such as nursery stock would be allowed.
We have considered the interstate movement of nursery stock to be prohibited under § 301.75-2(a) because we have not had regulations in place that specifically set forth the conditions under which the interstate movement of nursery stock from a quarantined area would be allowed. However, the regulations have also not contained any provision specifically prohibiting the interstate movement of regulated nursery stock from the quarantined area. Given that, the general requirements in § 301.75-6 could also have been read as allowing the interstate movement of any regulated article not specifically named elsewhere in the regulations, including nursery stock, subject to the conditions in that section. As stated earlier, APHIS' intent has always been to prohibit the movement of all nursery stock except calamondin and kumquat plants from the quarantined area. (Our reasons for allowing the interstate movement of those plants are discussed later in this document under the heading “Protocol to Allow Interstate Movement of Calamondin and Kumquat Plants.”)
Prior to the decision by the USDA that the eradication program was no longer a scientifically feasible option to address citrus canker in Florida, the State of Florida had placed restrictions on the intrastate movement of regulated nursery stock from the quarantined area. Under its authority, the State of Florida placed “stop-sale” orders on all nursery stock in the quarantined area, thus preventing its movement, and also destroyed any plants or trees that were infected with citrus canker as well as any regulated plants or trees that were located within 1,900 feet of an infected plant or tree. These intrastate movement restrictions effectively prohibited the movement of regulated nursery stock from the quarantined area. However, after the USDA decision and the subsequent designation of the entire State of Florida as a quarantined area, the State of Florida stopped routinely destroying infected and exposed trees and plants and issuing stop-sale orders for uninfected nurseries in the quarantined area, since the goal of the citrus canker program was no longer to eradicate citrus canker in Florida but to manage it.
Therefore, we need to amend the regulations to explicitly prohibit, with limited exceptions, the interstate movement of regulated nursery stock, to codify our long-standing policy in that regard and to remove any ambiguity that may have arisen from the provisions in § 301.75-6.
Accordingly, this interim rule prohibits the interstate movement of regulated nursery stock from a quarantined area. (This interim rule adds a definition of
As discussed earlier, prior to the effective date of this interim rule, § 301.75-6 set out threshold conditions that had to be met for the movement of regulated articles from the quarantined area under §§ 301.75-7 and 301.75-8. We are revising the title of the section to read “Interstate movement of regulated nursery stock from a quarantined area” to reflect its new focus.
We have moved the requirements in paragraph (b) to a new paragraph (c) and amended the paragraph to refer generally to nursery stock rather than only to plants and trees. This paragraph, which was originally added to the regulations in the August 2006 interim rule, allows regulated nursery stock produced in a nursery located in a quarantined area that is not otherwise eligible for movement to be moved interstate for immediate export. To be moved under this paragraph, the regulated nursery stock must be accompanied by a limited permit issued in accordance with § 301.75-12 and must be moved in a container sealed by APHIS directly to the port of export in accordance with the conditions of the limited permit.
We are replacing the remainder of § 301.75-6 with new regulations.
Prior to our August 2006 interim rule, paragraph (a) of § 301.75-6 required inspections at 45-day intervals of all regulated plants and regulated trees in nurseries within the quarantined area and annual inspections of all other regulated plants and regulated trees (except houseplants) within the quarantined area. In the “Background” section of the August 2006 interim rule, we stated that the level of inspection that had been required in § 301.75-6 “is necessary for a regulatory program focused on eradication but it is no longer appropriate in all cases given the current circumstances. Therefore, we are moving those requirements from § 301.75-6 to § 301.75-4(d).” That paragraph contains provisions under which an area less than an entire State may be designated as a quarantined area; our intention was to move all provisions in the regulations that were
Paragraph (a)(2) of § 301.75-6 has required that, in the quarantined area, all vehicles, equipment, and other articles used in providing inspection, maintenance, harvesting, or related services in any grove containing regulated plants or regulated trees be treated in accordance with § 301.75-11(d) upon leaving the grove. Paragraph (a)(2) has also required that all personnel who enter the grove or premises to provide these services must be treated in accordance with § 301.75-11(c) upon leaving the grove. These requirements are designed to protect groves from the artificial spread of citrus canker and are more properly located in § 301.75-7, i.e., in the regulations governing the interstate movement of fruit from the quarantined area, which require that regulated fruit come from a grove free of citrus canker in order to be eligible for interstate movement. Accordingly, we are moving the requirements that have been in § 301.75-6(a)(2) into paragraph (a) of § 301.75-7.
In this interim rule, we are revising paragraph (a) of § 301.75-6 to state that regulated nursery stock may not be moved interstate from a quarantined area except for immediate export in accordance with newly redesignated paragraph (c) of § 301.75-6, with the proviso that calamondin and kumquat plants may be moved interstate from a quarantined area in accordance with a new paragraph (b). The provisions of this paragraph (b), along with our reasons for including them in the regulations, are discussed in detail directly below.
In a final rule published in the
At the time the March 1989 final rule was published, the entire State of Florida was quarantined for citrus canker. However, in a final rule published in the
The August 2006 interim rule again quarantined the entire State of Florida for citrus canker, thus prohibiting the interstate movement of regulated nursery stock from all nurseries in the State. To provide any possible relief from these restrictions, we reexamined the movement of calamondin and kumquat plants and determined the safeguards that the protocol required for the interstate movement of these highly resistant plants would mitigate the risk of spreading citrus canker from a quarantined area through the interstate movement of these plants. We subsequently began allowing such movement through administrative action pending the development of regulations. This interim rule codifies that protocol.
The biological basis for allowing the interstate movement of calamondin and kumquat plants remains the same: These two types of citrus are highly resistant to infection by the bacterium that causes citrus canker.
• The plants are own-root-only and have not been grafted or budded;
• The plants are started, are grown, and have been maintained solely at the nursery from which they will be moved interstate.
• If the plants are not grown from seed, then the cuttings used for propagation of the plants are taken from plants located on the same nursery premises or from another nursery that is eligible to produce calamondin and kumquat plants for interstate movement under the requirements of § 301.75-6(b). Cuttings may not be obtained from properties where citrus canker is present.
• All citrus plants at the nursery premises have undergone State inspection and have been found to be free of citrus canker no less than three times. The inspections must be at intervals of 30 to 45 days, with the most recent inspection being within 30 days of the date on which the plants are removed and packed for shipment.
• All vehicles, equipment, and other articles used in providing inspection, maintenance, or related services in the nursery must be treated in accordance with § 301.75-11(d) before entering the nursery to prevent the introduction of citrus canker. All personnel who enter the nursery to provide these services must be treated in accordance with § 301.75-11(c) before entering the nursery to prevent the introduction of citrus canker.
• If citrus canker is found in the nursery, all regulated plants and plant material must be removed from the nursery and all areas of the nursery's facilities where plants are grown and all associated equipment and tools used at the nursery must be treated in accordance with § 301.75-11(d) in order for the nursery to be eligible to produce calamondin and kumquat plants to be moved interstate under § 301.75-6(b). Fifteen days after these actions are completed, the nursery may receive new calamondin and kumquat seed or cuttings from a nursery that is eligible
• The plants, except for plants that are hermetically sealed in plastic bags before leaving the nursery, are completely enclosed in containers or vehicle compartments during movement through the quarantined area. This requirement will prevent infection during transportation through the quarantined area.
Paragraph (b) also requires that the plants be moved under limited permit to ensure that they are only moved to areas other than commercial citrus-producing areas. This requirement is contained in paragraph (b)(8), which requires that the calamondin or kumquat plants or trees be accompanied by a limited permit issued in accordance with § 301.75-12. The statement “Limited permit: Not for distribution in AZ, CA, HI, LA, TX, and American Samoa, Guam, Northern Mariana Islands, Puerto Rico, and Virgin Islands of the United States” must be displayed on a plastic or metal tag attached to each plant, or on the box or container if the plant is sealed in plastic. In addition, this statement must be displayed on the outside of any shipping containers used to transport these plants, and the limited permit must be attached to the bill of lading or other shipping document that accompanies the plants.
Section 301.75-12 contains general requirements for issuance and attachment of limited permits under the regulations. Paragraph (b) of that section requires that the limited permit accompanying a regulated article be attached to the outside of the article, the outside of the container, or the waybill. As described in the previous paragraph, the protocol for the interstate movement of calamondin and kumquat trees imposes additional, specific requirements related to the limited permit that are designed to provide as much assurance as possible that the nursery stock will not be moved into a commercial citrus-producing area. Accordingly, we are amending § 301.75-12(b) to make it clear that the specific requirements for attaching limited permits to calamondin and kumquat plants supersede the general provisions of § 301.75-12(b).
We believe these conditions will ensure the safe interstate movement of calamondin and kumquat plants from the quarantined area, as they did prior to the September 1990 final rule.
Finally, we are also revising paragraph (a) of § 301.75-2 to state that regulated articles may not be moved interstate from a quarantined area except in accordance with a protocol in §§ 301.75-6, 301.75-7, or 301.75-8; in accordance with § 301.75-4 if less than an entire State is designated as a quarantined area; or in accordance with the regulations in § 301.75-9 for scientific or experimental purposes only. We are making this change to clarify that the regulations prohibit the interstate movement from a quarantined area of all regulated articles other than those specifically addressed elsewhere in the regulations. If we determine that other regulated articles can be moved interstate from the quarantined area without spreading citrus canker, we will update the regulations to set out conditions for their movement.
We are also amending the definition of
This rulemaking is necessary on an emergency basis to address the ambiguities in § 301.75-6 and the risk associated with the interstate movement of citrus nursery stock and other regulated articles from areas quarantined for citrus canker. Under these circumstances, the Administrator has determined that prior notice and opportunity for public comment are contrary to the public interest and that there is good cause under 5 U.S.C. 553 for making this rule effective less than 30 days after publication in the
We will consider comments we receive during the comment period for this interim rule (see
This rule has been reviewed under Executive Order 12866. The rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.
This interim rule codifies existing policies and clarifies the regulations to prohibit the interstate movement of regulated nursery stock from the quarantined area. Because the interstate movement of nursery stock from an area quarantined for citrus canker poses a high risk of spreading citrus canker outside the quarantined area, APHIS has prohibited this movement prior to the effective date of this interim rule. This change to the regulations will not have any effect on any entities, as it codifies existing procedures. In addition, the interim rule retains a provision of the regulations that allows the interstate movement of regulated nursery stock for immediate export, under certain conditions.
The interim rule also provides for the interstate movement of calamondin and kumquat plants, two types of citrus plants that are highly resistant to citrus canker, if they are produced and moved under a protocol designed to ensure that they are free from citrus canker prior to movement. Prior to the publication of the August 2006 interim rule, which quarantined the entire State of Florida for citrus canker, the movement of all regulated nursery stock, including calamondin and kumquat plants, from the quarantined area was prohibited by Florida's statutes and regulations. However, since the publication of the August 2006 interim rule, APHIS has recognized the lower risk associated with the interstate movement of calamondin and kumquat plants by allowing them to move under the protocol designed to ensure that they are free of citrus canker, similar to how APHIS allowed that movement before the September 1990 final rule discussed earlier in this document reduced the area quarantined for citrus canker to an area less than the entire State of Florida. We have allowed the movement of calamondin and kumquat plants, subject to the protocol, through administrative action pending the development of regulations. Adding these provisions to the regulations in this interim rule simply codifies existing procedures.
Because the changes to the regulations made by this interim rule will not have any effect on current quarantine operations, we expect that they will not have a significant economic impact on any entities, whether large or small.
Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.
This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 7 CFR part 3015, subpart V.)
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.
In accordance with section 3507(j) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
We plan to request continuation of that approval for 3 years. Please send written comments on the 3-year approval request to the following addresses: (1) Office of Information and Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, DC 20503; and (2) Docket No. APHIS-2007-0032, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that your comments refer to Docket No. APHIS-2007-0032 and send your comments within 60 days of publication of this rule.
This interim rule amends the citrus canker regulations to prohibit the interstate movement of nursery stock, except calamondin and kumquat plants produced in accordance with a production protocol and moved interstate to areas other than commercial citrus production areas. The imposition of the movement requirement will require regulated parties to secure limited permits for the interstate movement of calamondin and kumquat plants.
We are soliciting comments from the public (as well as affected agencies) concerning our information collection and recordkeeping requirements. These comments will help us:
(1) Evaluate whether the information collection is necessary for the proper performance of our agency's functions, including whether the information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the information collection, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the information collection on those who are to respond (such as through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology; e.g., permitting electronic submission of responses).
Copies of this information collection can be obtained from Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 734-7477.
The Animal and Plant Health Inspection Service is committed to compliance 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. For information pertinent to E-Government Act compliance related to this interim rule, please contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 734-7477.
Agricultural commodities, Plant diseases and pests, Quarantine, Reporting and recordkeeping requirements, Transportation.
7 U.S.C. 7701-7772 and 7781-7786; 7 CFR 2.22, 2.80, and 371.3.
Section 301.75-15 issued under Sec. 204, Title II, Public Law 106-113, 113 Stat. 1501A-293; sections 301.75-15 and 301.75-16 issued under Sec. 203, Title II, Public Law 106-224, 114 Stat. 400 (7 U.S.C. 1421 note).
(a) Regulated articles may not be moved interstate from a quarantined area except in accordance with a protocol in §§ 301.75-6, 301.75-7, or 301.75-8, or in accordance with § 301.75-4 if less than an entire State is designated as a quarantined area. Regulated articles may be moved in accordance with the regulations in § 301.75-9 for scientific or experimental purposes only.
(a) Regulated nursery stock may not be moved interstate from a quarantined area except for immediate export in accordance with paragraph (c) of this section;
(b) Calamondin (
(1) The plants are own-root-only and have not been grafted or budded;
(2) The plants are started, are grown, and have been maintained solely at the nursery from which they will be moved interstate.
(3) If the plants are not grown from seed, then the cuttings used for propagation of the plants are taken from plants located on the same nursery premises or from another nursery that is eligible to produce calamondin and kumquat plants for interstate movement under the requirements of this paragraph (b). Cuttings may not be obtained from properties where citrus canker is present.
(4) All citrus plants at the nursery premises have undergone State inspection and have been found to be free of citrus canker no less than three times. The inspections must be at intervals of 30 to 45 days, with the most recent inspection being within 30 days of the date on which the plants are removed and packed for shipment.
(5) All vehicles, equipment, and other articles used in providing inspection, maintenance, or related services in the nursery must be treated in accordance with § 301.75-11(d) before entering the nursery to prevent the introduction of citrus canker. All personnel who enter the nursery to provide these services must be treated in accordance with § 301.75-11(c) before entering the nursery to prevent the introduction of citrus canker.
(6) If citrus canker is found in the nursery, all regulated plants and plant material must be removed from the nursery and all areas of the nursery's facilities where plants are grown and all associated equipment and tools used at the nursery must be treated in accordance with § 301.75-11(d) in order for the nursery to be eligible to produce calamondin and kumquat plants to be moved interstate under this paragraph (b). Fifteen days after these actions are completed, the nursery may receive new calamondin and kumquat seed or cuttings from a nursery that is eligible to produce calamondin and kumquat plants for interstate movement under this paragraph (b).
(7) The plants, except for plants that are hermetically sealed in plastic bags before leaving the nursery, are completely enclosed in containers or vehicle compartments during movement through the quarantined area.
(8) The calamondin or kumquat plants or trees are accompanied by a limited permit issued in accordance with § 301.75-12. The statement “Limited permit: Not for distribution in AZ, CA, HI, LA, TX, and American Samoa, Guam, Northern Mariana Islands, Puerto Rico, and Virgin Islands of the United States” must be displayed on a plastic or metal tag attached to each plant, or on the box or container if the plant is sealed in plastic. In addition, this statement must be displayed on the outside of any shipping containers used to transport these plants, and the limited permit must be attached to the bill of lading or other shipping document that accompanies the plants.
(c) Regulated nursery stock produced in a nursery located in a quarantined area that is not eligible for movement under paragraph (b) of this section may be moved interstate only for immediate export. The regulated nursery stock must be accompanied by a limited permit issued in accordance with § 301.75-12 and must be moved in a container sealed by APHIS directly to the port of export in accordance with the conditions of the limited permit.
(a) * * *
(5) All vehicles, equipment, and other articles used in providing inspection, maintenance, harvesting, or related services in the grove must be treated in accordance with § 301.75-11(d) upon leaving the grove. All personnel who enter the grove or premises to provide these services must be treated in accordance with § 301.75-11(c) upon leaving the grove.
Animal and Plant Health Inspection Service, USDA.
Affirmation of interim rule as final rule.
We are adopting as a final rule, without change, an interim rule that amended the brucellosis regulations concerning the interstate movement of cattle by changing the classification of Wyoming from Class A to Class Free. We have determined that Wyoming meets the standards for Class Free status. This action relieves certain restrictions on the interstate movement of cattle from Wyoming.
Effective on March 22, 2007, we are adopting as a final rule the interim rule published at 71 FR 54402-54404 on September 15, 2006.
Dr. Debbi A. Donch, Senior Staff Veterinarian, Ruminant Health Programs, National Center for Animal Health Programs, VS, APHIS, 4700 River Road Unit 43, Riverdale, MD 20737-1231; (301) 734-5952.
Brucellosis is a contagious disease affecting animals and humans, caused by bacteria of the genus
The brucellosis regulations, contained in 9 CFR part 78 (referred to below as the regulations), provide a system for classifying States or portions of States according to the rate of
In an interim rule
Comments on the interim rule were required to be received on or before November 14, 2006. We received one comment by that date, from an industry group.
The commenter supported our determination that Wyoming has met the requirements to be classified as a Class Free State. The commenter also raised separate points related to this change in classification, which we will address in this document.
The interim rule stated that the last brucellosis-infected herd of cattle in Wyoming was depopulated in December 2004. The commenter stated that, because the requirements for Class Free classification state that all cattle herds in a Class Free State or area must remain free of field strain
In addition to satisfying the requirement for freedom in paragraph (b)(1) of the criteria for a Class Free State or area in § 78.1, the Animal and Plant Health Inspection Service (APHIS) must determine that a State or area meets all the other requirements in those criteria prior to classifying a State or area as Class Free. This process can take some time, but it would not be appropriate to classify a State or area as Class Free until the process is completed.
The commenter also referred to surveillance programs and risk mitigation measures that are in place to address the risk associated with reservoirs of brucellosis in wild animals in Sublette, Teton, Lincoln, Fremont, Hot Springs, and Park Counties in Wyoming. The commenter stated that APHIS required that this surveillance and risk mitigation be undertaken in order for Wyoming to be reclassified as a Class Free State. The commenter stated that the regulations and the Animal Health Protection Act (7 U.S.C. 8301-8317) do not give APHIS the authority to impose such requirements in order to achieve Class Free status.
The commenter inaccurately characterizes the origin of these surveillance programs and risk mitigation measures. APHIS' review of the Wyoming brucellosis program recommended that surveillance programs and risk mitigation measures be established to address the risk of infection transmitted from wild animals. We also recommended that the State of Wyoming develop a memorandum of understanding with APHIS to implement these programs and measures. The State of Wyoming recognized the risk associated with the reservoirs of brucellosis that exist in wild animals in parts of that State and took action in cooperation with APHIS.
We based our decision to reclassify Wyoming as a Class Free State for brucellosis on the State's compliance with the requirements in the regulations regarding Class Free status.
Therefore, for the reasons given in the interim rule and in this document, we are adopting the interim rule as a final rule without change.
This action also affirms the information contained in the interim rule concerning Executive Order 12866 and the Regulatory Flexibility Act, Executive Orders 12372 and 12988, and the Paperwork Reduction Act.
Further, for this action, the Office of Management and Budget has waived its review under Executive Order 12866.
Animal diseases, Bison, Cattle, Hogs, Quarantine, Reporting and recordkeeping requirements, Transportation.
Office of Thrift Supervision, Treasury (OTS), Treasury.
Final rule.
In this final rule, OTS is changing its Community Reinvestment Act (CRA) regulations in four areas to reestablish uniformity between its regulations and those of the other federal banking agencies. OTS is making these revisions to its CRA rule to promote consistency and help facilitate objective evaluations of CRA performance across the banking and thrift industries. Consistent standards will allow the public to make more effective comparisons of bank and thrift CRA performance. Additionally, OTS is incorporating changes that reinforce CRA objectives consistent with the ongoing performance of savings associations in meeting the financial services needs of the communities they serve.
To advance these objectives OTS is aligning its CRA rule with the rule adopted by the banking agencies by: (1) Eliminating the option of alternative weights for lending, investment, and service under the large, retail savings association test; (2) defining small savings associations with between $250 million and $1 billion in assets as “intermediate small savings associations” and establishing a new community development test for them; (3) indexing the asset threshold for small and intermediate small savings associations annually based on changes to the Consumer Price Index (CPI); and (4) clarifying the impact on a savings association's CRA rating if OTS finds evidence of discrimination or other illegal credit practices.
This rule is effective on July 1, 2007.
Celeste Anderson, Senior Project Manager, Compliance and Consumer Protection, (202) 906-7990; Richard Bennett, Counsel, Regulations and Legislation Division, (202) 906-7409, Office of Thrift Supervision, 1700 G Street, NW., Washington, DC 20552.
The CRA requires the federal banking and thrift agencies to assess the record of each insured depository institution of meeting the credit needs of its entire community, including low- and moderate-income neighborhoods, consistent with the safe and sound operation of the institution, and to take that record into account when evaluating an application by the institution for a deposit facility. 12 U.S.C. 2903. In 1995, when OTS, the Office of the Comptroller of the Currency (OCC), the Board of Governors of the Federal Reserve System (Board), and the Federal Deposit Insurance Corporation (FDIC) (collectively, the four agencies) adopted major
The four agencies initiated their public review in July 2001 with publication in the
After nearly three years of discussions, in February 2004, the four agencies published a notice of proposed rulemaking. 69 FR 5729 (Feb. 6, 2004). Through it, the Agencies proposed to raise the small institution asset threshold to $500 million without regard to holding company affiliation; to amend the regulations to provide that certain discriminatory, illegal, or abusive credit practices would adversely affect the evaluation of the institution's CRA performance; and to enhance the data disclosed in CRA public evaluations and CRA disclosure statements.
On July 16, 2004, the OCC and the Board announced that they would not proceed with their respective February 2004 proposals. The OCC did not formally withdraw the proposal, but did not adopt it. The Board formally withdrew its proposal.
On August 18, 2004, OTS published a final rule that raised the small savings association asset threshold to $1 billion without regard to holding company affiliation effective October 1, 2004. 69 FR 51155 (Aug. 18, 2004).
On August 20, 2004, the FDIC issued another proposed rule. 69 FR 51611 (Aug. 20, 2004). The FDIC proposed to raise the small institution asset threshold to $1 billion, while adding a community development activity criterion to the small institution test for banks with assets greater than $250 million up to $1 billion. It also proposed to expand the definition of “community development” to encompass a broader range of activities in rural areas.
On November 24, 2004, OTS proposed further CRA regulatory reforms. 69 FR 68257 (Nov. 24, 2004). Like the FDIC, it proposed to expand the definition of “community development” to encompass certain community development activities in underserved nonmetropolitan areas. OTS also solicited comment on expanding the definition of “community development” to encompass certain community development activities in areas affected by natural or other disasters or other major community disruptions without regard to whether those areas or the individuals served were low- or moderate-income. Further, OTS solicited comment on providing additional flexibility in the CRA examinations of large retail institutions.
On March 2, 2005, OTS adopted a final rule effective April 1, 2005, that provided additional flexibility under the large retail savings association test allowing savings associations to choose to be evaluated under weights that differed from the standard previously adopted by the agencies whereby approximately 50 percent weight was placed on lending, 25 percent weight on services, and 25 percent weight on investments. 70 FR 10023 (Mar. 2, 2005).
After OTS adopted final rules on CRA regulatory reform, the other agencies also amended their CRA rules. On August 2, 2005, following their publication of a notice of proposed rulemaking (70 FR 12148, 12149 (Mar. 11, 2005)), the OCC, the Board, and the FDIC (collectively, the three agencies) issued a joint final rule amending their CRA regulations. 70 FR 44256 (Aug. 2, 2005). The three agencies' August 2005 final rule extended eligibility for streamlined lending evaluations and the exemption from data reporting to banks under $1 billion, without regard to holding company assets. The three agencies' final rule expanded the definition of “community development” to include certain activities in underserved rural areas and disaster areas.
The three agencies' final rule contained some differences from provisions OTS had proposed or finalized. It provided that the three agencies would separately evaluate and rate the community development records of institutions between $250 million and $1 billion (termed “intermediate small banks” by the three agencies), but under a new, more streamlined basis than under the large retail institution test. Under this new test, the three agencies no longer require an intermediate small bank to collect and report data on small business or small farm loans or on the location of certain nonmetropolitan mortgage loans. However, the new test contains two components, a lending test and a community development test.
The three agencies' final rule also refined one aspect of the February 2004 joint proposal to provide that evidence of discrimination or evidence of credit practices that violate an applicable law, rule, or regulation could adversely affect an agency's evaluation of a bank's CRA performance. The final rule included an illustrative list of such practices. Further, it provided that the asset thresholds would be adjusted annually for inflation, based on changes to the Consumer Price Index.
On April 12, 2006, OTS adopted a further final rule revising the definition of “community development” to reduce burden and provide greater flexibility to meet community needs. The revised definition is the same as the definition that the Board, OCC, and FDIC adopted in their August 2, 2005 final rule.
On November 24, 2006, OTS issued a new proposed rule. In the
In issuing the proposal, OTS noted that savings associations have an excellent record in the provision of credit, investments, and services in their markets, particularly in low- to moderate-income communities. OTS observed that in its experience, as a percentage of their total assets, savings associations far outdistance banks and other lenders in originating multi-family
OTS proposed changes to its CRA regulations in four areas. While the preamble addressed each area in turn, the
OTS's March 2005 final rule provided additional flexibility for the weights given to lending, services, and investments for each examination under the large retail savings association test. OTS issued guidance on April 7, 2005, explaining the methodology it would apply through Thrift Bulletin 85 (April 7, 2005). The other three agencies have not adopted this approach.
In its November 24, 2006 proposal, OTS proposed to eliminate alternative weights to facilitate uniformity in the assessment of CRA performance between banks and thrifts. Most large institutions elected to continue to allocate weights under the three performance categories of lending, investments, and services.
OTS noted that if the agency eliminated the alternative weight option for large savings associations, large savings associations would retain flexibility to focus their CRA efforts with emphasis on lending, just as they have in the past. For example, a savings association with outstanding performance in lending and services would still receive an “outstanding” CRA rating overall, even if it makes few or no qualified investments. Additionally, a savings association with a poor record on the service test and few or no qualified investments would still receive a “satisfactory” CRA rating overall if its lending is at least highly satisfactory.
The
The
OTS's August 2004 final rule raised the small savings association asset threshold from $250 million to $1 billion and eliminated consideration of holding company affiliation. This change enabled OTS to evaluate the CRA performance of savings associations with $250 million or more, but less than $1 billion, in assets under the small savings association test. In contrast to OTS, the other three agencies imposed a different community development test for institutions with $250 million or more, but less than $1 billion, in assets, called “intermediate small banks.” Under their test, the three agencies evaluate an intermediate small bank's lending performance under the small bank lending criteria, but they also evaluate the bank's community development performance under the following criteria:
• The number and amount of community development loans;
• The number and amount of qualified investments;
• The extent to which the bank provides community development services; and
• The bank's responsiveness through such activities to community development lending, investment, and services needs.
OTS proposed to adopt the intermediate small institution test. In the supplementary information to the November 24, 2006 proposal, OTS stated its belief that intermediate small savings associations are responsive to the community development needs within the communities they serve. The adoption of the intermediate small institution test would provide a more comprehensive framework for assessing the community development performance of intermediate small savings associations than the small savings association performance criteria. In addition, adopting the intermediate small institution test would assist the public in making a reasonable comparison of community development performance between banks and savings associations operating in the same market.
OTS explained that it anticipated that if it adopted this test, it would allow flexibility. This proposal did not prescribe a required threshold for community development loans, qualified investments, and community development services. Instead, OTS explained that based on the savings association's assessment of community development needs in its assessment area(s), it would be able to engage in those categories of community development activities that are responsive to observed needs and consistent with the savings association's capacity. Savings associations that have been providing community development loans and services, would find that OTS would continue to give those activities credit when OTS evaluates compliance under the new test.
Further, as under the large retail institution test, examiners would take into account statutory and supervisory limitations on a savings association's ability to engage in any lending, investment, and service activities. For
The
As the three agencies explained in the preamble to their March 11, 2005 proposed rule (70 FR at 12151), there is precedent for indexing asset thresholds to the CPI. Under the Home Mortgage Disclosure Act, 12 U.S.C. 2801
The
The language adopted by the other three agencies in their August 2005 final rule stated that with respect to discrimination in affiliate lending, the three agencies would reduce a rating based on discrimination in an affiliate's loans made inside the institution's assessment area where the loans have been considered as part of the institution's lending performance. The three agencies explained in the preamble to their August 2, 2005 final rule (70 FR at 44263) that a bank may not elect to include as part of its CRA evaluation affiliate loans outside the bank's assessment area. OTS proposed to amend its CRA rule to reflect this approach.
OTS received 66 comments in total on the proposed rule from: One member of Congress in support; three trade associations, one in support (or at least not opposed) and two opposed; three savings associations opposed; 58 from individuals and organizations dedicated to consumer, affordable housing, and community development causes in support; and one national bank in support.
Fifty-four commenters supported all aspects of the proposal. Another six supported everything except indexing of asset thresholds. One trade association did not oppose the proposal and supported indexing of asset thresholds. Two other trade associations supported indexing of asset thresholds; one of these also supported the provision on discriminatory or other illegal credit practices.
In contrast, two trade associations and two large savings associations opposed eliminating alternative weights. Those trade associations and one intermediate small savings association (as defined by the final rule) opposed imposing the new community development test on intermediate small institutions.
Most who commented recommend that the changes take effect right away. In contrast, one trade association supported a two-year transition period for large and intermediate small savings associations. Another trade association requested a transition period of at least one examination cycle for intermediate small institutions if OTS changes its rule. One organization that advocates for community reinvestment said it did not object to OTS waiting six months to a year before conducting more exams for large or intermediate small savings associations.
Many of the commenters who supported the proposal raised similar points. The member of Congress who supported all aspects of the proposal, explained that it would restore uniformity and eliminate temptation to flip charters based on different CRA standards. That letter urged OTS to adopt the proposed changes as soon as possible.
The industry trade association that supported (or at least did not oppose) the proposal explained that while it prefers OTS's approach on alternative weights and would have preferred that the other federal banking agencies had adopted OTS's rule, it realizes that the other federal banking agencies have not done so. It credited OTS with breaking the interagency logjam and allowing much needed progress on CRA. But it explained that given the position of the other agencies, it understood OTS's desire to make its rule uniform with the others. It added that uniformity would eliminate confusion for bankers and examiners and that consistency among the agencies would outweigh the benefits of only OTS offering alternative weights. This commenter supported indexing asset thresholds and did not oppose the provision on discriminatory or other illegal credit practices for uniformity. This commenter urged OTS, however, to provide a two-year transition period for large thrifts that relied on alternate weights and intermediate small thrifts that relied on the streamlined lending test to give them time to adjust their policies and procedures.
One national organization that advocates for community reinvestment submitted a detailed letter and its comments were echoed by dozens of others dedicated to consumer protection, affordable housing, and community development causes. This organization supported all aspects of the proposal for several reasons including: (1) It would increase lending, investing, and services in low- and moderate-income communities; (2) establishing the same CRA standards are necessary for the public to be able to effectively compare performance; (3) weaker standards for thrifts make it difficult to hold thrifts accountable for responding to community needs; (4) different standards increase the possibility of some shirking their CRA obligations; (5) the large bank test has worked well; (6) the anti-predatory lending provision is necessary to penalize thrifts through lower CRA ratings if they engage in illegal, discriminatory, and abusive lending practices; (7) research demonstrates that OTS's different rule resulted in declines by thrifts in community development lending, investments, and the number of
One national organization that advocates for affordable housing lending supported all aspects of the proposal. It stated that consistency among regulators helps communities and institutions maximize the opportunities to make loans and sell services and that consistency among regulators avoids a regulatory “race to the bottom.” Many other commenters echoed these sentiments.
OTS also received several letters from housing authorities supporting the proposal except for indexing asset thresholds. These commenters argued that over time, indexing would exempt more large thrifts from the large retail exam and more intermediate small thrifts from the new community development test.
The industry trade associations that opposed eliminating alternative weights and imposing the new community development test for intermediate small thrifts made several arguments: (1) Uniformity is not necessary to ensure that savings associations meet the credit needs of their communities; (2) OTS's current rule significantly reduces burden, which outweighs potential benefits, if any, of uniformity; and (3) the extensive narratives in OTS's examination reports make savings associations' performance readily comparable to banks' even if the tests applied are different. These commenters advocated that the other federal banking agencies should adopt OTS's rule to create uniformity.
With specific regard to alternative weights, they commented that it is necessary and appropriate for large savings association to have a flexible test given differences between the thrift charter and bank charters. This flexibility simply recognizes that thrifts have always been evaluated somewhat differently from banks under the OTS policy of granting savings associations with strong lending records at least a low satisfactory rating on the investment test even if they make few or no qualified investments.
One trade association specifically criticized the new CD test for creating an additional layer of regulatory complexity. Another urged OTS to provide a transition period of at least one examination cycle for those intermediate small institutions that had reallocated their CRA activities relying on the ability to comply with the streamlined lending test.
One trade association concluded, based on its analysis, that applying the small institution test to savings associations up to $1 billion in assets had not resulted in a reduction of their commitments to their communities. Another indicated, however, that if OTS changed its rule to realign with the other federal banking agencies, the change would not have a negative effect on the way savings associations are already meeting the credit needs of their communities. These commenters both supported indexing asset thresholds; one also supported the provision on discriminatory or other illegal credit practices.
The thrifts that commented made similar arguments. One also expressed a specific concern about relying on the OTS policy of granting savings associations with strong lending records at least a low satisfactory rating on the investment test even if they make few or no qualified investments due to limits on savings associations' investment authority. This thrift suggested that unless the alternative weight option is retained in the rule, OTS might, at any time, discontinue the policy or begin requiring a savings association to make an individualized showing of how restrictions on investment authority have limited that particular thrift's investments.
The comments largely supported the proposal. Having carefully considered the comments, OTS is revising its rule for the same reasons it issued the proposal as discussed in part B of this
OTS would like to address some of the specific comments. While some commenters submitted information to support claims that alternative weights and the extension of the streamlined small institution test to institutions with assets of less than $1 billion had a negative impact on community development, others submitted information to support claims that changes did not have a negative impact. OTS believes the experience with these innovations was too brief to be conclusive either way. However, the revisions reinforce CRA objectives consistent with long standing performance of savings associations in providing access to credit, making investments, and providing services that support the communities they serve.
Regarding the elimination of alternative weights, OTS wishes to reassure the commenter who expressed concern about relying on the OTS policy of granting savings associations with strong lending records at least a low satisfactory rating on the investment test even if they make few or no qualified investments due to limits on savings associations' investment authority. OTS notes—as discussed in detail in part B.1. of this
OTS highlights that in one small respect, today's final rule departs slightly from the proposal. That departure concerns indexing asset thresholds. As proposed, the regulation provides that OTS will publish annual adjustments to these dollar figures based on the year-to-year change in the average of the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPIW), not seasonally adjusted, for each twelve-month period ending in November, with rounding to the nearest million. 12 CFR 563e.12(u)(2).
Since OTS's proposal, however, the OCC, Board, and FDIC updated their regulations to make this annual adjustment. 71 FR 78335 (December 29, 2006). The preamble to their joint rule noted that during the one-year period ending November 2006, the CPIW increased by 3.32 percent. As a result, they revised their rule to provide that beginning January 1, 2007, banks that,
To enable OTS to adjust the asset thresholds applicable for savings associations consistently with the other federal banking agencies, the rule text provides that savings associations that, as of December 31 of either of the prior two calendar years, had assets of less than $1.033 billion are “small savings associations.” Small savings associations with assets of at least $258 million as of December 31 of both of the prior two calendar years and less than $1.033 billion as of December 31 of either of the prior two calendar years are “intermediate small savings associations.” These inflation-adjusted asset thresholds will take effect once today's final rule takes effect on July 1, 2007.
Today's final rule takes effect July 1, 2007. The rule changes will apply to examinations that begin in the third quarter of 2007.
However, OTS recognizes that some savings associations may have adjusted their CRA-related programs in reliance on the availability of the alternative weight option under the large retail savings association test and on the availability of the streamlined small institution test for institutions with up to $1 billion in assets (inflation adjusted). Rather than providing a long delay in effective date as a few commenters requested, OTS will provide relief in another way. OTS examiners will take the elimination of the alternative weight option under the large retail savings association test and the elimination of the streamlined small institution test for institutions with $250 million to $1 billion in assets (inflation adjusted) into consideration as part of the performance context when conducting examinations of savings associations affected, since these regulatory changes could have impacted their operations. Section 563e.21(b) of the CRA rule provides that OTS applies the CRA tests in the context of various factors including “(7) Any other information deemed relevant by the OTS.” OTS deems these two changes to its CRA relevant for performance context purposes.
The period during which OTS's rules allow for alternative weights under the large retail savings association test started April 1, 2005 and ends July 1, 2007. Accordingly, for CRA examinations under the large retail savings associations test that encompass all or part of this period, OTS examiners will take into account in performance context that a reduction in investment or service performance during this period could be attributable in part to reliance on the alternative weight option.
The period during which OTS's rules applied the small savings association test to savings associations between $250 million and $1 billion in assets started October 1, 2004 and ends July 1, 2007. For CRA examinations of intermediate small savings associations under the new community development test that encompass all or part of this period, OTS examiners will take into account in performance context that a reduction in investment or service performance during this period could be attributable in part to reliance on the availability of the small savings association test.
OTS further notes that under section 563e.21(a)(3), savings associations that prefer to be evaluated under the large retail savings association test have that option, but only if they collect and report data required under section 563e.42. The large retail savings association test applied to savings associations with between $250 million and $1 billion in assets before October 1, 2004. Thus, evaluation under the large retail savings association test would be an option available to intermediate small savings associations if they collected and reported data for each year covered by the performance evaluation.
In accordance with the requirements of the Paperwork Reduction Act of 1995, OTS may not conduct or sponsor, and a respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. This collection of information is currently approved under OMB Control Number 1550-0012. This final rule would not change the collection of information.
Pursuant to section 605(b) of the Regulatory Flexibility Act, OTS certifies that the final rule will not have a significant economic impact on a substantial number of small entities. None of the provisions impose any additional paperwork or regulatory reporting requirements. Eliminating the option of alternative weights only affects savings associations with assets of $1 billion or more. Imposing a community development test for intermediate small savings associations only affects savings associations with assets of $250 million up to $1 billion. Likewise, indexing the asset thresholds only affect savings associations with around $250 million in assets or more. In contrast, the Small Business Administration (SBA) has defined “small entities” for banking purposes as those with assets of $165 million or less. 13 CFR 121.201.
Incorporating language into the rule regarding discriminatory or illegal credit practices has no impact whatsoever. It does not change the laws or regulations applicable to savings associations that prohibit discriminatory or illegal conduct. It simply affects the way OTS considers noncompliance with these laws and regulations as part of the CRA performance evaluation.
OTS has determined that this proposal is not a significant regulatory action under Executive Order 12866.
Section 202 of the Unfunded Mandates Reform Act of 1995, Pub. L. 104-4 (Unfunded Mandates Act) requires that an agency prepare a budgetary impact statement before promulgating a rule that includes a Federal mandate that may result in expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. If a budgetary impact statement is required, section 205 of the Unfunded Mandates Act also requires an agency to identify and consider a reasonable number of regulatory alternatives before promulgating a rule. OTS has determined that this rule will not result in expenditures by State, local, and tribal governments, or by the private sector, of $100 million or more. Accordingly, OTS has not prepared a budgetary impact statement nor specifically addressed the regulatory alternatives considered.
Community development, Credit, Investments, Reporting and recordkeeping requirements, Savings associations.
12 U.S.C. 1462a, 1463, 1464, 1467a, 1814, 1816, 1828(c), and 2901 through 2907.
(u)
(2)
(a)
(2)
(b)
(1) The savings association's loan-to-deposit ratio, adjusted for seasonal variation, and, as appropriate, other lending-related activities, such as loan originations for sale to the secondary markets, community development loans, or qualified investments;
(2) The percentage of loans and, as appropriate, other lending-related activities located in the savings association's assessment area(s);
(3) The savings association's record of lending to and, as appropriate, engaging in other lending-related activities for borrowers of different income levels and businesses and farms of different sizes;
(4) The geographic distribution of the savings association's loans; and
(5) The savings association's record of taking action, if warranted, in response to written complaints about its performance in helping to meet credit needs in its assessment area(s).
(c)
(1) The number and amount of community development loans;
(2) The number and amount of qualified investments;
(3) The extent to which the savings association provides community development services; and
(4) The savings association's responsiveness through such activities to community development lending, investment, and services needs.
(d)
(c)
(i) Discrimination against applicants on a prohibited basis in violation, for example, of the Equal Credit Opportunity Act or the Fair Housing Act;
(ii) Violations of the Home Ownership and Equity Protection Act;
(iii) Violations of section 5 of the Federal Trade Commission Act;
(iv) Violations of section 8 of the Real Estate Settlement Procedures Act; and
(v) Violations of the Truth in Lending Act provisions regarding a consumer's right of rescission.
(2) In determining the effect of evidence of practices described in paragraph (c)(1) of this section on the savings association's assigned rating, the OTS considers the nature, extent, and strength of the evidence of the practices; the policies and procedures that the savings association (or affiliate, as applicable) has in place to prevent the practices; any corrective action that the savings association (or affiliate, as applicable) has taken or has committed to take, including voluntary corrective action resulting from self-assessment; and any other relevant information.
(d)
(A) A reasonable loan-to-deposit ratio (considering seasonal variations) given the savings association's size, financial condition, the credit needs of its assessment area(s), and taking into account, as appropriate, other lending-related activities such as loan originations for sale to the secondary markets and community development loans and qualified investments;
(B) A majority of its loans and, as appropriate, other lending-related activities, are in its assessment area;
(C) A distribution of loans to and, as appropriate, other lending-related activities for individuals of different income levels (including low- and moderate-income
(D) A record of taking appropriate action, when warranted, in response to written complaints, if any, about the savings association's performance in helping to meet the credit needs of its assessment area(s); and
(E) A reasonable geographic distribution of loans given the savings association's assessment area(s).
(ii)
(iii)
(2)
(ii)
(iii)
(3)
(ii)
(B) A small savings association that is not an intermediate small savings association that meets each of the standards for a “satisfactory” rating under the lending test and exceeds some or all of those standards may warrant consideration for an overall rating of “outstanding.” In assessing whether a bank's performance is “outstanding,” the OTS considers the extent to which the savings association exceeds each of the performance standards for a “satisfactory” rating and its performance in making qualified investments and its performance in providing branches and other services and delivery systems that enhance credit availability in its assessment area(s).
(iii)
By the Office of Thrift Supervision.
Federal Aviation Administration (FAA), DOT.
Final special conditions.
These special conditions are issued for the Aviation Technology Group, Incorporated, Javelin Model No. 100 airplane. This airplane will have novel or unusual design features associated with aft mounted engine fire protection. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
Leslie B. Taylor, Regulations & Policy Branch, ACE-111, Small Airplane Directorate, Aircraft Certification Service, 901 Locust, Kansas City, Missouri 64106; telephone (816) 329-4134; facsimile (816) 329-4090, e-mail at
On February 25, 2005, Aviation Technology Group, Incorporated applied for a type certificate for their new Javelin Model No. 100. The Javelin Model No. 100 is a two-place acrobatic airplane with two fuselage mounted turbofan engines.
Part 23 historically addressed fire protection on multiengine airplanes based on the assumption that the engines are sufficiently separated to essentially eliminate the possibility of an engine fire spreading to another engine. On traditional multiengine airplanes, this has been achieved by locating engines on the wings separated by the fuselage. This configuration ensures that an engine fire on one side does not migrate to the opposite engine. This configuration also protects the opposite engine from heat radiating from the engine fire. Prevention, identification, and containment are traditional means of fire protection. Prevention has been provided through minimizing the potential for ignition of flammable fluids and vapors. Identification has been provided by locating engines within the pilots' primary field of view and/or with the incorporation of fire detection systems. This has provided both rapid detection of a fire and confirmation when it was extinguished. Containment has been provided through the isolation of designated fire zones through flammable fluid shutoff valves and firewalls. This philosophy also ensures that components of the engine control system will function effectively to permit a safe shutdown of an engine. However, containment has only been demonstrated for 15 minutes. If a fire occurs in traditional part 23 airplanes, the appropriate corrective action is to land as soon as possible. For a small, simple airplane originally envisioned by part 23, it is possible to descend and land within 15 minutes. Thus, the occupants can safely exit the airplane before the firewall is breached. These simple airplanes normally have the engine located away from critical flight control systems and primary structure.
Title 14 CFR part 23, did not envision the type of configuration of the Javelin Model No. 100 airplane.
If the Administrator finds that the applicable airworthiness regulations in 14 CFR part 23 do not contain adequate or appropriate safety standards for the Javelin Model No. 100 because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.
In addition to the applicable airworthiness regulations and special conditions, the Javelin Model No. 100 must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.
The FAA issues special conditions, as defined in § 11.19, under § 11.38 and they become part of the type certification basis under § 21.17(a)(2).
Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, the special conditions would also apply to the other model under § 21.101.
The Javelin Model No. 100 will incorporate the following novel or unusual design features:
The Javelin Model No. 100 incorporates two turbofan engines located side-by-side in compartments in the aft fuselage.
Notice of proposed special conditions No. 23-07-01-SC for the Aviation Technology Group, Incorporated, Javelin Model No. 100 airplanes was published on January 8, 2007 (72 FR 660). One comment was received. It agreed with the proposed special conditions. No change was requested.
As discussed above, these special conditions are applicable to the Javelin Model No. 100. Should Aviation Technology Group, Incorporated, apply at a later date for a change to the type certificate to include another model on the same type certificate incorporating the same novel or unusual design feature, the special conditions would apply to that model as well.
This action affects only certain novel or unusual design features on one model of airplanes. It is not a rule of general applicability.
Aircraft, Aviation safety, Signs and symbols.
49 U.S.C. 106(g), 40113 and 44701; 14 CFR 21.16 and 21.17; and 14 CFR 11.38 and 11.19.
The fire protection system of the airplane must include features to isolate each fire zone from any other zone and the airplane to maintain isolation of the engines during a fire. Therefore, these special conditions mandate that the firewall required by § 23.1191 be extended to provide firewall isolation between either engine. These special conditions require that heat radiating from a fire originating in any fire zone must not affect components, airframe structure, systems, or flight controls in adjacent compartments in a way that endangers the airplane.
Each fire zone should be ventilated to prevent the accumulation of flammable vapors. It must also be designed such that it will not allow entry of flammable fluids, vapors, or flames from other fire zones. It must be designed such that it does not create an additional fire hazard from the discharge of vapors or fluids.
1. SC 23.1195—Add the requirements of § 23.1195 while deleting “For commuter category,” adding the requirement to “minimize the probability of re-ignition,” and deleting the statement “An individual ‘one-shot' system may be used.”
(a) Fire extinguishing systems must be installed and compliance shown with the following:
(1) Except for combustor, turbine, and tailpipe sections of turbine-engine installations that contain lines or components carrying flammable fluids or gases for which a fire originating in these sections is shown to be controllable, a fire extinguisher system must serve each engine compartment;
(2) The fire extinguishing system, the quantity of extinguishing agent, the rate of discharge, and the discharge distribution must be adequate to extinguish fires and minimize the probability of re-ignition;
(3) The fire extinguishing system for a nacelle must be able to simultaneously protect each compartment of the nacelle for which protection is provided.
(b) If an auxiliary power unit is installed in any airplane certificated to this part, that auxiliary power unit compartment must be served by a fire extinguishing system meeting the requirements of paragraph (a)(2) of this section.
2. SC 23.1197—Add the requirements of § 23.1197 while deleting “For commuter category airplanes.”
The following applies:
(a) Fire extinguishing agents must—
(1) Be capable of extinguishing flames emanating from any burning fluids or other combustible materials in the area protected by the fire extinguishing system; and
(2) Have thermal stability over the temperature range likely to be experienced in the compartment in which they are stored.
(b) If any toxic extinguishing agent is used, provisions must be made to prevent harmful concentrations of fluid or fluid vapors (from leakage during normal operation of the airplane or as a result of discharging the fire extinguisher on the ground or in flight) from entering any personnel compartment, even though a defect may exist in the extinguishing system. This must be shown by test except for built-in carbon dioxide fuselage compartment fire extinguishing systems for which—
(1) Five pounds or less of carbon dioxide will be discharged under established fire control procedures into any fuselage compartment; or
(2) Protective breathing equipment is available for each flight crewmember on flight deck duty.
3. SC 23.1199—Add the requirements of § 23.1199 while deleting “For commuter category airplanes.”
The following applies:
(a) Each extinguishing agent container must have a pressure relief to prevent bursting of the container by excessive internal pressures.
(b) The discharge end of each discharge line from a pressure relief connection must be located so that discharge of the fire-extinguishing agent would not damage the airplane. The line must also be located or protected to prevent clogging caused by ice or other foreign matter.
(c) A means must be provided for each fire extinguishing agent container to indicate that the container has discharged or that the charging pressure is below the established minimum necessary for proper functioning.
(d) The temperature of each container must be maintained, under intended operating conditions, to prevent the pressure in the container from—
(1) Falling below that necessary to provide an adequate rate of discharge; or
(2) Rising high enough to cause premature discharge.
(e) If a pyrotechnic capsule is used to discharge the fire extinguishing agent, each container must be installed so that temperature conditions will not cause hazardous deterioration of the pyrotechnic capsule.
4. SC 23.1201—Add the requirements of § 23.1201 while deleting “For commuter category airplanes.”
The following apply:
(a) No material in any fire extinguishing system may react chemically with any extinguishing agent so as to create a hazard.
(b) Each system component in an engine compartment must be fireproof.
Federal Aviation Administration (FAA), DOT.
Final rule; technical amendment.
This technical amendment corrects a final rule published in the
Tameka Bentley, Airspace and Rules, Office of System Operations Airspace and AIM, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone: (202) 267-8783.
On August 8, 2006, a final rule was published in the
• “* * * FAA Order 7400.9P” instead of “FAA Order 7400.9N * * *”.
• “* * * September 1, 2006, and effective September 15, 2006 * * *” instead of “* * * September 1, 2005, and effective September 16, 2005 * * *”.
Federal Aviation Administration (FAA), DOT.
Final rule; technical amendment.
This technical amendment corrects a final rule published in the
Tameka Bentley, Airspace and Rules, Office of System Operations Airspace and AIM, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone: (202) 267-8783.
On July 18, 2006, a final rule was published in the
“* * * FAA Order 7400.9P” instead of “FAA Order 7400.9N * * *”.
“* * * September 1, 2006, and effective September 15, 2006 * * *” instead of “* * *September 1, 2005, and effective September 16, 2005 * * *”.
Federal Aviation Administration (FAA), DOT.
Final rule; technical amendment.
This technical amendment corrects a final rule published in the
Tameka Bentley, Airspace and Rules, Office of System Operations Airspace and AIM, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone: (202) 267-8783.
On August 1, 2006, a final rule was published in the
Federal Aviation Administration (FAA), DOT.
Final rule; technical amendment.
This technical amendment corrects a final rule published in the
Tameka Bentley, Airspace and Rules, Office of System Operations Airspace and AIM, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone: (202) 267-8783.
On June 5, 2006, a final rule was published in the
Federal Aviation Administration (FAA), DOT.
Final rule; technical amendment.
This technical amendment corrects a final rule published in the
Tameka Bentley, Airspace and Rules, Office of System Operations Airspace and AIM, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone: (202) 267-8783.
On June 30, 2006, a final rule was published in the
Bureau of Industry and Security, Commerce.
Final rule; correction.
This rule corrects errors that were published on April 24, 2006, in the rule that implemented the new formula for calculating computer performance in Weighted TeraFLOPS (71 FR 20876). These errors include references to Missile Technology controls that were removed by the April 24, 2006 rule, as well as errors related to scope of controls and license exceptions described in certain Export Control Classification Numbers.
For questions of a technical nature contact: Joseph Young, Office of National Security and Technology Transfer Controls at 202-482-4197 or e-mail:
A rule published on April 24, 2006, added to the Export Administration Regulations (EAR) provisions that implemented the new formula for calculating computer performance in Weighted TeraFLOPS (WT). That rule included the removal of missile technology (MT) controls on certain commodities in Export Control Classification Number (ECCN) 4A003. Since publication, however, it was observed that some references to MT controls were inadvertently left in Note 1 of the License Requirement section and in the License Exception LVS eligibility section. This rule removes references to MT controls from 4A003.
In addition, because of the removal of MT controls from ECCNs 4A003 and 4D001 in the April 24, 2006 rule, the sentence in section 740.7 of the EAR (License Exception APP) that states “Technology for computers controlled for missile technology (MT) reasons are not eligible for License Exception APP” is no longer necessary and is therefore removed by this rule.
This rule corrects and simplifies the headings of ECCNs 4E001 and 4D001 by removing specific ECCN references and pointing to the List of Items Controlled section to determine the technology and software controls for these ECCNs. In addition, this rule revises the National Security control text by removing specific references to ECCNs and simplifying it to read “NS applies to entire entry.” This rule also corrects and simplifies the License Exception TSR eligibility text in the License Exception section of ECCN 4D001 to read “Yes, for `software' described in 4D001.b with an `Adjusted Peak Performance' (`APP') equal to or less than 0.1 WT.” A similar revision is made to correct and simplify
This rule also removes a duplicate paragraph in paragraph (c) of Supplement No. 2 to part 748, which was unintentionally left in this paragraph.
Although the Export Administration Act expired on August 20, 2001, the President, through 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), has continued the Export Administration Regulations in effect under the International Emergency Economic Powers Act.
1. This final rule has been determined to be not significant for purposes of E.O. 12866.
2. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
3. This rule does not contain policies with Federalism implications as that term is defined under E.O. 13132.
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 and foreign affairs function of the United States (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 final rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under the Administrative Procedure Act 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, Reporting and recordkeeping requirements.
50 U.S.C. app. 2401
50 U.S.C. app. 2401
50 U.S.C. app. 2401
NP applies, unless a License Exception is available. See § 742.3(b) of the EAR for information on applicable licensing review policies.
For all destinations, except those countries in Country Group E:1 of Supplement No. 1 to part 740 of the EAR, no license is required (NLR) for computers with an “Adjusted Peak Performance” (“APP”) not exceeding 0.75 Weighted TeraFLOPS (WT) and for “electronic assemblies” described in 4A003.c that are not capable of exceeding an “Adjusted Peak Performance” (“APP”) exceeding 0.75 Weighted TeraFLOPS (WT) in aggregation, except certain transfers as set forth in § 746.3 (Iraq).
Special Post Shipment Verification reporting and recordkeeping requirements for exports of computers to destinations in Computer Tier 3 may be found in § 743.2 of the EAR.
LVS: $5000; N/A for 4A003.b and .c.
GBS: Yes, for 4A003.e, and .g and specially designed components therefor, exported separately or as part of a system.
APP: Yes, for computers controlled by 4A003.a or .b, and “electronic assemblies” controlled by 4A003.c, to the exclusion of other technical parameters, with the exception of 4A003.e (equipment performing analog-to-digital conversions exceeding the limits of 3A001.a.5.a). See § 740.7 of the EAR.
CIV: Yes, for 4A003.e, and .g.
NP applies, unless a License Exception is available. See § 742.3(b) of the EAR for information on applicable licensing review policies.
CIV: N/A
TSR: Yes, for “software” described in 4D001.b with an “Adjusted Peak Performance” (“APP”) equal to or less than 0.1 WT.
APP: Yes to specific countries (see § 740.7 of the EAR for eligibility criteria)
NP applies, unless a License Exception is available. See § 742.3(b) of the EAR for information on applicable licensing review policies.
CIV: N/A
TSR: Yes, for “technology” described in 4E001.b with an “Adjusted Peak Performance” (“APP”) equal to or less than 0.1 WT.
APP: Yes to specific countries (see § 740.7 of the EAR for eligibility criteria).
Federal Energy Regulatory Commission, DOE.
Final rule; order on remand and announcement of policy.
In this order, the Federal Energy Regulatory Commission (Commission) addresses issues raised by the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) on remand in
The Commission clarifies going forward that it will accept timely FERC Reporting Requirement No. 582 (FERC 582) corrections but will accept only those late-filed FERC 582 corrections that are discovered through a Commission-conducted audit and that correct previously under-reported transmission volumes. When a public utility underreports, it is assessed comparatively smaller annual charges, and other public utilities are assessed relatively larger annual charges thereby subsidizing those utilities who underreport.
Jennifer Rinker, Office of the General Counsel—Energy Markets, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, (202) 502-6563.
1. This order addresses issues raised by the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) on remand.
2. As required by Section 3401 of the Omnibus Budget Reconciliation Act of 1986,
3. In calculating annual charges, the Commission determines its total electric regulatory program costs and subtracts all PMA-related costs and electric filing fee collections to determine its collectible electric regulatory program costs. That amount is charged to public utilities that provide transmission service. Public utilities that provide transmission service and thus are subject to annual charges must submit FERC 582 to the Office of the Secretary by April 30 of each year, providing data for the previous calendar year.
4. Importantly, the Commission uses that data to allocate its collectible electric regulatory program costs among all public utilities that provide transmission service; changing the amount owed by one public utility has an effect on the amount owed by all of the others. The Commission issues bills for annual charges based on each public utility's transmission service (as reported in the FERC 582) as compared to the total of all public utilities' transmission service, and the bills must be paid within 45 days of the date on which the Commission issues the bills.
Corrections to the information reported on [FERC] 582, as of January 1, 2002, must be submitted under oath to the Office of the Secretary on or before the end of each calendar year in which the information was originally reported (i.e., on or before the last day of the year that the Commission is open to accept such filings).
The Commission adjusts the annual charges in the following fiscal year (FY), using this corrected information, in order to eliminate any over or under recovery both of the Commission's actual costs and of the charges to each public utility.
5. On December 18, 2003, Westar submitted a corrected FERC 582 for both 2002 and 2003, correcting the data reported for the years 2001 and 2002, respectively. Westar explained that its internal review, prompted by a change in the Commission's reporting requirements, revealed that it had over-reported transmission in several particulars. Westar requested a waiver of the Commission's regulations, observing that the Commission had permitted another company, Kansas City Power and Light Company (KCPL), to file a correction for calendar year 2001 in 2003.
6. By letter order dated April 8, 2004, the Director of the Commission's Division of Financial Services, Office of the Executive Director, accepted Westar's corrections for FY 2003 (reporting corrected calendar year 2002 transmission data), but rejected Westar's proposed corrections for FY 2002 (reporting corrected calendar year 2001 transmission data) on the ground that it was untimely under section 382.201(c)(2) of the Commission's regulations. On May 7, 2004, Westar sought rehearing.
7. The Commission subsequently denied rehearing for four reasons:
8. Westar filed a petition for review with the D.C. Circuit, and on January 16, 2007, the D.C. Circuit vacated and remanded the Commission's not allowing Westar's corrected FERC 582 for FY 2002, finding the Commission's order provided no basis “in fact or in logic for the Commission's refusal to treat Westar as it had treated KCPL.”
9. In light of the D.C. Circuit's finding, and to bring this matter to an expeditious conclusion, the Commission will allow Westar to submit the corrected FY 2002 transmission volumes that the Commission had previously rejected because they had been filed out-of-time.
10. The Commission does, however, reiterate its continued commitment to the policy reflected in part 382 of the Commission's regulations, namely that corrected transmission volumes must be filed by the end of the calendar year in which the transmission volumes were originally filed. This is what the Commission's regulations require.
11. We also announce a policy, going forward, as to when we will waive the regulation and allow untimely submissions. The Commission's policy going forward will be to grant waiver and accept only those late-filed corrections discovered through a Commission-conducted audit in order to remedy an underreporting of transmission volumes (and thus where other utilities have subsidized the underreporting utility).
12. As stated above, the Commission allocates its collectible electric regulatory program costs among public utilities. A reduction in the amount owed by one utility necessarily has an effect, an increase, on the amount owed by all of the others. Therefore, if a utility does not accurately report its transmission volumes, the Commission cannot charge it appropriately.
13. However, the reverse is not true. Overreporting does not raise the same concerns as underreporting; if a company overreports its transmission volumes and fails to file corrections by the deadline, it does so to its detriment and harms no one but itself. Errors of overreporting discovered after the deadline, by Commission-conducted audit or otherwise, thus may not be corrected. The D.C. Circuit acknowledged that any one of the first three justifications provided by the Commission, described above, justify a Commission policy of not accepting a corrected FERC 582 after the deadline. Indeed, the Commission need not have structured its regulation to allow corrections at all. The data the utilities must report is, after all, the utilities' data, and that data must be filed under oath; in other words, full and complete reporting at the outset should be the norm. The Commission, however, elected to build leniency into its requirement to submit transmission volumes, in the form of an 8-month window from the April 30 filing deadline to the December 31 corrections deadline. That 8-month window provides more than sufficient time for utilities to identify and correct their overreporting.
(A) The Commission hereby grants waiver of the annual charges reporting requirement, FERC 582, to allow Westar to submit corrected information for FY 2002 (reporting corrected calendar year 2001 transmission data). The upcoming annual charges will be calculated to reflect this corrected information.
(B) The Secretary is hereby directed to publish this order in the
By the Commission.
Environmental Protection Agency (EPA).
Delegation of authority.
The Mississippi Department of Environmental Quality (MSDEQ or agency) has requested that EPA delegate authority for implementation and enforcement of existing New Source Performance Standards (NSPS) which have been previously adopted by the agency but have remained undelegated by EPA, and has requested that EPA approve the mechanism for delegation (adopt-by-reference) of future NSPS. The purpose of MSDEQ's request for approval of its delegation mechanism is to streamline existing administrative procedures by eliminating any unnecessary steps involved in the Federal delegation process. With this NSPS delegation mechanism in place, a new or revised NSPS promulgated by EPA will become effective in the State of Mississippi on the date the NSPS is adopted-by-reference pursuant to a rulemaking of the MSDEQ, if the agency adopts the NSPS without change. “Adopt-by-reference” means the EPA promulgated standard has been adopted directly into the State regulations by reference to the Federal law. No further agency requests for delegation will be necessary. Likewise, no further
In this action, EPA is delegating authority to MSDEQ for implementation and enforcement of existing NSPS which have been previously adopted by MSDEQ and which are identified in the Supplementary Information section below. In addition, EPA is approving MSDEQ's “adopt-by-reference” mechanism for delegation of future NSPS.
Copies of the request for delegation of authority are available for public inspection during normal
Environmental Protection Agency, Region 4, Air Toxics and Monitoring Branch, 61 Forsyth Street, SW., Atlanta, Georgia 30303;
Mississippi Department of Environmental Quality, P.O. Box 10385, Jackson, Mississippi 39289-0385.
Effective immediately, all requests, applications, reports and other correspondence required pursuant to the delegated standards should not be submitted to the Region 4 office, but should instead be submitted to the following address:
Mississippi Department of Environmental Quality, P.O. Box 10385, Jackson, Mississippi 39289-0385.
Keith Goff, Air Toxics and Monitoring Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960, 404-562-9137. Mr. Goff can also be reached via electronic mail at
Sections 101, 110, 111(c)(1), and 301 of the Clean Air Act authorize EPA to delegate authority to implement and enforce the standards set out in 40 CFR Part 60, NSPS. On November 30, 1981, EPA initially delegated the authority for implementation and enforcement of the NSPS program to the MSDEQ. This agency has subsequently requested a delegation of authority for implementation and enforcement of the previously adopted, undelegated part 60 NSPS categories listed below.
1. 40 CFR part 60, subpart Eb, adopted January 25, 1996.
2. 40 CFR part 60, subpart Ec, adopted January 22, 1998.
3. 40 CFR part 60, subpart WWW, adopted August 22, 1996.
4. 40 CFR part 60, subpart AAAA, adopted August 22, 2002.
5. 40 CFR part 60, subpart CCCC, adopted August 22, 2002.
EPA's review of Mississippi's pertinent laws, rules, and regulations has shown them to be adequate for implementation and enforcement of these existing, previously adopted, undelegated NSPS. Based on this review, EPA has determined that delegation of the above-referenced NSPS is appropriate, with the non-delegable exceptions noted below. All sources subject to the delegable requirements in these NSPS subparts will now be under the jurisdiction of the MSDEQ, although EPA reserves the right to implement the Federal NSPS directly and continues to retain concurrent enforcement authority. The NSPS subparts and portions of subparts that may not be delegated, and are therefore not delegated by this action are:
In addition, EPA is approving MSDEQ's “adopt-by-reference'' delegation mechanism for future NSPS. EPA's review of the pertinent laws, rules, and regulations for the agency has shown them to be adequate for implementation and enforcement of existing, previously adopted, undelegated NSPS and future NSPS. Future NSPS regulations will contain a list of sections that cannot be delegated for that subpart. With this NSPS “adopt-by-reference” delegation mechanism in place, a new or revised NSPS promulgated by EPA will become effective in the State of Mississippi on the date the NSPS is adopted-by-reference pursuant to a rulemaking of the Mississippi Department of Environmental Quality, if the agency adopts the NSPS without change. EPA reserves the right to implement the Federal NSPS directly and continues to retain concurrent enforcement authority.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This action also does not have tribal implications because it will 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, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely delegates the implementation and enforcement of an existing Federal standard and approves a delegation mechanism for future Federal standards, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This action also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant. The Congressional Review Act, 5 U.S.C. 801
In reviewing delegation requests and mechanisms for delegation, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a delegation request or disapprove a proposed delegation mechanism for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a delegation request or proposed delegation mechanism, to use VCS in place of a delegation request or proposed delegation mechanism that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
This action granting delegation authority for implementation and enforcement of existing NSPS and approving a delegation mechanism for future NSPS is issued under the authority of sections 101, 110, 111, and 301 of the Clean Air Act, 42 U.S.C. 7401, 7410, 7411, and 7601.
42 U.S.C. 7401
Environmental Protection Agency.
Notice of Final Determination on the State of Colorado's Application for Final Approval.
The State of Colorado has applied for approval of the underground storage tank program under Subtitle I of the Resource Conservation and Recovery Act (RCRA). The Environmental Protection Agency (EPA) has reviewed the Colorado application and has reached a final determination that Colorado's underground storage tank program satisfies all of the requirements necessary to qualify for approval under the regulations. Thus, the EPA is granting final approval to the State of Colorado to operate its Underground Storage Tank Program for petroleum and hazardous substances.
EPA has established a docket for this action under Docket ID No. EPA-R08-UST-2006-0295. All documents in the docket are listed on the
Francisca Chambus U.S. EPA, Region 8, MC: 8P-W-GW, 1595 Wynkoop Street, Denver, CO 80202-1129 or at 303.312.6782.
Section 9004 of the Resource Conservation and Recovery Act (RCRA) authorizes EPA to approve State underground storage tank programs to operate in the State in lieu of the Federal underground storage tank (UST) program. Program approval may be granted by EPA pursuant to RCRA section 9004(b), if the Agency finds that the State program: Is “no less stringent” than the Federal program for the seven elements set forth at RCRA section 9004(a)(1) through (7); includes the notification requirements of RCRA section 9004(a)(8); and provides for adequate enforcement of compliance with UST standards of RCRA section 9004(a). Note that RCRA sections 9005 (on information-gathering) and 9006 (on Federal enforcement) by their terms apply even in states with programs approved by EPA under RCRA section 9004. Thus, the Agency retains its authority under RCRA sections 9005 and 9006, 42 U.S.C. 6991d and 6991e, and other applicable statutory and regulatory provisions to undertake inspections and enforcement actions in approved states. With respect to such an enforcement action, the Agency will rely on Federal sanctions, Federal inspection authorities, and Federal procedures rather than the State authorized analogues to these provisions.
The Colorado Department of Labor & Employment, Division of Oil & Public Safety (OPS) is the lead implementing agency for the UST program in Colorado.
On November 13, 2002 the EPA received Colorado's application for State Program Approval (SPA) of Colorado's UST program. EPA reviewed their application and determined it to be complete. On November 27, 2006, the EPA published a tentative decision announcing its intent to grant Colorado final approval. Along with the tentative determination, EPA announced the availability of the application for public comment and provided notice that a public hearing would be provided if significant public interest was shown. EPA did not receive any comments or requests for a public hearing.
I conclude that the State of Colorado's application for final program approval meets all of the statutory and regulatory requirements established by Subtitle I of RCRA. Accordingly, Colorado is granted final approval to operate its Underground Storage Tank Program in lieu of the Federal program. This final determination to approve the Colorado program applies to all areas within the State except for land within formal Indian reservations located within or abutting the State of Colorado, including: the Ute Mountain Ute and Southern Ute Indian Reservations, any off-reservation land held in trust by the United States for an Indian tribe; and any other areas that are “Indian country” within the meaning of 18 U.S.C. 1151. The State of Colorado now has the responsibility for managing underground storage tank facilities within its borders and carrying out all aspects of the UST program except for facilities located within “Indian Country,” where EPA will retain regulatory authority. Colorado also has primary enforcement responsibility, although EPA retains the right to conduct inspections under section 9005 of RCRA 42 U.S.C. 6991d and to take
This rule only applies to the Colorado Department of Labor & Employment's underground storage tank program requirements pursuant to RCRA section 9004 and imposes no requirements other than those imposed by State law (see Supplementary Information). Therefore, this rule complies with applicable executive orders and statutory provisions as follows.
1.
2.
3.
4.
5.
6.
7.
8.
9.
This action does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards.
Environmental protection, Administrative practice and procedure, Hazardous materials, State program approval, Underground storage tanks.
This notice is issued under the authority of Sections 2002(a), 7004(b), and 9004 of the Solid Waste Disposal Act as amended 42 U.S.C. 6912(a), 6974(b), and 6991(c).
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for the products listed above that would supersede an existing AD. This proposed AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as:
A report has been received of stress corrosion cracking occurring in the wing lift strut lower clevis fitting, part number C2W-1097A.
The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI.
We must receive comments on this proposed AD by April 23, 2007.
You may send comments by any of the following methods:
•
•
•
•
•
You may examine the AD docket on the Internet at
George J. Duckett, Aerospace Engineer, FAA, New York Aircraft Certification Office, 10 Fifth Street, Valley Stream, New York 11581; telephone: (516) 228-7325; fax: (516) 794-5531.
The FAA is implementing a new process for streamlining the issuance of ADs related to MCAI. This streamlined process will allow us to adopt MCAI safety requirements in a more efficient manner and will reduce safety risks to the public. This process continues to follow all FAA AD issuance processes to meet legal, economic, Administrative Procedure Act, and
This proposed AD references the MCAI and related service information that we considered in forming the engineering basis to correct the unsafe condition. The proposed AD contains text copied from the MCAI and for this reason might not follow our plain language principles.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We issued AD 88-08-02, Amendment 39-5889, to address an unsafe condition on the products listed above.
Since we issued AD 88-08-02, additional airplanes have been identified that need to be added to the Applicability section. Viking Air Limited has issued Revision C to Service Bulletin No. 2/41 that changes the inspection method from dye penetrant to fluorescent penetrant. Viking Air Limited has also issued Service Bulletin 2/55 that allows for eddy current inspections, which extend the repetitive inspection intervals.
Transport Canada, which is the aviation authority for Canada, has issued AD No. CF-1985-08R4, dated September 28, 2006 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
A report has been received of stress corrosion cracking occurring in the wing lift strut lower clevis fitting, part number C2W-1097A.
The MCAI requires:
This AD revision is being issued to allow operators the option of continuing with the existing inspection intervals in accordance with CF-85-08R3 (Part A) or incorporating the improved alternate inspection method in accordance with Part B, to permit an increase in inspection intervals.
You may obtain further information by examining the MCAI in the AD docket.
Viking Air Limited has issued Service Bulletin S/B No. 2/41, Revision “C”, dated June 23, 2006; and Service Bulletin No. 2/55, dated June 23, 2006. The actions described in these service
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.
We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.
We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD.
Based on the service information, we estimate that this proposed AD would affect about 392 products of U.S. registry. We also estimate that it would take about 7 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour.
Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $219,520, or $560 per product.
In addition, we estimate that any necessary follow-on actions would take about 7 work-hours and require parts costing $6,227 for each wing strut assembly, for a cost of $6,787 per wing strut assembly. We have no way of determining the number of products that may need these actions.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by removing Airworthiness Directive (AD) 88-08-02, Amendment 39-5889, and adding the following new AD:
(a) We must receive comments by April 23, 2007.
(b) None.
(c) This AD applies to Models DHC-2 Mk. I, DHC-2 Mk. II, and DHC-2 Mk. III airplanes, all serial numbers, that:
(1) Are certificated in any category; and
(2) Are equipped with wing lift strut assemblies, part numbers (P/Ns) C2W1103, C2W1103A, C2W1104, or C2W1104A.
(d) Air Transport Association of America (ATA) Code 57: Wings.
(e) The mandatory continuing airworthiness information (MCAI) states:
A report has been received of stress corrosion cracking occurring in the wing lift strut lower clevis fitting, part number C2W-1097A.
(f) For all Models DHC-2 Mk. I and DHC-2 Mk. III airplanes certificated in any category that are equipped with wing lift strut assemblies, P/Ns C2W1103, C2W1103A, C2W1104, or C2W1104A: Within 100 hours time-in-service (TIS) or one month after May 11, 1988 (the effective date of AD 88-08-02), whichever occurs first, and thereafter at intervals not to exceed 500 hours TIS or 12 calendar months, whichever occurs first:
(1) Remove wing strut assemblies, C2W1103 or C2W1103A and C2W1104 or C2W1104A from the airplane and prepare the assemblies for inspection as described in the “ACCOMPLISHMENT INSTRUCTIONS” section of DeHavilland Service Bulletin (S/B) No. 2/41, Revision A, dated August 14, 1987.
(2) Conduct a dye penetrant inspection with a 10-power glass for cracks in the lugs of the lower attachment clevis fitting.
(3) If cracks are found, prior to further flight replace the complete strut assembly with a strut assembly of the same part number that has had the lower clevis fitting inspection using the dye penetrant procedure and has been found free of cracks, or strut assembly C2W1115-1 or C2W1115-2, as appropriate.
(4) If no cracks are found, clean the lower clevis fitting and reinstall the wing strut assembly.
(5) If wing strut assembly C2W1115-1 or C2W1115-2 is installed, the recurring inspection specified in paragraph (f) of this AD is no longer required.
(g) Unless already done, do either (1) or (2) of the following actions:
(1)
(i)
(ii)
(2)
(i)
(ii)
(3) If cracks are found during any inspection required by either paragraph (g)(1) or (g)(2) of this AD, before further flight:
(i) Replace the complete strut assembly with a strut assembly of the same part number that has had the lower clevis fitting inspected using either the fluorescent penetrant method specified in paragraph (g)(1) of this AD or the eddy current method specified in paragraph (g)(2) of this AD and is found free of cracks; or
(ii) Replace the complete strut assembly with strut assembly C2W1115-1 or C2W1115-2, as appropriate. Installing wing strut assembly C2W1115-1 or C2W1115-2 as replacement parts terminates the recurring inspections required in paragraphs (g)(1) and (g)(2) of this AD.
This AD differs from the MCAI and/or service information as follows: No differences.
(h) The following provisions also apply to this AD:
(1)
(2) AMOCs approved for AD 88-08-02 are not approved for this AD.
(3)
(4)
(i) Refer to MCAI Transport Canada AD CR-1985-08R4, dated September 28, 2006; and Viking Air Limited Service Bulletin S/B No. 2/41, Revision “C”, dated June 23, 2006; and Service Bulletin No. 2/55, dated June 23, 2006; for related information.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to establish a temporary safety zone in Kenosha Harbor at the east end of the south pier. This zone is intended to restrict vessels from portions of Lake Michigan and Kenosha Harbor during a fireworks display on August 11, 2007. This zone is necessary to protect the public from the hazards associated with fireworks displays.
Comments and related material must reach the Coast Guard on or before April 23, 2007.
You may mail comments and related material to Commander, Coast Guard Sector Lake Michigan (spw), 2420 South Lincoln Memorial Drive, Milwaukee, WI 53207. The Sector Lake Michigan Prevention Department 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 Sector Lake Michigan Prevention Department between 8 a.m. and 3 p.m., Monday through Friday, except Federal holidays.
CWO Brad Hinken, Prevention Department, Coast Guard Sector Lake Michigan, Milwaukee, WI at (414) 747-7154.
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 [CGD09-07-003], 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 the Sector Lake Michigan Prevention Department at the address under
This temporary safety zone is necessary to ensure the safety of vessels and spectators from hazards associated with a fireworks display. Based on accidents that have occurred in other Captain of the Port zones, and the explosive hazards of fireworks, the Captain of the Port Lake Michigan has determined fireworks launches in close proximity to watercraft pose significant risk to public safety and property. The likely combination of large numbers of recreation vessels, congested waterways, darkness punctuated by bright flashes of light, alcohol use, and debris falling into the water could easily result in serious injuries or fatalities. Establishing a safety zone to control vessel movement around the location of the launch platform will help ensure the safety of
A temporary safety zone is necessary to ensure the safety of spectators and vessels during the setup, loading and launching of a fireworks display in conjunction with the Kenosha Days of Discovery fireworks display. The fireworks display will occur between 8 p.m. (local) and 10 p.m. (local) on August 11, 2007.
The safety zone for the fireworks will encompass all waters of Lake Michigan and Kenosha Harbor within a 300 yard radius of position 42°35′14″ N, 087°48′29″ W (NAD 83).
All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port or the designated on-scene representative. Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Lake Michigan or his designated on-scene representative. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16.
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.
The Coast Guard will only use this safety zone for two hours on the date specified. This safety zone has been designed to allow vessels to transit unrestricted to portions of the harbor not affected by the zone. The Coast Guard expects insignificant adverse impact to mariners from the activation of this zone.
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 governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.
This proposed rule would affect the following entities, some of which might be small entities: The owners of vessels intending to transits or anchor in a portion of Kenosha Harbor between 8 p.m. (local) and 10 p.m. (local) on August 11, 2007. The safety zone would not have a significant economic impact on a substantial number of small entities for the following reasons. This rule would be in effect for only 2 hours. Vessel traffic can safely pass around the safety zone.
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 CWO Brad Hinken, Prevention Department, Coast Guard Sector Lake Michigan, Milwaukee, WI at (414) 747-7154. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This 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 an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This proposed rule would not effect the 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
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. This proposed rule establishes a regulated navigation area and as such is covered by this paragraph.
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, 195; 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.T09-003 to read as follows:
(a)
(b)
(c)
(1) In accordance with the general regulations in section 165.23 of this part, entry into, transiting, or anchoring within this safety zone is prohibited unless authorized by the Captain of the Port Lake Michigan, or his designated on-scene representative.
(2) This safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port Lake Michigan or his designated on-scene representative.
(3) The “on-scene representative” of the Captain of the Port is any Coast Guard commissioned, warrant or petty officer who has been designated by the Captain of the Port to act on his behalf. The on-scene representative of the Captain of the Port will be aboard either a Coast Guard or Coast Guard Auxiliary vessel. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16.
(4) Vessel operators desiring to enter or operate within the safety zone shall contact the Captain of the Port Lake Michigan or his on-scene representative to obtain permission to do so. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the Captain of the Port Lake Michigan or his on-scene representative.
Environmental Protection Agency (EPA).
Supplemental proposed rule.
On December 22, 2006, the U.S. Court of Appeals for the District of Columbia Circuit vacated EPA's Phase 1 Implementation Rule for the 8-hour ozone standard. This supplemental proposed rulemaking sets forth EPA's views on the potential effect of the Court's ruling on a number of proposed redesignation actions. This rulemaking applies to eighteen 8-hour ozone nonattainment areas in Michigan, Ohio and West Virginia, for which EPA has proposed approval of the States' redesignation requests. For the reasons set forth in the notice, EPA proposes to find that the Court's ruling does not alter any requirements relevant to these proposed redesignations that would prevent EPA from finalizing these redesignations. The EPA believes that the Court's decision, as it currently stands or as it may be modified based upon any petition for rehearing that may be filed, imposes no impediment to moving forward with redesignation of these areas to attainment, because in either circumstance, redesignation is appropriate under the relevant redesignation provisions of the Clean Air Act (CAA) and EPA's longstanding policies regarding redesignation requests.
Comments must be received on or before April 6, 2007.
Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2007-0170 by one of the following methods:
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•
•
•
•
Butch Stackhouse, Air Quality Policy Division, Office of Air Quality Planning and Standards, State and Locals Program Group, U.S. Environmental Protection Agency, Research Triangle Park, NC 27711; telephone number (919) 541-5208; e-mail address:
This action applies to you if you are a State that has proposed areas for redesignation from nonattainment to attainment of the 8-hour ozone standard, but EPA has not yet finalized such actions.
This rulemaking also applies to two 8-hour nonattainment areas that were classified under Subpart 2 for the 8-hour ozone standard. These areas, Muskegon, (Muskegon county), MI and Cass County, MI, were also previously designated Attainment subject to a maintenance plan (Muskegon) and Unclassifiable/Attainment (Cass County) for the 1-hour standard. The request was submitted on June 13, 2006 and proposed rulemakings for these areas on January 8, 2007, 72 FR 699.
• Identify the rulemaking by docket number and other identifying information (subject heading,
• Follow directions—The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
• Explain why you agree or disagree, suggest alternatives, and provide substitute language for your requested changes.
• Describe any assumptions and provide any technical information and/or data that you used.
• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
• Provide specific examples to illustrate your concerns, and suggest alternatives.
• Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
• Make sure to submit your comments by the comment period deadline identified.
Commenters wishing to submit proprietary information for consideration must clearly distinguish such information from other comments and clearly label it as CBI. Send submissions containing such proprietary information directly to the following address, and not to the public docket, to ensure that proprietary information is not inadvertently placed in the docket: Attention: Mr. Roberto Morales, U.S. Environmental Protection Agency, OAQPS Document Control Officer, 109 TW Alexander Drive, Room C404-02, Research Triangle Park, NC 27711. The EPA will disclose information identified as CBI only to the extent allowed by the procedures set forth in 40 CFR part 2. If no claim of confidentiality accompanies a submission when it is received by the EPA, the information may be made available to the public without further notice to the commenter.
In addition to being available in the docket, an electronic copy of this proposed rule is also available on the World Wide Web. Following signature by the EPA Acting Assistant Administrator for Air and Radiation, a copy of this proposed rule will be posted on the EPA's
The information presented in this preamble is organized as follows:
On December 22, 2006, the U.S. Court of Appeals for the District of Columbia Circuit vacated EPA's Phase 1 Implementation Rule for the 8-hour Ozone Standard (69 FR 23951, April 30, 2004).
This action sets forth EPA's views on the potential effect of the Court's ruling on the proposed redesignation actions that are the subject of this document. For the reasons set forth below, EPA does not believe that the Court's ruling alters any requirements relevant to these proposed redesignations and does not prevent EPA from finalizing these redesignations. The EPA believes that the Court's decision, as it currently stands or as it may be modified based
With respect to the 16 8-hour nonattainment areas EPA classified under Subpart 1 at the time of designation, EPA notes that the Court's ruling rejected EPA's reasons for classifying areas under subpart 1 for the 8-hour standard and remanded that matter to the Agency. Consequently, it is possible that these areas could, during a remand to EPA, be reclassified under Subpart 2. Although any future decision by EPA to classify these areas under subpart 2 might trigger additional future requirements for such areas, EPA believes that this does not mean that redesignation of the areas that are the subject of this notice cannot now go forward. This belief is based upon: (1) EPA's longstanding policy of evaluating redesignation requests in accordance with only the requirements due at the time the request was submitted; (2) consideration of the inequity of applying retroactively any requirements that might be applied in the future and, (3) with respect to certain of the areas that are the subject of this notice, the fact that the redesignation requests preceded even the earliest possible due dates of any requirements for Subpart 2 areas.
First, at the time the redesignation requests for the 16 Subpart 1 areas that are the subject of this notice were submitted, the areas were classified under Subpart 1 and were obligated to meet the Subpart 1 requirements. Under EPA's longstanding interpretation of section 107(d)(3)(E) of the CAA, to qualify for redesignation, States requesting redesignation to attainment must meet only the relevant State Implementation plan (SIP) requirements that came due prior to the submittal of a complete redesignation request. September 4, 1992 Calcagni memorandum (“Procedures for Processing Requests to Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division); See also Michael Shapiro Memorandum, September 17, 1993, and 60 FR 12459, 12465-12466 (March 7, 1995) (redesignation of Detroit-Ann Arbor).
Moreover, it would be inequitable to retroactively apply any new SIP requirements that were not applicable at the time the request was submitted, but which might later become applicable. The DC Circuit has recognized the inequity in such retroactive rulemaking, See
Third, even if a future Subpart 2 classification were applied to these areas retroactively, for many of the Subpart 1 areas subject to this notice, the Subpart 2 requirements would still not be considered applicable for purposes of redesignation. As set forth above, the applicable requirements for purposes of redesignation are only those that became due prior to submission of the redesignation request. In the case of eight of the areas subject to this rulemaking,
With respect to the Court's ruling regarding EPA's revocation of the 1-hour standard, all of the Subpart 1 areas that are the subject of the pending redesignation actions were designated attainment or unclassifiable/ attainment or attainment subject to a maintenance plan for the 1-hour standard. Those areas designated attainment or unclassifiable/attainment were never designated nonattainment for the 1-hour standard. Thus, the provisions at issue in the antibacksliding portion of the Court's decision never applied to these areas and would not apply. For those areas designated attainment subject to a CAA section 175A maintenance plan for the 1-hour standard, the Court's ruling could be interpreted to require continuation of certain conformity requirements, such as the requirement to submit a transportation conformity SIP that addresses the 1-hour standard.
Moreover, under longstanding EPA policy, EPA interprets the conformity SIP requirements as not being applicable requirements for purposes of evaluating a redesignation request under section 107(d). See
The two 8-hour nonattainment areas listed above are classified under subpart 2 for the 8-hour standard. We do not believe that any part of the Court's opinion could require that these subpart 2 classifications be changed upon remand to EPA. However, even assuming that they may (and Muskegon and Cass County would be subject to a different classification under a classification scheme created in a future rule in response to the court's decision) that would not prevent EPA from finalizing the proposed redesignation for these areas. For the same reasons set forth above with respect to the applicability of Subpart 2 requirements to areas that were classified Subpart 1 at the time of submission of redesignation requests, any additional requirements that might apply based on that different classification would not be applicable for purposes of evaluating their redesignation requests.
With respect to the 1-hour standard, since Cass County was never designated nonattainment for the 1-hour standard, there are no outstanding 1-hour nonattainment area requirements that it would be required to meet under the anti-backsliding requirements.
Muskegon was a maintenance area under the 1-hour standard; thus, the conformity requirement is the only relevant anti-backsliding requirement that was at issue before the court. As noted above, EPA approved Michigan's transportation conformity SIP on December 18, 1996 (61 FR 66609). Also, for the reasons set forth above with respect to the areas classified under Subpart 1, EPA believes that having an approved conformity SIP is not an applicable requirement for purposes of redesignation.
Thus, for the reasons discussed above, EPA proposes that the Court's ruling in
This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the Executive Order.
This action does not contain any information collection requirements subject to OMB review under the Paperwork Reduction Act, 44 U.S.C. 3501
Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply, with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.
An Agency does not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The control numbers for EPA's regulations are listed in 40 CFR part 9.
The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of this proposed rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
After considering the economic impacts of this proposed rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant
This proposed rule sets forth EPA's views on the potential effect of the ruling of the U.S. Court of Appeals for the District of Columbia Circuit in
We continue to be interested in the potential impacts of the proposed rule on small entities and welcome comments on issues related to such impacts.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and Tribal governments, in the aggregate, or to the private sector, of $100 million or more in any 1 year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory
The EPA has determined that this proposed rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and Tribal governments, in the aggregate, or the private sector in any 1 year. Since this proposed rule does not impose a mandate upon any source, this rule is not estimated to result in the expenditure by State, local and Tribal governments or the private sector of $100 million in any 1 year. Therefore, the Agency has not prepared a budgetary impact statement or specifically addressed the selection of the least costly, most cost-effective, or least burdensome alternative. Because small governments will not be significantly or uniquely affected by this rule, the Agency is not required to develop a plan with regard to small governments. Thus, this proposed rule is not subject to the requirements of sections 202, 203 and 205 of the UMRA.
Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
This proposed action does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This proposed action does not impose any new mandates on State or local governments. Thus, Executive Order 13132 does not apply to this rule. In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA specifically solicits comment on the proposed rule for this action from State and local officials.
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.”
This proposed rule does not have Tribal implications. It will not have substantial direct effects on Tribal governments, 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, as specified in Executive Order 13175. This action does not have any direct effects on Indian Tribes. Thus, Executive Order 13175 does not apply to this proposed rule. The EPA specifically solicits additional comment on this proposed rule from Tribal officials where there are applicable Tribal lands in the affected areas.
Executive Order 13045: “Protection of Children From Environmental Health and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health and safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, EPA must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by EPA.
This proposed action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because EPA does not have reason to believe that the environmental health risks or safety risks addressed by this proposed rule present a disproportionate risk or safety risk to children. This proposed rule sets forth EPA's views regarding the potential effect of a recent Court's ruling, vacating the Phase 1 Ozone Implementation rule, on previously proposed redesignation actions. Furthermore, at the time those actions were proposed in the
This proposed rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.
As noted in the proposed rule, Section 12(d) of the National Technology Transfer Advancement Act of 1995 (“NTTAA”), Public Law 104-113, section 12(d), (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, with explanations when the Agency decides not to use available and applicable voluntary consensus standards.
This proposed rulemaking does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards.
Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes Federal executive policy on environmental
The EPA has determined that this proposed rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of health or environmental protection, but instead merely sets forth EPA's views on the potential effect of the ruling of the U.S. Court of Appeals for the District of Columbia Circuit in
Environmental protection, Air pollution control, Nitrogen oxides, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
Air pollution control, National parks, Wilderness areas.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Announcement of extension of comment period.
The EPA is announcing an extension of the public comment period within the context of our proposed heavy-duty onboard diagnostics (OBD) requirements. (72 FR 3200, January 24, 2007) Specifically, we are extending the comment period for comments pertaining to the proposed service information availability requirements for engines used in highway vehicles over 14,000 pounds. These proposed requirements can be found in the proposed § 86.010-38(j). (72 FR 3322) The comment period will be extended from March 26, 2007 to May 4, 2007. We are extending the comment period in response to a request to do so from the Engine Manufacturers Association.
Written comments pertaining to the proposed service information availability requirements of the proposed § 86.010-38(j) must be received on or before May 4, 2007.
Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2005-0047, by one of the following methods:
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U.S. EPA, National Vehicle and Fuel Emissions Laboratory, Assessment and Standards Division, 2000 Traverwood Drive, Ann Arbor, MI 48105; telephone (734) 214-4405, fax (734) 214-4816, e-mail
• Identify the rulemaking by docket number and other identifying information (subject heading,
• Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
• Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
• Describe any assumptions and provide any technical information and/or data that you used.
• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
• Provide specific examples to illustrate your concerns, and suggest alternatives.
• Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
• Make sure to submit your comments by the comment period deadline identified.
In addition to being available in the docket, an electronic copy of this notice and an electronic copy of the proposed heavy-duty OBD and associated service information availability requirements can be found at
Fish and Wildlife Service, Interior.
Proposed rule.
On August 10, 2006, the U.S. Fish and Wildlife Service (Service or “we”) published a final rule on resident Canada goose management. This proposed rule clarifies and slightly modifies several program requirements regarding eligibility, definitions, methodologies, and dates.
Comments on this proposed rule must be received by April 23, 2007.
You may submit comments, identified by RIN 1018-AV15, by any of the following methods:
You may obtain copies of the Final Environmental Impact Statement (FEIS) on resident Canada goose management from the above address or from the Division of Migratory Bird Management Web site at
Robert Blohm, Chief, Division of Migratory Bird Management, or Ron Kokel (703) 358-1714 (see
Migratory birds are protected under four bilateral migratory bird treaties the United States entered into with Great Britain (for Canada in 1916 as amended in 1999), the United Mexican States (1936 as amended in 1972 and 1999), Japan (1972 as amended in 1974), and the Soviet Union (1978). Regulations allowing the take of migratory birds are authorized by the Migratory Bird Treaty Act (16 U.S.C. 703-711), and the Fish and Wildlife Improvement Act of 1978 (16 U.S.C. 712). The Migratory Bird Treaty Act (Act), which implements the above-mentioned treaties, provides that, subject to and to carry out the purposes of the treaties, the Secretary of the Interior is authorized and directed to determine when, to what extent, and by what means allowing hunting, killing, and other forms of taking of migratory birds, their nests, and eggs is compatible with the conventions. The Act requires the Secretary to implement a determination by adopting regulations permitting and governing those activities.
Canada geese are Federally protected by the Act by reason of the fact that they are listed as migratory birds in all four treaties. Because Canada geese are covered by all four treaties, regulations must meet the requirements of the most restrictive of the four. For Canada geese, this is the treaty with Canada. All regulations concerning resident Canada geese are compatible with its terms, with particular reference to Articles VII, V, and II.
Each treaty not only permits sport hunting, but permits the take of migratory birds for other reasons, including scientific, educational, propagative, or other specific purposes consistent with the conservation principles of the various Conventions. More specifically, Article VII, Article II (paragraph 3), and Article V of “The Protocol Between the Government of the United States of America and the Government of Canada Amending the 1916 Convention between the United Kingdom and the United States of America for the Protection of Migratory Birds in Canada and the United States” provides specific limitations on allowing the take of migratory birds for reasons other than sport hunting. Article VII authorizes permitting the take, kill, etc., of migratory birds that, under extraordinary conditions, become seriously injurious to agricultural or other interests. Article V relates to the taking of nests and eggs, and Article II, paragraph 3, states that, in order to ensure the long-term conservation of migratory birds, migratory bird populations shall be managed in accord with listed conservation principles.
The other treaties are less restrictive. The treaties with both Japan (Article III, paragraph 1, subparagraph (b)) and the Soviet Union (Article II, paragraph 1, subparagraph (d)) provide specific exceptions to migratory bird take prohibitions for the purpose of protecting persons and property. The treaty with Mexico requires, with regard to migratory game birds, only that there
Regulations governing the issuance of permits to take, capture, kill, possess, and transport migratory birds are promulgated in title 50, Code of Federal Regulations (CFR), parts 13 and 21, and issued by the Service. The Service annually promulgates regulations governing the take, possession, and transportation of migratory birds under sport hunting seasons in 50 CFR part 20.
On August 10, 2006, we published in the
The current definition of resident Canada geese contained in § 20.11 and § 21.3 states that “Canada geese that nest within the lower 48 States in the months of March, April, May, or June, or reside within the lower 48 States and the District of Columbia in the months of April, May, June, July, or August” are considered resident Canada geese. The proposed change would modify the first portion of this definition by inserting “add the District of Columbia” following the word “States” to clarify that those Canada geese that nest within the District of Columbia in the months of March, April, May, or June, are included. It was not our original intention to exclude them from the definition.
One of the components in the resident Canada goose management program is to provide expanded hunting methods and opportunities to increase the sport harvest of resident Canada geese above that which results from existing September special Canada goose seasons. The regulatory changes in § 20.21(b) and (g) codified in the August 10 final rule provide State wildlife management agencies and Tribal entities the option of authorizing the use of electronic calls and unplugged shotguns during the first portion of existing, operational September Canada goose seasons (i.e., September 1-15). The August 10 final rule also stated that utilization of these additional hunting methods during any new special seasons or other existing, operational special seasons (i.e., September 16-30) could be approved by the Service and would require demonstration of a minimal impact to migrant Canada goose populations. Further, these seasons would be authorized on a case-by-case basis through the normal migratory bird hunting regulatory process. All of these expanded hunting methods and opportunities must be conducted outside of any other open waterfowl season (i.e., when all other waterfowl and crane hunting seasons were closed).
However, the regulatory changes codified in the August 10 final rule did not allow for utilization of these additional hunting methods outside of the September 1-15 period, although this was clearly our intent. We propose to modify § 20.21(b) and (g) to allow State selection of these expanded hunting methods during the September 16-30 period, when approved in the annual regulatory schedule in subpart K of part 20.
Since publication of the August 10 final rule we have received questions regarding interpretation of the 3-mile radius restriction on resident Canada goose activities at airports and military airfields. We propose a change to clarify this restriction by inserting the term “boundary” at the end of the first sentence. Thus, resident Canada goose management activities at airports and military airfields would be restricted to a radius of 3 miles from the airports' boundaries.
Currently, § 21.50 authorizes private landowners and managers of public lands to destroy resident Canada goose nests and eggs on property under their jurisdiction when necessary to resolve or prevent injury to people, property, agricultural crops, or other interests. We propose modifying this eligibility to include also homeowners' associations and village, town, municipal, and county governments (collectively termed local governments). Homeowners' associations and local governments would be allowed to register under the nest and egg depredation order and conduct nest and egg destruction anywhere within their jurisdiction, provided that they have landowner permission to conduct such activities.
Our proposal is based on several factors. First, we currently issue individual depredation permits allowing resident Canada goose nest and egg destruction to these groups, particularly in the northeastern United States. We believe the extension of eligibility to these groups to operate under the nest and egg depredation order is not outside the intent of the depredation order, is formalization of an already established practice under our permit system, and is simply an administrative modification. Second, since the publication of the August 10 rule, we have received numerous public comments requesting this modification. Modification of this requirement would help ensure public satisfaction and satisfy our original objective of providing affected States and the public with flexibility sufficient to deal with the problems caused by resident Canada geese. Lastly, since local governments are in an obvious position of local authority and jurisdiction, we believe they are a logical extension of our existing landowner definition. The proposed changes would include referring to these persons and entities collectively as “registrants.” Necessary conforming changes in a number of subsections also would be made.
We propose to modify the approved methodologies for nest and egg destruction under the depredation order for resident Canada geese nests and eggs in § 21.50(d)(3). Currently, the regulations state that eggs may be oiled or eggs and nest material may be removed and disposed of. All of the other depredation and control orders pertaining to resident Canada geese (§§ 21.49, 21.51, and 21.52) allow egg oiling and egg and nest destruction. We believe the latter language is more comprehensive and includes such methodologies as egg addling (egg shaking), puncturing, and egg replacement. It was not our intent to be more restrictive regarding nest and egg destruction methodologies under the nest and egg depredation order than the other resident Canada goose depredation and control orders or what we currently allow on permits allowing nest and egg destruction. We believe this modification is minor in nature, satisfies numerous public requests for clarification and alignment, simplifies restrictions, and maintains the original intent of the regulation.
We have modified the Web address for registering and submitting annual reports of the take of nests and eggs under the depredation order for resident Canada geese nests and eggs in § 21.50(d)(1) and (6).
We have corrected § 21.61(d)(2) to read “August 31” rather than “August 30.” This was strictly an oversight.
You may submit written comments on this proposal to the location identified in the
When submitting electronic comments, please include your name and return address in your message, identify it as comments on the resident Canada goose management regulations change, and submit your comments as an ASCII file. Include RIN 1018-AV15 in the subject line of your message. Do not use special characters or any encryption.
When submitting written comments, please include your name and return address in your letter and identify it as comments on the resident Canada goose management regulations change, RIN 1018-AV15. You must submit written comments on 8
All comments on the proposed rule will be available for public inspection during normal business hours at Room 4091 at the Fish and Wildlife Service, Division of Migratory Bird Management, 4501 North Fairfax Drive, Arlington, Virginia 22203-1610.
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.
In compliance with the requirements of section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(C)), and the Council on Environmental Quality's regulation for implementing NEPA (40 CFR 1500-1508), we published the availability of a DEIS on March 7, 2002 (67 FR 10431), followed by a 91-day comment period. We subsequently reopened the comment period for 60 additional days (68 FR 50546, August 21, 2003). On November 18, 2005, both the Service and the Environmental Protection Agency published notices of availability for the FEIS in the
Section 7(a)(2) of the Endangered Species Act (ESA), as amended (16 U.S.C. 1531-1543; 87 Stat. 884) provides that “Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out * * * is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat * * *.” We completed a biological evaluation and informal consultation (both available upon request; see
Prior to issuance of any final rule on these proposed modifications, we will comply with provisions of the ESA, to ensure that these proposed modifications and clarifications are not likely to adversely affect any species designated as endangered or threatened or modify or destroy its critical habitat and is consistent with conservation programs for those species. As such, we have requested a letter of concurrence from the Division of Endangered Species on these proposed changes.
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601
In accordance with the criteria in Executive Order 12866, this action is not a significant regulatory action subject to Office of Management and Budget (OMB) review. This rule will not have an annual economic effect of $100 million or adversely affect any economic sector, productivity, competition, jobs, the environment, or other units of government. Therefore, a cost-benefit economic analysis is not required. This action will not create inconsistencies with other agencies' actions or otherwise interfere with an action taken or planned by another agency. The Federal agency most interested in this action is Wildlife Services. The action is consistent with the policies and guidelines of other Department of the Interior bureaus. This action will not materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients. This action will not raise novel legal or policy issues because we have previously managed resident Canada geese under the Migratory Bird Treaty Act.
This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. It will not have an annual effect on the economy of $100 million or more; nor will it cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. It will 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 does not contain any new information collection or recordkeeping requirements subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)). OMB has approved and assigned control number 1018-0133, which expires on 08/31/2009, to the regulations concerning the control and management of resident Canada geese. We may not conduct or sponsor
The Unfunded Mandates Reform Act of 1995 requires agencies to assess the effects of Federal regulatory actions on State, local, and tribal governments and the private sector. The purpose of the act is to strengthen the partnership between the Federal Government and State, local, and tribal governments and to end the imposition, in the absence of full consideration by Congress, of Federal mandates on these governments without adequate Federal funding, in a manner that may displace other essential governmental priorities. We have determined, in compliance with the requirements of the Unfunded Mandates Reform Act, 2 U.S.C. 1502
We have determined that these regulations meet the applicable standards provided in Sections 3(a) and 3(b)(2) of Executive Order 12988. Specifically, this rule has been reviewed to eliminate errors and ambiguity, has been written to minimize litigation, provides a clear legal standard for affected conduct, and specifies in clear language the effect on existing Federal law or regulation. We do not anticipate that this rule will require any additional involvement of the justice system beyond enforcement of provisions of the Migratory Bird Treaty Act of 1918 that have already been implemented through previous rulemakings.
In accordance with Executive Order 12630, this action, authorized by the Migratory Bird Treaty Act, does not have significant takings implications and does not affect any constitutionally protected property rights. This action will not result in the physical occupancy of property, the physical invasion of property, or the regulatory taking of any property. In fact, this action will help alleviate private and public property damage and concerns related to public health and safety and allow the exercise of otherwise unavailable privileges.
Due to the migratory nature of certain species of birds, the Federal Government has been given statutory responsibility over these species by the Migratory Bird Treaty Act. While legally this responsibility rests solely with the Federal Government, it is in the best interest of the migratory bird resource for us to work cooperatively with the Flyway Councils and States to develop and implement the various migratory bird management plans and strategies.
The August 10 final rule and this proposed rule were developed following extensive input from the Flyway Councils, States, and Wildlife Services. Individual Flyway management plans were developed and approved by the four Flyway Councils, and States actively participated in the scoping process for the DEIS. This rule does not have a substantial direct effect on fiscal capacity, change the roles or responsibilities of Federal or State governments, or intrude on State policy or administration. The rule allows States the latitude to develop and implement their own resident Canada goose management action plan within the frameworks of the selected alternative. Therefore, in accordance with Executive Order 13132, this rule does not have significant federalism effects and does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.
In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175, and 512 DM 2, we have determined that this rule has no effects on Federally-recognized Indian tribes.
On May 18, 2001, the President issued Executive Order 13211 on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This rule is not a significant regulatory action under Executive Order 12866 and is not expected to adversely affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.
Exports, Hunting, Imports, Reporting and recordkeeping requirements, Transportation, Wildlife.
For the reasons stated in the preamble, we hereby propose to amend parts 20 and 21, of subchapter B, chapter I, title 50 of the Code of Federal Regulations, as set forth below:
1. The authority citation for part 20 continues to read as follows:
Migratory Bird Treaty Act, 40 Stat. 755 (16 U.S.C. 703-712; Fish and Wildlife Act of 1956, 16 U.S.C. 742a-j; Pub. L. 106-108, 113 Stat. 1491, Note Following 16 U.S.C. 703.
2. Amend § 20.11 by revising paragraph (n) to read as follows:
(n)
3. Revise paragraphs (b) and (g) of § 20.21 to read as follows:
(b) With a shotgun of any description capable of holding more than three shells, unless it is plugged with a one-piece filler, incapable of removal without disassembling the gun, so its total capacity does not exceed three shells. However, this restriction does not apply during:
(1) A light-goose-only season (greater and lesser snow geese and Ross' geese) when all other waterfowl and crane hunting seasons, excluding falconry, are closed while hunting light geese in Central and Mississippi Flyway portions of Alabama, Arkansas, Colorado, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Mexico, North Dakota, Ohio, Oklahoma, South Dakota, Tennessee, Texas, Wisconsin, and Wyoming.
(2) A Canada goose only season when all other waterfowl and crane hunting seasons, excluding falconry, are closed in the Atlantic, Central, and Mississippi Flyway portions of Alabama, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine,
(i) During the period of September 1 to September 15; and
(ii) During the period of September 16 to September 30, when approved in the annual regulatory schedule in subpart K of this part.
(g) By the use or aid of recorded or electrically amplified bird calls or sounds, or recorded or electrically amplified imitations of bird calls or sounds. However, this restriction does not apply during:
(1) A light-goose-only season (greater and lesser snow geese and Ross' geese) when all other waterfowl and crane hunting seasons, excluding falconry, are closed while hunting light geese in Central and Mississippi Flyway portions of Alabama, Arkansas, Colorado, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Mexico, North Dakota, Ohio, Oklahoma, South Dakota, Tennessee, Texas, Wisconsin, and Wyoming.
(2) A Canada goose only season when all other waterfowl and crane hunting seasons, excluding falconry, are closed in the Atlantic, Central, and Mississippi Flyway portions of Alabama, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Mexico, New Jersey, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Vermont, Virginia, West Virginia, Wisconsin, and Wyoming, as set forth below:
(i) During the period of September 1 to September 15; and
(ii) During the period of September 16 to September 30, when approved in the annual regulatory schedule in subpart K of this part.
4. The authority citation for part 21 continues to read as follows:
Migratory Bird Treaty Act, 40 Stat. 755 (16 U.S.C. 703); Pub. L. 95-616, 92 Stat. 3112 (16 U.S.C. 712(2)); Pub. L. 106-108, 113 Stat. 1491, Note Following 16 U.S.C. 703.
5. In subpart A, amend § 21.3 by revising the definition for “Resident Canada geese” to read as follows:
6. In subpart D, amend § 21.49 by revising paragraph (d)(5) to read as follows:
(d) * * *
(5) Resident Canada geese may be taken only within a 3-mile radius of the airport's or military airfield's boundary. Airports and military airfields or their agents must first obtain all necessary authorizations from landowners for all management activities conducted outside the airport or military airfield's boundaries and be in compliance with all State and local laws and regulations.
7. In subpart D, amend § 21.50 by revising paragraphs (b), (c), (d)(1) through (d)(7), the introductory text of (d)(8), and (e) to read as follows:
(b)
(c)
(d) * * *
(1) Before any management actions can be taken, landowners, homeowners' associations, and local governments must register with the Service at
(2) Registrants authorized to operate under the depredation order must use nonlethal goose management techniques to the extent they deem appropriate in an effort to minimize take.
(3) Methods of nest and egg destruction or take are at the registrant's discretion from among the following:
(i) Egg oiling, using 100 percent corn oil, a substance exempted from regulation by the U.S. Environmental Protection Agency under the Federal Insecticide, Fungicide, and Rodenticide Act, and
(ii) Egg and nest destruction, including but not limited to the removal and disposal of eggs and nest material.
(4) Registrants may conduct resident Canada goose nest and egg destruction activities between March 1 and June 30. Homeowners' associations and local governments or their agents must obtain landowner consent prior to destroying nests and eggs on private property within the homeowners' association or local government's jurisdiction and be in compliance with all State and local laws and regulations.
(5) Registrants authorized to operate under the depredation order may possess, transport, and dispose of resident Canada goose nests and eggs taken under this section. Registrants authorized to operate under the program may not sell, offer for sale, barter, or ship for the purpose of sale or barter any resident Canada goose nest or egg taken under this section.
(6) Registrants exercising the privileges granted by this section must submit an annual report summarizing activities, including the date, numbers, and location of nests and eggs taken by October 31 of each year at
(7) Nothing in this section authorizes the destruction of resident Canada goose nests or the take of resident Canada goose eggs contrary to the laws or regulations of any State or Tribe, and none of the privileges of this section may be exercised unless the registrant is
(8) Registrants may not undertake any actions under this section if the activities adversely affect species designated as endangered or threatened under the authority of the Endangered Species Act. Persons operating under this order must immediately report the take of any species protected under the Endangered Species Act to the Service. Further, to protect certain species from being adversely affected by management actions, registrants must:
(e)
8. In subpart E, amend § 21.61 by revising paragraph (d)(2) to read as follows:
(d) * * *
(2) Control activities may be conducted under this section only between August 1 and August 31.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Advance notice of proposed rulemaking.
We, the National Marine Fisheries Service (NMFS), listed the Southern Resident killer whale distinct population segment (DPS) as endangered under the Endangered Species Act (ESA) on November 18, 2005. In the final rule announcing the listing, we identified vessel effects, including direct interference and sound, as a potential contributing factor in the recent decline of this population. Both the Marine Mammal Protection Act (MMPA) and the ESA prohibit take, including harassment, of killer whales, but these statutes do not prohibit specified acts. We are considering whether to propose regulations that would prohibit certain acts, under our general authorities under the ESA and MMPA and their implementing regulations. The Proposed Recovery Plan for Southern Resident killer whales (published November 29, 2006) includes as a management action the evaluation of current guidelines and the need for regulations and/or protected areas. The scope of this advance notice of proposed rulemaking (ANPR) encompasses the activities of any person or conveyance that may result in the unauthorized taking of killer whales and/or that may cause detrimental individual-level and population-level impacts. NMFS requests comments on whether—and if so, what type of—conservation measures, regulations, or other measures would be appropriate to protect killer whales from the effects of these activities.
Comments must be received at the appropriate address (see
You may submit comments by any of the following methods:
• E-mail:
• Federal e-rulemaking Portal:
• Mail: Assistant Regional Administrator, Protected Resources Division, Northwest Regional Office, National Marine Fisheries Service, 7600 Sand Point Way NE, Seattle, WA 98115.
Lynne Barre, Northwest Regional Office, 206-526-4745; or Trevor Spradlin, Office of Protected Resources, 301-713-2322.
Viewing wild marine mammals is a popular recreational activity for both tourists and locals. In Washington, killer whales (
Killer whales in the eastern North Pacific have been classified into three forms, or ecotypes, termed residents, transients, and offshore whales. Resident killer whales in the North Pacific consist of the following groups: Southern, Northern, Southern Alaska (includes Southeast Alaska and Prince William Sound whales), Western Alaska, and Western North Pacific Residents. The Southern Resident killer whale population contains three pods—J pod, K pod, and L pod and was designated as a depleted stock under the MMPA and listed as endangered under the ESA.
During the spring, summer, and fall, the Southern Residents' range includes the inland waterways of Puget Sound, Strait of Juan de Fuca, and Southern Strait of Georgia. Their occurrence in the coastal waters off Oregon, Washington, Vancouver Island, and more recently off the coast of central California in the south and off the Queen Charlotte Islands to the north has
Scientific studies have documented human disturbance of Southern Resident killer whales by vessels engaged in whale watching in the inland waters of Washington. Short-term behavioral changes in Northern and Southern Residents have been observed and studied by several researchers (Kruse, 1991; Kriete, 2002; Williams
In rare instances, killer whales are injured or killed by collisions with passing ships and powerboats, primarily from being struck by the turning propeller blades (Visser, 1999c; Ford
We are concerned about the potential for individual-level and population-level effects because of vessel activities. Vessel effects were identified as a factor in the ESA listing of the Southern Residents and are addressed in the recovery plan which is available on our web page at
The Marine Mammal Protection Act, 16 U.S.C. 1361
In addition, NMFS regulations implementing the MMPA further describe the term take to include: “the negligent or intentional operation of an aircraft or vessel, or the doing of any other negligent or intentional act which results in disturbing or molesting a marine mammal; and feeding or attempting to feed a marine mammal in the wild” (50 CFR 216.3).
The MMPA provides limited exceptions to the prohibition on take for activities such as scientific research, public display, and incidental take in commercial fisheries. Such activities require a permit or authorization, which may be issued only after a thorough agency review.
The ESA generally prohibits the taking of endangered species. The ESA defines take to mean “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” Both the ESA and MMPA require wildlife viewing to be conducted in a manner that does not cause take.
NMFS has regulated close vessel approaches to large whales in Hawaii, Alaska, and the North Atlantic. In 1995, NMFS published a final rule to establish a 100-yard (91.4-m) approach limit for humpback whales in Hawaii (60 FR 3775, January 19, 1995). In 2001, NMFS published a final rule (66 FR 29502, May 31, 2001) to establish a 100-yard (91.4-m) approach limit for humpback whales in Alaska that included a speed limit for when a vessel is near a whale. In 1997, an interim final rule was published to prohibit approaching critically endangered North Atlantic right whales closer than 500 yards (457.2 m) (62 FR 6729, February 13, 1997).
In addition to these specific regulations, NMFS has provided general guidance for wildlife viewing that does not cause take. This is consistent with the philosophy of responsible wildlife viewing advocated by many federal and state agencies to unobtrusively observe the natural behavior of wild animals in their habitats without causing disturbance (see
Each of the six NMFS Regions has developed recommended viewing guidelines to educate the general public on how to responsibly view marine mammals in the wild and avoid causing a take. These guidelines are available on line at:
The “Be Whale Wise” guidelines developed for marine mammals by the NMFS Northwest Regional Office and partners are also available at:
Be Whale Wise is a transboundary effort to develop and revise guidelines for viewing marine wildlife. NMFS has partnered with commercial operators, whale advocacy groups, U.S. and Canadian government agencies and enforcement divisions over the past
NMFS supports the Soundwatch program, an on-water stewardship and monitoring group, to promote the Be Whale Wise guidelines and monitor vessel activities in the vicinity of whales. Soundwatch reports (Koski, 2004, 2006) characterize trends in incidents when the guidelines are not followed and there is the potential for disturbance of the whales. Incidents are frequently observed involving both recreational and commercial whale watching vessels. Soundwatch also serves as a crucial education component, providing information on the viewing guidelines to boaters that are approaching areas with whales.
Despite the regulations, guidelines and outreach efforts, interactions between vessels and killer whales continue to occur in the waters of Puget Sound and the Georgia Basin. Advertisements on the Internet and in local media in the Pacific Northwest promote activities that appear inconsistent with what is recommended in the NMFS guidelines. NMFS has received letters from the Marine Mammal Commission, members of the scientific research community, environmental groups, and members of the general public expressing the view that some types of interactions with wild marine mammals have the potential to harass and/or disturb the animals by causing injury or disruption of normal behavior patterns. NMFS has also received inquiries from members of the public and commercial tour operators requesting clarification of NMFS' policy on these matters.
In 2002, NMFS published an ANPR requesting comments from the public on what types of regulations and other measures would be appropriate to prevent harassment of marine mammals in the wild caused by human activities directed at the animals (67 FR 4379, January 30, 2002). The 2002 ANPR was national in scope and covered all species of marine mammals under NMFS' jurisdiction (whales, dolphins, porpoises, seals and sea lions), and requested comments on ways to address concerns about the public and commercial operators closely approaching, swimming with, touching or otherwise interacting with marine mammals in the wild. Several potential options were proposed for consideration and comment, including: (1) codifying the current NMFS Regional marine mammal viewing guidelines into regulations; (2) codifying the guidelines into regulations with additional improvements; (3) establishing minimum approach regulations similar to the ones for humpback whales in Hawaii and Alaska and North Atlantic right whales; and (4) restricting activities of concern similar to the MMPA regulation prohibiting the public from feeding or attempting to feed wild marine mammals. The 2002 ANPR specifically mentioned the complaints received from researchers and members of the public concerning close vessel approaches to killer whales in the Northwest. Over 500 comments were received on the 2002 ANPR regarding human interactions with wild marine mammals in United States waters and along the nation's coastlines.
NMFS is requesting information and comments on whether — and if so, what type of — conservation measures, regulations, or other measures would be appropriate to protect killer whales in inland waters of Washington from human activities that result in the unauthorized taking of killer whales and/or that may cause detrimental individual-level and population-level impacts.
NMFS has received input on potential measures to address vessel impacts during the ESA listing and recovery planning process. Suggestions included regulations governing all vessels (including aircraft) or only commercial whale watch vessels. Suggestions included a moratorium on all whale watching, prohibiting whale watching for one or more days per week, developing a permit program for commercial operators, and requiring whale watch vessels to purchase and install Vessel Monitoring System (VMS) equipment to allow for monitoring their activities. Based on the comments received, and the regulations implemented for other marine mammals, NMFS has developed a preliminary list of options for consideration and comment:
We recognize that the most appropriate regulations may be some combination of the above measures, or that additional possibilities may exist.
Regulations adopted under the MMPA could apply to all three killer whale ecotypes - residents, transients, and offshores. To the average wildlife viewer, these whales are difficult to differentiate between visually, and all three could potentially be found in the inland waters of Washington State where whale watching occurs.
The geographic scope of regulations, if proposed, would likely be the inland waters of the State of Washington, since this is where vessel interactions are concentrated. The coastal waters off Washington and Oregon do not currently have a significant level of documented vessel interactions, and the small number of killer whale sightings in these areas makes it unlikely that they will develop whale watching operations at significant levels in the future.
NMFS invites information and comment from the public on the advisability of regulations, on the above options, and on other possible measures that will help the agency decide what type of regulations, if any, would be most appropriate to consider for protecting killer whales in the Pacific Northwest. In particular, we are seeking information and comments concerning:
(1) The advisability of and need for regulations;
(2) The geographic scope of regulations;
(3) Management options for regulating vessel interactions with killer whales, including but not limited to the options listed in this notice;
(4) Scientific and commercial information regarding the effects of vessels on killer whales and their habitat;
(5) Information regarding potential economic effects of regulating vessel interactions; and
(6) Any additional relevant information that NMFS should consider should it undertake rulemaking.
You may submit information and comments concerning this ANPR by any one of several methods (see
A complete list of all references cited in this advanced notice of proposed rulemaking can be found on our Web site at
Based on the level of interest in killer whales and whale watching, public meetings have been scheduled for April 18, 2007, 2-4 p.m. in The Grange Hall, Friday Harbor, WA and April 19, 2007, 7-9 p.m. at the Seattle Aquarium, Seattle, WA. Requests for additional public hearings or special accommodations must be made in writing (see
This ANPR was determined to be significant for purposes of E.O. 12866.
U.S. Agency for International Development (USAID) has submitted the following information collections to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding this information collection are best assured of having their full effect if received within 30 days of this notification. Comments should be sent via e-mail to
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Pub. L. 104-13. Comments regarding (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of 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 should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Forest Service, USDA.
Notice; Request for Comment.
In accordance with the Paperwork Reduction Act of 1995, the Forest Service is seeking comments from all interested individuals and organizations on the new information collection, Research Data Archive Use Tracking.
Comments must be received in writing on or before May 21, 2007 to be assured of consideration. Comments received after that date will be considered to the extent practicable.
Comments concerning this notice should be addressed to Dave Rugg; Forest Service, USDA; 1992 Folwell Avenue; St. Paul, MN 55108.
Comments also may be submitted via facsimile to (651) 649-5285 or by e-mail to:
The public may inspect comments received at Forest Service—Northern Research Station, 1992 Folwell, Avenue, St. Paul, MN, during normal business hours. Visitors are encouraged to call ahead to (651) 649-5000 or (651) 649-5173 to facilitate entry to the building.
Dave Rugg, Forest Service, Northern Research Station, 651-649-5173. Individuals who use TDD may call the Federal Relay Service (FRS) at 1-800-877-8339, 24 hours a day, every day of the year, including holidays.
When a member of the public requests a copy of a data set, FS R&D will collect the following information: Name; affiliation; contact information (including e-mail address); Statement of Intended Use; and Data Use Agreement. The Data Use Agreement and associated information collection closely follow the data access structure used by the National Science Foundation's Long Term Ecological Research network. FS R&D managers believe that this structure provides a sound balance between meeting obligations to its scientific staff and ease-of-access by the research community. The Statement of Intended Use will not determine access to a particular data set.
A form at the archive web site will collect the information. Forest Service archive staff will review the individual Data Use Agreements prior to approving release of the data set to the requestor. This review is solely to ensure that submitted information is complete and correct.
The data set author will use the Data Use Agreements to describe the impact of research accomplishments prior to performance appraisals.
The collection of Data Use Agreements will be evaluated by the data archiving program to identify opportunities for improving the archive's function and offerings; the FS R&D communications office will use the agreements to assist in assessing the effectiveness of FS R&D research and technology transfer.
The proposed FS R&D data archive is a new activity and participation is voluntary. This information collection is a critical component in the campaign to encourage Forest Service scientists to deposit their research data in the archive system. Sharing research data is very useful to the broader research community and sharing of well-documented FS R&D data sets via the archive will be impossible without this information collection.
Comment is invited on: (1) Whether this collection of information is necessary for the stated purposes and the proper performance of the functions of the agency, including whether the information will have practical or scientific utility; (2) the accuracy of the agency's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used; (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 the use of automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
All comments received in response to this notice, including names and addresses when provided, will be a matter of public record. Comments will be summarized and included in the request for Office of Management and Budget approval.
Office of the Secretary, USDA.
Notice; Committee charter renewal.
The Secretary of Agriculture is renewing the charter of the Roadless Area Conservation National Advisory Committee, under the authority of the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C. App II). The purpose of the Roadless Area Conservation National Advisory Committee is to provide advice and recommendations to the Secretary on management and conservation of roadless areas. This includes, but is not limited to, petitions by States to the Secretary, or his designee, under the authority of the Administrative Procedure Act, 5 U.S.C. 553(e) and 7 CFR 1.28.
Bill Supulski, National Roadless Coordinator, at
Pursuant to the Federal Advisory Committee Act, notice is hereby given that the Secretary of Agriculture intends to renew the charter of the Roadless Area Conservation National Advisory Committee (Committee). The Secretary has determined the work of this Committee is in the public interest and relevant to the duties of the Department of Agriculture. The purpose of the Roadless Area Conservation National Advisory Committee is to provide advice and recommendations to the Secretary on management and conservation of roadless areas. This includes, but is not limited to, petitions by States to the Secretary, or his designee, under the authority of the Administrative Procedure Act, 5 U.S.C. 553(e) and 7 CFR 1.28. The Committee
This Advisory Committee shall consist of up to 15 members appointed by the Secretary of Agriculture. The Committee Chair will be elected by the members. Officers or employees of the Forest Service may not serve as members of the Advisory Committee. The Advisory Committee shall consist of members who represent diverse national organizations interested in the conservation and management of National Forest System inventoried roadless areas.
Natural Resources Conservation Service.
Notice of Intent to prepare an Environmental Impact Statement.
Pursuant to Section 102(2)(C) of the National Environmental Policy Act of 1969; the Council on Environmental Quality Guidelines (40 CFR Part 1500) and the Natural Resources Conservation Service Guidelines (7 CFR Part 650); the Natural Resources Conservation Service, U.S. Department of Agriculture, gives notice that an Environmental Impact Statement is being prepared for the Manoa Watershed, Honolulu County, Hawaii.
Lawrence T. Yamamoto, Director, Pacific Islands Area, Natural Resources Conservation Service, 300 Ala Moana Boulevard, Room 4-118, P.O. Box 50004, Honolulu, HI 96850-0050, Telephone: (808) 541-2600, ext. 105.
A preliminary assessment of this federally funded action indicates that the project may cause significant impacts on the environment. As a result, Lawrence T. Yamamoto, Director, has determined that the preparation and review of an Environmental Impact Statement (EIS) is needed for this project.
This project will be implemented under the Watershed Protection and Flood Prevention Act (Pub. L. 83-566, as amended), for the purpose of flood mitigation in Manoa Valley. The NRCS will work with the affected community and sponsoring local organizations to develop an acceptable plan to address the flood problem. Sponsoring local organizations include the State Department of Land and Natural Resources and the City and County of Honolulu.
The project aims to mitigate flooding of the magnitude experienced on October 30, 2004, when an intense rainstorm cell hit the upper watershed area of Manoa Valley. Runoff from the storm damaged streambanks and bridges throughout the valley. Bridges obstructed by debris diverted floodwater from the stream channel onto roads, damaging homes and other neighborhood improvements, as well as the University of Hawaii. The total damage from the flood event neared $100 million.
A full range of possible programs and actions will be considered in order to meet the project goal of flood mitigation. Currently under consideration are detention basins on public lands, flood walls, debris basins and other debris management actions, flood-proofing structures within the flood plain, diversion of flood waters, flood warning systems, widening of the channel, acquisition of properties within the floodplain, maintenance easements, and a drainage district. As hydrologic and hydraulic analyses are performed and stakeholder consultations are conducted, additional concepts may be developed.
A draft Environmental Impact Statement will be prepared and circulated for review by agencies and the public. The Natural Resources Conservation Service invites participation and consultation of agencies and individuals that have special expertise, legal jurisdiction, or interest in the preparation of the draft EIS. All written and verbal comments received in response to this Notice of Intent will be considered when determining the scope of the EIS. The sponsoring local organizations will be issuing an Environmental Impact Statement Preparation Notice pursuant to Hawaii Revised Statutes Chapter 343, and a public participation process in the affected community has already been initiated. NEPA and HRS 343 requirements will be coordinated in the preparation of the EIS document.
A public meeting will be held on Wednesday, April 25, 2007, at the Noelani Elementary School cafeteria from 6:30 p.m. to 8:30 p.m., to determine the scope of analysis of the proposed action. Further information on the proposed action or the public scoping meeting may be obtained from Lawrence T. Yamamoto, Director, at the above address or telephone number.
Rural Business—Cooperative Service (RBS), USDA
Notice.
Rural Business—Cooperative Service (RBS), an Agency within USDA Rural Development, announces it is accepting applications for fiscal year (FY) 2007 to purchase renewable energy systems and make energy efficiency improvements for agriculture producers and rural small businesses in eligible rural areas. Funding will be available in the form of grants, guaranteed loans, and combined guaranteed loans and grant applications.
For renewable energy systems, the minimum grant request is $2,500 and the maximum is $500,000. For energy efficiency improvements, the minimum grant request is $1,500 and the maximum is $250,000. The maximum amount of a guaranteed loan made to a borrower will be $10 million. Fifty percent of the available grant funding will be reserved for the grant portion of combination grant and guaranteed loan applications. For FY 2007, the guarantee fee amount is 1 percent of the guaranteed portion of the loan and the annual renewal fee is 0.125 percent (one-eighth of one percent) of the guaranteed portion of the loan.
The United States Department of Agriculture (USDA) will conduct one competitive grant solicitation in FY 2007.
Applications must be completed and submitted to the appropriate USDA Rural Development State Office no later than May 18, 2007. Any unused guaranteed loan funding as of August 1, 2007, may be pooled and revert to grant funding. It is anticipated that grant award announcements will be made approximately 75 days following the submission deadline.
Applications for guaranteed loans as well as combined guaranteed loan and grant packages must be completed and submitted to the appropriate USDA Rural Development State Office no later than July 2, 2007. Combined guaranteed loan and grant packages will compete and be awarded on a bi-weekly basis. Guaranteed loan applications will be accepted and processed in a rolling application manner.
The application closing deadlines for grants, guaranteed loans and combined guaranteed loan and grant packages are firm. USDA Rural Development will not consider any application that is received after the closing deadline. In accordance with RD Instruction 1940-G, all environmental assessments must be completed before the State Office forwards the application to the National Office for funding consideration.
Submit applications to the USDA Rural Development State Office in the State where your project is located. A list of the USDA Rural Development State Offices and Energy Coordinators addresses and telephone numbers follow. For further information about this solicitation, please contact the applicable State Office. This document is available on our Web site at
This solicitation is issued pursuant to Section 9006 of the Farm Security and Rural Investment Act of 2002 (2002 Act), which established the Renewable Energy Systems and Energy Efficiency Improvements Program. The program is designed to help agricultural producers and rural small businesses reduce energy costs and consumption and help meet the Nation's critical energy needs. The 2002 Act mandates the maximum percentage USDA Rural Development will provide in funding for these types of projects. USDA Rural Development grants under this program will not exceed 25 percent of the eligible project costs. USDA Rural Development guaranteed loans will not exceed 50 percent of the eligible project costs. USDA Rural Development combined grant and guaranteed loan funding packages will not exceed 50 percent of eligible project cost, with the grant portion not to exceed 25 percent of eligible project costs.
As stated in 7 CFR 4280.108, projects must be for a pre-commercial or commercially available technology. In accordance with the definition of “commercially available” found in 7 CFR 4280.103, a proven operating history specific to the proposed application may be established domestically or outside of the United States (US). If the system is available commercially outside the U.S., applicants must provide authoritative evidence of the operating history, performance, and reliability. Additionally, applicants must provide evidence that professional service providers, trades, large construction equipment providers and labor are readily available domestically and familiar with installation procedures and practices, and spare parts and service are readily available in the U.S. to properly maintain and operate the system. All warranties must be valid in the U.S.
In accordance with the definition of “pre-commercial” technology found in 7 CFR 4280.103, technical and economic potential for commercial application must be demonstrated to the Agency's satisfaction through a documented operating history which may be established domestically or outside of the U.S., specific to the proposed application and at scalable size. To demonstrate that the system has emerged through research and development as well as the demonstration process, applicants must provide to the Agency's satisfaction, authoritative evidence of the operating history, performance, and reliability past completion of start-up, shake-down, and/or commissioning. Typically, and inline with performance evaluation protocol, the documented operating history should provide performance data for a duration of 12 months. In accordance with demonstrating the potential for commercial application, applicants must provide evidence that professional service providers, trades, large construction equipment providers, and
Information required to be in the grant application package is contained in 7 CFR 4280.111. Awards are made on a competitive basis using specific evaluation criteria contained in 7 CFR 4280.112(e). To ensure that projects are accurately scored by USDA, applicants are requested to tab and number each evaluation criteria and include in that section, its corresponding supporting documentation and calculations according to 7 CFR 4280.112. Only projects that have completed the environmental review process according to 7 CFR 4280.114(d), demonstrated project eligibility according to 7 CFR 4280.108, and demonstrated technical feasibility will be eligible for funding consideration.
State Offices will submit eligible grant funding requests, with the State Office executed score sheets, including supporting documentation to the National Office for funding consideration.
To reduce scoring bias by technology and scale, a standard statistical normalization process will be applied to all competitive grant application scores. All applicants will be notified by the USDA Rural Development State Offices of the Agency's decision on the awards.
Information required to be in the guaranteed loan application and the combination guaranteed loan and grant application package is contained in 7 CFR 4280.128 and 7 CFR 4280.193(c), respectively. Guaranteed loan applications are received and processed on a rolling basis until funds are exhausted. Combined guaranteed loans and grant packages compete bi-weekly at the national level and are awarded on a bi-weekly basis until funds are exhausted. All applicants will be notified by the USDA Rural Development State Offices in regards to the Agency's decision on their application.
This program is listed in the Catalog of Federal Domestic Assistance under Number 10.775 and is subject to the provisions of Executive Order 12372, which requires intergovernmental consultation with State and local officials.
USDA is participating as a partner in the government-wide Grants.gov site. Applicants may submit grant-only applications to the Agency in either electronic or paper format. Please be mindful that the application deadline for electronic format differs from the deadline for paper format. The electronic format deadline will be based on Washington, DC time. The paper format deadline is local time for each USDA Rural Development State Office.
Users of Grants.gov will be able to download a copy of the application package, complete it off line, and then upload and submit the application via the Grants.gov site. You may not e-mail an electronic copy of a grant application to USDA Rural Development; however, the Agency encourages your participation in Grants.gov.
• 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. USDA Rural Development strongly recommends that you do not wait until the application deadline date to begin the application process through Grants.gov. To use Grants.gov, applicants must have a Dun and Bradstreet Data Universal Numbering System (DUNS) number which can be obtained at no cost via a toll-free request line at 1-866-705-5711 or online at
• You may submit all documents electronically through the Web site, including all information typically included on the application for Renewable Energy Systems and Energy Efficiency Improvements Program, and all necessary assurances and certifications. After electronically submitting an application through the Web site, the applicant will receive an automatic acknowledgement from Grants.gov that contains a Grants.gov tracking number.
• USDA Rural Development may request that the applicant provide original signatures on forms at a later date.
• If applicants experience technical difficulties on the closing date and are unable to meet the 5 p.m. (Washington, DC time) deadline, print out your application and submit it to your respective State Office. If applicants submit applications to a State Office, applicants must meet the closing date and local time deadlines.
Applicants may access the electronic grant application for Renewable Energy Systems and Energy Efficiency Improvements Program at
Please note that applicants must locate the downloadable application package for this program by the CFDA Number or FedGrants Funding Opportunity Number, which can be found at
In accordance with the Paperwork Reduction Act, the paperwork burden has been cleared by the Office of Management and Budget (OMB) under OMB Control Number 0570-0050.
USDA prohibits discrimination in all its programs and activities on the basis of race, color, national origin, age, disability, and where applicable, sex, marital status, familial status, parental status, religion, sexual orientation, genetic information, political beliefs, reprisal, or because all or part of an individual's income is derived from any public assistance program. (Not all prohibited bases apply to all programs.) Persons with disabilities who require alternative means for communication of program information (braille, large print, audiotape, etc.) should contact USDA's TARGET Center at (202) 720-2600 (voice and TDD).
To file a complaint of discrimination, write to USDA, Director, Office of Civil Rights, 1400 Independence Avenue, SW., Washington, DC 20250-9410, or call (800) 795-3272 (voice), or (202) 720-6382 (TDD). “USDA is an equal opportunity provider, employer, and lender.”
United States Arctic Research Commission.
Notice is hereby given that the U.S. Arctic Research Commission will hold its 83rd meeting in Washington, DC on April 16-17, 2007. The Business Session, open to the public, will convene at 8:30 a.m. Monday, April 16, 2007 in Washington, DC. An Executive Session will follow adjournment of the Business Session.
The Agenda items include:
(1) Call to order and approval of the Agenda.
(2) Approval of the Minutes of the 82nd Meeting.
(3) Reports from Congressional Liaisons.
(4) Agency Reports.
The focus of the meeting will be reports and updates on programs and research projects affecting the Arctic.
Any person planning to attend this meeting who requires special accessibility features and/or auxiliary aids, such as sign language interpreters, must inform the Commission in advance of those needs.
John Farrell, Executive Director, U.S. Arctic Research Commission, 703-525-0111 or TDD 703-306-0090.
Economic Development Administration (EDA), Department of Commerce.
Notice and request for proposals and applications.
The Economic Development Administration (EDA) is soliciting proposals or applications (as appropriate) for the following programs authorized by the Public Works and Economic Development Act of 1965 (42 U.S.C. 3121
Proposals are accepted on a continuing basis and applications are invited and processed as received. Generally, two months are required for EDA to reach a final decision after receipt of a complete application that meets all requirements. Proposals or applications (as appropriate) received after the date of this notice will be processed in accordance with the requirements set forth herein and in the related Federal funding opportunity (FFO) announcement, until the next annual FFO is posted on
Proponents are advised to carefully read the instructions contained in the complete FFO announcement for this request for proposals and applications, and in the
Proposals under EDA's Public Works Program (CFDA No. 11.300) or Economic Adjustment Assistance Program (CFDA No. 11.307) must be submitted on Form ED-900P, which may be submitted in two formats: (i) In paper (hardcopy) format at the applicable regional office address provided below; or (ii) electronically in accordance with the procedures provided on
For projects under EDA's Planning Program (CFDA No. 11.302) or Technical Assistance Program (CFDA No. 11.303), please contact the appropriate EDA regional office listed below for instructions as to whether you should complete a pre-application or an application. In the case of a continuation grant, no pre-application is required.
The following forms may be accessed and downloaded as follows: (i) Forms ED-900P and ED-900A at
Applicants in Arkansas, Louisiana, New Mexico, Oklahoma and Texas, may submit paper submissions to:
Applicants in Illinois, Indiana, Michigan, Minnesota, Ohio and Wisconsin, may submit paper submissions to:
Applicants in Colorado, Iowa, Kansas, Missouri, Montana, Nebraska, North Dakota, South Dakota, Utah and Wyoming, may submit paper submissions to:
Applicants in Connecticut, Delaware, District of Columbia, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Puerto Rico, Rhode Island, Vermont, U.S. Virgin Islands, Virginia and West Virginia, may submit paper submissions to:
Applicants in Alaska, American Samoa, Arizona, California, Guam, Hawaii, Idaho, Marshall Islands, Micronesia, Nevada, Northern Mariana Islands, Oregon, Republic of Palau and Washington, may submit paper submissions to:
A proponent must submit one (1) original and two (2) copies of a completed pre-application or application (as appropriate) via postal mail, shipped overnight or hand-delivered to the applicable regional office, unless otherwise directed by EDA staff. Proponents are advised that Department of Commerce mail security measures may delay receipt of United States Postal Service mail for up to two weeks. Proponents may wish to use guaranteed overnight delivery services.
Applicants for assistance under the Planning Program or the Technical Assistance Program may not need to submit a pre-application. If the regional office instructs you to submit an application (Form ED-900A) instead of a pre-application (Form ED-900P) for projects under these two programs, you may submit the application in paper (hardcopy) format or you may submit the application electronically via
Applicants should access the following link for assistance in navigating
For additional information or for a paper copy of the FFO announcement, contact the appropriate EDA regional office listed above. EDA's Internet Web site at
EDA will evaluate and select proposals or applications (as appropriate) according to the investment policy guidelines and funding priorities set forth below under “Evaluation Criteria” and “Funding Priorities” and in section V. of the FFO announcement.
This notice will remain in effect until it is terminated or supplanted by a future
This request for proposals and applications covers the following programs under PWEDA: (1) Public Works and Economic Development Investments Program; (2) Planning Program; (3) Technical Assistance Program; and (4) Economic Adjustment Assistance Program. Under the Technical Assistance Program, this request for proposals and applications covers Local Technical Assistance only. A separate FFO announcement will be posted on
For-profit, private-sector entities do not qualify for investment assistance under PWEDA, with one minor exception: EDA may award a grant under section 207 (42 U.S.C. 3147) of PWEDA under its Local Technical Assistance Program or National Technical Assistance Program to a for-profit organization for the specific purposes set forth in 13 CFR 306.1. EDA is not authorized to provide grants directly to individuals or to for-profit entities seeking to start or expand a private business. Such requests may be referred to State or local agencies, or to non-profit economic development organizations serving the region in which the project will be located.
Any community affected by the 1988, 1991, 1993, 1995 or 2005 base realignment and closure (BRAC) actions, which qualifies under EDA's Public Works Program or Economic Adjustment Assistance Program, may apply for assistance under one or both of these programs. EDA anticipates that proponents with construction proposals will seek funding from the Public Works Program, and strategic planning, credit enhancement or other innovative financing proposals will compete under the Economic Adjustment Assistance Program.
In the proposal (or application) review process, EDA will consider the nature of the contribution (cash or in-kind) and the amount of the matching share funds. While cash contributions are preferred, in-kind contributions, fairly evaluated by EDA, may provide the required non-federal share of the total project cost.
In the case of a pre-application, after completing its evaluation, the IRC recommends to the Regional Director whether an application should be
If a proponent is selected to submit a formal application, the appropriate regional office will provide application materials and guidance in completing them. The proponent will generally have thirty (30) days to submit the completed application materials to the regional office. EDA staff will work with the proponent to resolve application deficiencies. EDA will notify the applicant if EDA accepts a completed application, and it is forwarded for final review and processing in accordance with EDA and Department of Commerce procedures.
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• High levels of local government or non-profit matching funds and private sector leverage;
• Clear and unified leadership and support by local elected officials; and
• Strong cooperation between the business sector, relevant regional partners and local, State and Federal governments.
In addition to using the investment policy guidelines set forth above, EDA also will evaluate all Planning proposals or applications (as appropriate) based on the (i) quality of the proposed scope of work for the development, implementation, revision or replacement of a comprehensive economic development strategy (CEDS); and (ii) qualifications of the proponent to implement the goals and objectives resulting from the CEDS.
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• Establish comprehensive regional economic development strategies that identify promising opportunities for long-term economic growth.
• Exhibit demonstrable, committed multi-jurisdictional support from leaders across all sectors:
i. Public (e.g., mayors, city councils, county executives, senior state leadership);
ii. Institutional (e.g., institutions of higher learning);
iii. Non-profit (e.g., chambers of commerce, development organizations); and
iv. Private (e.g., leading regional businesses, significant regional industry associations).
• Generate quantifiable positive economic outcomes.
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• Develop and enhance the functioning and competitiveness of leading and emerging industry clusters in an economic region.
• Advance technology transfer from research institutions to the commercial marketplace.
• Bolster critical infrastructure (e.g., transportation, communications, specialized training) to prepare economic regions to compete in the world-wide marketplace.
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• Cultivate a favorable entrepreneurial environment consistent with regional strategies.
• Enable economic regions to identify innovative opportunities among growth-oriented small and medium-size enterprises.
• Promote community and faith-based entrepreneurship programs aimed at improving economic performance in an economic region.
Additional consideration will be given to investment proposals or applications (as appropriate) which also:
• Respond to sudden and severe economic dislocations (e.g., major layoffs and/or plant closures, disasters).
• Enable BRAC-impacted communities to transition from a military to civilian economy.
• Advance the goals of linking historic preservation and economic development as outlined by Executive Order 13287, “Preserve America.”
• Support the economic revitalization of brownfields.
Import Administration, International Trade Administration, Department of Commerce.
As a result of the determinations by the Department of Commerce (the Department) and the International Trade Commission (ITC) that revocation of the antidumping duty order on clad steel plate from Japan would likely lead to continuation or recurrence of dumping and material injury to an industry in the United States, the Department is publishing notice of continuation of this antidumping duty order.
March 22, 2007.
Nichole Zink or Brandon Farlander, AD/CVD Operations, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street & Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-0049 and (202) 482-0182, respectively.
On October 2, 2006, the Department initiated and the ITC instituted a sunset review of the antidumping duty order on clad steel plate from Japan pursuant to section 751(c) of the Tariff Act of 1930, as amended (the Act).
As a result of its review, the Department found that revocation of the antidumping duty order would likely lead to continuation or recurrence of dumping and notified the ITC of the magnitude of the margins likely to prevail were the order to be revoked.
The scope of this order is all clad
Stainless clad steel plate is manufactured to American Society for Testing and Materials (ASTM) specifications A263 (400 series stainless types) and A264 (300 series stainless types). Nickel and nickel-base alloy clad steel plate is manufactured to ASTM specification A265. These specifications are illustrative but not necessarily all-inclusive.
Clad steel plate within the scope of this order is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) 7210.90.10.00. Although the HTSUS subheading is provided for convenience and customs purposes, our written description of the scope of this order is dispositive.
As a result of the determinations by the Department and the ITC that revocation of this antidumping duty order would likely lead to continuation or recurrence of dumping and material injury to an industry in the United States, pursuant to section 751(d)(2) of the Act, the Department hereby orders the continuation of the antidumping duty order on clad steel plate from Japan.
U.S. Customs and Border Protection will continue to collect antidumping duty cash deposits at the rates in effect at the time of entry for all imports of subject merchandise. The effective date of continuation of this order will be the date of publication in the
This five-year (sunset) review and this notice are in accordance with section 751(c) of the Act and published pursuant to section 777(i) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
On November 27, 2006, the Department of Commerce (“the Department”) published in the
March 22, 2007.
Kristen Johnson, AD/CVD Operations, Office 3, Import Administration, International Trade Administration, U.S. Department of Commerce, 14
On March 7, 1986, the Department published in the
In accordance with 19 CFR 351.213(b), this review covers Borusan, the only producer/exporter of the subject merchandise for which a review was specifically requested.
The products covered by this order are certain welded carbon steel pipe and tube with an outside diameter of 0.375 inch or more, but not over 16 inches, of any wall thickness (pipe and tube) from Turkey. These products are currently provided for under the Harmonized Tariff Schedule of the United States (“HTSUS”) as item numbers 7306.30.10, 7306.30.50, and 7306.90.10. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise is dispositive.
As noted above, the Department received no comments concerning the preliminary results. Therefore, consistent with the
As there have been no changes to or comments on the preliminary results, we are not attaching a decision memorandum to this
The Department intends to issue assessment instructions to U.S. Customs and Border Protection (“CBP”) 15 days after the date of publication of these final results of this review, to liquidate shipments of subject merchandise by Borusan entered, or withdrawn from warehouse, for consumption on or after January 1, 2005, through December 31, 2005, without regard to countervailing duties because a
For all non-reviewed companies, we will instruct CBP to continue to collect cash deposits at the most recent company-specific or country-wide rate applicable to the company. Accordingly, the cash deposit rates that will be applied to companies covered by this order, but not examined in this review, are those established in the most recently completed administrative proceeding for each company. These rates shall apply to all non-reviewed companies until a review of a company assigned these rates is requested.
This notice also serves as a 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(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 the terms of an APO is a sanctionable violation.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration, Commerce
Notice of availability.
NMFS has received an application for an incidental take permit (Permit) from the North Carolina Division of Marine Fisheries (NCDMF) pursuant to the Endangered Species Act of 1973, as amended (ESA). As required by the ESA, NCDMF's application includes a conservation plan designed to minimize and mitigate any such take of endangered or threatened species. The Permit application is for the incidental take of ESA-listed adult and juvenile sea turtles associated with commercial shrimp trawling without the use of a turtle excluder device (TED) off the coast of North Carolina from Browns Inlet to Rich Inlet due to high concentrations of algae which clog shrimp trawls and TEDs. The duration of the proposed Permit is for 5 years. NMFS is furnishing this notice in order to allow other agencies and the public an opportunity to review and comment on this document. All comments received will become part of the public record and will be available for review.
Written comments from interested parties on the Permit application and Plan must be received at the appropriate address or fax number (see
Written comments on this action should be addressed to David Cottingham, Chief, Marine Mammal and Sea Turtle Conservation Division, NMFS Office of Protected Resources, 1315 East-West Highway, Silver Spring, MD, 20910; or by fax (301) 427-2522, or by e-mail at:
Barbara Schroeder (ph. 301-713-2322, fax 301-427-2522, e-mail
Section 9 of the ESA and Federal regulations prohibit the “taking” of a species listed as endangered or threatened. The term “take” is defined under the ESA to mean harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. NMFS may issue permits, under limited circumstances, to take listed species incidental to, and not the purpose of, otherwise lawful activities. Section 10(a)(1)(B) of the ESA provides for authorizing incidental take of listed species. NMFS regulations governing permits for threatened and endangered species are promulgated at 50 CFR 222.307.
The following species are included in the conservation plan and Permit application: Loggerhead (
NMFS issued Permit 1325 to NCDMF (66 FR 51023, October 5, 2001) and Permit 1008 (61 FR 39442, July 29, 1996). Permit 1325 expired December 31, 2006 and had been issued for the years 2001-2006, replacing the previous permit (1008) which had been issued for the years 1996-2000. Permit 1008 replaced NMFS emergency rules which were issued from 1992 through 1995. The two previously issued permits and the emergency rules allowed limited tow times in lieu of the use of TEDs in an area off the North Carolina coast from Browns Inlet to Rich Inlet (approximately 30 nautical miles long (55.6km) and extending 1 nautical mile (1.9km) offshore) because of high concentrations of algae which clog shrimp trawl nets and TEDs. On December 18, 2006 NCDMF submitteD an application to NMFS for a Permit (1603) to authorize the continued use of limited tow times in lieu of TEDs in the same area (Browns Inlet to Rich Inlet) when high concentrations of algae clog shrimp trawl nets and TEDs.
The conservation plan prepared by the NCDMF describes measures designed to monitor, minimize, and mitigate the incidental take of ESA-listed sea turtles annually from April 1 through November 30. The conservation plan includes two primary management measures, the issuance of proclamations by the NCDMF requiring vessels to obtain a tow time permit if they wish to trawl without TEDs in the restricted area and the implementation of seasonally-based tow time requirements in lieu of TEDs within the restricted area for authorized vessels. NCDMF proposes to monitor compliance and effectiveness of the management measures via monitoring of sea turtle strandings. NCDMF proposes to terminate or modify tow time permits if strandings exceed specified thresholds in the restricted area. This is a change in monitoring from the previous conservation plan and permit, which included on-board observer coverage. The conservation plan also includes enforcement of tow times in the restricted area by Marine Patrol officers.
This notice is provided pursuant to section 10(c) of the ESA and the National Environmental Policy Act (NEPA) regulations (40 CFR 1506.6). NMFS will evaluate the application, associated documents, and comments submitted thereon to determine whether the application meets the requirements of the NEPA regulations and section 10(a) of the ESA. If it is determined that the requirements are met, a permit will be issued for incidental takes of ESA-listed sea turtles under the jurisdiction of NMFS. The final NEPA and permit determinations will not be completed until after the end of the 30-day comment period and will fully consider all public comments received during the comment period. NMFS will publish a record of its final action in the
Technology Administration, U.S. Department of Commerce.
Notice of closed meeting.
The National Medal of Technology Nomination Evaluation Committee will meet in closed session on Tuesday, April 3, 2007. The primary purpose of the meeting is the discussion of relative merits of persons and companies nominated for the Medal.
The meeting will convene Tuesday, April 3, 2007 at 10 a.m. and adjourn at 4 p.m.
The meeting will be held at the Department of Commerce, Technology Administration, 1401 Constitution Avenue, NW., Washington, DC, Room 4824.
Connie Chang, Research Director, Office of the Under Secretary, U.S. Department of Commerce, 1401 Constitution Avenue, NW., Herbert C. Hoover
Pursuant to the Federal Advisory Committee Act, 5 U.S.C. app. 2, notice is hereby given that the National Medal of Technology Nomination Evaluation Committee (NMTNEC), Technology Administration, will meet at the U.S. Department of Commerce in the District of Columbia.
The committee, consisting of twelve members, was established in accordance with the provisions of the Committee's charter and the Federal Advisory Committee Act. The NMTNEC meeting will be closed to the public in accordance with Section 552b(c)(9)(B) of Title 5, U.S.C. because it will involve discussion of relative merits of persons and companies nominated for the Medal. Public disclosure of this information would likely frustrate implementation of the National Medal of Technology program because premature publicity about candidates under consideration for the Medal, who may or may not ultimately receive the award, would be likely to discourage nominations for the Medal.
The Secretary of Commerce is responsible for recommending to the President prospective recipients of the National Medal of Technology. The committee makes its recommendations for Medal candidates to the Secretary of Commerce, who in turn makes recommendations to the President for final selection. Committee members are drawn from both the public and private sectors and are appointed by the Secretary for three-year terms, with eligibility for one reappointment. The committee members are composed of distinguished experts in the fields of science, technology, business and patent law.
The Assistant Secretary for Administration, with the concurrence of the General Counsel, formally determined on March 14, 2007 pursuant to Section 10(d) of the Federal Advisory Committee Act, that the meeting may be closed because they are concerned with matters that are within the purview of 5 U.S.C. 552(c)(4), (6) and (9)(B). Due to closure of the meeting, copies of the minutes of the meeting will not be available. A copy of the determination is available for public inspection in Technology Administration, Room 4824, U.S. Department of Commerce.
Corporation for National and Community Service.
Notice.
The Corporation for National and Community Service (hereinafter the “Corporation”), has submitted a public information collection request (ICR) entitled the Learn and Serve America Progress Report to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995, Pub. L. 104-13, (44 U.S.C. Chapter 35). Copies of this ICR, with applicable supporting documentation, may be obtained by calling the Corporation for National and Community Service, Ms. Cara Patrick at (202) 606-6905. Individuals who use a telecommunications device for the deaf (TTY-TDD) may call (202) 565-2799 between 8:30 a.m. and 5 p.m. eastern time, Monday through Friday.
Comments may be submitted, identified by the title of the information collection activity, to the Office of Information and Regulatory Affairs, Attn: Ms. Katherine Astrich, OMB Desk Officer for the Corporation for National and Community Service, by any of the following two methods within 30 days from the date of publication in this
(1)
(2)
The OMB is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Corporation, 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;
• Propose ways to enhance the quality, utility, and clarity of the information to be collected; and
• Propose ways to 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,
A 60-day public comment Notice was published in the
Learn and Serve America provides grants to state education agencies, higher education institutions, tribes, and U.S. Territories, national nonprofits and state commissions on nation and community service to implement service-learning programs. To ensure appropriate oversight of Federal funds, Learn and Serve America requires all grant recipients to submit Progress Reports describing grant activities and progress toward approved program objectives. Information received from the reports informs continuation funding decisions and how to target training and technical assistance.
Department of the Army, DoD.
Notice of Availability (NOA).
The Department of the Army announces the availability of an FEIS which evaluates the potential environmental impacts associated with realignment actions directed by the BRAC Commission at Fort Sam Houston and Camp Bullis, Texas.
The waiting period for the FEIS will end 30 days after publication of an NOA in the
For more information or to obtain a copy of the FEIS, please contact: Mr. Phillip Reidinger, Public Affairs Office, Building 124, 1212 Stanley Road, Fort Sam Houston, Texas 78234; e-mail
Mr. Phillip Reidinger at (210) 221-1151.
The subject of the FEIS and the Proposed Action are the construction and renovation activities, and movement of personnel associated with the BRAC directed realignment of Fort Sam Houston. The FEIS also evaluates effects of Army Modular Force transformation activities that will occur at Fort Sam Houston at the same time that the BRAC actions are being implemented.
To implement the applicable portions of the BRAC recommendations, Fort Sam Houston will be receiving personnel, equipment, and missions from various realignment and closure actions within the Department of Defense. Additionally, the Army had planned to conduct a series of non-BRAC transformations to position its forces strategically for the future. These transformations require consideration in conjunction with the BRAC initiatives at Fort Sam Houston. Additionally, permanent facilities will be constructed or renovated to house the 470th Military Intelligence Brigade and various Headquarters units of the new Army North and Sixth Army (U.S. Army South or USARSO), which are currently located in a mix of temporary and existing facilities.
To enable implementation of the BRAC Commission recommendations and accommodation of the concurrent Army initiatives, the Army must provide the necessary facilities/buildings and infrastructure to support the changes in force structure.
Following a rigorous examination of all implementation alternatives, those alternatives found not to be viable were dropped from further analysis in the Fort Sam Houston FEIS. Alternatives carried forward include (1) The Preferred Alternative and (2) a No Action Alternative. The Preferred Alternative includes construction, renovation, and operation of proposed facilities to accommodate incoming military missions at Fort Sam Houston. Minor siting variations of proposed facilities were also evaluated.
Planned undertakings within the National Historical Landmark (NHL) District, including the demolition of existing buildings and construction of new buildings, will be reviewed using the Installation Design Guide historic review requirements and the Standard Operating Procedures (SOPs) in the Historic Properties Component (HPC) of the Integrated Cultural Resources Management Plan. If demolition cannot be avoided, the determination of effects to cultural resources of the NHL District and required mitigation will be determined per the HPC SOPs. Implementation of the preferred alternative will have no long-term, significant impacts on other environmental resources of Fort Sam Houston or Camp Bullis or their surrounding areas.
The FEIS analyses indicate that implementation of the preferred alternative would have no long-term, significant impacts on the other environmental resources of Fort Sam Houston or Camp Bullis or their surrounding areas. Potential minor impacts to visual resources from implementation of the preferred alternative would generally occur only within the physical boundaries of Fort Sam Houston and Camp Bullis. No long-term significant impacts to earth (geology, topography, caves, karst features or soils) or wetlands will occur at either installation. Potential land use impacts are expected at Fort Sam Houston. Use of utilities and generation of hazardous and non-hazardous wastes will likely increase at both installations, but not in significant amounts.
Minor air, noise and transportation impacts would also occur during short-term construction activities under the preferred alternative at both installations and continue after final construction and occupancy. No significant impacts to biological resources (vegetation, wildlife, and threatened and endangered species) are expected from the implementation of the preferred alternative. Alternative siting variations would result in similar impacts and benefits as compared to the preferred alternative.
An electronic version of the FEIS can be viewed or downloaded from the following Web site:
Department of the Army, DoD.
Notice of Availability (NOA).
The Department of the Army announces the availability of the DEIS which evaluates the potential environmental impacts associated with realignment actions directed by the Base Realignment and Closure (BRAC) Commission and Army Enhanced Use Lease (EUL) Actions at Fort Meade, Maryland.
The public comment period for the DEIS will end 45 days after publication of an NOA in the
Please send written comments on the DEIS to: Ms. Melanie Moore at Fort Meade, Public Affairs Office, 4550 Pershing Hall, Room 102, Fort Meade, MD 20755 or via e-mail at
Ms. Melanie Moore at (301) 677-1301 during normal business hours Monday through Friday.
The Proposed Action and subject of the DEIS covers the construction activities, and movement of personnel associated with the BRAC realignment activities. The DEIS also covers the proposed Army EUL actions that will occur at Fort Meade at the same time that the BRAC action is being implemented.
To implement the BRAC recommendations, Fort Meade will be receiving personnel, equipment, and missions from various realignment and
To implement the EUL action, Fort Meade proposes to lease to a private developer approximately 173 acres in two parcels for a term of 50 years. The installation would receive in-kind development of a 367-acre parcel. Because the development of these three parcels would have potential impacts in the same region as the BRAC realignment actions, it is considered in this DEIS. The two EUL parcels that will be leased are located on installation property outside the fence line. The parcel for in-kind development is located within the fence line along the perimeter of the installation.
Following an examination of all implementation alternatives, those alternatives found not to be viable were dropped from further analysis in the Fort Meade DEIS. Alternatives carried forward include: (1) The Preferred BRAC Realignment and EUL Action Alternative, (2) BRAC Realignment without EUL and associated construction, and (3) a No action Alternative. The Preferred Alternative includes construction and operation of proposed facilities to accommodate incoming military missions at Fort Meade as mandated by the 2005 BRAC recommendations and Army EUL actions. Alternative siting variations of proposed BRAC facilities were also evaluated.
The DEIS analyses indicate that implementation of the preferred alternative, BRAC and EUL Actions Alternative, would have long-term, significant impacts on transportation, land use, socioeconomics (demographics and schools), visual and aesthetic resources, biological (vegetation and wildlife), utilities (wastewater and storm water drainage). Implementation of the preferred alternative would have short-term significant impacts to noise, energy sources, and solid waste disposal; and short-term minor effects to surface water during construction activities. Implementation of the preferred alternative would have no significant impacts to air quality, geology and soils; water resources (ground-water, floodplains, and coastal zones); biological (rare, threatened, and endangered species and aquatic species); socioeconomics (economic development, housing, and law enforcement); utilities (potable water, energy sources-operations, solid waste-operations); and hazardous and toxic substances. There would be no impacts to cultural resources, socioeconomics (environmental justice or protection of children) from implementation of the BRAC and EUL Actions Alternative. Alternative siting variations would provide similar impacts and benefits as compared to the preferred alternative. The no action alternative provides the baseline conditions for comparison to the preferred alternative.
The Army invites the general public, local governments, other Federal agencies, and state agencies to submit written comments or suggestions concerning the alternatives and analyses addressed in the DEIS. The public and government agencies are invited to participate in a public meeting where oral and written comments and suggestions will be received. The public meeting will be held on April 18, 2007 from 6 p.m. to 8 p.m. at the School-Age Services Building, 1900 Reece Road, Fort Meade, MD 20755. The DEIS is available at
The Department is not bound by any estimates in this notice.
Children's ability to communicate and the quality of their communication
Many young children receiving services under IDEA participate in speech and language interventions. In the National Early Intervention Longitudinal Study (NEILS), service providers reported that 53 percent of infants and toddlers received speech and language therapy within the first six months of beginning early intervention services. Additionally, the 2004 IDEA child count data indicate that 47 percent of three through five year olds served under the Part B program of IDEA have speech or language impairments, though the actual number is likely to be much higher because this number does not include children who have speech or language impairments but are identified as having a developmental delay and children with primary disabilities other than speech or language impairments who also have language disorders.
Functional or naturalistic language interventions have been shown to be effective in increasing the overall quantity and quality of children's communication and language skills (Owens, 2004; Warren, Yoder, & Leew, 2002). A functional language approach to intervention is grounded in the principle that language develops for the purpose of communicating within a social environment. Intervention practices or teaching strategies are therefore implemented within the context of children's daily activities and routines to promote their communication and language development. This intervention approach is child-centered in that it focuses on children's interests and supports their attempts to communicate within social interactions. A functional language approach stresses the importance of engaging adults in a child's environment, including family members, childcare providers, and interventionists as language facilitators so that they can use empirically valid strategies to support children's language and communication development across communicative contexts and partners. A functional language approach is different from language interventions that are directed by an adult and target discrete, isolated language skills within artificial situations.
Children with significant language disorders are often served by a variety of professionals, and it is not uncommon for them to receive interventions that are based on one theoretical and empirical framework for the first few years and then transition to a program that emphasizes a very different approach with divergent theoretical underpinnings and empirical support. If this shift in intervention approaches is dramatic, the child may lose skills he or she has acquired under the previous approach and family members may experience confusion and uncertainty about what the child should be learning and how they should support those experiences. Continuity in the interventions that are provided across early intervention and preschool settings could lessen any confusion and uncertainty experienced by families of young children with disabilities as they transition from one program to another.
Children with significant language disorders are at high risk for social and academic difficulties. To support infants, toddlers, and preschoolers with disabilities in developing the skills they will need to communicate competently, there is a need for a scientifically based evaluation of effective functional language intervention models implemented within natural settings. This need is especially critical for young children with significant language disorders who are served across both early intervention and preschool programs. The Department is interested in evaluating functional language intervention models that address the diverse population of infants, toddlers, and preschool children served under both Part C and Part B of IDEA, especially those children who need intensive language interventions as a result of a specific language disorder, or a language disorder that is secondary to other disabilities such as autism or a hearing impairment (including deafness).
The purpose of this priority is to support three (3) Centers to evaluate models that incorporate scientifically based research related to language interventions for children birth through five with significant language disorders served across the Part C and Part B preschool programs under IDEA. Each Center will work with no less than three sites and will implement the same functional language intervention model in each of these sites. Each site must serve children with disabilities ages birth through five, either in separate early intervention and preschool programs within the same community or through a coordinated system that serves children with disabilities ages birth through five. Each site must include both an early intervention component and a preschool component so that critical elements of the language intervention models are consistent as children transition from IDEA Part C to Part B services.
Each Center must implement and evaluate the functional language intervention model in early childhood environments, such as child care settings, Head Start programs, private or public preschools, early childhood special education settings, and home/community-based environments to determine their usefulness, effectiveness, and general applicability to these typical settings.
An applicant must describe, in its application—
(a) The proposed model and the supporting evidence for the model as a whole, including empirical support of the critical components that comprise the model;
(b) The knowledge, experience, and capabilities of the key staff who will be responsible for the development and implementation of the functional language intervention model across the early intervention and preschool programs;
(c) The methods to be used for recruiting and selecting sites, and if the applicant has identified sites that would be willing to participate in the model demonstrations, a description of the population of children typically served by these sites. The final site selection will be determined following the first cross-project meeting; and
(d) The partnership that the Center has established with local early intervention and preschool programs to implement the model and to increase the likelihood that personnel will develop sufficient expertise in order to sustain the model after project completion.
To meet the requirements of this priority, each Center, at a minimum, must—
(1) Conduct a systematic review of the research on evidence-based language interventions that focuses on functional communication within natural settings that are appropriate for young children
(2) Design and implement a language intervention model that: (a) Focuses on language development and readiness skills for young children ages birth through five with significant language disorders; (b) is grounded in a scientifically based functional approach to language intervention that is embedded within the context of practices that are developmentally appropriate and empirically supported; (c) takes into account continuity of interventions by enrolling children in the Part C program and following them through the Part B program until the completion of the model demonstration project; (d) can be adapted based on specific characteristics of the child, such as age and disability; and (e) is designed to lead to improved outcomes for young children with significant language disorders;
(3) Provide initial and ongoing professional development to early interventionists, early childhood special educators, related service providers, and early care and education personnel in the project working with young children with disabilities and who are charged with implementing the model. Ensure that there is a process for providing feedback to personnel participating in the project on their implementation of the language intervention model;
(4) Implement an evaluation plan that includes a detailed description of the full model and the critical elements of the model, a description of the system variables required to implement and sustain the model, and the processes for collecting and analyzing specific project and cross-project data related to: (a) The effectiveness of the language intervention model, including child outcomes; (b) the fidelity of the implementation of the model and acceptable variations; (c) the continuity of the model across the Part C and Part B programs; and (d) the effectiveness of the professional development provided to personnel participating in the model demonstrations. Common cross-site data to be collected will be determined following the first cross-project meeting;
(5) Document the effects of a consistent language intervention approach on the transition process as children move from the IDEA Part C program to the Part B program;
(6) Identify methods for effectively supporting communication and collaboration among families, community agencies, and program/Center staff to implement the language intervention model across the Part C and Part B programs;
(7) Coordinate with the other Centers funded under this competition and the Model Demonstration Coordination Center (MDCC) to determine a cross-project plan for evaluating the impact of these models on children's developmental progress and outcomes. The MDCC is a separate center funded by OSEP that is responsible for coordinating implementation and analyzing data to determine the effectiveness of intervention models. The MDCC is developing a data coordination plan and cross-site data collection instruments and will generate common evaluation questions, synthesize and analyze data, monitor implementation fidelity, ensure data reliability, and foster information dissemination. As part of cross-site coordination, Centers will be asked to collect common measures that may or may not be the same as those proposed by the applicant. Common measures may include observations or assessments of programs, classrooms, or children participating in the language intervention model as well as programs, classrooms, or children who were not part of the language intervention model. The purpose of the data is to provide general information on the contexts in which models are more fully implemented and effective;
(8) Develop regular communication with OSEP's other funded centers, as appropriate, to share information regarding topics such as successful strategies and implementation challenges for language interventions for children with significant language disorders in early childhood environments;
(9) As appropriate, develop and apply strategies for disseminating implementation information to specific audiences, including early interventionists, preschool special educators, related service providers, families, administrators, policymakers, and researchers. These dissemination strategies must involve collaboration with MDCC, and with technical assistance providers, including parent centers funded by OSEP;
(10) Prior to developing any new product, whether paper or electronic, submit for approval a proposal describing the content and purpose of the product to the Project Officer to be designated by OSEP and the document review board of OSEP's Dissemination Center;
(11) Budget for the Center's project director to attend a three-day Project Directors' meeting in Washington, D.C. during each year of the project; and one additional yearly meeting with OSEP and the MDCC (the first meeting to take place within one month of the project's January 1, 2008 start date);
(12) If a Web site is maintained, format the information and documents on the Web site in a manner that meets a government or industry-recognized standard for accessibility.
In deciding whether to continue funding the Center for the fifth year, the Secretary will consider the requirements of 34 CFR 75.253(a), and in addition—
(a) The timeliness and effectiveness with which all requirements of the negotiated cooperative agreement have been or are being met by the Center;
(b) The degree to which the Center recruited and retained a large enough sample of children to allow for meaningful data collection and analysis of where children were served, the type of services they received, and their developmental progress and outcomes once they exited preschool programs.
20 U.S.C. 1463 and 1481(d).
The regulations in 34 CFR part 79 apply to all applicants except federally recognized Indian tribes.
The regulations in 34 CFR part 86 apply only to IHEs.
The Department is not bound by any estimates in this notice.
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(b) Applicants and grant recipients funded under this competition must involve individuals with disabilities or parents of individuals with disabilities ages birth through 26 in planning, implementing, and evaluating the projects (see section 682(a)(1)(A) of IDEA).
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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 84.326M.
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 listed under
2.
• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions, as well as all text in charts, tables, figures, and graphs.
• Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).
The page limit does not apply to Part I, the cover sheet; Part II, the budget section, including the narrative budget justification; Part IV, the assurances and certifications; the one-page abstract, the resumes, the bibliography, the references, or the letters of support. However, you must include all of the application narrative in Part III.
We will reject your application if—
• You apply these standards and exceed the page limit; or
• You apply other standards and exceed the equivalent of the page limit.
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Applications for grants under this competition may be submitted electronically using the Grants.gov Apply site (Grants.gov), or in paper format by mail or hand delivery. For information (including dates and times) about how to submit your application electronically, or by mail or hand delivery, 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
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We have been accepting applications electronically through the Department's e-Application system since FY 2000. In order to expand on those efforts and comply with the President's Management Agenda, we are continuing to participate as a partner in the new government wide
If you choose to submit your application electronically, you must use the
You may access the electronic grant application for The Model Demonstration Centers on Early Childhood Language Intervention at:
• Your participation in
• When you enter the
• Applications received by
• 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 application process through
• You should review and follow the Education Submission Procedures for submitting an application through
• To submit your application via
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you submit your application in paper format.
• You may submit all documents electronically, including all information typically included on the Application for Federal Education Assistance (ED 424), Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications. If you choose to submit your application electronically, 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 above 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 an automatic acknowledgment from Grants.gov that contains a Grants.gov tracking number. The Department will retrieve your application from Grants.gov and send you a second confirmation by e-mail that will include 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 deadline date, please contact the person listed elsewhere in this notice under
Extensions referred to 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 deadline date and time or if the technical problem you experienced is unrelated to the Grants.gov system.
b.
If you submit your application in paper format by mail (through the U.S. Postal Service or a commercial carrier), you must mail the original and two copies of your application, on or before the application deadline date, to the Department at the applicable following address:
or
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, or
(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, or
(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.
If you submit your application in paper format by hand delivery, you (or a courier service) must deliver the original and two copies of your application by hand, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center,
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.
If you mail or hand deliver your application to the Department:
(1) You must indicate on the envelope and—if not provided by the Department—in Item 4 of ED 424 the CFDA number—and suffix letter, if any—of the competition under which you are submitting your application.
(2) The Application Control Center will mail a grant application receipt acknowledgment to you. If you do not receive the grant application receipt acknowledgment 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.
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If your application is not evaluated or not selected for funding, we notify you.
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We reference the regulations outlining the terms and conditions of an award in the
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Grantees will be required to provide information related to these measures.
Grantees will also be required to report information on their projects' performance in annual reports to the Department (34 CFR 75.590).
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 (e.g., Braille, large print, audiotape, or computer diskette) on request by contacting the following office: The Grants and Contracts Services Team, U.S. Department of Education, 400 Maryland Avenue, SW., Potomac Center Plaza, Washington, DC 20202-2550.
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
Take notice that on March 8, 2007, Bay Gas Storage Company, Ltd. (Bay Gas) filed a petition for rate approval pursuant to section 284.123(b)(2) of the Commission's regulations. Bay Gas requests the Commission to approve incremental rates for Bay Gas's mainline facilities for firm transportation and interruptible transportation services and also rates for Bay Gas's Whistler spur facilities for firm transportation and interruptible services for transportation of natural gas under section 311(a)(2) of the Natural Gas Policy Act of 1978. In addition, Bay Gas proposes a tracking methodology for lost-and-unaccounted-for gas volumes cost recovery, and a gas quality/interchangeability provision.
Any person desiring to participate in this rate proceeding must file a motion to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the date as indicated below. Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on March 5, 2007, Enbridge Pipelines (Louisiana Intrastate) LLC filed its annual revision of the fuel percentage on its system pursuant to section 3.2 of its Statement of Operating Conditions. Louisiana Intrastate seeks an effective date of April 1, 2007.
Any person desiring to participate in this rate proceeding must file a motion to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the date as indicated below. Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on March 16, 2007, Southern Natural Gas Company (Southern), P.O. Box 2563, Birmingham, Alabama 35202-2563, filed in Docket No. CP07-98-000 an application pursuant to section 7(b) of the Commission's regulations under the Natural Gas Act (NGA), for authorization to abandon, by sale, to Atmos Energy Corporation (Atmos), its Columbus Lateral Line, its Columbus Lateral Loop Line, and its Columbus Meter Station. Southern also proposes to construct a new meter station under Section 157.211(a) and its blanket authority granted in Docket No. CP82-406-000 on September 1, 1982, to replace the Columbus Meter Station that will be sold to Atmos. The new meter station will be constructed and installed at the new interconnection between Southern's facilities and Atmos' facilities on Southern's West Point Line and Loop. All of the facilities are located in Lowndes County, Mississippi.
This filing is available for review at the Commission in the Public Reference Room or may be viewed on the web at
In addition, Southern states that the proposed abandonment by sale and construction will not cause any adverse impact to its customers or their requirements because the sale will simply result in relocation of the existing custody transfer point for the Columbus Delivery Point and shippers' transactions will not be affected.
Any questions regarding this application should be directed to Patrick B. Pope, Vice President and General Counsel, Southern Natural Gas Company, Post Office Box 2563, Birmingham, Alabama 35202-2563 at (205) 325-7126, or Patricia S. Francis, Senior Counsel, Southern Natural Gas Company, Post Office Box 2563, Birmingham, Alabama 35202-2563 at (205) 325-7696.
Pursuant to Section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: Complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding; or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the final environmental impact statement (FEIS) or EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify Federal and State agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all Federal authorizations within 90 days of the date of issuance of the Commission staff's FEIS or EA.
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date, file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Persons who wish to comment only on the environmental review of this project, or in support of or in opposition to this project, should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commenters will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commenters will not be required to serve copies of filed documents on all other parties. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the applicant. However, the non-party commenters will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
The Commission strongly encourages electronic filings of comments, protests, and interventions via the internet in lieu of paper. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site (
Take notice that the Commission received the following electric rate filings:
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First, St., NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed dockets(s). For assistance with any FERC Online service, please e-mail
The staff of the Federal Energy Regulatory Commission (FERC or Commission) has prepared a final Environmental Impact Statement (EIS) for the construction and operation of the natural gas pipeline facilities proposed by Rockies Express Pipeline LLC (Rockies Express), TransColorado Gas Transmission Company (TransColorado), and Questar Overthrust Pipeline Company (Overthrust) in the above-referenced dockets. These individual project sponsors have submitted separate and distinct proposals to the Commission; however, the FERC views the proposed facilities as interconnected projects that are necessary components of a larger, combined natural gas transportation system. As such, all three project proposals have been included in the final EIS, and are collectively referred to as the Rockies Western Phase Project (or the Project). The Project facilities would be located in Colorado, Wyoming, Nebraska, Kansas, Missouri, and New Mexico.
The final EIS was prepared to satisfy the requirements of the National Environmental Policy Act (NEPA) and the Federal Land Management and Policy Act. The U.S. Bureau of Land Management (BLM) and U.S. Fish and Wildlife Service (FWS) are federal land management agencies with lands affected by this proposal and are cooperating agencies for the development of the EIS. A cooperating agency has jurisdiction by law or special expertise with respect to potential environmental impacts associated with the proposal, and is involved in the NEPA analysis. The Project would cross federal land under the jurisdiction of the BLM Rawlins, Kemmerer, and Rock Springs Field Offices. Lands administered by the FWS would also be crossed by the Project. Under section 185(f) of the Mineral Leasing Act of 1920, the BLM has the authority to issue Right-of-Way Grants for all affected federal lands.
The FERC staff has concluded that if the Project is constructed and operated in accordance with applicable laws and regulations, and each project sponsor's proposed mitigation, and the staffs' additional mitigation recommendations, it would have limited adverse environmental impact and would be an environmentally acceptable action.
As currently proposed, the Rockies Western Phase Project would consist of the construction and operation of approximately 795.6 miles of natural gas pipeline and a total of 237,320 horsepower of new compression. Following completion of the proposed facilities, the Project would transport up to 1.5 billion cubic feet of natural gas per day. Specifically, the final EIS addresses the potential environmental effects of the construction and operation of the following natural gas pipeline facilities proposed by Rockies Express, TransColorado, and Overthrust:
• 712.7 miles of 42-inch-diameter natural gas pipeline in Wyoming, Colorado, Nebraska, Kansas, and Missouri;
• 5.3 miles of 24-inch-diameter pipeline (Echo Springs Lateral) in Sweetwater and Carbon Counties, Wyoming;
• Five new compressor stations (Cheyenne Compressor Station in Weld County, Colorado; Julesburg Compressor Station in Sedgwick County, Colorado; Echo Springs Compressor Station in Sweetwater County, Wyoming; the Steele City Compressor Station in Gage County, Nebraska; and Turney Compressor Station in Clinton County, Missouri);
• Four new compressor units at two previously certificated compressor stations (Meeker Compressor Station in Rio Blanco County, Colorado and Wamsutter Compressor Station in Sweetwater County, Wyoming); and
• 8 new meter stations, 41 mainline valves, and associated facilities.
• 392 feet of discharge line and 478 feet of suction line, 1,300 feet of 24-inch-diameter pipeline, and 60 feet of 16-inch-diameter pipeline in San Juan County, New Mexico;
• Two new compressor stations (Blanco Compression Station in San Juan County, New Mexico and the Conn Creek Compressor Station in Garfield County, Colorado);
• Modifications at four existing compressor stations (Mancos Compressor Station in Montezuma County, Colorado; Redvale Compressor Station in Montrose County, Colorado; Whitewater Compressor Station in Mesa County, Colorado, and the Greasewood Compressor Station in Rio Blanco County, Colorado); and
• One new meter station, one mainline valve, and associated facilities.
• 77.2 miles of 36-inch-diameter natural gas pipeline in Sweetwater County, Wyoming;
• 0.1 mile of 20-inch-diameter pipeline (TL-90 Tie-in);
• Two new compressor stations in Wyoming (Roberson Compressor Station in Lincoln County and Rock Springs Compressor Station in Sweetwater County); and
• Two new meter stations, three mainline valves, and associated facilities.
The final EIS has been placed in the public files of the FERC and is available for distribution and public inspection at: Federal Energy Regulatory Commission, Public Reference Room, 888 First Street, NE., Room 2A, Washington, DC 20426, (202) 502-8371.
CD-ROM copies of the final EIS have been mailed to federal, state, and local agencies; public interest groups; individuals and affected landowners who requested a copy of the final EIS or provided comments during scoping; libraries and newspapers in the Project area; and parties to this proceeding. Hard copy versions of the final EIS were mailed to those specifically requesting them. A limited number of hard copies and CD-ROMs are available from the Public Reference Room identified above.
Additional information about the project is available from the Commission's Office of External Affairs, at 1-866-208-FERC or on the FERC Internet Web site (
In addition, the Commission now offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries and direct links to the documents. Go to the eSubscription link on the FERC Internet Web site.
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA or Agency) Science Advisory Board Staff Office announces two public teleconferences and a meeting of the EPA Science Advisory Board Integrated Nitrogen Committee.
The teleconference meetings will be held on Thursday, April 19, 2007, from 3 p.m. to 5 p.m. (Eastern Time) and on June 8, 2007 from 2 p.m. to 4 p.m. (Eastern Time). A face-to-face meeting will be held on June 20, 2007 from 1 p.m. to 5 p.m. (Eastern Time), continuing from 8:30 a.m. to 5 p.m. (Eastern Time) on June 21, and from 8:30 a.m. to 3 p.m. on June 22.
The teleconferences will be conducted by phone only. The June 20-22, 2007 face-to-face meeting will be held at the SAB Conference Center, located at 1025 F Street, NW., Washington, DC 20004.
Any member of the public who wishes to obtain the call-in number and access code for the teleconferences; attend the face-to-face meeting; or receive further information concerning the teleconferences and meeting may contact Ms. Kathleen White, Designated Federal Officer (DFO). Ms. White may be contacted at the EPA Science Advisory Board (1400F), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; or via telephone/voice mail: (202) 343-9878; fax: (202) 233-0643; or e-mail at:
Board of Governors of the Federal Reserve System.
Background.
Notice is hereby given of the final approval of proposed information collection by the Board of Governors of the Federal Reserve System (Board) under OMB delegated authority, as per 5 CFR 1320.16 (OMB Regulations on Controlling Paperwork Burdens on the Public). Board-approved collections of information are incorporated into the official OMB inventory of currently approved collections of information. Copies of the Paperwork Reduction Act Submission, supporting statements and approved collection of information instrument(s) are placed into OMB's public docket files. The Federal Reserve may not conduct or sponsor, and the respondent is not required to respond to, an information collection that has been extended, revised, or implemented on or after October 1, 1995, unless it displays a currently valid OMB control number.
Federal Reserve Board Clearance Officer --Michelle Shore--Division of Research and Statistics, Board of Governors of the Federal Reserve System, Washington, DC 20551 (202-452-3829).
OMB Desk Officer--Mark Menchik--Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10235, Washington, DC 20503, or e-mail to mmenchik@omb.eop.gov.
These three voluntary reports are mainstays of the Federal Reserve's reporting system from which data for analysis of current banking developments are derived. The FR 2416 is used on a stand-alone basis as the large domestic bank series. The FR 2644 collects sample data, which are used to estimate universe levels using data from the quarterly commercial bank Consolidated Reports of Condition and Income (FFIEC 031 and 041; OMB No. 7100-0036) (Call Report). Data from the bank credit reports, together with data from other sources, are used for constructing weekly estimates of bank credit, of sources and uses of bank funds, and of a balance sheet for the banking system as a whole.
The Federal Reserve publishes the data in aggregate form in the weekly H.8 statistical release,
These three voluntary reports are mainstays of the Federal Reserve's reporting system from which data for analysis of current banking developments are derived. The FR2069 collects sample data, which are used to estimate universe levels using data from the quarterly Report of Assets and Liabilities of U.S. Branches and Agencies of Foreign Banks (FFIEC 002; OMB No. 7100-0032). Data from the bank credit reports, together with data from other sources, are used for constructing weekly estimates of bank credit, of sources and uses of bank funds, and of a balance sheet for the banking system as a whole.
The Federal Reserve publishes the data in aggregate form in the weekly H.8 statistical release,
The FR Y-6 is an annual information collection submitted by top-tier BHCs and nonqualifying FBOs. It collects financial data, an organization chart, and information about shareholders. The Federal Reserve uses the data to monitor holding company operations and determine holding company compliance with the provisions of the BHC Act and Regulation Y (12 CFR 225).
The Federal Reserve proposed to add to the organization chart an annual requirement for institutions to verify a list of domestic branches that the Federal Reserve has on file for the institution. The list of domestic branches would include those of depository institutions and Edge and agreement corporations held directly or indirectly by the respondent.
The Federal Reserve would provide institutions with a hardcopy of their data and, in response to industry feedback, a means for institutions to download their data in a spreadsheet format. The institutions would be required to return to the Federal Reserve an annotated document incorporating any changes or corrections to the data. The effective date for this proposed change would have been December 31, 2006.
The Federal Reserve proposed to add a schedule to collect data on domestic branches and offices of depository institutions, held directly or indirectly, and domestic branches of Edge and agreement corporations. Data regarding branch openings, acquisitions, sales, closings or relocations would be collected on an event-generated basis, parallel to the other schedules on the FR Y-10, within thirty calendar days following the event. Institutions would be permitted to combine multiple transactions occurring within a 30-day period into a single monthly filing. The effective date for this proposed change would have been June 30, 2007.
Data would be submitted for the following branches and offices:
1. Full service (brick and mortar, retail) - traditional offices.
2. Electronic banking - offices where Internet and other similar deposits are booked.
3. Limited service (military, drive-through, mobile or seasonal, and retail) - limited, but often take or include deposits.
4. Loan production offices (LPOs) and consumer credit - limited, normally nondeposit, but extend credit.
5. Trust - limited and nondeposit
6. Administrative (administrative, contractual, messenger) - all other limited and nondeposit
Several commenters indicated that adding a schedule to the FR Y-10 to collect data on domestic branches would be overly burdensome and may be duplicative of other information collected by the Federal Reserve or other regulators. As explained in the initial proposal, the current process for gathering domestic branch structure data is inadequate. Branch data for domestic state member banks are communicated to the Federal Reserve primarily through the application process. Information for all other domestic bank branches (branches of national and nonmember banks) is obtained by searching Federal Deposit Insurance Corporation (FDIC) and Office of the Comptroller of the Currency (OCC) bulletins. The results of this process are data that are not consistent and are often stale. The timing and extent of notifications to various bank regulators do not allow for consistent maintenance of the data. For example, branch openings and closings are reported with different lags and through different channels. Also, domestic bank branch data are submitted to the FDIC on the Summary of Deposits (OMB No. 3064-0061) as of June 30 each year.
One commenter questioned the usefulness of the data, since only institutions regulated by the Federal Reserve would be required to submit the data. This commenter noted that the data would be incomplete for analyzing the competitive effects of proposed bank mergers and acquisitions in specific markets. As described in the original proposal, 95 percent of all domestic banking branches and 82 percent of all banking and thrift branches would be covered by this information collection. Information for the remaining small percentage of branches would continue to be collected using the current process for gathering domestic branch structure data discussed above. Although the information for these branches will not be as reliable as that obtained from the FR Y-10 respondents, the overall quality of the branch data will be dramatically improved by this framework.
Several commenters asked the Federal Reserve to coordinate with the other agencies to collect consistent structure data. The Federal Reserve acknowledges that coordination with other agencies could achieve organizational and technical efficiencies for both banking organizations and the regulatory community. The Federal Reserve has been in contact with the other agencies during the development of this proposal. Discussions among the regulatory agencies regarding possible gains from coordination, as well as changes and enhancements to the technological platforms used for the collection are ongoing.
Two commenters requested amending the information collection to allow respondents to provide their complete list of branches monthly on a separate report rather than providing changes on an event-generated basis on the FR Y-10. The Federal Reserve believes that the data would be more accurately and efficiently collected if banking organizations submit changes directly to the Federal Reserve, rather than requiring Federal Reserve staff to discern changes by comparing monthly filings. Furthermore, relative to existing
One commenter requested clarification of the administrative branch type. This term was defined in the draft instructions as a branch that has limited nondeposit functions, including back office operations and check processing facilities.
In response to comments and industry feedback, the Federal Reserve approved the following modifications to the original proposal:
• Eliminating LPOs, consumer credit offices, and administrative offices from the list of reportable branches on the FR Y-6 and FR Y-10;
• Excluding from the FR Y-10 address changes that result from changes in street names or zip codes, with no actual change in the physical location of the branch;
• Making FR Y-10 reporting of branch relocations of less than 1,000 feet optional, if the move does not involve a change of county; and
• Changing the implementation dates to December 31, 2007, for the FR Y-6 revisions and April 30, 2008, for the FR Y-10 revisions.
The Federal Reserve System and other government agencies use the survey to monitor activity in the foreign exchange and derivatives markets. Respondents use the published data to gauge their market share.
Board of Governors of the Federal Reserve System, March 16, 2007.
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 F. Karr, CDC 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 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. Written comments should be received within 60 days of this notice.
Evaluation of the Centers for Disease Control and Prevention's Consumer Response Service Center—New—National Center for Healthcare Marketing (NCHM), Centers for Disease Control and Prevention (CDC).
Due to expiration of the 60Day-05-05CO on July 21, 2005 OMB Desk Officer (John Kraemer) has requested that the 60Day-07-05CO be republished using the date of 02/15/2007, which is currently the 30Day-07-05CO publication date. Public comments will be considered until COB of April 15, 2007. We are working to put measures in place to ensure this does not happen again. The 30 day FRN will be republished at a later date.
CDC is launching an integrated “one face to the public” approach across all communication channels to handle inquiries concerning a broad spectrum of public health topics. The overall objective is to ensure consistent, timely, reliable health information for dissemination to a variety of consumers (public, health professionals, researchers, etc.) and to address variations in inquiry volumes related to public health emergencies, news events, and dynamic, shifting public health priorities. The CDC has integrated over 40 hotlines into one Consumer Response Services Center—CDC-INFO. CDC-INFO has an exceptionally wide scope because content currently divided between over 40 hotlines handling nearly 2,000,000 telephone contacts annually will be consolidated under CDC-INFO. All CDC hotlines were consolidated in one center beginning in February 2005, with all CDC program areas transitioning into CDC-INFO through a phased approach during the next three years. CDC-INFO itself will be operational for at least the next seven years.
The primary objectives of the national evaluation are to (1) Proactively evaluate customer interactions and service effectiveness by employing assessment measures and data collection mechanisms to support performance management, gathering insights and understandings for improving service levels, and implementing effective measures to meet customer satisfaction goals; (2) develop an ongoing understanding of customer requirements and satisfaction
Sample size, respondent burden, and intrusiveness have been minimized to be consistent with national evaluation objectives. Procedures will be employed to safeguard the privacy and confidentiality of participants. Pilot tests assisted in controlling burden and ensuring the user-relevance of questions. The following table shows the estimated annualized burden for data collection. There are no respondent costs other than the amount of time required to respond to the survey.
National Institute for Occupational Safety and Health (NIOSH) of the Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice of public meeting.
The National Institute for Occupational Safety and Health (NIOSH) announces the availability of opportunity for the public to provide input regarding the draft document, “Long-Term Field Evaluation (LTFE) Program Concept.” The public meeting will be held on March 22, 2007 at the DoubleTree Pittsburgh Airport Hotel, 8402 University Blvd., Moon Township, PA 15108.
NIOSH is the Federal agency responsible for conducting research and making recommendations for the approval for self-contained, self-rescuer (SCSR) closed circuit escape respirators, Title 42, Code of Federal Regulations (CFR), Part 84. The LTFE program for self-contained self-rescuers (SCSRs) for miners was initiated more than 20 years ago by the U.S. Bureau of Mines. The objective for the LTFE program is to obtain data to determine the expected performance characteristics of SCSRs used in the mining industry. LTFE program results based on scientific principles can provide useful information to monitor expected SCSR performance and assess possible degradation due to the physical stresses of in-mine use. Of utmost concern is the successful performance of any SCSR that passes its inspection criteria specified by the manufacturer. It is such an apparatus that must be relied upon in an emergency.
A copy of the draft document can be found at:
Comments should be submitted to the NIOSH Docket Office, Robert A. Taft Laboratories, 4676 Columbia Parkway. M/S C-34, Cincinnati, OH 45226, telephone 513/533-8450, fax 513/533-8285. Comments may also be submitted directly at
The document will remain available for comment until April 5, 2007. Comments should reference docket number NIOSH-101 in the subject heading.
All information received in response to this notice will be available for public examination and copying at the NIOSH Docket Office, Room 111, 4676 Columbia Parkway, Cincinnati, Ohio 45226.
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention announces the following meeting of the aforementioned subcommittee:
In December 2000, the President delegated responsibility for funding, staffing, and operating the Advisory Board to HHS, which subsequently delegated this authority to CDC. NIOSH implements this responsibility for CDC. The charter was issued on August 3, 2001, renewed at appropriate intervals, and will expire on August 3, 2007.
The agenda is subject to change as priorities dictate. There is no public comment period, however, written comments may be submitted. Any written comments received will be provided at the meeting and should be submitted to the contact person below well in advance of the meeting.
The Director, Management Analysis and Services Office, has been delegated the authority to sign
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice.
NIOSH is implementing a new record schedule governing the retention of records transferred to the agency by employers pursuant to the regulations of the Occupational Safety and Health Administration (OSHA). Pursuant to this schedule, NIOSH will review these records to determine if they document exposures or medical conditions as required under the OSHA regulations and have research value. Those records that NIOSH determines meet the OSHA regulations and have a research value will be retained for 30 years.
Those records that do not document exposure or medical condition and treatment or have no research value will not be retained.
The hazard-specific standards of the Occupational Safety and Health Administration (OSHA)(Title 29, Code of Federal Regulations [CFR], Parts 1910.1001 through 1910.1450) contain requirements stating that when a company closes and leaves no successor employer, it must transfer (or in some instances, offer to transfer) its employee's medical and exposure records to NIOSH. The OSHA carcinogens standards (29 CFR 1910.1003-1910.1016) also require that such records be transferred to NIOSH when an employee resigns, retires, or dies. The transfer of these records to NIOSH is intended to preserve them for research purposes.
NIOSH has amended its record schedule pertaining to these records,
On September 16, 2005, the National Archives and Records Administration (NARA) published in the
Rodger Tatken, National Institute for Occupational Safety and Health, Robert A. Taft Laboratories, 4676 Columbia
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act of 1995 (the PRA), Federal agencies are required to publish notice in the
Submit written or electronic comments on the collection of information by May 21, 2007.
Submit electronic comments on the collection of information to:
Jonna Capezzuto, Office of the Chief Information Officer (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-4659.
Under the PRA (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (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 through the use of automated collection techniques, when appropriate, and other forms of information technology.
Section 505 of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 355), requires that important safety information relating to all human prescription drug products be made available to FDA so that it can take appropriate action to protect the public health when necessary. Section 702 of the act (21 U.S.C. 372) authorizes investigational powers to FDA for enforcement of the act. Under section 519 of the act (21 U.S.C. 360i), FDA is authorized to require manufacturers to report medical device-related deaths, serious injuries, and malfunctions to FDA; to require user facilities to report device-related deaths directly to FDA and to manufacturers; and to report serious injuries to the manufacturer. Section 522 of the act (21 U.S.C. 360l) authorizes FDA to require manufacturers to conduct postmarket surveillance of medical devices. Section 705(b) of the act (21 U.S.C. 375(b)) authorizes FDA to collect and disseminate information regarding medical products or cosmetics in situations involving imminent danger to health or gross deception of the consumer. Section 903(d)(2) of the act (21 U.S.C. 393(d)(2)) authorizes the Commissioner of Food and Drugs to implement general powers (including conducting research) to carry out effectively the mission of FDA. These sections of the act enable FDA to enhance consumer protection from risks associated with medical products usage that are not foreseen or apparent during the premarket notification and review process. FDA's regulations governing application for agency approval to market a new drug (21 CFR part 314) and regulations governing biological products (21 CFR part 600) implement these statutory provisions. Currently FDA monitors medical product related postmarket adverse events via both the mandatory and voluntary MedWatch reporting systems using FDA Forms 3500 and 3500A (OMB control number 0910-0291) and the vaccine adverse event reporting system. FDA is seeking OMB clearance to collect vital information via a series of rapid response surveys. Participation in these surveys will be voluntary. This request covers rapid response surveys for community based health care professionals, general type medical facilities, specialized medical facilities (those known for cardiac surgery, obstetrics/gynecology services, pediatric services, etc.), other health care professionals, patients, consumers, and risk managers working in medical facilities. FDA will use the information gathered from these surveys to obtain quickly vital information about medical product risks and interventions to reduce risks so the agency may take appropriate public health or regulatory action including dissemination of this information as necessary and appropriate.
FDA estimates the burden of this collection of information as follows:
FDA projects 30 emergency risk related surveys per year with a sample of between 50 and 200 respondents per survey. FDA also projects a response time of 0.5 hours per response. These estimates are based on the maximum sample size per questionnaire that FDA can analyze in a timely manner. The annual frequency of response was determined by the maximum number of questionnaires that will be sent to any individual respondent. Some respondents may be contacted only one time per year, while other respondents may be contacted several times annually, depending on the human drug, biologic, or medical device under evaluation. It is estimated that, given the expected type of issues that will be addressed by the surveys, it will take 0.5 hours for a respondent to gather the requested information and fill in the answers.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Fax written comments on the collection of information by April 23, 2007.
To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB, Attn: FDA Desk Officer, FAX: 202-395-6974.
Jonna Capezzuto, Office of the Chief Information Officer (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-4659.
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
Under section 409(a) of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 348(a)), the use of a food additive is deemed unsafe unless one of the following is applicable: (1) It conforms to an exemption for investigational use under section 409(j) of the act, (2) it conforms to the terms of a regulation prescribing its use, or (3) in the case of a food additive which meets the definition of a food-contact substance in section 409(h)(6) of the act, there is either a regulation authorizing its use in accordance with section 409(a)(3)(A) or an effective notification in accordance with section 409(a)(3)(B).
The regulations in § 170.39 (21 CFR 170.39) established a process that provides the manufacturer with an opportunity to demonstrate that the likelihood or extent of migration to food of a substance used in a food-contact article is so trivial that the use need not be the subject of a food additive listing regulation or an effective notification. The agency has established two thresholds for the regulation of substances used in food-contact articles. The first exempts those substances used in food-contact articles where the resulting dietary concentration would be at or below 0.5 part per billion (ppb). The second exempts regulated direct food additives for use in food-contact articles where the resulting dietary exposure is 1 percent or less of the acceptable daily intake for these substances.
In order to determine whether the intended use of a substance in a food-contact article meets the threshold criteria, certain information specified in § 170.39(c) must be submitted to FDA. This information includes the following components: (1) The chemical composition of the substance for which the request is made, (2) detailed information on the conditions of use of the substance, (3) a clear statement of the basis for the request for exemption from regulation as a food additive, (4) data that will enable FDA to estimate the daily dietary concentration resulting from the proposed use of the substance, (5) results of a literature search for toxicological data on the substance and its impurities, and (6) information on the environmental impact that would result from the proposed use.
FDA uses this information to determine whether the food-contact article meets the threshold criteria. Respondents to this information collection are individual manufacturers and suppliers of substances used in food-contact articles (i.e., food packaging and food processing equipment) or of the articles themselves.
In the
FDA estimates the burden of this collection of information as follows:
In compiling these estimates, FDA consulted its records of the number of regulation exemption requests received in the past 3 years. The annual hours per response reporting estimate is based on information received from representatives of the food packaging and processing industries and agency records.
FDA estimates that approximately 15 requests per year will be submitted under the threshold of regulation exemption process of § 170.39. The threshold of regulation process offers one advantage over the premarket notification process for food-contact substances established by section 409(h) of the act (OMB control number 0910-0495) in that the use of a substance exempted by the agency is not limited to only the manufacturer or supplier who submitted the request for an exemption. Other manufacturers or suppliers may use exempted substances in food-contact articles as long as the conditions of use (e.g., use levels, temperature, type of food contacted, etc.) are those for which the exemption was issued. As a result, the overall burden on both the agency and the regulated industry would be significantly less in that other manufacturers and suppliers would not have to prepare, and FDA would not have to review, similar submissions for identical components of food-contact articles used under identical conditions. Manufacturers and other interested persons can easily access an up-to-date list of exempted substances which is on display at FDA's Division of Dockets Management and on the Web site at
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is requesting nominations for voting members to serve on the Allergenic Products Advisory Committee, Blood Products Advisory Committee, Cellular, Tissue and Gene Therapies Advisory Committee, Transmissible Spongiform Encephalopathies Advisory Committee, and the Vaccines and Related Biological Products Advisory Committee in the Center for Biologics Evaluation and Research (CBER). Nominations will be accepted for vacancies that will or may occur through January 31, 2008.
FDA has a special interest in ensuring that women, minority groups, and individuals with disabilities are adequately represented on advisory committees, and therefore, encourages nominations of qualified candidates from these groups.
Because scheduled vacancies occur on various dates throughout each year, no cutoff date is established for the receipt of nominations. However, when possible, nominations should be received 6 months before the date of scheduled vacancies for each year, as indicated in this notice.
All nominations and curricula vitae should be sent to the contact person listed in the
Donald Jehn, Division of Scientific Advisors and Consultants, Center for Biologics Evaluation and Research (HFM-71), Food and Drug Administration, 1401 Rockville Pike, Rockville, MD 20852-1448, 301-827-0314, e-mail:
FDA is requesting nominations of voting members with appropriate expertise for vacancies listed below:
The committee reviews and evaluates available data concerning the safety, effectiveness, and adequacy of labeling of marketed and investigational allergenic biological products or materials that are administered to humans for the diagnosis, prevention, or treatment of allergies and allergic diseases.
The committee reviews and evaluates available data concerning the safety, effectiveness, and appropriate use of blood and products derived from blood and serum or biotechnology which are intended for use in the diagnosis, prevention, or treatment of human diseases.
The committee reviews and evaluates available data relating to the safety, effectiveness, and appropriate use of human cells, human tissues, gene transfer therapies and xenotransplantation products which are intended for transplantation, implantation, infusion and transfer in the prevention and treatment of a broad spectrum of human diseases and in reconstruction, repair, or replacement of tissues for various conditions.
The committee reviews and evaluates available scientific data concerning the safety of products which may be at risk for transmission of spongiform encephalopathies having an impact on the public health.
The committee reviews and evaluates data concerning the safety, effectiveness, and appropriate use of vaccines and related biological products which are intended for use in the prevention, treatment, or diagnosis of human diseases.
Persons nominated for membership on the committees shall have adequately diversified experience appropriate to the work of the committee in such fields as clinical and administrative medicine, engineering, biological and physical sciences, statistics, and other related professions. The nature of specialized training and experience necessary to qualify the nominee as an expert suitable for appointment may include experience in medical practice, teaching, and/or research relevant to the field of activity of the committee. The particular need for vacancies on each committee through January 31, 2008, is shown in Table 1 of this document. The term of office is up to 4 years, depending on the appointment date.
Any interested person may nominate one or more qualified persons for membership on one or more of the advisory committees. Self-nominations are also accepted. Nominations shall include the name of the committee, a complete curriculum vitae of each nominee, current business address and telephone number, and shall state that the nominee is aware of the nomination, is willing to serve as a member (name of committee(s) must be specified), and appears to have no conflict of interest that would preclude membership. FDA will ask the potential candidates to provide detailed information concerning such matters as financial holdings, employment, and research grants and/or contracts to permit evaluation of possible sources of conflict of interest.
This notice is issued under the Federal Advisory Committee Act (5 U.S.C. app. 2) and 21 CFR part 14 relating to advisory committees.
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). The meeting will be open to the public.
FDA intends to make background material available to the public no later than 1 business day before the meeting. If FDA is unable to post the background material on its Web site prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's Web site after the meeting. Background material is available at
Persons attending FDA's advisory committee meetings are advised that the agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Teresa Watkins at least 7 days in advance of the meeting.
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
The National Cancer Advisory Board's Breast Cancer Prevention Trail P-4 Working Group will meet to discuss the P-4 trial which is designed to perform a 10-year study in risk-eligible, postmenopausal women to determine whether letrozole is more effective than raloxifene in reducing the incidence of invasive breast cancer in this otherwise healthy population. The meeting will be closed to the public.
The thoughts and input from this meeting will be summarized in a report that will be presented to the National Cancer Advisory Board in open session at an upcoming meeting.
Over the past several years the National Cancer Institute has performed a series of important prevention clinical trials to study the effects) of tamoxifen, raloxifene (Selective Estrogen Receptor Modulators—SERMS) and, subsequently, aromatase inhibitors such as letrozole on reducing the incidence of invasive breast cancer in defined populations of postmenopausal women. As follow-on to this series of breast cancer prevention trials, a new trial in the sequence, the P-4 trial, has been proposed and peer-reviewed. The P-4 trial is designed to perform a 10-year study in risk-eligible, postmenopausal women to determine whether letrozole is more effective than raloxifene in reducing the incidence of invasive breast cancer in this otherwise healthy population. The trial will accrue 12,800 patients over 4 years. The primary endpoint for this trial will be the first occurrence of invasive breast cancer. Secondary endpoints will include DCIS; LCIS; ischemic heart disease; fracture of the wrist, hip, and spine; DVTs; PEs; TIAs and stroke; death; other invasive cancers; and quality of life.
P-4 trial is a significant financial commitment on the part of the National Cancer Institute and of the cancer research community. Additionally, the outcome of this trail will require more than 10 years of study. Given the magnitude of this investment, the rapid acceleration of progress in molecular genetics and molecular biology, and the disparate range of views on the trial, the National Cancer Advisory Board is convening a group of experts to provide feedback to the National Cancer Advisory Board.
Any interested person may file written comments with the work group by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 52b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 concerning opportunity for public comment on proposed collections of information, the Substance Abuse and Mental Health Services Administration (SAMHSA) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the information collection plans, call the SAMHSA Reports Clearance Officer on (240) 276-1243.
Comments are invited on: (a) Whether the proposed collections of information are necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
As the Federal agency responsible for developing and disseminating authoritative knowledge about substance abuse prevention, addiction treatment, and mental health services and for mobilizing consumer support and increasing public understanding to overcome the stigma attached to addiction and mental illness, the Substance Abuse and Mental Health Services Administration (SAMHSA) is responsible for development and dissemination of a wide range of education and information materials for both the general public and the professional communities. This submission is for generic approval and will provide for formative and qualitative evaluation activities to (1) Assess audience knowledge, attitudes, behavior and other characteristics for the planning and development of messages, communication strategies and public information programs; and (2) test these messages, strategies and program components in developmental form to assess audience comprehension, reactions and perceptions. Information obtained from testing can then be used to improve materials and strategies while revisions are still affordable and possible. The annual burden associated with these activities is summarized below.
Send comments to Summer King, SAMHSA Reports Clearance Officer, Room 7-1044, One Choke Cherry Road, Rockville, MD 20857. Written comments should be received within 60 days of this notice.
Periodically, the Substance Abuse and Mental Health Services Administration (SAMHSA) will publish a summary of information collection requests under OMB review, in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these documents, call the SAMHSA Reports Clearance Officer on (240) 276-1243.
The Substance Abuse and Mental Health Services Administration's (SAMHSA), Center for Mental Health Services (CMHS) has implemented the Targeted Capacity Expansion Grants for Jail Diversion Programs. The Program currently collects client outcome measures from program participants who agree to participate in the evaluation. Data collection consists of interviews conducted at baseline, 6- and 12-month intervals.
The current proposal requests:
1. Adding a new instrument, the PTSD Checklist (PCL), as a measure of trauma-specific symptoms to the baseline, 6- and 12-month interviews.
2. Extending the use of DC Trauma Screen, currently administered only at baseline, to be included in the 6- and 12-month interviews. The DC Trauma Screen examines the prevalence of experience of trauma within general types.
The PCL and the DC Trauma Screen each take 5 minutes to complete. Including these measures would add 5 minutes to the length of the baseline interview and ten minutes to the length of the 6- and 12-month interviews.
New grantees were awarded on April 30, 2006 under the TCE Grants for Jail Diversion program and will commence data collection efforts in FY 2007. The following tables summarize the burden for the data collection.
Written comments and recommendations concerning the proposed information collection should be sent by April 23, 2007 to: SAMHSA Desk Officer, Human Resources and Housing Branch, Office of Management and Budget, New Executive Office Building, Room 10235, Washington, DC 20503; due to potential delays in OMB's receipt and processing of mail sent through the U.S. Postal Service, respondents are encouraged to submit comments by fax to: 202-395-6974.
30-Day notice of information collection under review: Form I-693, medical examination of aliens seeking adjustment of status, OMB control no. 1615-0033.
The Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) has submitted the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995. 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 23, 2007. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, should be directed to the Department of Homeland Security (DHS), and to the Office of Management and Budget (OMB) USCIS Desk Officer. Comments may be submitted to: USCIS, Chief, Regulatory Management Division, Clearance Office, 111 Massachusetts Avenue, Suite 3008, Washington, DC 20529. Comments may also be submitted to DHS via facsimile to 202-272-8352 or via e-mail at
When submitting comments by e-mail please make sure to add OMB Control Number 1615-0033 in the subject box. Written comments and suggestions from the public and affected agencies should
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Overview of this information collection:
(1)
(2)
(3)
(4)
(5)
(6)
If you have additional comments, suggestions, or need a copy of the information collection instrument, please contact Richard A. Sloan, Chief, Regulatory Management Division, U.S. Citizenship and Immigration Services, 111 Massachusetts Avenue, NW., Suite 3008, Washington, DC 20529; Telephone 202-272-8377.
Office of the Secretary, Interior.
Notice of public meetings of the invasive species advisory committee.
Pursuant to the provisions of the Federal Advisory Committee Act, notice is hereby given of meetings of the Invasive Species Advisory Committee. The purpose of the Advisory Committee is to provide advice to the National Invasive Species Council, as authorized by Executive Order 13112, on a broad array of issues related to preventing the introduction of invasive species and providing for their control and minimizing the economic, ecological, and human health impacts that invasive species cause. The Council is Co-chaired by the Secretary of the Interior, the Secretary of Agriculture, and the Secretary of Commerce. The duty of the Council is to provide national leadership regarding invasive species issues. The purpose of a meeting on May 1-3, 2007 is to convene the full Advisory Committee and to discuss implementation of action items outlined in the National Invasive Species Management Plan, which was finalized on January 18, 2001.
Meeting of Invasive Species Advisory Committee: Tuesday, May 1, 2007 and Thursday, May 3, 2007; beginning at approximately 8 a.m., and ending at approximately 5 p.m. each day. Members will be participating in an off-site tour on Wednesday, May 2, 2007.
DoubleTree Grand Hotel Biscayne Bay, 1717 North Bayshore Drive, Miami, Florida 33132. General Session on both days will be held in the Grand Ballroom.
Kelsey Brantley, National Invasive Species Council Program Analyst; Phone: (202) 513-7243; Fax: (202) 371-1751.
Fish and Wildlife Service, Interior.
Notice of availability.
The U.S. Fish and Wildlife Service (Service) announces that the draft Comprehensive Conservation Plan (CCP) and Environmental Assessment (EA) for the Arrowwood National Wildlife Refuge (Refuge) is available. This draft CCP/EA describes how the Service intends to manage this Refuge for the next 15 years.
We must receive written comments on the draft CCP/EA by April 23, 2007. Submit comments by one of the methods under
Please provide written comments to Michael Spratt, Chief, Division of Refuge Planning, Mountain-Prairie Region, P.O. Box 25486, Denver Federal Center, Denver, Colorado 80225-0486, or electronically to
Michael Spratt, 303-236-4366 (phone); 303-236-4792 (fax); or
President Franklin D. Roosevelt signed Executive Order 7168 on September 4, 1935, “establishing Arrowwood Migratory Waterfowl Refuge.” Now known as Arrowwood National Wildlife Refuge, the 15,973-acre Refuge is in east-central North Dakota. The Refuge covers 14 miles of the James River Valley in Foster and Stutsman counties, approximately 30 miles north of Jamestown. The purposes of the Refuge are for use by migratory birds with emphasis on waterfowl and other water birds; the conservation of fish and wildlife resources; use as an inviolate sanctuary; or for any other management purposes, for migratory birds; and a Refuge and
The Refuge lies on the Central Flyway migratory corridor and is an important stopover for many birds. The prairie grassland and wetland complex habitats provides a nesting and feeding habitat for waterfowl in the spring and summer. Hundreds of thousands of waterfowl migrate through the area and use the wetlands in the spring and fall for feeding and resting. The Refuge contains approximately 6,000 acres of native prairie; 5,340 acres of seed grasses; 3,850 acres of wetlands; 660 acres of wooded ravines and riparian woodlands; and 125 acres of planted trees including shelterbelts. It is important to note that 3,430 acres of wetlands are managed impoundments and pools. Public use and recreation at the Refuge includes the six priority wildlife-dependent uses: hunting, fishing, wildlife observation, wildlife photography, interpretation, and education.
This draft CCP/EA identifies and evaluates three alternatives for managing the Refuge for the next 15 years. Under Alternative A, the No Action alternative, the Service would manage habitats, wildlife, programs, and facilities at current levels as time, staff, and funds allow. There would be an emphasis on waterfowl migration and reproduction habitat. The Service would not develop any new management, restoration, or education programs at the Refuge. Target elevations of each wetland impoundment would be managed independently to achieve optimal habitat conditions.
Alternative B would maximize the biological potential of the Refuge for both wetland and upland habitats, and support a well-balanced and diverse flora and fauna representative of the Prairie Pothole Region. A scientific-based monitoring program would be developed as part of the habitat management plan (HMP). Public use opportunities would be expanded with the construction of additional facilities and development of educational programs.
Alternative C, the Proposed Action, would include those features described in Alternative B, as well as including a plan to improve the water quality entering the Refuge, and reducing peak flows in the upper James River watershed during spring runoff and summer rainfall events. This watershed management component would include working with private landowners through the U.S. Fish and Wildlife Service's Partners for Fish and Wildlife program and other federal, state, and private conservation programs. The focus would be to protect and restore wetlands and grasslands, and reduce the impact on water quality from cropland and livestock operations. Improving the health of the upper James River watershed would not only benefit wildlife habitat in the watershed and at the Refuge, it would also benefit the Jamestown Reservoir and all downstream users.
The Proposed Action was selected because it best meets the purposes and goals of the Refuge, as well as the goals of the National Wildlife Refuge System. The Proposed Action will also benefit federally listed species, waterfowl, shorebirds, wading birds, grassland birds, and songbirds. Environmental education and partnerships will result in improved wildlife-dependent recreational opportunities. Cultural and historical resources, as well as federally listed species, will be protected.
Opportunities for public input will also be provided at a public meeting. Exact dates and times for these public meetings are yet to be determined, but will be announced via local media and a newsletter. All information provided voluntarily by mail, phone, or at public meetings (
This document was received at the Office of the Federal Register on March 19, 2007.
Bureau of Land Management, Interior.
Notice of decision approving lands for conveyance.
As required by 43 CFR 2650.7(d), notice is hereby given that an appealable decision approving the surface and subsurface estates in certain lands for conveyance pursuant to the Alaska Native Claims Settlement Act will be issued to Choggiung Limited. The lands are in the vicinity of Ekuk, Alaska, and are located in:
Containing approximately 55 acres.
Containing 1,803.86 acres.
Containing 1,220.20 acres.
Containing 5,618.40 acres.
Aggregating 8,697.44 acres.
Notice of the decision will also be published four times in the Anchorage Daily News.
The time limits for filing an appeal are:
1. Any party claiming a property interest which is adversely affected by the decision shall have until April 23, 2007 to file an appeal.
2. Parties receiving service of the decision by certified mail shall have 30 days from the date of receipt to file an appeal.
Parties who do not file an appeal in accordance with the requirements of 43 CFR Part 4, Subpart E, shall be deemed to have waived their rights.
A copy of the decision may be obtained from: Bureau of Land Management, Alaska State Office, 222 West Seventh Avenue, #13, Anchorage, Alaska 99513-7599.
The Bureau of Land Management by phone at 907-271-5960, or by e-mail at
Bureau of Land Management, Interior.
Notice of Invitation to Participate in Coal Exploration License.
Pursuant to section 2(b) of the Mineral Leasing Act of 1920, as amended by section 4 of the Federal Coal Leasing Amendments Act of 1976, 90 Stat. 1083, 30 U.S.C. 201(b), and to the regulations adopted as 43 CFR part 3410, all interested parties are hereby invited to participate with Parallel Petroleum Corporation on a pro rata cost sharing basis in a program for the exploration of coal deposits in the Vernal Coal Field owned by the United States of America in the following-described lands in Uintah County, Utah:
Containing 159.57 acres.
Any party electing to participate in this exploration program must send written notice to both the Bureau of Land Management (BLM) and Parallel Petroleum Corporation, as provided in the
Copies of the exploration plan and license (serialized under the number of UTU 84713) are available for review during normal business hours in the public room of the BLM State Office, 440 West 200 South, Suite 500, Salt Lake City, Utah. The written notice to participate in the exploration program should be sent to both the BLM, Utah State Office, P.O. Box 45155, Salt Lake City, Utah 84145, and to William A. Ryan, Agent Rocky Mountain Consulting, Inc., 290 South 800 East, Vernal, Utah 94078.
All of the coal in the above-described land consists of unleased Federal coal. This coal is not within a known coal production area. This coal exploration license will be issued by the BLM. The exploration program is fully described and is being conducted pursuant to an exploration plan approved by the BLM. The plan may be modified to accommodate the legitimate exploration needs of persons seeking to participate. This notice of invitation to participate was published in
The foregoing is published in the
Bureau of Land Management, Interior.
Notice of Proposed Reinstatement of Terminated Oil and Gas Lease.
Under the provisions of 30 U.S.C. 188(d) and (e), and 43 CFR 3108.2-3(a) and (b)(1), the Bureau of Land Management (BLM) received a petition for reinstatement of oil and gas lease COC64229 from Tatonka Oil and Gas Company, LLC for lands in Moffat County, Colorado. The petition was filed on time and was accompanied by all the rentals due since the date the lease terminated under the law.
Bureau of Land Management, Milada Krasilinec, Land Law Examiner, Branch of Fluid Minerals Adjudication, at 303.239.3767.
The lessee has agreed to the amended lease terms for rentals and royalties at rates of $20.00 per acre or fraction thereof, per year and 18
Bureau of Land Management, Interior.
Notice of Proposed Reinstatement of Terminated Oil and Gas Lease.
Under the provisions of 30 U.S.C. 188(d) and (e), and 43 CFR 3108.2-3(a) and (b)(1), the Bureau of Land Management (BLM) received a petition for reinstatement of oil and gas lease COC64230 from Tatonka Oil and Gas Company, LLC for lands in Moffat County, Colorado. The petition was filed on time and was accompanied by all the rentals due since the date the lease terminated under the law.
Bureau of Land Management, Milada Krasilinec, Land Law Examiner, Branch of Fluid Minerals Adjudication, at 303.239.3767.
The lessee has agreed to the amended lease terms for rentals and royalties at rates of $20.00 per acre or fraction thereof, per year and 18
Bureau of Land Management, Interior.
Notice of proposed reinstatement of terminated oil and gas lease.
Under the provisions of 30 U.S.C. 188(d) and (e), and 43 CFR 3108.2-3(a) and (b)(1), the Bureau of Land Management (BLM) received a petition for reinstatement of oil and gas lease COC64227 from Tatonka Oil and Gas, LLC for lands in Moffat County, Colorado. The petition was filed on time and was accompanied by all the rentals due since the date the lease terminated under the law.
Bureau of Land Management, Milada Krasilinec, Land Law Examiner, Branch of Fluid Minerals Adjudication, at 303.239.3767.
The lessee has agreed to the amended lease terms for rentals and royalties at rates of $20.00 per acre or fraction thereof, per year and 18
Bureau of Land Management, Interior.
Notice of proposed reinstatement of terminated oil and gas lease.
Under the provisions of 30 U.S.C. 188(d) and (e), and 43 CFR 3108.2-3(a) and (b)(1), the Bureau of Land Management (BLM) received a petition for reinstatement of oil and gas lease COC64228 from Tatonka Oil and Gas Company, LLC for lands in Moffat County, Colorado. The petition was filed on time and was accompanied by all the rentals due since the date the lease terminated under the law.
Bureau of Land Management, Milada Krasilinec, Land Law Examiner, Branch of Fluid Minerals Adjudication, at 303.239.3767.
The lessee has agreed to the amended lease terms for rentals and royalties at rates of $20.00 per acre or fraction thereof, per year and 18
Bureau of Land Management, Interior.
Notice of proposed reinstatement of terminated oil and gas lease.
Under the provisions of 30 U.S.C. 188(d) and (e), and 43 CFR 3108.2-3(a) and (b)(1), the Bureau of Land Management (BLM) received a petition for reinstatement of oil and gas lease COC64226 from Tatonka Oil and Gas Company, LLC for lands in Moffat County, Colorado. The petition was filed on time and was accompanied by all the rentals due since the date the lease terminated under the law.
Bureau of Land Management, Milada Krasilinec, Land Law Examiner, Branch of Fluid Minerals Adjudication, at 303.239.3767.
The lessee has agreed to the amended lease terms for rentals and royalties at rates of $20.00 per acre or fraction thereof, per year and 18
Bureau of Land Management, Interior.
Notice of Proposed Reinstatement of Terminated Oil and Gas Lease.
Under the provisions of 30 U.S.C. 188(d) and (e), and 43 CFR 3108.2-3(a) and (b)(1), the Bureau of Land Management (BLM) received a petition for reinstatement of oil and gas lease COC64225 from Tatonka Oil and Gas Company, LLC for lands in Moffat
Bureau of Land Management, Milada Krasilinec, Land Law Examiner, Branch of Fluid Minerals Adjudication, at 303.239.3767.
The lessee has agreed to the amended lease terms for rentals and royalties at rates of $20.00 per acre or fraction thereof, per year and 18
In accordance with Federal Land Policy and Management Act of 1976 (FLPMA), the Federal Advisory Committee Act of 1972 (FACA), the National Environmental Policy Act of 1969 (NEPA), and the Code of Federal Regulations (40 CFR 1501.7, 43 CFR 1610.2), the United States Department of the Interior, Bureau of Land Management (BLM), Carrizo Plain National Monument, Monument Advisory Committee members, the California State Department of Fish and Game and the Nature Conservancy will meet as indicated below:
The meeting will be held on Tuesday, May 1, 2007 at the Bakersfield Field Office at 3801 Pegasus Drive. The location is approximately 1 mile east of Hwy. 99 off the Porterville/Sequoia exit turn-off on Hwy. 65. The meeting will begin at 5:30 p.m. and finish at 7 p.m.
This meeting affords the public the opportunity to become informed about the Resource Management Plan planning and provide comments to be considered in the formulation of this plan. This meeting is open to the public, who may present written or verbal comments to be considered for the development of the Resource Management Plan, and discuss other coordination opportunities. Depending on the number of persons wishing to comment, and the time available, the time allotted for individual oral comments may be limited. Individuals who plan to attend and need special assistance such as sign language interpretation or other reasonable accommodations should contact BLM as indicated below.
Bureau of Land Management, Attention: Johna Hurl, Acting Monument Manager, 3801 Pegasus Drive, Bakersfield, CA., 93308. Phone at (661) 391-6093 or e-mail at:
In accordance with Federal Land Policy and Management Act of 1976 (FLPMA), the Federal Advisory Committee Act of 1972 (FACA), the National Environmental Policy Act of 1969 (NEPA), and the Code of Federal Regulations (40 CFR 1501.7, 43 CFR 1610.2), the United States Department of the Interior, Bureau of Land Management (BLM), Carrizo Plain National Monument, Monument Advisory Committee members, the California State Department of Fish and Game and the Nature Conservancy will meet as indicated below:
The meeting will be held Tuesday, April 24, 2007 at the San Luis Obispo Library located at 995 Palm Street. This location is less than 1 mile east of Hwy. 101 off the Osos exit. The meeting will begin at 5:30 p.m. and finish at 7 p.m.
This meeting affords the public the opportunity to become informed about the Resource Management Plan planning and provide comments to be considered in the formulation of this plan. This meeting is open to the public, who may present written or verbal comments to be considered for the development of the Resource Management Plan, and discuss other coordination opportunities. Depending on the number of persons wishing to comment, and the time available, the time allotted for individual oral comments may be limited. Individuals who plan to attend and need special assistance such as sign language interpretation or other reasonable accommodations should contact BLM as indicated below.
Bureau of Land Management, Attention: Johna Hurl, Acting Monument Manager, 3801 Pegasus Drive, Bakersfield, CA 93308. Phone at (661) 391-6093 or e-mail at:
United States International Trade Commission.
Scheduling of an expedited five-year review concerning the antidumping duty order on folding gift boxes from Fhina.
The Commission hereby gives notice of the scheduling of an expedited review pursuant to section 751(c)(3) of the Tariff Act of 1930 (19 U.S.C. 1675(c)(3)) (the Act) to determine whether revocation of the antidumping duty order on folding gift boxes from China would be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time. For further information concerning the conduct of this review and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A through E (19 CFR part 201), and part 207, subparts A, D, E, and F (19 CFR part 207).
March 6, 2007.
Gabriel Ellenberger (202-205-3289),
In accordance with sections 201.16(c) and 207.3 of the rules, each document filed by a party to the review must be served on all other parties to the review (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
This review is being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.62 of the Commission's rules.
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined not to review an initial determination (“ID”) of the presiding administrative law judge (“ALJ”) in the above-captioned investigation granting complainants” motion for summary determination that a domestic industry exists and that there is a violation of section 337. The Commission has also issued a briefing schedule for submissions on remedy, the public interest, and bonding.
Michael K. Haldenstein, Office of the General Counsel, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 205-3041. Copies of the public version of the ALJ's ID and all other nonconfidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone 202-205-2000. General information concerning the Commission may also be obtained by accessing its Internet server (
The Commission instituted this investigation on June 20, 2006, based on a complaint, as supplemented, filed by Zippo Manufacturing Company, Inc., of Bradford, Pennsylvania, and ZippMark, Inc. of Wilmington, Delaware (collectively “Zippo”), alleging violations of section 337 of the Tariff Act of 1930 in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain lighters by reason of infringement of United States Trademark Registration No. 2,606,241 (“the ‘241 mark”). 71 FR 35450 (June 20, 2006). The complaint further alleged that an industry in the United States exists or is in the process of being established as required by subsection(a)(2) of section 337. Complainants requested that the Commission issue a general exclusion order and cease and desist orders. The ALJ set July 20, 2007, as the target date for completion of the investigation.
The complaint named seven respondents: Tung Fong International Promotion Co., Ltd. of Hong Kong;
On November 7, 2006, complainants filed a motion seeking summary determination with respect to the domestic industry requirement and violation of section 337. Complainants also requested that the ALJ recommend a general exclusion order and a 100 percent bond during the Presidential review period. The Commission investigative attorney supported the motion for summary determination and the requested recommendation on remedy and bonding. No respondents responded to the motion.
On February 21, 2007, the ALJ issued an ID finding the domestic industry requirement satisfied, finding a violation of section 337, and containing a recommended determination on remedy and bonding. The ALJ found a violation of section 337 based on his conclusion that there are no genuine issues of material fact that respondents' accused products infringe the ‘241 mark and that a domestic industry exists as required by 19 U.S.C. 1337(a)(2). He recommended issuance of a general exclusion order and that the amount of bond for temporary importation during the Presidential review period be set at 100 percent of the entered value of the articles concerned. No petitions for review were filed and the Commission has determined not to review the ID.
In connection with the final disposition of this investigation, the Commission may issue an order that results in the exclusion of the subject articles from entry into the United States. Accordingly, the Commission is interested in receiving written submissions that address the form of remedy, if any, that should be ordered. If a party seeks exclusion of an article from entry into the United States for purposes other than entry for consumption, the party should so indicate and provide information establishing that activities involving other types of entry either are adversely affecting it or likely to do so. For background, see
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, and in sections 210.42-46 of the Commission's Rules of Practice and Procedure, 19 CFR 210.42-46.
By order of the Commission.
United States International Trade Commission.
March 26, 2007 at 1 p.m.
Room 101, 500 E Street SW., Washington, DC 20436, Telephone: (202) 205-2000.
Open to the public.
1. Agenda for future meetings: none.
2. Minutes.
3. Ratification List.
4. Inv. No. 731-TA-1110 (Preliminary)(Sodium Hexametaphosphate from China)—briefing and vote. (The Commission is currently scheduled to transmit its determination to the Secretary of Commerce on March 26, 2007; Commissioners' opinions are currently scheduled to be transmitted to the Secretary of Commerce on or before April 2, 2007.).
5. Outstanding action jackets: none.
In accordance with Commission policy, subject matter listed above, not disposed of at the scheduled meeting, may be carried over to the agenda of the following meeting.
By order of the Commission.
Under 28 CFR 50.7, notice is hereby given that on March 9, 2007, a proposed consent decree with defendant Delta-Y Electric Co., Inc. was lodged in the civil action
In this action the United States is seeking response costs pursuant to Section 107 of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. 9607, for costs incurred in response to releases of hazardous substances at the Missouri Electric Works Superfund Site (“the Site”), in Cape Girardieu, Missouri. The proposed consent decree will resolve the United States' claims against defendant Delta-Y Electric Co., Inc., under Section 107 of CERCLA, 42 U.S.C. 9607, at the Site. Under the terms of the proposed consent decree, defendant Delta-Y will make a cash payment of $5,000 to the United States. In return, the United States will grant Delta-Y a covenant not to sue under CERCLA with respect to the Site. The settlement is based on Delta-Y's demonstrated limited financial means.
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the proposed consent decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, P.O. Box 7611, U.S. Department of Justice, Washington, DC 20044-7611, and should refer to the proposed consent decree with defendant Delta-Y Electric Co. in
The proposed consent decree may be examined at the office of the United States Attorney, 111 S. 10th Street, 20th Floor, St. Louis, Missouri 63102. During the public comment period, the Consent Decree may be examined on the following Department of Justice Web site:
Public comments may be submitted by e-mail to the following e-mail address:
Under 28 CFR 50.7, notice is hereby given that on March 9, 2007, a proposed consent decree with defendant Sara Lee Corporation (“Sara Lee”) was lodged in the civil action
In this action the United States is seeking response costs pursuant to Section 107 of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. 9607, for costs incurred in response to releases of hazardous substances at the Missouri Electric Works Superfund Site (“the Site”), in Cape Girardieu, Missouri. The proposed consent decree will resolve the United States' claims against defendant Sara Lee under Section 107 of CERCLA, 42 U.S.C. 9607, at the Site. Under the terms of the proposed consent decree, defendant Sara Lee will make a cash payment of $25,000 to the United States. In return, the United States will grant Sara Lee a covenant not to sue under CERCLA with respect to the Site.
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the proposed consent decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, P.O. Box 7611, U.S. Department of Justice, Washington, DC 20044-7611, and should refer to the proposed consent decree with defendant Sara Lee Corporation in
The proposed consent decree may be examined at the office of the United States Attorney, 111 S. 10th Street, 20th Floor, St. Louis, Missouri 63102. During the public comment period, the Consent Decree may be examined on the following Department of Justice Web site:
Public comments may be submitted by e-mail to the following e-mail address:
Under 28 CFR 50.7, notice is hereby given that on March 9, 2007, a proposed consent decree with defendant National Wrecking Company (“National Wrecking”) was lodged in the civil action
In this action the United States is seeking response costs pursuant to Section 107 of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. 9607, for costs incurred in response to releases of hazardous substances at the Missouri Electric Works Superfund Site (“the Site”), in Cape Girardieu, Missouri. The proposed consent decree will resolve the United States' claims against defendant National Wrecking under Section 107 of CERCLA, 42 U.S.C. 9607, at the Site. Under the terms of the proposed consent decree, defendant National Wrecking will make a cast payment of $30,000 to the United States. In return, the United States will grant National Wrecking a covenant not to sue
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the proposed consent decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, P.O. Box 7611, U.S. Department of Justice, Washington, DC 20044-7611, and should refer to the proposed consent decree with defendant National Wrecking Company in
The proposed consent decree may be examined at the office of the United States Attorney, 111 S. 10th Street, 20th Floor, St. Louis, Missouri 63102. During the public comment period, the Consent Decree may be examined on the following Department of Justice Web site:
Public comments may be submitted by e-mail to the following e-mail address:
Notice is hereby given that on February 26, 2007, a Consent Judgment (“CJ”) in
In this action the United States sued Joseph Vazzana, Jr. and the Estate of Joseph Vazzana, Sr. pursuant to Section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (“CERCLA”), 42 U.S.C. 9607(a), for recovery of response costs regarding the Spectrum Finishing Corp. Superfund Site in West Babylon, Suffolk County, New York (the “Site”). The complaint also asserted a claim
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the settlement. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and either e-mailed to
The settlement may be examned at the Office of the United States Attorney, Eastern District of New York, One Pierrepont Plaza, 14th Fl., Brooklyn, New York 11201, and at the Region II Office of the U.S. Environmental Protection Agency, Region II Record Center, 290 Broadway, 17th Floor, New York, NY 10007-1866. During the public comment period, the settlement may also be examined on the following Department of Justice Web site:
Notice is hereby given that, on March 8, 2007, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
On September 17, 2004, IEEE filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on November 9, 2006. A notice was published in the
Employee Benefits Security Administration, Labor.
Notice of Proposed Exemption.
This document contains notices of pendency before the Department of Labor (the Department) of a proposed exemptions from certain of the prohibited transaction restrictions of the Employee Retirement Income Security Act of 1974 (ERISA or the Act) and/or the Internal Revenue Code of 1986 (the Code).
All interested persons are invited to submit written comments or requests for a hearing on the pending exemption, unless otherwise stated in the Notice of Proposed Exemption, within 45 days from the date of publication of this
All written comments and requests for a hearing (at least three copies) should be sent to the Employee Benefits Security Administration (EBSA), Office of Exemption Determinations, Room N-5700, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210. Attention: Application No. __, stated in each Notice of Proposed Exemption. Interested persons are also invited to submit comments and/or hearing requests to EBSA via e-mail or FAX. Any such comments or requests should be sent either by e-mail to:
Notice of the proposed exemption will be provided to all interested persons in the manner agreed upon by the applicant and the Department within 15 days of the date of publication in the
The proposed exemption were requested in an applications filed pursuant to section 408(a) of the Act and/or section 4975(c)(2) of the Code, and in accordance with procedures set forth in 29 CFR part 2570, subpart B (55 FR 32836, 32847, August 10, 1990). Effective December 31, 1978, section 102 of Reorganization Plan No. 4 of 1978, 5 U.S.C. App. 1 (1996), transferred the authority of the Secretary of the Treasury to issue exemptions of the type requested to the Secretary of Labor. Therefore, these notices of proposed exemption are issued solely by the Department.
The applications contain representations with regard to the proposed exemption which are summarized below. Interested persons are referred to the applications on file with the Department for a complete statement of the facts and representations.
The Department is considering granting an exemption under the authority of section 408(a) of the Act and in accordance with the procedures set forth in 29 CFR part 2570, subpart B (55 FR 32836, 32847, August 10, 1990). If the exemption is granted, the restrictions of section 406(a), 406(b)(1) and (b)(2) of the Act, and the sanctions resulting from the application of section 4975(a) and (b) of the Code, by reason of section 4975(c)(1)(A) through (E) of the Code, shall not apply to the December 29, 2006 sale by the Plan of 2,174 shares of stock (the Stock) in Wisconsin Bancshares, Inc. (the Company) each to Francesca DeRose (Francesca) and Nicolet DeRose (Nicolet), parties in interest with respect to the Plan, provided the following conditions are satisfied:
(a) The sales of the Stock were one-time transactions for cash;
(b) The Plan paid no commissions or other fees in connection with the sales;
(c) The terms of the transactions were at least as favorable to the Plan as those the Plan could obtain in similar transactions with an unrelated party; and
(d) the sales price of the Stock was determined by a qualified, independent appraiser.
1. The Plan is an individual account plan established by DeRose Dental Offices, Inc., S.C. (the Employer), a professional dental corporation located in Racine, Wisconsin. As of December 31, 2005 (the Last Valuation Date), the Plan had 10 participants and beneficiaries, and had total assets of $1,951,401. Francesca and Nicolet, the only dentists employed by the Employer, are participants in the Plan. Francesca, along with Ronald S. Rizzo, is also the co-trustee of the Plan. As of the Last Valuation Date, Francesca's account value was $747,061.71, and Nicolet's account value was $986,336.53. These account values constitute approximately 88.83% of the total assets of the Plan. The applicants represent that since the Last Valuation Date, the values of the participants' respective accounts have not significantly changed.
2. Among other assets, the Plan held shares (i.e., the Stock) of the Company, a closely-held bank holding company registered under the Bank Holding Company Act of 1956, as amended, and a financial holding company under the Gramm-Leach-Bliley Act of 1999. The Company is the 100% owner of Banks of Wisconsin (the Bank), a full service community bank with four locations in Wisconsin. As of December 8, 2006, 535,594 shares of Stock were issued and outstanding.
3. The applicants represent that the Plan initially acquired shares of common stock of the Bank in the secondary private stock offering by the Bank on July 29, 2003 at a price of $23 per share, or an aggregate purchase price of $100,004. On December 31, 2004, the Company was formed as a holding company for all of the shares of the common stock of the Bank. As of January 1, 2005, all of the shares of the Bank were converted into shares of the Stock. The price per share in the secondary offering was determined by the Board of Directors (the Board) of the Bank. The shares were offered to
4. Francesca also holds 3,950 shares of the Stock individually. In addition, David Barnes, her husband and the Chairman of the Board of the Bank, holds 37,777 shares of Stock individually and 2,050 shares as trustee of one or more custodial accounts established under the Uniform Transfer to Minors Act. Together, Mr. Barnes and Francesca hold approximately 9.02% of the issued and outstanding shares of Stock. Nicolet in her individual capacity holds 375 shares of Stock. Mr. Rizzo, the co-trustee of the Plan, holds 15,616 shares of the Stock individually, which represents approximately 2.92% of the issued and outstanding Stock. The Stock held by the Plan represented 0.81% of the issued and outstanding Stock. During the period of its ownership of the Stock, the Plan earned no dividends or other income and incurred no expenses with respect to the Stock. Except for Mr. Barnes, neither Mr. Rizzo, nor any family member (including the Plan participants) is an officer, director or controlling shareholder of the Bank or the Company.
5. The applicants have requested a retroactive prohibited transaction exemption for the purchase of 2,174 shares of the Stock by Francesca, and the purchase of 2,174 shares of the Stock by Nicolet. Both transactions occurred on December 29, 2006. The applicants represent that due to business and income tax considerations, the Company and Bank are both seeking to make a Subchapter S election, to be effective as of January 1, 2007. Although a tax-exempt qualified trust forming part of a stock bonus, pension or profit-sharing plan, such as the Plan and its related trust, can be an S corporation eligible shareholder, such exempt trust is required to pay the unrelated business income tax (UBIT) on all income attributable to ownership of stock of an S corporation, using the income tax rates. UBIT is due whether or not the S corporation actually distributes the income to the trust. In addition, any gain on the sale of the S corporation stock by a trust is generally subject to UBIT. Because the Plan would incur unfavorable tax consequences as a result of an S corporation election and the continued holding of the Stock, Nicolet and Francesca desired to purchase the Stock from the Plan. The decision on behalf of the Plan to sell the Stock was made solely by Mr. Rizzo in his capacity as co-trustee.
6. The Stock was independently appraised by an independent appraiser, Mercer Capital (Mercer). Mercer is an independent financial advisor experienced in the financial analysis and valuation of financial institutions. The Company retained Mercer, in connection with the S corporation election and related merger transaction, to assist the Board in determining a fair price for the Stock. Mercer delivered an appraisal to the Board at the Board's meeting on October 17, 2006, using the Company's September 30, 2006 financial data, whereby it determined the fair market value of the Stock to be $44 per share. On November 1, 2006, Mercer issued an opinion to the Board that the cash consideration to be received by the Bank's shareholders was fair to the shareholders. In arriving at its opinion and appraisal, Mercer reviewed and analyzed the Company's audited financial statements, quarterly reports, the Company's financial forecasts, the historical trading prices and activity for the Stock, the nature and financial terms of certain other merger and acquisition transactions involving banks, financial studies, analyses and investigations and relevant financial, economic and market criteria. In addition, Mercer met with the management of the Company to discuss past and current operations, financial condition and prospects, as well as the result of regulatory examinations.
7. On the date of the sale of the Stock to Francesca and Nicolet by the Plan, Mr. Rizzo, in his capacity as co-trustee for the Plan, contacted Mr. Andy Gibbs at Mercer in order to obtain an updated appraisal of the Stock or a confirmation that the value of Stock since the date of the appraisal had not changed. Mr. Gibbs advised Mr. Rizzo that Mercer was aware of no circumstances that would change its appraisal of the Stock as of September 30, 2006, and that the appraisal report and appraised value of $44 per share of Stock remained current as of the date of sale.
8. The applicants represent that there is no active trading market for the Stock, and no market is expected to develop for the Stock upon the consummation of the merger and the S corporation election. The sale of the Stock to Francesca and Nicolet presented an opportunity to provide better liquidity and diversification of investments in the Plan at a fair price. The applicants represent that the Plan benefited from significant appreciation in the value of the Stock since purchasing the Stock in the secondary offering. As demonstrated by the appraisal by Mercer, the value of the Stock as of September 30, 2006 ($44) significantly exceeds the purchase price paid by the Plan for the Stock ($23 per share on July 23, 2003) and the value of the Stock on the Last Valuation Date, which was determined to be $25 per share based on recent private sale transactions.
9. In summary, the applicants represent that the subject transactions satisfy the criteria contained in section 408(a) of the Act because: (a) The terms of the transactions were at least as favorable to the Plan as those the Plan could have obtained in similar transactions with an unrelated party; (b) the sales of the Stock were one-time transactions for cash, and the Plan paid no commissions or other fees in connection with the sales; (c) the sales price of the Stock was determined by a qualified, independent appraiser who confirmed the fair market value as of the date of the sales; (d) the Plan benefited from significant appreciation in the Stock since the time of its acquisition in July, 2003; and (e) the sales of the Stock provide better liquidity and diversification of investments in the Plan.
Gary H. Lefkowitz of the Department, telephone (202) 693-8546. (This is not a toll-free number.)
The attention of interested persons is directed to the following:
(1) The fact that a transaction is the subject of an exemption under section 408(a) of the Act and/or section 4975(c)(2) of the Code does not relieve a fiduciary or other party in interest or disqualified person from certain other provisions of the Act and/or the Code, including any prohibited transaction provisions to which the exemption does not apply and the general fiduciary responsibility provisions of section 404 of the Act, which, among other things, require a fiduciary to discharge his
(2) Before an exemption may be granted under section 408(a) of the Act and/or section 4975(c)(2) of the Code, the Department must find that the exemption is administratively feasible, in the interests of the plan and of its participants and beneficiaries, and protective of the rights of participants and beneficiaries of the plan;
(3) The proposed exemptions, if granted, will be supplemental to, and not in derogation of, any other provisions of the Act and/or the Code, including statutory or administrative exemptions and transitional rules. Furthermore, the fact that a transaction is subject to an administrative or statutory exemption is not dispositive of whether the transaction is in fact a prohibited transaction; and
(4) The proposed exemptions, if granted, will be subject to the express condition that the material facts and representations contained in each application are true and complete, and that each application accurately describes all material terms of the transaction which is the subject of the exemption.
Employee Benefits Security Administration, U.S. Department of Labor.
Notice of proposed individual exemption to amend and replace PTE 2000-34.
This document contains a notice of pendency before the Department of Labor (the Department) of a proposed individual exemption which, if granted, would amend and replace PTE 2000-34 (65 FR 41732, July 6, 2000), an exemption granted to FML. PTE 2000-34, relates to (1) the receipt of certain stock (Plan Stock) issued by Fidelity Insurance Group, Inc. (Group), a wholly owned subsidiary of FML, or (2) the receipt of plan credits (Plan Credits), by or on behalf of a FML mutual member (the Mutual Member), which is an employee benefit plan (the Plan), other than the Employee Pension Plan of Fidelity Mutual Life Insurance Company, in exchange for such Mutual Member's membership interest (the Membership Interest) in FML, in accordance with the terms of a plan of rehabilitation (the Third Amended Plan), approved by the Pennsylvania Commonwealth Court (the Court) and supervised by both the Court and a rehabilitator (the Rehabilitator) appointed by the Pennsylvania Insurance Commissioner (the Commissioner). These transactions are described in a notice of proposed exemption (65 FR 18359, April 7, 2000), which underlies PTE 2000-34.
If granted, this proposed exemption would incorporate by reference many of the conditions contained in PTE 2000-34. The proposed exemption would also revise and update certain facts and representations set forth in PTE 2000-34 to include the terms of the Fourth Amended Plan of Rehabilitation (the Fourth Amended Plan) which supersedes the Third Amended Plan upon which PTE 2000-34 is based.
Written comments should be received by the Department by April 24, 2007.
All written comments should be sent to the Office of Exemption Determinations, Employee Benefits Security Administration, Room N-5700, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210, Attention: Application No. D-11345. Interested persons are also invited to submit comments to the Department by e-mail to
The application pertaining to the proposed exemption and the comments will be available for public inspection in the Public Disclosure Room of the Employee Benefits Security Administration, U.S. Department of Labor, Room N-1513, 200 Constitution Avenue, NW., Washington, DC 20210.
Ekaterina A. Uzlyan, Office of Exemptions Determinations, Employee Benefits Security Administration, U.S. Department of Labor, telephone (202) 693-8552. (This is not a toll-free number.)
Notice is hereby given of the pendency before the Department of a proposed exemption that would amend and replace PTE 2000-34. PTE 2000-34 provides an exemption from the prohibited transaction restrictions of section 406(a) of the Employee Retirement Income Security Act of 1974 (the Act) and from the sanctions resulting from the application of section 4975 of the Internal Revenue Code of 1986 (the Code), as amended, by reason of section 4975(c)(1)(A) through (D) of the Code.
The proposed exemption has been requested in an application filed on behalf of FML pursuant to section 408(a) of the Act and section 4975(c)(2) of the Code, and in accordance with the procedures set forth in 29 CFR part 2570, subpart B (55 FR 32836, August 10, 1990). Effective December 31, 1978, section 102 of Reorganization Plan No. 4 of 1978 (43 FR 47713, October 17, 1978) transferred the authority of the Secretary of the Treasury to issue exemptions of the type requested to the Secretary of Labor. Accordingly, this proposed exemption is being issued solely by the Department.
As noted in the proposed exemption underlying PTE 2000-34, FML is a mutual life insurance company maintaining its principal place of business at 250 King of Prussia Road, Radnor, Pennsylvania. Prior to certain rehabilitation proceedings, FML was licensed to issue life insurance policies in 47 states and the District of Columbia. Because FML has been organized as a mutual form of life insurance company, it has no stockholders. Instead, the owners of its contracts (i.e., the Mutual Members) are vested with the right to vote and to receive an allocable portion of the divisible surplus. In addition, the Mutual Members have contractual rights under their contracts with FML.
FML owns all of the stock of Group, a Pennsylvania-domiciled stock corporation. Group, in turn, owns all of the stock of Fidelity Life Insurance Company (FLIC), a Pennsylvania stock life insurance company.
During late 1990, the Pennsylvania Insurance Department began monitoring FML's operations because of concern over FML's real estate holdings, its decline in surplus and unrealized capital losses. In response to an increase in surrenders of FML insurance contracts (the Contracts), and loan requests for the period October 26 to November 5, 1992, the Pennsylvania Insurance Department and FML's Board of Directors petitioned the Court for an Order of Rehabilitation. As a result, FML was placed in rehabilitation on November 6, 1992. Under the Order of Rehabilitation, a moratorium was imposed on cash distributions, Contract surrenders, withdrawals and policy loans, except in certain hardship situations. The moratorium was intended to stop the outflow of cash and to afford the Rehabilitator time to stabilize FML's assets.
FML filed the Original Plan of Rehabilitation (the Original Plan), with the Court on June 30, 1994. The Original Plan and the successor amended plans of rehabilitation (i.e., the First Amended Plan of Rehabilitation (the First Amended Plan) and the Second Amended Plan of Rehabilitation (the Second Amended Plan)) are described in detail in PTE 2000-34 at 18361-18362.
Because the First Amended Plan and the Second Amended Plan were never implemented due to objections raised by a number of parties, FML filed the Third Amended Plan with the Court on June 30, 1998. According to PTE 2000-34, the Third Amended Plan provided that on the reorganization closing date (the Closing Date), FML would transfer its insurance operations (including assets and insurance-contract obligations) to FLIC pursuant to assumption reinsurance and transfer agreements. FLIC would then continue as a wholly owned subsidiary of Group and a successor to FML. Prior to the transfer to and assumption by FLIC, FML would modify the terms of its insurance contracts by endorsement. These contractual obligations (as modified by such endorsements) would remain in force after such transfer, with FLIC being the obligated insurer.
The Third Amended Plan further provided for FML to sell approximately 51% of the outstanding common stock of Group (Group Common Stock) to an investor (i.e., the Investor) in a private placement in exchange for cash. The Investor would be an independent foreign or domestic entity which satisfied certain securities law and certain minimum rating or capitalization criteria. The Investor would be selected according to bid procedures drawn up by the Commissioner and adopted by the Court, and would be subject to Court approval. Immediately after the Closing Date, the Investor would own slightly more than 50% of the Group Common Stock. Part of the cash received by FML from the sale of Group Common Stock to the Investor would be used by FML to pay the claims of its creditors. The remaining cash would be contributed by FML to the capital of FLIC in order to fund FLIC's future operations.
The Third Amended Plan set up classes of claims against FML and specified the priorities of each class of claims, in conformity with the Pennsylvania laws applicable to insurance company rehabilitations. For example, Class 3 covered the claims which holders of Contracts had in their capacities as Contractholders (and not in their capacities as Mutual Members). These claims included claims for death or annuity proceeds or other payments for insured losses under FML insurance policies. Contractholders would be permitted to surrender their Contracts for the full cash surrender value. The Contracts of Contractholders not exercising this surrender option would continue in effect, as modified by endorsement by FML, and then assumed and reinsured by FLIC. Class 10, the last and residual category, covered claims of FML's Mutual Members with respect to their Membership Interests.
Under the Third Amended Plan, the claims of FML's Mutual Members would generally be satisfied on the Closing Date by distributing Group Common Stock and Group preferred stock (Group Preferred Stock)
Upon the liquidation of Group, a share of Group Preferred Stock would be entitled to a distribution preference of $25 per share, plus the amount of any accrued but unpaid dividends. Group could elect to redeem shares of Group Preferred Stock at any time after 20 years from the Closing Date (or the issue date, if later) at a redemption price of $25 per share plus the amount of any accrued but unpaid dividends. Group Preferred Stock would be convertible into shares of Group Common Stock at any time at the option of the holder.
Of the Plan Stock that would be allocated to Mutual Members for Class 10 claims, 20% would be allocated based on voting rights, and 80% would be based on the Contract's contribution to FML's surplus. Each Mutual Member receiving Plan Stock would receive Group Common Stock and Group Preferred Stock in the ratio of 3 common shares to 2.8 preferred shares.
Under the Third Amended Plan, a special distribution rule would apply to Mutual Members who held insurance contracts in connection with (a) retirement plans or arrangements described in sections 403(a) or 408 of the Code or (b) non-trusteed retirement plans described in Code section 401(a) (Non-Trusteed Tax-Qualified Retirement Funding Contracts). Mutual Members holding Non-Trusteed Tax-Qualified Retirement Funding Contracts would not receive Plan Stock in exchange for the relinquishment of their Membership Interests. These Mutual Members would instead be entitled to receive Plan Credits having a value equal in value to the Plan Stock they would otherwise have received. This special rule was adopted to take into account the legal impediments which frequently exist on the ability of holders of Non-Trusteed Tax-Qualified Retirement Funding Contracts to hold corporate stock.
The Investor would be required to purchase Plan Stock which would otherwise have been allocated to Non-Trusteed Tax-Qualified Retirement Funding Contracts. The proceeds of such sale would be contributed to the capital of FLIC. Mutual Members holding Non-Trusteed Tax-Qualified Retirement Funding Contracts would have the right to disclaim the Plan Credits which they would otherwise receive in exchange for their Membership Interests. Any Mutual Member which is a Plan or other member would have the right to disclaim its interest in the Plan Stock which it would otherwise receive in exchange for its Membership Interest.
Under the Third Amended Plan, FML would liquidate and dissolve shortly after the Closing Date. Any Group Common Stock and Group Preferred Stock which FML would continue to hold after the Closing Date would be returned to Group for cancellation. FLIC would then continue in existence as a wholly owned subsidiary of Group, and would continue FML's business in a substantially unchanged manner by receiving premiums, paying claims, and generally administering the FML contracts which FLIC had assumed.
Under the Third Amended Plan, Mutual Members would not be restricted from selling or transferring the Plan Stock received, including converting the Group Preferred Stock to Group Common Stock, although Group, its affiliates and the Investor would be subject to restrictions on purchasing or redeeming such Stock. Additionally, Group would not be precluded from establishing a commission-free purchase or sales program to allow Mutual Members who received a small number of shares of Plan Stock the opportunity to round-up those shares or sell such shares for a temporary period without the payment or sales commission. The Plan Stock would be publicly-traded and listed on the Nasdaq, or the New York or American Stock Exchange.
PTE 2000-34 provided certain protections for Mutual Members that are Plans. In this regard:
• The Third Amended Plan would be approved by the Court and implemented in accordance with procedural and substantive safeguards that are imposed under Pennsylvania law and would be subject to review and/or supervision by the Commissioner and the Rehabilitator.
• The Court would determine whether the Third Amended Plan properly conserved and equitably administered the assets of FML in the interests of investors, the public and others in accordance with the legislatively-stated purpose of protecting the interests of the insured, creditors and the public; and (2) equitably apportioned any unavoidable loss through improved methods for rehabilitating FML.
• Each Mutual Member would have an opportunity to comment on the Third Amended Plan at hearings held by the Court after full written disclosure of the terms of the Third Amended Plan is given to such Mutual Member by FML.
• Participation by all Mutual Members in the Third Amended Plan, if approved by the Court, would be mandatory, although Mutual Members could disclaim Plan Stock.
• The decision by a Mutual Member, which was a Plan, to receive or disclaim Plan Stock or Plan Credits allocated to such Mutual Member would be made by one or more independent fiduciaries of such plan and not by FML, Group or FLIC. Consequently, neither FML nor any of its affiliates could exercise investment discretion nor render “investment advice” within the meaning of 29 CFR 2510.3-21(c) with respect to an independent plan fiduciary's decision to receive or disclaim Plan Stock or Plan Credits.
• Twenty percent (20%) of the Plan Stock would be allocated to a Mutual Member based upon voting rights and eighty percent (80%) would be allocated to a Mutual Member on the basis of the contribution of the Mutual Member's insurance or annuity Contract to the surplus of FML. The contribution to FML's surplus is the actuarial calculation of both the historical and expected future profit contribution of the Contracts that have contributed to the surplus (i.e., the net earnings) of FML. The actuarial formulas would be approved by the Court and the Commissioner.
• The value of Plan Stock or Plan Credits that would be received by a Mutual Member would reflect the aggregate price paid by the Investor Group for Group Common Stock and for Plan Credits.
• All Mutual Members that were Plans would participate in the transactions on the same basis as all other Mutual Members that are not Plans.
• No Mutual Member would pay any brokerage commissions or fees in connection with the receipt of Plan Stock or Plan Credits.
• The Third Amended Plan would not affect the rights of a Contractholder, which is a Mutual Member. In this regard, FML's obligations to a Contractholder would be discharged and terminated upon their endorsement and assumption by FLIC, thereby making FLIC liable for the obligations under such Contract.
Subsequent to the granting of PTE 2000-34, FML informed the Department of certain modifications to the Summary of Facts and Representations set forth in PTE 2000-34. Specifically, on November 23, 2005, the Fourth Amended Plan was submitted to the Court. The Fourth Amended Plan supersedes the Third Amended Plan. FML represents that it was not possible to implement the Third Amended Plan because a qualified bidder could not be obtained. Consequently, FML explains that in November 2005, the Fourth Amended Plan was introduced and submitted to the Court.
The Fourth Amended Plan calls for the Commissioner to adopt one of the following reorganization alternatives for FML: (a) Cause FML to sell its insurance operations, assets, and insurance-contract obligations to an Investor who is an asset purchaser (the Asset Purchaser) in exchange for cash (the Asset Acquisition Alternative); or (b) convert FML from a mutual company to a stock company, and cause FML to sell its stock to an Investor who is a stock purchaser (the Stock Purchaser) in exchange for Investor Stock and/or cash (the Stock Acquisition Alternative).
The Rehabilitator will conduct a competitive bidding process in accordance with the bid procedures set forth in the Fourth Amended Plan. The Rehabilitator will have the right to reject any and all bids, and will have no authority to accept a bid without the prior approval of the proposed transaction by the Pennsylvania Insurance Department and by the Court after petition, notice, and hearing.
Bidders may bid for either the purchase of all of the stock of FML or the assumption of all of FML's insurance contracts. If an assuming insurer is the successful bidder, selected assets of FML will be transferred to the Asset Purchaser in exchange for its assumption and reinsurance of FML's obligations under all of FML's insurance Contracts. If a purchaser of FML's stock is the successful bidder, FML will be demutualized and converted into a stock corporation, and FML's stock will be sold to such Stock Purchaser.
As under the Third Amended Plan, cash obtained by FML will be used to pay the claims of FML's creditors. In addition, FML's Mutual Members will receive cash or a combination of cash and Investor Stock (or, in some cases, Plan Credits).
Under the Asset Acquisition Alternative, the Asset Purchaser will assume all of FML's insurance contracts on the Closing Date. These contractual obligations (as modified) will remain in force after such transfer, with the Asset Purchaser being the obligated insurer.
In addition, before the Closing Date, each FML Contract in force will be modified by endorsement to remove provisions for voting rights, participation in divisible surplus through dividends, and to provide for continued compliance with various tax provisions. Moreover, each Contract having a cash value will be modified to provide that the Contract will be eligible annually, in lieu of dividends, for certain contractual charges, payments and credits which are not guaranteed by the terms of the contract (the Non-Guaranteed Elements). The Contractholder may elect to apply these Non-Guaranteed Elements in accordance with the same options as were available for the application of dividends before the contract was modified. No Contract modifications will reduce any benefits and guarantees.
The cash value, the Non-Guaranteed Element accumulation account, and policy loan accounts of each Contract will be the same after the Closing Date as they were before the Closing Date. Additionally, the initial post-closing Non-Guaranteed Elements will be determined by the Rehabilitator and will be subject to notice, hearing, and Court approval.
Further, the Asset Purchaser will pay FML a ceding commission determined by competitive bidding in accordance with the bidding procedures. The bidding procedure will be subject to approval by the Court.
Also under the Asset Acquisition Alternative, FML will transfer to the Asset Purchaser the assets of its insurance operations and other assets having a total value equal to the net FML liabilities assumed by the Asset Purchaser (i.e., statutory reserves), less the agreed-upon purchase price as determined through the bidding procedures (i.e., the ceding commission). The transferred assets will be free and clear of all liens and claims arising from pre-closing to claims against FML, but will be subject to the obligations imposed by the assumed Contracts and “the Assumption Reinsurance Agreement.” Additionally, FML will transfer all of the outstanding common stock of FLIC to the Asset Purchaser in the event such assuming insurer submits a bid to purchase the stock of FLIC that is selected by the Rehabilitator and approved by the Court.
Further, holders of FML Contracts will have the right to reject the transfer of their Contracts to the Asset Purchaser. Each rejected contract will be cancelled by FML before the Closing Date, and the Contractholder will receive the cash surrender value of the Contract (if any). The Asset Purchaser will have no liability with respect to any rejected contract. The rights of Contractholders in their capacities as Mutual Members of FML will not be affected by any such Contract rejection.
As noted below, as soon as practicable after the Closing Date, FML will transfer to Mutual Members (including Mutual Members that are Plans), consideration in the form of cash or Plan Credits, in exchange for such Mutual Member's Membership Interest in FML.
Under the Stock Acquisition Alternative, FML will demutualize and convert to a stock corporation effective as of the Closing Date. All of FML's assets will vest in the stock corporation, and the Stock Purchaser will assume all of FML's liabilities which are not released, discharged, or otherwise retained under the Fourth Amended Plan. Moreover, FML's Contracts will be endorsed as under the Asset Acquisition Alternative.
Also under the Stock Acquisition Alternative, all of FML's post-conversion (Post-Conversion) issued and outstanding common stock
Investor Stock forming part of the consideration for FML's stock will be listed on either the Nasdaq or the New York Stock Exchange. The Investor Stock will also be registered under the Securities Exchange Act of 1934, and it will not be subject to transfer restrictions (except as may otherwise be required under relevant securities laws). As another option, pursuant to a registration exemption under the Securities Exchange Act of 1933, the Stock Purchaser may use as consideration, its shares of unregistered common stock if such Stock Purchaser obtains an SEC “no action” letter or a legal opinion as to the applicability of such SEC exemption.
If Investor Stock forms part of the consideration for FML's shares, the Stock Purchaser will be required to establish a “round lot” program under which each FML Mutual Member who receives fewer than 100 shares of Investor Stock under the Fourth Amended Plan may either (a) purchase additional shares of Investor Stock to increase his holdings to a “round lot” consisting of 100 shares, or (b) sell all of his or her shares of Investor Stock, without paying brokerage commissions or administrative or similar expenses.
At or before Closing, the Rehabilitator and the Stock Purchaser will determine how many shares of Investor Stock are allocable to Mutual Members which are entitled to receive Plan Credits instead of Investor Stock. Instead of transferring these shares as part of the consideration, the Stock Purchaser will pay to FML the market value of such shares as of the Closing Date, and FML will apply this amount as Plan Credits.
Part of the cash received by FML from either the Asset Purchaser or the Stock Purchaser will be used to pay the claims of FML's creditors in full, together with interest at the rate of 6%. In addition, the Fourth Amended Plan sets up ten classes of claims against FML and specifies the priorities of each class of claims, in conformity with the Pennsylvania laws applicable to insurance company rehabilitations. These classes, priorities, and payment provisions are substantially identical to those included in the Third Amended Plan. In this regard, Mutual Members' claims for their Mutual Membership Interests in FML comprise class 10 claims.
The Fourth Amended Plan provides that in exchange for the mandatory relinquishment of their Mutual Membership Interests, Mutual Members of FML will be entitled to receive FML's net assets (including cash or a combination of cash and Investor Stock) remaining after the satisfaction of all claims in Classes 1 through 9. Of the FML net assets allocated to Mutual Members for Class 10 claims, 20% will be allocated based on voting rights, and 80% will be based on the Contract's contribution to FML's surplus.
As under the Third Amended Plan, the Fourth Amended Plan provides for a special distribution rule. This special distribution rule will apply to Mutual Members, under both Alternatives, who hold Contracts in connection with Non-Trusteed Tax-Qualified Retirement Funding Contracts. These Mutual
Each Mutual Member will have the right to disclaim its interest in the cash or combination of cash and Investor Stock which such Mutual Member would otherwise receive in exchange for its Membership Interest.
Effective as of the Closing Date, FML will generally be discharged from any liability with respect to any and all of its liabilities claims and, obligations. Under the Asset Acquisition Alternative, FML will be liquidated and dissolved after all endorsed insurance contracts are assumed by the Asset Purchaser. Under the Stock Purchase Alternative, FML will continue in existence as an operating stock insurance company owned by the Stock Purchaser.
Under the Fourth Amended Plan, all Mutual Members that are Plans will be subject to the similar protections as those provided under the Third Amended Plan. In this regard:
• The Fourth Amended Plan will be approved by the Court, implemented in accordance with procedural and substantive safeguards that are imposed under Pennsylvania law and be subject to review and/or supervision by the Commissioner (both in her own capacity and in her capacity as Rehabilitator of FML). The Court will determine whether the Fourth Amended Plan (1) properly conserves and equitably administers the assets of FML, in the interests of investors, the public, and others in accordance with the legislatively-stated purpose of protecting the interests of the insured, creditors, and the public; and (2) equitably apportions any unavoidable loss through imposed methods for rehabilitating FML. The Court will also retain exclusive jurisdiction over the implementation, interpretation, and enforcement of the Fourth Amended Plan.
• The Fourth Amended Plan will provide for either: (1) the transfer of FML's assets to an independent Asset Purchaser in exchange for cash; or (2) the conversion of FML from a mutual life insurance company into a stock life insurance company and either (A) the transfer of the stock of Post-Conversion FML to the independent Stock Purchaser or (B) the merger of Post-Conversion FML into the Stock Purchaser or an affiliate of the Stock Purchaser.
• Each Mutual Member will have an opportunity to comment on the Fourth Amended Plan at hearings held by the Court after full written disclosure of the terms of the Plan will be given to such Mutual Member by FML.
• Participation by all Mutual Members in the Fourth Amended Plan, if approved by the Court, will be mandatory, although Mutual Members may disclaim the Investor Stock, cash, and/or Plan Credits which they would otherwise receive.
• The decision by a Mutual Member which is a Plan to receive or disclaim Investor Stock, cash, and/or Plan Credits allocated to such Mutual Member will be made by one or more independent fiduciaries of such Plan, and not by FML or any affiliate of FML. Consequently, neither FML nor any of its affiliates will exercise discretion nor render “investment advice” within the meaning of 29 CFR 2510.3-21(c) with respect to an independent Plan fiduciary's decision to receive or disclaim Investor Stock, cash, and/or Plan Credits.
• Twenty percent (20%) of the net assets which will be available for distribution to the Mutual Members would be allocated among the Mutual Members based upon voting rights, and eighty percent (80%) of such net assets will be allocated among the Mutual Members on the basis of the contribution of the Mutual Members' respective insurance or annuity contracts to the surplus of FML. The contribution to FML's surplus will be based on the actuarial calculation of both the historical and expected future profit contribution of the Contracts that have contributed to the surplus (i.e., the net earnings) of FML. The actuarial formulas will be approved by the Court and the Commissioner.
• The amount and value of the Investor Stock, cash, and/or Plan Credits received by a Mutual Member will reflect the aggregate consideration paid by the Investor.
• All Mutual Members that are Plans will participate in the transactions on the same basis as all other Mutual Members that are not Plans, except that Mutual Members which hold Non-Trusteed Tax-Qualified Retirement Funding Contracts will receive Plan Credits in exchange for their membership interests, rather than cash or cash and Investor Stock.
• No Mutual Member will pay any brokerage commissions or fees in connection with the receipt of Investor Stock, cash, and/or Plan Credits.
• Mutual Members will not be restricted from selling or otherwise transferring any Investor Stock which they receive. If Investor Stock comprises part of the consideration paid by the Investor, the Investor will be required to establish a commission-free purchase or sales program which would allow Mutual Members who receive a small number of shares of Investor Stock to “round up” such shares or sell such shares free of sales commissions.
• The Fourth Amended Plan will not adversely affect the rights of a Contractholder of the company which is a Mutual Member. In this regard, (1) if Post-Conversion FML is acquired by the Stock Purchaser, the obligations of FML to a Contractholder are retained by Post-Conversion FML, and (2) if FML's assets are purchased by the Asset Purchaser, FML's obligations to a Contractholder will be discharged and terminated upon their endorsement, and assumed by the Asset Purchaser, thereby making the Asset Purchaser liable for the obligations under the Contract.
FML represents that the Fourth Amended Plan has been submitted to the Court. Written objections to the Fourth Amended Plan were due in April 2006 and no objections were received. By order dated August 29, 2006, the Court gave its preliminary approval to the Fourth Amended Plan which would allow the Rehabilitator to sell FML through a competitive bid process, with final approval to follow the selection of the winning bidder.
The competitive bid process has been initiated and the bidding was closed in February 2007. FML states that it is now very likely that its proposed acquisition under the Fourth Amended Plan will take the form of the Asset Acquisition Alternative. In addition, FML anticipates the successful bidder will be selected before the end of March 2007.
FML requests an individual exemption from the Department that would apply to both Alternatives under the Fourth Amended Plan. Because FML is a service provider to Mutual Members that are Plans, FML is also a party in interest with respect to such plans under section 3(14)(B) of the Act. In addition, the successful bidder under
Accordingly, the Department is amending and replacing PTE 2000-34 to reflect the implementation of the Alternatives under the Fourth Amended Plan. All references to the Third Amended Plan in the operative language of PTE 2000-34 have been replaced with references to the Fourth Amended Plan.
If granted, the amendment would be effective on the date the final amendment is published in the
If the exemption is granted, the restrictions of section 406(a) of the Act and the sanctions resulting from the application of section 4975 of the Code, by reason of section 4975(c)(1)(A) through (D) of the Code, shall not apply to (1) the receipt of certain stock (the
This proposed exemption is subject to the following conditions set forth below in Section II.
(a) The
(1) Properly conserves and equitably administers the assets of FML, in the interests of investors, the public, and others in accordance with the legislatively-stated purpose of protecting the interests of the insured, creditors, and the public; and
(2) Equitably apportions any unavoidable loss through imposed methods for rehabilitating FML.The Court retains exclusive jurisdiction over the implementation, interpretation, and enforcement of the
(b)
(1)
(2)
(c) Each Mutual Member has an opportunity to comment on the
(d) Participation by all Mutual Members in the
(e) The decision by a Mutual Member which is a Plan to receive or disclaim
(f) Twenty percent (20%) of the
(g)
(h) All Mutual Members that are Plans participate in the transactions on the same basis as all other Mutual Members that are not Plans,
(i) No Mutual Member pays any brokerage commissions or fees in connection with the receipt of
(j)
(k)
(1)
(2)
For purposes of this proposed exemption:
(a) An “affiliate” of FML,
(1) Any person directly or indirectly through one or more intermediaries, controlling, controlled by, or under common control with such entity. (For purposes of this paragraph, the term “control” means the power to exercise a controlling influence over the management or policies of a person other than an individual.) or
(2) Any officer, director or partner in such person.
(b)
(c) The term “FML” means the Fidelity Mutual Life Insurance Company (In Rehabilitation) and any affiliate of FML, as defined in paragraph (a) of this Section III,
(d)
(e) The term “Mutual Member” means a Contractholder whose name appears on FML's records as an owner of an FML Contract on the Record Date of the
(f)
(g) The term “Plan Credit” means either—
(1) Additional paid up insurance for a traditional life policy; or
(2) Credits to the account values for Contracts that are not traditional (such as a flexible premium policy).
(h)
(i)
Notice of the proposed exemption will be provided by FML to Mutual Members which are Plans within 3 days of the publication of the notice of the proposed exemption in the
The attention of interested persons is directed to the following:
(1) The fact that a transaction is the subject of an exemption under section 408(a) of the Act and section 4975(c)(2) of the Code does not relieve a fiduciary or other party in interest or disqualified person from certain other provisions of the Act and the Code, including any prohibited transaction provisions to which the exemption does not apply and the general fiduciary responsibility provisions of section 404 of the Act, which require, among other things, a fiduciary to discharge his or her duties respecting the plan solely in the interest of the participants and beneficiaries of the plan and in a prudent fashion in accordance with section 404(a)(1)(B) of the Act; nor does it affect the requirements of section 401(a) of the Code that the plan operate for the exclusive benefit of the employees of the employer maintaining the plan and their beneficiaries;
(2) The proposed exemption, if granted, will not extend to transactions prohibited under section 406(b) of the Act and section 4975(c)(1)(E)-(F) of the Code;
(3) Before an exemption can be granted under section 408(a) of the Act and section 4975(c)(2) of the Code, the Department must find that the exemption is administratively feasible, in the interest of the plan and of its participants and beneficiaries and protective of the rights of participants and beneficiaries of the plan;
(4) This proposed exemption, if granted, will be supplemental to, and not in derogation of, any other provisions of the Act and the Code, including statutory or administrative exemptions. Furthermore, the fact that a transaction is subject to an administrative or statutory exemption is not dispositive of whether the transaction is in fact a prohibited transaction; and
(5) This proposed exemption, if granted, is subject to the express condition that the facts and representations set forth in the notice of proposed exemption relating to PTE 2000-34 and this notice, accurately describe, where relevant, the material terms of the transactions to be consummated pursuant to this exemption.
All interested persons are invited to submit written comments on the pending exemption to the address above, within the time frame set forth above, after the publication of this proposed exemption in the
Based on the facts and representations set forth in the application, the Department is considering granting the requested exemption under the authority of section 408(a) of the Act and section 4975(c) of the Code and in accordance with the procedures set forth in 29 CFR part 2570, subpart B (55 FR 32836, August 10, 1990), the Department proposes to amend and replace PTE 2000-34 as follows:
If the exemption is granted, the restrictions of section 406(a) of the Act and the sanctions resulting from the application of section 4975 of the Code, by reason of section 4975(c)(1)(A) through (D) of the Code, shall not apply to (1) the receipt of certain stock (the Investor Stock) issued by the corporation (the Stock Purchaser) which acquires Post-Conversion Fidelity Mutual Life Insurance Company (Post-Conversion FML) by stock purchase or by merger, (2) the receipt of plan credits (the Plan Credits), or (3) the receipt of cash, by or on behalf of a mutual member (the Mutual Member) of FML which is an employee benefit plan (a Plan), in exchange for such Mutual Member's membership interest (the Membership Interest) in FML, in accordance with the terms of a plan of rehabilitation of FML (the Fourth Amended Plan) approved by the Pennsylvania Commonwealth Court (the Court) and supervised by both the Court and the Pennsylvania Insurance Commissioner (the Commissioner), who is acting as the rehabilitator of FML (the Rehabilitator). This proposed exemption is subject to the following conditions set forth below in Section II.
(a) The Fourth Amended Plan is approved by the Court, implemented in accordance with procedural and substantive safeguards that are imposed under Pennsylvania law and is subject to review and/or supervision by the Commissioner (both in her own capacity and in her capacity as Rehabilitator of FML). The Court determines whether the Fourth Plan—
(1) Properly conserves and equitably administers the assets of FML, in the interests of investors, the public, and others in accordance with the legislatively-stated purpose of protecting the interests of the insured, creditors, and the public; and
(2) Equitably apportions any unavoidable loss through imposed methods for rehabilitating FML.
(The Court will retain exclusive jurisdiction over the implementation, interpretation, and enforcement of the Fourth Amended Plan of Reorganization.)
(b) The Fourth Amended Plan provides for either:
(1) The transfer of FML's assets to an independent purchaser (the Asset Purchaser) in exchange for cash; or
(2) The conversion of FML from a mutual life insurance company into a stock life insurance company and either (A) the transfer of the stock of Post-Conversion FML to the independent Stock Purchaser or (B) the merger of Post-Conversion FML into the independent Stock Purchaser or an affiliate of the Stock Purchaser.
(c) Each Mutual Member has an opportunity to comment on the Fourth
(d) Participation by all Mutual Members in the Fourth Amended Plan, if approved by the Court, is mandatory, although Mutual Members may disclaim the Investor Stock, cash, and/or Plan Credits which they would otherwise receive.
(e) The decision by a Mutual Member which is a Plan to receive or disclaim Investor Stock, cash, and/or Plan Credits allocated to such Mutual Member is made by one or more independent fiduciaries of such Plan, and not by FML or any affiliate of FML. Consequently, neither FML nor any of its affiliates will exercise discretion nor render “investment advice” within the meaning of 29 CFR 2510.3-21(c) with respect to an independent Plan fiduciary's decision to receive or disclaim Investor Stock, cash, and/or Plan Credits.
(f) Twenty percent (20%) of the net assets which are available for distribution to the Mutual Members is allocated among the Mutual Members based upon voting rights, and eighty percent (80%) of such net assets is allocated among the Mutual Members on the basis of the contribution of the Mutual Members' respective insurance or annuity contracts (the Contracts) to the surplus of FML. The contribution to FML's surplus is the actuarial calculation of both the historical and expected future profit contribution of the Contracts that have contributed to the surplus (i.e., the net earnings) of FML. The actuarial formulas are approved by the Court and the Commissioner.
(g) The amount and value of the Investor Stock, cash, and/or Plan Credits received by a Mutual Member reflect the aggregate consideration paid by the Stock Purchaser or Asset Purchaser, which is independent of FML.
(h) All Mutual Members that are Plans participate in the transactions on the same basis as all other Mutual Members that are not Plans, except that Mutual Members which hold Non-Trusteed Tax-Qualified Retirement Funding Contracts receive Plan Credits in exchange for their membership interests, rather than cash and/or Investor Stock.
(i) No Mutual Member pays any brokerage commissions or fees in connection with the receipt of Investor Stock, cash, and/or Plan Credits.
(j) Mutual Members are not restricted from selling or otherwise transferring any Investor Stock which they receive. If Investor Stock comprises part of the consideration paid by the Stock Purchaser, the Stock Purchaser is required to establish a commission-free purchase or sales program which will allow Mutual Members who receive a small number of shares of Investor Stock to “round up” such shares or sell such shares free of sales commissions.
(k) The Fourth Amended Plan does not adversely affect the rights of a contractholder of the company (the Contractholder) which is a Mutual Member. In this regard,
(1) If Post-Conversion FML is acquired by the Stock Purchaser, the obligations of FML to a Contractholder are retained by Post-Conversion FML; and
(2) If FML's assets are purchased by the Asset Purchaser, FML's obligations to a Contractholder are discharged and terminated upon their endorsement and assumption by the Asset Purchaser, thereby making the Asset Purchaser liable for the obligations under the Contract.
For purposes of this proposed exemption:
(a) An “affiliate” of FML, Post-Conversion FML, the Stock Purchaser, or the Asset Purchaser includes—
(1) Any person directly or indirectly through one or more intermediaries, controlling, controlled by, or under common control with such entity. (For purposes of this paragraph, the term “control” means the power to exercise a controlling influence over the management or policies of a person other than an individual.); or
(2) Any officer, director or partner in such person.
(b) The term “Asset Purchaser” means the person (e.g., individual, corporation, partnership, joint venture, etc.) selected by the Rehabilitator and approved by the Court to purchase FML's assets under an assumption reinsurance agreement.
(c) The term “FML” means the Fidelity Mutual Life Insurance Company (In Rehabilitation) and any affiliate of FML, as defined in paragraph (a) of this Section III, as they exist before FML is converted from a mutual life insurance company into a stock life insurance company.
(d) The term “Investor Stock” means the common stock of the Stock Purchaser that will be allocated to Mutual Members if Post-Conversion FML is acquired by the Stock Purchaser in exchange for consideration that includes common stock of the Stock Purchaser.
(e) The term “Mutual Member” means a Contractholder whose name appears on FML's records as an owner of an FML Contract on the Record Date of the Fourth Amended Plan.
(f) The term “Non-Trusteed Tax-Qualified Retirement Funding Contracts” means FML insurance contracts which are held in connection with retirement plans or arrangements described in section 403(a) or 408 of the Internal Revenue Code or non-trusteed retirement plans described in Section 401(a) of the Internal Revenue Code.
(g) The term “Plan” means an employee benefit plan.
(h) The term “Plan Credit” means either (1) additional paid up insurance for a traditional life policy or (2) credits to the account values for Contracts that are not traditional (such as a flexible premium policy). Under FML's Fourth Amended Plan, Plan Credits are to be allocated to Mutual Members who hold Non-Trusteed Tax-Qualified Retirement Funding Contracts, in lieu of Investor Stock and/or cash.
(i) The term “Post-Conversion FML” means the Fidelity Mutual Life Insurance Company (In Rehabilitation) and any affiliate of FML, as defined in paragraph (a) of this Section III, as they exist after FML is converted from a mutual life insurance company into a stock life insurance company.
(j) The term “Stock Purchaser” means the person (e.g., individual, corporation, partnership, joint venture, etc.) selected by the Rehabilitator and approved by the Court to purchase the stock of Post-Conversion FML, or to acquire Post-Conversion FML by merger, under a stock purchase agreement or merger agreement.
This exemption is available to a Mutual Member of FML that is a Plan if the terms and conditions of the exemption are satisfied with respect to such Plan.
For a more complete statement of the facts and representations supporting the Department's decision to grant PTE 2000-34, refer to the proposed exemption and the grant notice which are cited above.
By application dated January 13, 2007, a state representative requested administrative reconsideration of the Department of Labor's Notice of Negative Determination Regarding Eligibility to Apply for Worker Adjustment Assistance, applicable to workers and former workers of the subject firm. The determination was issued on February 16, 2007 and published in the
The negative determination was based on the Department's findings that that the petitioning workers of this firm or subdivision do not produce an article within the meaning of Section 222 of the Act.
The Department reviewed the request for reconsideration and has determined that the petitioner has provided additional information. Therefore, the Department will conduct further investigation to determine if the workers meet the eligibility requirements of the Trade Act of 1974.
After careful review of the application, I conclude that the claim is of sufficient weight to justify
In accordance with Section 223 of the Trade Act of 1974, as amended (19 U.S.C. 2273) the Department of Labor herein presents summaries of determinations regarding eligibility to apply for trade adjustment assistance for workers (TA-W) number and alternative trade adjustment assistance (ATAA) by (TA-W) number issued during the period of March 5 through March 9, 2007.
In order for an affirmative determination to be made for workers of a primary firm and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(a) of the Act must be met.
I. Section (a)(2)(A) all of the following must be satisfied:
A. A significant number or proportion of the workers in such workers' firm, or an appropriate subdivision of the firm, have become totally or partially separated, or are threatened to become totally or partially separated;
B. The sales or production, or both, of such firm or subdivision have decreased absolutely; and
C. Increased imports of articles like or directly competitive with articles produced by such firm or subdivision have contributed importantly to such workers' separation or threat of separation and to the decline in sales or production of such firm or subdivision; or
II. Section (a)(2)(B) both of the following must be satisfied:
A. A significant number or proportion of the workers in such workers' firm, or an appropriate subdivision of the firm, have become totally or partially separated, or are threatened to become totally or partially separated;
B. There has been a shift in production by such workers' firm or subdivision to a foreign country of articles like or directly competitive with articles which are produced by such firm or subdivision; and
C. One of the following must be satisfied:
1. The country to which the workers' firm has shifted production of the articles is a party to a free trade agreement with the United States;
2. The country to which the workers' firm has shifted production of the articles to a beneficiary country under the Andean Trade Preference Act, African Growth and Opportunity Act, or the Caribbean Basin Economic Recovery Act; or
3. There has been or is likely to be an increase in imports of articles that are like or directly competitive with articles which are or were produced by such firm or subdivision.
Also, in order for an affirmative determination to be made for secondarily affected workers of a firm and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(b) of the Act must be met.
(1) Significant number or proportion of the workers in the workers' firm or an appropriate subdivision of the firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) The workers' firm (or subdivision) is a supplier or downstream producer to a firm (or subdivision) that employed a group of workers who received a certification of eligibility to apply for trade adjustment assistance benefits and such supply or production is related to the article that was the basis for such certification; and
(3) either—
(A) The workers' firm is a supplier and the component parts it supplied for the firm (or subdivision) described in paragraph (2) accounted for at least 20 percent of the production or sales of the workers' firm; or
(B) A loss or business by the workers' firm with the firm (or subdivision) described in paragraph (2) contributed importantly to the workers' separation or threat of separation.
In order for the Division of Trade Adjustment Assistance to issue a certification of eligibility to apply for Alternative Trade Adjustment Assistance (ATAA) for older workers, the group eligibility requirements of Section 246(a)(3)(A)(ii) of the Trade Act must be met.
1. Whether a significant number of workers in the workers' firm are 50 years of age or older.
2. Whether the workers in the workers' firm possess skills that are not easily transferable.
3. The competitive conditions within the workers' industry (
The following certifications have been issued. The date following the company name and location of each determination references the impact date for all workers of such determination.
The following certifications have been issued. The requirements of Section 222(a)(2)(A) (increased imports) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(a)(2)(B) (shift in production) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(b) (supplier to a firm whose workers are certified eligible to apply for TAA) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(b) (downstream producer for a firm whose workers are certified eligible to apply for TAA based on increased imports from or a shift in production to Mexico or Canada) of the Trade Act have been met.
The following certifications have been issued. The date following the company name and location of each determination references the impact date for all workers of such determination.
The following certifications have been issued. The requirements of Section 222(a)(2)(A) (increased imports) and Section 246(a)(3)(A)(ii) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(a)(2)(B) (shift in production) and Section 246(a)(3)(A)(ii) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(b) (supplier to a firm whose workers are certified eligible to apply for TAA) and Section 246(a)(3)(A)(ii) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(b) (downstream producer for a firm whose workers are certified eligible to apply for TAA based on increased imports from or a shift in production to Mexico or Canada) and Section 246(a)(3)(A)(ii) of the Trade Act have been met.
In the following cases, it has been determined that the requirements of 246(a)(3)(A)(ii) have not been met for the reasons specified.
The Department has determined that criterion (1) of Section 246 has not been met. Workers at the firm are 50 years of age or older.
The Department has determined that criterion (2) of Section 246 has not been met. Workers at the firm possess skills that are easily transferable.
The Department has determined that criterion (3) of Section 246 has not been met. Competition conditions within the workers' industry are not adverse.
In the following cases, the investigation revealed that the eligibility criteria for worker adjustment assistance have not been met for the reasons specified.
Because the workers of the firm are not eligible to apply for TAA, the workers cannot be certified eligible for ATAA.
The investigation revealed that criteria (a)(2)(A)(I.A.) and (a)(2)(B)(II.A.) (employment decline) have not been met.
The investigation revealed that criteria (a)(2)(A)(I.B.) (Sales or production, or both, did not decline) and (a)(2)(B)(II.B.) (shift in production to a foreign country) have not been met.
The investigation revealed that criteria (a)(2)(A)(I.C.) (increased imports) and (a)(2)(B)(II.B.) (shift in production to a foreign country) have not been met.
The investigation revealed that the predominate cause of worker separations is unrelated to criteria (a)(2)(A)(I.C.) (increased imports) and (a)(2)(B)(II.C) (shift in production to a foreign country under a free trade agreement or a beneficiary country under a preferential trade agreement, or there has been or is likely to be an increase in imports).
The workers' firm does not produce an article as required for certification under Section 222 of the Trade Act of 1974.
The investigation revealed that criteria of Section 222(b)(2) has not been met. The workers' firm (or subdivision) is not a supplier to or a downstream producer for a firm whose workers were certified eligible to apply for TAA.
I hereby certify that the aforementioned determinations were issued during the period of March 5 through March 9, 2007. Copies of these determinations are available for inspection in Room C-5311, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210 during normal business hours or will be mailed to persons who write to the above address.
In accordance with Section 223 of the Trade Act of 1974 (19 U.S.C. 2273), and Section 246 of the Trade Act of 1974 (26 U.S.C. 2813), as amended, the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance and Alternative Trade Adjustment Assistance on January 16, 2007, applicable to workers of LEGO Systems, Inc., including on-site leased workers of Staff Management, Enfield, Connecticut. The notice was published in the
At the request of the State agency, the Department reviewed the certification for workers of the subject firm. The workers were engaged in the assembly of LEGO toy model kits.
New information shows that in February 2006, the leased workers of Adecco USA, Inc., employed on-site at the Enfield, Connecticut location of LEGO Systems, Inc., became employees of Staff Management due to a change in contracting firms.
Accordingly, the Department is amending this certification to properly reflect this matter.
The intent of the Department's certification is to include all workers employed at LEGO Systems, Inc., Enfield, Connecticut who were adversely affected by a shift in production to Mexico.
The amended notice applicable to TA-W-60,688 is hereby issued as follows:
All workers of LEGO Systems, Inc., including former on-site leased workers of Adecco USA, Inc., currently employed with Staff Management, Enfield, Connecticut, who became totally or partially separated from employment on or after January 2, 2006, through January 16, 2009, are eligible to apply for adjustment assistance under Section 223 of the Trade Act of 1974, and are also eligible to apply for alternative trade adjustment assistance under Section 246 of the Trade Act of 1974.
On December 15, 2006, the Department issued an Affirmative Determination Regarding Application for Reconsideration for the workers and former workers of Weyerhaeuser Company, Lebanon Lumber Division, Lebanon, Oregon (the subject firm). The Department's Notice of affirmative determination was published in the
The initial denial of the workers' eligibility to apply for Trade Adjustment Assistance (TAA) and Alternative Trade Adjustment Assistance (ATAA) was based on the Department's findings that the workers produce green softwood stud lumber; the subject firm neither imported green softwood stud lumber nor shifted production of green softwood stud lumber overseas during the relevant period; and the subject firm's major declining customers had negligible imports of green softwood stud lumber during the surveyed periods. The Department's Notice of determination was issued on October 19, 2006 and published in the
The request for reconsideration, filed by the United Brotherhood of Carpenters and Joiners of America, Carpenters Industrial Council, Local 2791 (Union), alleges that Weyerhaeuser Company purchased a softwood lumber production facility in Canada, inferring that the subject firm has increased imports of lumber or articles like or directly competitive with lumber produced at the subject facility.
During the reconsideration investigation, the Department discussed the allegations with the Union, sought clarification from the subject firm regarding Weyerhaeuser Company's Canadian lumber production facilities, and conducted a customer survey regarding imports of stud lumber and articles like or directly competitive with stud lumber produced at the subject firm during the relevant period.
During the reconsideration investigation, the Department determined that kiln-dried lumber and engineered wood products are like or directly competitive with green stud lumber. As such, the Department conducted an expanded customer survey to determine whether the subject firm's major declining customers had increased import purchases of green stud lumber and articles like or directly competitive with green stud lumber produced at the subject firm. The survey revealed no increased imports of green stud lumber or articles like or directly competitive with green stud lumber during the surveyed periods.
The reconsideration investigation also revealed that, contrary to the Union's allegation, Weyerhaeuser Company has not purchased any lumber production facilities in Canada during the relevant period. Further, an August 23, 2006 Weyerhaeuser Company news release (attached to the petition) states that the subject firm was replaced by a new, “world-class” sawmill in the Lebanon, Oregon area.
In the request for reconsideration, the Union requested that the Department review the articles submitted with the petition and the findings by the U.S. International Trade Commission (USITC) regarding Investigation Nos. 701-TA-414 and 731-TA-928.
“Increased imports means that imports have increased either absolutely or relative to domestic production compared to a representative base period. The representative base period shall be one year consisting of the four quarters immediately preceding the date which is twelve months prior to the date of the petition.” 29 CFR Section 90.2 Because the petition is dated September 13, 2006, the Department determines that the relevant period is September 2005 through August 2006.
While “News Release,” Weyerhaeuser, August 23, 2006, states that Weyerhaeuser Company “operates lumber mills in eight states and four provinces in Canada,” it does not infer any shift of production to Canada or increased imports from Canada. Further, the article explains that the new sawmill to which production is shifting is also in the Lebanon, Oregon area.
While Weyerhaeuser Company's “Forward Looking Statement” (July 25, 2006) acknowledges that Weyerhaeuser
Although “News Release,” Weyerhaeuser, July 25, 2006, states that second quarter 2006 earnings are lower than second quarter 2005 earnings, the article also states that costs Weyerhaeuser Company incurred on Canadian softwood lumber sold into the U.S. in the second quarter of 2006 were lower than first quarter 2006.
“Coalition for Fair Lumber Imports: WTO Again Rejects Canadian Attack on Softwood Lumber Duties,” Coalition for Fair Lumber Imports, April 13, 2006, states that the World Trade Organization Appellate Body's decision to support an ITC determination (issued on November 24, 2004) that U.S. lumber producers are threatened with material injury by imports of dumped and subsidized softwood lumber from Canada is correct. However, because the events relevant to the ITC's determination occurred outside the relevant period, it cannot be a basis for the subject workers' eligibility to apply for TAA.
Similarly, because data in the International Trade Report, December 2004, and the USITC determination (issued July 30, 2004) regarding Investigation Nos. 701-TA-414 and 731-TA-928, fall outside the relevant time period, they cannot be a basis for the subject workers' eligibility to apply for TAA.
In order for the Department to issue a certification of eligibility to apply for ATAA, the subject worker group must be certified eligible to apply for TAA. Since the subject workers are denied eligibility to apply for TAA, the workers cannot be certified eligible for ATAA.
After careful reconsideration, I affirm the original notice of negative determination of eligibility to apply for worker adjustment assistance for workers and former workers of Weyerhaeuser Company, Lebanon Lumber Division, Lebanon, Oregon.
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: 29 CFR Part 825, The Family and Medical Leave Act of 1993 (WH-380 and WH-381). A copy of the proposed information collection request can be obtained by contacting the office listed below in the
Written comments must be submitted to the office listed in the
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 Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. 2601,
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 extension of this information collection in order to ensure that both employers and employees are aware of and can exercise their rights and meet their respective obligations under FMLA, and in order for the Department of Labor to carry out its statutory obligation under FMLA to investigate and ensure employer compliance has been met.
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: Waiver of Child Labor Provisions for Agricultural Employment of 10 and 11 Year Old Minors in Hand Harvesting of Short Season Crops—29 CFR Part 575. A copy of the proposed information collection request can be obtained by contacting the office listed below in the
Written comments must be submitted to the office listed in the
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
Fair Labor Standards Act (FLSA) section 13(c)(4), 29 U.S.C. 213(c)(4), authorizes the Secretary of Labor to grant a waiver of child labor provisions of the FLSA for the agricultural employment of 10 and 11 year old minors in the hand harvesting of short season crops if specific requirements and conditions are met. The Act also requires all employers covered by the FLSA to make, keep and preserve records of employees and of wages, hours, and other conditions and practices of employment. 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 approval for the extension of this information collection in order to determine whether the statutory requirements and conditions for granting a requested exemption have been met.
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.
Connecticut Yankee Atomic Power Company (CYAPCO, the licensee) is holder of shutdown facility license No. DPR-61, which authorizes activities at the Haddam Neck Plant. The license provides, among other things, that the facility is subject to all rules, regulations, and orders of the U.S. Nuclear Regulatory Commission (NRC).
The facility consists of a former reactor site undergoing decommissioning, and an Interim Spent Fuel Storage Installation (ISFSI) in East Hampton, Connecticut.
Appendix E to Title 10 of The Code of Federal Regulations specifies
On December 5, 1996, the HNP reactor was permanently shut down. All the spent fuel was transferred to the ISFSI by March 2005. The NRC issued an exemption on August 28, 1998, that granted CYAPCO exemptions from portions of the 10 CFR 50.54(q) EP requirements.
The staff reviewed the revised EP for coping with radiological emergencies at the HNP site including the licensee's 10 CFR 50.54(q) evaluation to verify that the reduction in exercise frequency does not decrease the effectiveness of the plan and that the plan, as changed, continues to meet the standards contained in 10 CFR 50.47(b) and the requirements of Appendix E to 10 CFR Part 50 applicable to the approved Part 50 EP for the long-term defueled condition. The licensee identified that the exercise frequency reduction was a reduction in commitment. The NRC staff evaluation below, concludes the proposed change meets the requirements of § 50.47(b) and Appendix E to Part 50.
Section 8.2.3 of the HNP EP requires that an exercise will be conducted once each calendar year to demonstrate the capability to meet the EP. CYAPCO is proposing to revise the frequency of an exercise of its onsite EP from once per year to every other year. CYAPCO has determined that the proposed change in the frequency of an exercise constitutes a reduction in commitment and thus represents a decrease in effectiveness of the EP. However, the EP continues to meet the standards of 10 CFR 50.47(b) and the requirements of Appendix E to Part 50.
The plant is permanently shutdown and defueled. All spent fuel and greater than Class C waste have been placed in dry storage at the ISFSI, and there is no longer liquid radioactive waste or significant quantities of dry activated waste stored on site. Additionally, in order to ensure adequate emergency response capabilities are maintained during the time between exercises, CYAPCO is adding a requirement to Section 8.2 of the HNP EP as follows:
During the interval between biennial exercises, CYAPCO will conduct drills, including at least one drill involving a combination of some of the principal functional areas of the onsite response capabilities (management, accident assessment, protective and corrective actions).
The proposed change is consistent with the 10 CFR 50, Appendix E, (IV)(F)(2)(b) requirement to conduct an onsite EP exercise every two years.
Pursuant to 10 CFR 50.12, the NRC may, upon application by any interested person or upon its own initiative, grant exemptions from the requirements of 10 CFR Part 50 when: (1) The exemptions are authorized by law, will not present an undue risk to public health or safety, and are consistent with the common defense and security; and (2) when special circumstances are present. The licensee's request for approval was submitted in conjunction with a proposed revision to the HNP onsite EP, and is effective when the site has only an ISFSI remaining onsite. NRC staff considers that requiring the licensee to meet a self-imposed standard above regulatory requirements is not necessary to achieve the underlying purpose of the rule. Therefore, special circumstances do exist for the granting of this exemption, as specified in 10 CFR 50.12.
This exemption would exempt CYAPCO from requirements in 10 CFR Part 50, Appendix E, as previously exempted on August 28, 1998, thus allowing onsite EP exercises to be conducted every two years vice annually. As stated above, 10 CFR 50.12 allows the NRC to grant exemptions from the requirements of 10 CFR Part 50. The NRC staff has determined that granting of this exemption will not result in a violation of the Atomic Energy Act of 1954, as amended, or the Commission's regulations. Therefore, the exemption is authorized by law.
This exemption only affects the periodicity of onsite EP exercises. No new accident precursors are created by this exemption; accordingly, the probability of postulated accidents are not increased. Therefore, there is no undue risk to public health and safety as a result of the exemption.
This exemption, as set forth above, affects the periodicity of onsite EP exercises. The revised periodicity is consistent with the Appendix E regulatory requirements for onsite EP exercises, and with 10 CFR 50.47(b)(14), which states, in part, “Periodic exercises are (will be) conducted to evaluate major portions of emergency response capabilities * * *. ” The licensee will continue to conduct other Emergency Planning drills during the time intervals between exercises in order to maintain its emergency response capabilities. Therefore, the common defense and security is not impacted by this exemption.
Special circumstances, in accordance with 10 CFR 50.12(a)(2)(ii), are present whenever the application of the regulation in the particular circumstances “would not serve the underlying purpose of the rule or is not necessary to achieve the underlying purpose of the rule.” The underlying purpose of Appendix E is to ensure that licensees' EPs are sufficient for use in attaining an acceptable state of emergency preparedness. The NRC staff has determined that the intent of this rule is not compromised by the licensee's proposed action because onsite exercises will be required every two years, which is consistent with Appendix E requirements. Therefore, since the underlying purpose of Appendix E is achieved, the special circumstances required by 10 CFR 50.12 (a)(2) for the granting of an exemption from Appendix E exist.
This exemption constitutes a regulatory action approving a change in operations that would not cause any increase in the amounts of any effluents that may be released offsite, increase any individual or cumulative occupational radiation exposure, has no construction impact, and has no
Documents related to this action, including the application for amendment and supporting documentation, are available electronically at the NRC's Electronic Reading Room at
These documents may also be viewed electronically on the public computers located at the NRC PDR, O 1 F21, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852. The PDR reproduction contractor will copy documents for a fee.
Accordingly, the Commission has determined that, pursuant to 10 CFR 50.12, the exemption is authorized by law, will not present an undue risk to public health and safety, and is consistent with the common defense and security. Also, special circumstances are present. Therefore, the Commission hereby grants CYAPCO an exemption to the licensee's previous exemptions from the requirements of 10 CFR 50.54(q), as granted by NRC on August 28, 1998 (ML980903182); which requires EPs to meet 10 CFR 50.47(b) and Appendix E to Part 50. Specifically, this exemption allows onsite EP exercises to be conducted once every two years, in lieu of the annual requirement currently in place.
This exemption is effective upon issuance.
For the U.S. Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Notice of issuance of early site permit.
Joelle L. Starefos, Senior Project Manager, AP1000 Projects Branch, Division of New Reactor Licensing, Office of New Reactors, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. Telephone: (301) 415-8488; Fax number: (301) 415-2390; e-mail:
Pursuant to 10 CFR 2.106, the Nuclear Regulatory Commission (NRC) is providing notice of the issuance of Early Site Permit (ESP) ESP-001 to Exelon Generation Company, LLC (EGC or the permit holder), for approval of a site located 6 miles east of the city of Clinton, Illinois, for one or more nuclear power facilities separate from the filing of an application for a construction permit or combined license for such a facility. The NRC has found that the application for an ESP filed by EGC complies with the applicable requirements of the Atomic Energy Act of 1954, as amended, and the applicable rules and regulations of the Commission, and all required notifications to other agencies or bodies have been duly made. Based on consideration of the site criteria contained in 10 CFR Part 100, a reactor, or reactors, having design characteristics that fall within the site characteristics and controlling parameters of the EGC ESP Site can be constructed and operated without undue risk to the health and safety of the public. There is reasonable assurance that the permit holder will comply with the regulations in 10 CFR Chapter I, and the health and safety of the public will not be endangered. Issuance of an ESP to the permit holder will not be inimical to the common defense and security or the health and safety of the public.
There is no significant impediment to the development of emergency plans, as referenced in 10 CFR 52.17(b)(1) and 10 CFR 52.18, “Standards for Review of Applications.” The descriptions of contacts and arrangements made with Federal, State, and local governmental agencies with emergency planning responsibilities, as set forth in 10 CFR 52.17(b)(3), are acceptable. Major features A, B, C, D, E, F, G, I, J, K, L, O, and P of the emergency plan are acceptable to the extent specified in NUREG-1844, “Safety Evaluation Report for an Early Site Permit (ESP) at the Exelon Generation Company, LLC (EGC) ESP Site.” The issuance of this ESP, subject to the Environmental Protection Plan and the conditions for the protection of the environment set forth herein, is in accordance with the National Environmental Policy Act of 1969, as amended, and with applicable sections of 10 CFR Part 51, “Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions,” as referenced by Subpart A of 10 CFR Part 52, “Early Site Permits; Standard Design Certifications; and Combined Licenses for Nuclear Power Plants,” and all applicable requirements therein have been satisfied. The site redress plan incorporated into this permit demonstrates that there is reasonable assurance that redress carried out under the plan, if required, will achieve an environmentally stable and aesthetically acceptable site suitable for whatever non-nuclear use may conform with local zoning laws, and those activities performed described in the site redress plan will not result in any significant adverse environmental impact that cannot be redressed. The permit holder's request for the proposed permit was previously noticed in the
This early site permit complies with the standards and requirements of the Atomic Energy Act of 1954, as amended, and NRC's rules and regulations as set forth in 10 CFR Chapter I. Accordingly, Early Site Permit No. ESP-001 was issued to Exelon Generation Company, LLC on March 15, 2007, and is effective immediately.
The NRC has prepared a Safety Evaluation Report (SER) and Environmental Impact Statement (EIS),
These documents may also be viewed electronically on the public computers located at the NRC's Public Document Room (PDR), O 1 F21, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852. The PDR reproduction contractor will copy documents for a fee.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Notice of Issuance; Correction.
This document corrects a notice published in the
Beverly A. Clayton, Office of Nuclear Reactor Regulation, Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone: 301-415-3475, e-mail:
On page 11381, appearing near the bottom of the second column, the heading is corrected to read as above, and in the last line of the second column and the first line of the third column, “Florida Power and Light” is corrected to read “Florida Power Corporation.”
For the U.S. Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Notice of availability.
The U.S. Nuclear Regulatory Commission (NRC) is announcing the availability of the final interim staff guidance (ISG) document HLWRS-ISG-02, “Preclosure Safety Analysis—Level of Information and Reliability Estimation,” and NRC responses to the public comments received on that document. The ISG clarifies or refines the guidance provided in the Yucca Mountain Review Plan (YMRP) (NUREG-1804, Revision 2, July 2003). The YMRP provides guidance to NRC staff to evaluate a potential license application for a high-level radioactive waste at a geologic repository constructed or operated at Yucca Mountain (YM), Nevada.
The document HLWRS-ISG-02 is available electronically at NRC's Electronic Reading Room, at
This document may also be viewed electronically on the public computers located at NRC's PDR, Mail Stop: O-1F21, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852. The PDR reproduction contractor will copy documents, for a fee.
The following discussion indicates how the comments were addressed, and the changes, if any, made to ISG-02 as a result of the comments. Line numbers in the following comments refer to the draft HLWRS-ISG-02, ADAMS ML062360241, which was made available for public comment on September 29, 2006 (71 FR 57584).
ISG lines 62, 222, 254, and 272 have been revised to state that design bases and design criteria refer to SSCs that have been designated as ITS. ISG lines 239, 258, 263, and 266 have not been revised, because these lines refer to estimating the reliability of SSCs sufficient for performing the PCSA and identifying ITS SSCs, as per 63.112.
No changes to the ISG were made as a result of this comment.
The ISG has been revised as follows:
Line 41: Change “risk-significant” to “significant.”
Line 162: Delete “risk-significance or * * *”
No changes to the ISG were made as a result of this comment.
ISG line 89 has been revised to change “events” to “event sequences.”
No changes to the ISG were made as a result of this comment.
No changes to the ISG were made as a result of this comment.
ISG line 229 has been revised to add “and activities” after “procedures.”
The ISG has been revised to add the above approach after line 449. ISG line 451 has been revised to change “expected” to “estimated.” Also, ISG lines 432 and 489 have been similarly changed.
NRC does not agree that the sentence beginning on line 467 should be deleted, because it provides an example of a method to illustrate consideration of uncertainty. The 48-percent level of confidence is analogous to reporting the descriptive level of significance, which is often used in reporting the results of a test of a hypothesis.
According to the “Statement of Considerations” for Part 63, November 2, 2001 (66 FR 55742), the approach in the rule is to provide DOE with the flexibility to select the type of analysis it believes most appropriate for the license application. Whatever approach DOE uses will need to be supported, taking into account uncertainties. Therefore, analyses relying on point values (
NRC agrees that DOE can use the mean value of an event sequence frequency distribution to categorize an event sequence. However, DOE should to consider the uncertainty in any mean value used to categorize event sequences. In particular, DOE should to provide the technical bases for developing the event sequence frequency distribution, including consideration of uncertainties in performance of individual SSCs, the choice of distribution type, and the values of the parameters.
ISG lines 470-472 have been deleted, because these lines refer to the estimated conditional drop probability for a specific confidence level, which is not discussed in the ISG.
ISG line 592 has been revised to read as follows: “Design bases (
• Figure B-2 has been revised to include plots for all three demand values shown in Table B-3, and the caption has been revised to include “for three demand values”;
• Label for the ordinate axis has been changed from “Probability of Failure (x 10
• Line 622: The phrase, “ * * * which is traditionally defined as the limit state function” is added at the end of the sentence.
• Line 680: A new sentence, “Failure probabilities for various values of demand are shown in Figure B-2.” has been added;
• Lines 680-681: sentence has been revised to “Failure probabilities for various values of ratios of ASME
No changes to the ISG were made as a result of this comment.
ISG line 127 has been revised to change “(e.g., ≤10
ISG line 128 has been revised to delete “(e.g., ≤10
No changes to the ISG were made as a result of this comment.
No changes to the ISG were made as a result of this comment.
ISG lines 636-637 have been revised to delete “modulus of elasticity, dimensions, thermal expansion.”
In addition to the changes described above, the ISG has also been revised, as follows, for clarification:
Line 91: The sentence “DOE should identify the key SSCs in an event sequence.” was deleted because “key” SSCs is not formally defined; a new sentence to replace the deleted sentence has been added;
Line 446: The definition of λ (now p
Lines 445: Though 453: λ was changed to, to distinguish this quantity from λ, which often is used to indicate a rate in the Poisson distribution, and that the quantity is an estimate;
Line 622: Clarifying words were added.
Jon Chen, Project Manager, Division of High-Level Waste Repository Safety, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001 [Telephone: (301) 415-5526; fax number: (301) 415-5399; e-mail:
Robert Johnson, Senior Project Manager, Division of High-Level Waste Repository Safety, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001 [Telephone: (301) 415-6900; fax number: (301) 415-5399; e-mail:
For the Nuclear Regulatory Commission.,
Office of the United States Trade Representative.
Request for comments and notice of public hearing concerning a list of goods for which tariff concessions may be withdrawn and duties may be increased in the event the United States cannot reach agreement with the European Communities (EC) for adequate compensation owed under World Trade Organization (WTO) rules as a result of EU enlargement.
The United States is continuing to negotiate with the EU regarding the EU's provision of adequate and permanent compensation to the United States for an event that increased duties on U.S. imports to EU markets above WTO bound rates of duty. On January 1, 2007, as part of its enlargement process, the EU raised tariffs above bound rates on some imports into the countries of Romania and Bulgaria. If this issue is not resolved, the United States may seek to exercise its rights under Article XXVIII of the
Persons wishing to testify orally at the hearing must provide written notification of their intention, as well as a copy of their testimony, by noon on April 19, 2007. A hearing will be held in Washington, DC on Tuesday, April 24, 2007. Written comments are due by noon on Thursday, April 19, 2007.
Submissions by electronic mail to
For questions about procedural questions, contact Martez Higgins at (202) 395-4620. All other questions should be directed to: Laurie Molnar, Director for European Trade Issues, (202) 395-3320 or MaryEllen Smith, Director Agricultural Trade Policy, (202) 395-6127; Office of the United States Trade Representative.
Under WTO rules, the United States is entitled to compensation from the EU resulting from EU tariff changes as a result of EU enlargement. If agreement on compensation cannot be reached, the United States would be entitled to withdraw substantially equivalent concessions and apply increased duties on products of interest to the EU.
Whenever a foreign country withdraws, suspends, or modifies the application of trade agreement obligations of benefit to the United States without granting adequate compensation, the President is authorized under section 125(d) of the Trade Act of 1974 (19 U.S.C. 2135) to withdraw, suspend or modify the application of any substantially equivalent trade agreement obligations of benefit and proclaim under section 125(c) such increased duties or other import restrictions as are appropriate to effect adequate compensation. Section 125(c) authorizes the President to proclaim increased duties or other import restrictions as he deems necessary or appropriate in order to exercise the rights of the United States whenever the United States, acting in pursuance of its rights or obligations under certain trade agreements, withdraws, suspends or modifies any obligation with respect to foreign trade. Section 125(f) provides that the President, normally before taking any action under section 125 to withdraw, suspend, or modify trade agreement obligations or to increase duties, must provide for a public hearing, at which time interested persons will be given an opportunity to be present, to produce evidence, and to be heard.
Pursuant to section 125(c), any new tariff rates proclaimed by the President would not exceed 50 percent above the rate set forth in rate column numbered 2 of the Tariff Schedules of the United States, as in effect on January 1, 1975, or 20 percent
Pursuant to section 125(f) of the Trade Act of 1974 (19 U.S.C. 2135), the TPSC, chaired by the Office of the United States Trade Representative, has scheduled a public hearing beginning at 9 a.m. on Tuesday, April 24, 2007, in Rooms 1 and 2, 1724 F Street, NW., Washington, DC 20508. Further details on the hearing and submission of testimony is provided below. In lieu of or in addition to participation at the public hearing, parties may submit
Written comments and/or written or oral testimony of interested persons should be limited to the following issues: (1) The appropriateness of withdrawing WTO tariff concessions upon the products listed in the Annex to this notice; (2) the appropriateness of imposing increased duties upon the products listed in the Annex to this notice; (3) the levels at which U.S. customs duties should be set for particular items; and (4) the degree to which increased duties might have an adverse effect upon U.S. consumers of the products listed in the Annex.
Persons wishing to testify orally at the hearing must provide both a written notification of their intention and a copy of their testimony by noon on Thursday, April 19, 2007. The notification should include: (1) The name, address, and telephone number, fax number, and firm or affiliation of the person wishing to testify; (2) a short (one or two paragraph) summary of the oral presentation; and (3) list of goods of interest (including HTSUS numbers). Remarks at the hearing should be limited to no more than five minutes to allow for possible questions from the TPSC.
In order to facilitate prompt processing of submissions, the TPSC strongly urges and prefers electronic (e-mail) submissions in response to this notice. In the event that an e-mail submission is impossible, submissions should be made by facsimile.
Persons making submissions by e-mail should use the following subject line: “EU Enlargement” followed by (as appropriate) “Written Comments,” “Notice of Testimony,” or “Testimony.” Documents should be submitted as either Adobe PDF, WordPerfect, MSWord, or text (.TXT) files. Supporting documentation submitted as spreadsheets are acceptable as Quattro Pro or Excel. For any document containing business confidential information submitted electronically, the file name of the business confidential version should begin with the characters “BC-”, and the file name of the public version should begin with the characters “P-”. The “P-” or “BC-” should be followed by the name of the submitter. Persons who make submissions by e-mail should not provide separate cover letters; information that might appear in a cover letter should be included in the submission itself. Similarly, to the extent possible, any attachments to the submission should be included in the same file as the submission itself, and not as separate files.
Written comments, notices of testimony, and testimony will be placed in a file open to public inspection pursuant to 15 CFR 2003.5, except confidential business information exempt from public inspection in accordance with 15 CFR 2003.6. Confidential business information submitted in accordance with 15 CFR 2003.6 must be clearly marked “BUSINESS CONFIDENTIAL” at the top of each page, including any cover letter or cover page, and must be accompanied by a non-confidential summary of the confidential information. All public documents and non-confidential summaries shall be available for public inspection in the USTR Reading Room. The USTR Reading Room is open to the public, by appointment only, from 10 a.m. to 12 noon and 1 p.m. to 4 p.m., Monday through Friday. An appointment to review the file may be made by calling (202) 395-6186. Appointments must be scheduled at least 48 hours in advance.
General information concerning USTR may be obtained by accessing its Internet Web site (
RRB Form G-45, Supplement to Claim of Person Outside the United States, is currently used by the RRB to determine applicability of the withholding provision of Public Law 98-21. Completion of the form is required to obtain or retain a benefit. One response is requested of each respondent. The RRB estimates that 100 Form G-45s are completed annually. The completion time for Form G-45 is estimated at 10 minutes per response.
The RRB proposes no changes to Form G-45.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act” or “Exchange Act”)
The Exchange proposes to (1) amend Section 1003(g) of the Amex Company Guide to strengthen the procedures applicable to units when their components fall below continued listing standards and clarify the application of continued listing standards to individual components comprising units once some (but not all) of the units have separated into their component parts and (2) make minor, technical changes to Sections 1003(a), (c), (d) and (f) of the Amex Company Guide. The text of the proposal is available at Amex, at the Commission's Public Reference Room, and on Amex's Web site at
In its filing with the Commission, Amex 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, and the most significant aspects of such statements are set forth in Sections A, B, and C below.
Section 1003(g) of the Amex
The Exchange proposes to strengthen Section 1003(g) of the Amex
The Exchange also proposes to add language to Section 1003(g) to clarify the applicability of certain continued listing standards relating to components of units that have separated. When units in good standing begin to separate into their component securities, the remaining units that are still intact and the components of those units which have separated may all be separately listed and continue to trade, provided that they meet the applicable continued listing standards. The proposal specifies that, in determining whether a particular component meets the continued listing distribution standards set forth in Section 1003(b) of the
The Exchange will also consider suspending trading in, or removing from listing, an individual component or unit if the distribution values of such component or unit become so reduced as to make continued listing inadvisable and despite the fact that the aggregated distribution values satisfy the continued listing distribution standards. In its review of the advisability of the continued listing of an individual component or unit under such circumstances, the Exchange proposes to take into account the trading characteristics of the component or unit and whether it would be in the public interest for trading in such component or unit to continue. The Exchange believes that this proposal will enhance the transparency of its continued listing standards.
The Exchange also proposes to make technical revisions to Sections 1003(a), (c), (d) and (f) in order to consistently use the term “issuer” as opposed to “company.”
The proposed rule change is consistent with Section 6 of the Act,
The Exchange does not believe that the proposed rule change would impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange did not receive any 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, 100 F Street, NE., Washington, DC 20549-1090.
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, as amended (the “Act”)
The Exchange proposes to amend (i) Section 341 of the Amex Company Guide to clarify the circumstances under which a listed issuer will be deemed to have engaged in a reverse merger thereby requiring the post-transaction entity to satisfy the initial listing standards and the process a listed issuer must follow when applying for initial listing in connection with a reverse merger and (ii) Section 713 of the Amex Company Guide to require shareholder approval in connection with the issuance or potential issuance of additional listed securities that will result in a change of control of a listed issuer.
The text of the proposed rule change is available on the Amex's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
Section 341 of the Amex Company Guide currently provides that if an issuer listed on the Amex engages in any plan of acquisition, merger or consolidation, the net effect of which is that the listed issuer is acquired by an unlisted entity, even if the listed issuer is the nominal survivor, the post-transaction entity is required to satisfy the initial listing standards. Such transactions are typically referred to as “Reverse Mergers.” Because the issuer resulting from a Reverse Merger is essentially a different entity from the listed issuer, Section 341 does not permit the post-transaction entity to remain listed on the Amex unless it qualifies as a new listing. This prohibition is intended to prevent “back door listings” whereby an unqualified entity attempts to obtain an Amex listing. Both the New York Stock Exchange LLC (“NYSE”)
Many Reverse Mergers are entered into for bona fide business reasons, however, in some cases listed issuers that are not in compliance with the continued listing standards, and face potential delisting, attempt to enter into Reverse Mergers with private entities in order to retain their Amex listing. In other situations, a listed issuer may be in compliance with the continued listing standards but the post-transaction entity would not satisfy the initial listing standards. In both of these cases, a change of control occurs but the listed issuer attempts to structure the transaction so that it will not be deemed a Reverse Merger under the current rule.
The Exchange proposes amending Section 341 to provide greater clarity and transparency as to (i) what constitutes a Reverse Merger, (ii) the factors the Exchange will consider in determining whether a transaction or series of transactions constitute(s) a Reverse Merger, (iii) the consequences of entering into a Reverse Merger and (iv) the process a listed issuer must follow in connection with a Reverse Merger. The proposed rule change will provide that, in addition to meeting the initial listing standards, a listed company entering into a Reverse Merger will need to obtain shareholder approval in accordance with Section 713 in order to issue additional listed securities in connection with such Reverse Merger. In addition, while the determination of whether a Reverse Merger has occurred or will occur is to some degree subjective, the Exchange proposes to amend Section 341 to more clearly delineate the factors that will be considered by the Exchange in its analysis of a transaction.
With regards to the process to be followed by listed issuers in connection with Reverse Mergers, Section 341
In association with the proposed changes to Section 341, the Exchange also proposes to amend Section 713. Section 713 currently requires shareholder approval as a prerequisite to Exchange approval of applications to list additional shares issued in connection with a transaction (other than a public offering) which would involve the application of the initial listing standards as described in Section 341. The Exchange proposes revising Section 713 to require shareholder approval as a prerequisite to Exchange approval of additional listing applications when the issuance or potential issuance of additional securities will result in a change of control of a listed issuer, regardless of whether such change of control also constitutes a Reverse Merger. Additionally, the Exchange proposes changes to Sections 341 and 713 to clarify the relationship between their respective requirements. Both NYSE
The proposed rule change is consistent with Section 6(b) of the Act,
The proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. Instead, the Exchange believes that the proposed rule change will promote greater uniformity with the listing standards of other markets.
No written comments were solicited or received with respect to 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, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission by the Division of Market Regulation, pursuant to delegated authority.
On October 26, 2006, the Boston Stock Exchange, Inc. (“BSE”) filed with the Securities and Exchange Commission (“Commission”) proposed rule change SR-BSE-2006-46 pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”).
The Direct Registration System (“DRS”) allows an investor to establish either through the issuer's transfer agent or through the investor's broker-dealer a book-entry position on the books of the issuer and to electronically transfer her position between the transfer agent and the broker-dealer of her choice through a facility currently administered by The Depository Trust Company (“DTC”).
Investors holding their securities in DRS retain the rights associated with securities certificates, including such rights as control of ownership and voting rights, without having the responsibility of holding and safeguarding securities certificates. In addition, in corporate actions such as reverse stock splits and mergers, cancellation of old shares and issuance of new shares are handled electronically with no securities certificates to be returned to or received from the transfer agent.
BSE believes that DRS will be an important step in reducing the use of securities certificates, which should facilitate transfers in securities and could eventually lead to lower risks and costs for issuers and investors.
In order for a security to be eligible for the only DRS in operation today, the issuer is required to use a transfer agent that meets certain insurance and connectivity requirements.
Section 6(b)(5) of the Act requires, among other things, that the rules of an exchange be designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in regulating, clearing, settling, processing information with respect to, and facilitating transactions in securities, to remove impediments to perfect the mechanism of a free and open market and a national market system, and in general to protect investors and the public interest.
The use of securities certificates has long been identified as an inefficient and risk-laden mechanism by which to hold and transfer ownership.
Consistent with its Congressional directives and in its efforts to improve efficiencies and decrease risks associated with processing securities transactions, the Commission has long advocated a reduction in the use of certificates in the trading environment by immobilization or dematerialization of securities and has encouraged the use of alternatives to holding securities in certificated form. Among other things, the Commission has approved the rule filings of self-regulatory organizations that require their members to use the facilities of a securities depository for the book-entry settlement of all transactions in depository-eligible securities
While the U.S. markets have made great progress in immobilization and dematerialization for institutional and broker-to-broker transactions, many industry representatives believe that the small percentage of securities held in certificated form (held mostly by retail investors) impose unnecessary risk and disproportionately large expense to the industry and to investors. In an attempt to help address this issue, BSE's rule change, along with those of the NYSE, Amex, Nasdaq, NYSE Arca, Phlx, and CHX, should help expand the use of DRS. As a result, risks, costs, and processing inefficiencies associated with the use of securities certificates should be reduced, and impediments to the perfection of the national market system should be removed. Additionally, those investors holding securities in listed securities certificates covered by the rule change that decide to hold their securities in DRS should realize the benefits of more accurate, quicker, and more cost-efficient transfers; faster distribution of sale proceeds; reduced number of lost or stolen certificates and a reduction in the associated certificate replacement costs; and consistency of owning in book-entry across asset classes.
The Commission realizes that some issuers and transfer agents may bear expenses related to complying with the rule change. In order to make an issue DRS-eligible, issuers of listed companies must have a transfer agent which is a DRS Limited Participants and may need to amend their corporate governing documents to permit the issuance of book-entry shares. The Commission believes, however, that the long-term benefits of increased efficiencies and reduced costs and risks afforded by DRS outweigh the costs that some issuers and transfer agents may incur. Furthermore, the time frames built into the proposal should allow issuers and their transfer agents sufficient time to make any necessary changes to comply with the rule change.
While the rule change should significantly reduce the number of transactions in securities for which settlement is effected by the physical delivery of securities certificates, it will not eliminate the ability of investors to obtain securities certificates provided the issuer has chosen to issue certificates. Such investors can continue to contact the issuer's transfer agent, either directly or through their broker-dealer, to obtain a securities certificate.
Accordingly, for the reasons stated above the Commission finds that the rule change is consistent with BSE's obligation under Section 6(b) of the Act to foster cooperation and coordination with persons engaged in regulating, clearing, settling, processing information with respect to, and facilitating transactions in securities, to remove impediments to perfect the mechanism of a free and open market and a national market system, and in general to protect investors and the public interest.
On the basis of the foregoing, the Commission finds that the proposed rule change is consistent with the requirements of the Act and in particular with the requirements of Section 6(b)(5) of the Act and the rules and regulations thereunder. It is therefore ordered, pursuant to Section 19(b)(2) of the Act, that the proposed rule change (File No. SR-BSE-2006-46) be and hereby is approved.
For the Commission by the Division of Market Regulation, pursuant to delegated authority.
On October 30, 2006, the Chicago Stock Exchange, Inc. (“CHX”) filed with the Securities and Exchange Commission (“Commission”) proposed rule change SR-CHX-2006-33 pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”).
The Direct Registration System (“DRS”) allows an investor to establish either through the issuer's transfer agent or through the investor's broker-dealer a book-entry position on the books of the issuer and to electronically transfer her position between the transfer agent and the broker-dealer of her choice through a facility currently administered by The Depository Trust Company (“DTC”).
Investors holding their securities in DRS retain the rights associated with securities certificates, including such rights as control of ownership and voting rights, without having the responsibility of holding and safeguarding securities certificates. In addition, in corporate actions such as reverse stock splits and mergers, cancellation of old shares and issuance of new shares are handled electronically with no securities certificates to be returned to or received from the transfer agent.
To reduce the number of transactions in securities for which settlement is effected by the physical delivery of securities certificates to and reduce the risks, costs, and delays associated with the physical processing of securities certificates, the CHX is amending its listing standards by adding paragraph (h) to Rule 1
CHX understands that issuers and transfer agents may incur initial costs when making an issue DRS-eligible. As an initial matter, the issuer must have a transfer agent that is a DRS Limited Participant.
Section 6(b)(5) of the Act requires, among other things, that the rules of an exchange be designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in regulating, clearing, settling, processing information with respect to, and facilitating transactions in securities, to remove impediments to perfect the mechanism of a free and open market and a national market system, and in general to protect investors and the public interest.
The use of securities certificates has long been identified as an inefficient and risk-laden mechanism by which to hold and transfer ownership.
Consistent with its Congressional directives and in its efforts to improve efficiencies and decrease risks associated with processing securities transactions, the Commission has long advocated a reduction in the use of certificates in the trading environment by immobilization or dematerialization of securities and has encouraged the use of alternatives to holding securities in certificated form. Among other things, the Commission has approved the rule filings of self-regulatory organizations that require their members to use the facilities of a securities depository for the book-entry settlement of all transactions in depository-eligible securities
While the U.S. markets have made great progress in immobilization and dematerialization for institutional and broker-to-broker transactions, many industry representatives believe that the small percentage of securities held in certificated form (held mostly by retail investors) impose unnecessary risk and disproportionately large expense to the industry and to investors. In an attempt to help address this issue, CHX's rule change, along with those of the NYSE, Amex, Nasdaq, NYSE Arca, BSE, and Phlx, should help expand the use of DRS. As a result, risks, costs, and processing inefficiencies associated with the use of securities certificates should be reduced, and impediments to the perfection of the national market system should be removed. Additionally, those investors holding securities in listed securities certificates covered by the rule change that decide to hold their securities in DRS should realize the benefits of more accurate, quicker, and more cost-efficient transfers; faster distribution of sale proceeds; reduced number of lost or stolen certificates and a reduction in the associated certificate replacement costs; and consistency of owning in book-entry across asset classes.
The Commission realizes that some issuers and transfer agents may bear expenses related to complying with the rule change. In order to make an issue DRS-eligible, issuers of listed companies must have a transfer agent which is a DRS Limited Participants and may need to amend their corporate governing documents to permit the issuance of book-entry shares. The Commission believes, however, that the long-term benefits of increased efficiencies and reduced costs and risks afforded by DRS outweigh the costs that some issuers and transfer agents may incur. Furthermore, the time frames built into the proposal should allow issuers and their transfer agents sufficient time to make any necessary changes to comply with the rule change.
While the rule change should significantly reduce the number of transactions in securities for which settlement is effected by the physical delivery of securities certificates, it will not eliminate the ability of investors to obtain securities certificates provided the issuer has chosen to issue certificates. Such investors can continue to contact the issuer's transfer agent, either directly or through their broker-dealer, to obtain a securities certificate. Accordingly, for the reasons stated above the Commission finds that the rule change is consistent with CHX's obligation under Section 6(b) of the Act to foster cooperation and coordination with persons engaged in regulating, clearing, settling, processing information with respect to, and facilitating transactions in securities, to remove impediments to perfect the mechanism of a free and open market and a national market system, and in general to protect investors and the public interest.
On the basis of the foregoing, the Commission finds that the proposed rule change is consistent with the requirements of the Act and in particular with the requirements of Section 6(b)(5) of the Act and the rules and regulations thereunder. It is therefore ordered, pursuant to Section 19(b)(2) of the Act, that the proposed rule change (File No. SR-CHX-2006-33) be and hereby is approved.
For the Commission by the Division of Market Regulation, pursuant to delegated authority.
On October 31, 2006, the Philadelphia Stock Exchange, Inc. (“Phlx”) filed with the Securities and Exchange Commission (“Commission”) and on November 14, 2006, amended proposed rule change SR-Phlx-2006-69 pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”).
The Direct Registration System (“DRS”) allows an investor to establish either through the issuer's transfer agent or through the investor's broker-dealer a book-entry position on the books of the issuer and to electronically transfer her position between the transfer agent and the broker-dealer of her choice through a facility currently administered by The Depository Trust Company (“DTC”).
Investors holding their securities in DRS retain the rights associated with securities certificates, including such rights as control of ownership and voting rights, without having the responsibility of holding and safeguarding securities certificates. In addition, in corporate actions such as reverse stock splits and mergers, cancellation of old shares and issuance of new shares are handled electronically with no securities certificates to be returned to or received from the transfer agent.
In order to reduce the risks, costs, and delays associated with the use of securities certificates, new Phlx Rule 868 will require that certain securities be eligible for DRS.
Rule 868 will also require that on or after January 1, 2008, all securities listed on the Phlx must be eligible for a DRS operated by a securities depository. This provision will not extend to derivative products or securities (other than stocks) that are book-entry-only.
Issuers and their transfer agents may incur initial costs when making an issue DRS-eligible as required by this rule change. In order to make a security DRS-eligible, the issuer must have a transfer agent which is a DRS Limited Participant at DTC.
Section 6(b)(5) of the Act requires, among other things, that the rules of an exchange be designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in regulating, clearing, settling, processing information with respect to, and facilitating transactions in securities, to remove impediments to perfect the mechanism of a free and open market and a national market system, and in general to protect investors and the public interest.
The use of securities certificates has long been identified as an inefficient and risk-laden mechanism by which to hold and transfer ownership.
Consistent with its Congressional directives and in its efforts to improve efficiencies and decrease risks associated with processing securities transactions, the Commission has long advocated a reduction in the use of certificates in the trading environment by immobilization or dematerialization of securities and has encouraged the use of alternatives to holding securities in certificated form. Among other things, the Commission has approved the rule filings of self-regulatory organizations that require their members to use the facilities of a securities depository for the book-entry settlement of all transactions in depository-eligible securities
While the U.S. markets have made great progress in immobilization and dematerialization for institutional and broker-to-broker transactions, many industry representatives believe that the small percentage of securities held in certificated form (held mostly by retail investors) impose unnecessary risk and disproportionately large expense to the industry and to investors. In an attempt to help address this issue, Phlx's rule change, along with those of the NYSE, Amex, Nasdaq, NYSE Arca, BSE, and CHX, should help expand the use of DRS. As a result, risks, costs, and processing inefficiencies associated with the use of securities certificates should be reduced, and impediments to the perfection of the national market system should be removed. Additionally, those investors holding securities in listed securities certificates covered by the rule change that decide to hold their securities in DRS should realize the benefits of more accurate, quicker, and more cost-efficient transfers; faster distribution of sale proceeds; reduced number of lost or stolen certificates and a reduction in the associated certificate replacement costs; and consistency of owning in book-entry across asset classes.
The Commission realizes that some issuers and transfer agents may bear expenses related to complying with the rule change. In order to make an issue DRS-eligible, issuers of listed companies must have a transfer agent which is a DRS Limited Participants and may need to amend their corporate governing documents to permit the issuance of book-entry shares. The Commission believes, however, that the long-term benefits of increased efficiencies and reduced costs and risks afforded by DRS outweigh the costs that some issuers and transfer agents may incur. Furthermore, the time frames built into the proposal should allow issuers and their transfer agents sufficient time to make any necessary changes to comply with the rule change.
While the rule change should significantly reduce the number of transactions in securities for which settlement is effected by the physical delivery of securities certificates, it will not eliminate the ability of investors to obtain securities certificates provided the issuer has chosen to issue certificates. Such investors can continue to contact the issuer's transfer agent, either directly or through their broker-dealer, to obtain a securities certificate.
Accordingly, for the reasons stated above the Commission finds that the rule change is consistent with Phlx's obligation under Section 6(b) of the Act to foster cooperation and coordination with persons engaged in regulating, clearing, settling, processing information with respect to, and facilitating transactions in securities, to remove impediments to perfect the mechanism of a free and open market and a national market system, and in general to protect investors and the public interest.
On the basis of the foregoing, the Commission finds that the proposed rule change is consistent with the requirements of the Act and in particular with the requirements of Section 6(b)(5) of the Act and the rules and regulations thereunder.
For the Commission by the Division of Market Regulation, pursuant to delegated authority.
The U.S. Small Business Administration Buffalo District Advisory Council located in the geographical area of Buffalo, New York, will hold a public Federal advisory meeting on Wednesday, April 18, 2007, starting at 10 a.m. EST.
The meeting will take place at the SBA Disaster Assistance Customer Service Center, located at 130 S. Elmwood Avenue, 5th Floor, Buffalo, New York.
Anyone wishing to make an oral presentation to the Board must contact Franklin J. Sciortino, District Director, Buffalo District Office, in writing by letter or fax no later than Friday, March 30, 2007, in order to be put on the agenda. Franklin J. Sciortino, District Director, Buffalo District Office, U.S. Small Business Administration, Niagara Center, 540 Niagara Center, 130 S. Elmwood Avenue, Buffalo, New York 14202; telephone (716) 551-4301 or fax (716) 551-4418.
All delegation members must be United States citizens. Expressions of interest and a description of what company or organization the interested person represents and his/her area of expertise should be sent to Anne Jillson, International Communications and Information Policy, Department of State. Her e-mail address is
Expressions of interest should be received no later than April 10, 2007.
The Shipping Coordinating Committee (SHC) will conduct an open meeting at 9:30 a.m. on Thursday, April 5, 2007, in Room 6103 of the United States Coast Guard Headquarters Building, 2100 Second Street, SW., Washington, DC 20593-0001. The primary purpose of the meeting is to prepare for the 11th session of the International Maritime Organization's Sub-Committee on Bulk Liquids and Gases (BLG) to be held at the Royal Horticultural Halls and Conference Centre, 80 Vincent Square, London, England from April 16th to April 20th, 2007.
The primary matters to be considered include:
Hard copies of documents associated with the 11th session of BLG will be available at this meeting. To request further copies of documents please write to the address provided below.
Members of the public may attend this meeting up to the seating capacity of the room. Interested persons may seek information by writing to Mr. Thomas Felleisen, Commandant (CG-3PSO-3), U.S. Coast Guard Headquarters, 2100 Second Street, SW., Room 1214, Washington, DC 20593-0001 or by calling (202) 372-1424.
Department of State.
Notice.
A determination has been made to waive permanently the import sanction against certain activities of the Chinese government that was announced on September 19, 2003, pursuant to the Arms Export Control Act, as amended.
Pam Durham, Office of Missile Threat Reduction, Bureau of International Security and Nonproliferation, Department of State (202-647-4931).
A determination was made on September 13, 2006, pursuant to section 73(e) of the Arms Export Control Act (22 U.S.C. 2797b(e)), that it was essential to the national security of the United States to waive for an additional six months the import sanction described in Section 73(a)(2)(C) of the Arms Export Control Act (22 U.S.C. 2797b(a)(2)(C)) against the activities of the Chinese government described in section 74(a)(8)(B) of the Arms Export Control Act (22 U.S.C. 2797c(a)(8)(B))—activities of the Chinese government relating to the development or production of any missile equipment or technology and activities of the Chinese government affecting the development or production of electronics, space systems or equipment, and military aircraft (see
On March 12, 2007, a determination was made pursuant to section 73(e) of the Arms Export Control Act (22 U.S.C. 2797b(e)) that it is essential to the national security of the United States to waive permanently the sanctions, effective from the date of expiration of the previous waiver (March 18, 2007).
These measures shall be implemented by the responsible agencies as provided in Executive Order 12851 of June 11, 1993.
Federal Aviation Administration, DOT.
Notice; correction.
The FAA is issuing a correction to the Notice published in the
Mr. Kendall Ball (
In FR Doc. No. FAA-2007-23639 published on March 7, 2007 (72 FR 10292) make the following correction:
On Page 10292, in the subject correct “Fiscal Year 2006” to read “Fiscal Year 2007”.
Federal Aviation Administration (FAA), DOT.
Notice of commercial space transportation advisory committee open meeting.
Pursuant to Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C. App. 2), notice is hereby given of a meeting of the Commercial Space Transportation Advisory Committee (COMSTAC). The meeting will take place on Friday, May 18, 2007, starting at 8 a.m. at the Federal Aviation Administration Headquarters Building, 800 Independence Avenue, SW., Washington, DC, in the Bessie Coleman Conference Center, located on the 2nd Floor. This will be the forty-fifth meeting of the COMSTAC.
The proposed agenda for the meeting will feature the release of and briefings on the 2007 Commercial Space Transportation Forecasts, a special presentation, a report on activities in FAA's Office of Commercial Space Transportation (AST), and COMSTAC Working Group reports. An agenda will be posted on the FAA Web site at
Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should inform the Contact Person listed below in advance of the meeting.
Brenda Parker (AST-100), Office of the Commercial Space Transportation, 800 Independence Avenue, SW., Room 331, Washington, DC 20591, telephone (202) 267-3674; E-mail
Federal Highway Administration (FHWA), DOT.
Notice and request for comments.
The FHWA has forwarded the information collection request described in this notice to the Office of Management and Budget (OMB) for approval of a new information collection. We published a
Please submit comments by April 23, 2007.
You may send comments within 30 days to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW., Washington, DC 20503, Attention DOT Desk Officer. You are asked to comment on any aspect of this information collection, including: (1) Whether the proposed collection is necessary for the FHWA's performance; (2) the accuracy of the estimated burden; (3) ways for the FHWA to enhance the quality, usefulness, and clarity of the collected information; and (4) ways that the burden could be minimized, including the use of electronic technology, without reducing the quality of the collected information. All comments should include the Docket number FHWA-2007-27627.
Marshall Wainright, 202-366-4842, Office of Real Estate Services, Federal Highway Administration, Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590. Office hours are from 7:30 a.m. to 4 p.m., Monday through Friday, except Federal holidays.
The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended; and 49 CFR 1.48.
Federal Highway Administration (FHWA), DOT.
Notice of Intent.
The FHWA is issuing this notice to advise the public that an environmental impact statement (EIS) will be prepared for a proposed multi-modal transportation improvement project in Charles and Prince George's Counties, Maryland. The purpose of the EIS is to provide information and analyses for decisions on the project in accordance with the policies and purposes of the National Environmental Policy Act.
Mr. Daniel W. Johnson, Environmental Program Manager, Federal Highway Administration, City Crescent Building, 10 South Howard Street, Suite 2450, Telephone: (410) 779-7154.
The FHWA, in cooperation with the Maryland State Highway Administration, U.S. Army Corps of Engineers, and the U.S. Environmental Protection Agency will prepare an environmental impact statement (EIS) to improve mobility and safety along the U.S. 301 corridor in the Waldorf area of Charles and Prince George's Counties for a distance of approximately 13 miles.
Existing and projected growth in population and development is creating traffic congestion in southern Maryland along existing US 301 between US 301/MD 5 Interchange at T.B. and Turkey Hill Road/Washington Avenue. The local roadway network will reach capacity and will be uanble to accommodate this increased travel demand. Improvements within the corridor will address safety problems and accommodate existing and projected travel demand.
Alternatives under consideration include (1) taking no action (2) widening the existing US 301 roadway (3) constructing a limited access highway on new location. Transit components and transportation system management/travel demand management (TSM/TDM) strategies would be incorporated with all of the proposed alternatives. The study will include an overview of future corridor preservation needs southward from the proposed improvement study limits.
Letters describing the proposed action and soliciting comments will be sent to appropriate Federal, State, local agencies, private organizations, and citizens who have previously expressed or are known to have an interest in this project. Public involvement will be solicited through the project development process. A series of Public Workshops is scheduled for March 2007. Subsequently, a Public Hearing is anticipated for early 2008. The Draft EIS will be available for public and agency review and comment prior to the Public Hearing. Public notice will be given of the time and place of these meetings and the availability of the Draft EIS for review.
To ensure that the full range issues related to this proposed action are addressed and all significant issues identified, comments and suggestion are invited from all interested parties. Comments or questions concerning these proposed actions and EIS should be directed to the FHWA at the address provided above.
Federal Highway Administration (FHWA), DOT.
Notice of funding availability.
The purpose of this notice is to solicit applications for Federal grant funding and to issue supplemental notice and information to eligible grantees concerning discretionary grant funds available for obligation in Fiscal Year 2007 under eight discretionary grant programs administered by FHWA. It seeks applications (either new or amended) to the programs that both meet the programs' respective statutory criteria and emphasize the proposed projects' highway safety and congestion reduction benefits. The FHWA will make its funding determinations through a merit-based selection process.
This notice applies to the following programs: the Ferry Boat Discretionary Program (23 U.S.C. 147), the Innovative Bridge Research and Construction Program (23 U.S.C. 503(b)), the Interstate Maintenance Discretionary Program (23 U.S.C. 118(c)), Public Lands Highway Discretionary Program (23 U.S.C. 202-204), the Highways for Life Pilot (HfL) Program (§ 1502 of Pub. L. 109-59), the Transportation Community and System Preservation Program (§ 1117 of Pub. L. 109-59), the Truck Parking Facilities Pilot Program (§ 1305 of Pub. L. 109-59), and the Delta Region Transportation Development Program (§ 1308 of Pub. L. 109-59).
Applications must be submitted by April 30, 2007, unless otherwise specified (see
Applications should be submitted electronically in MS Word format by eligible applicants, generally State transportation departments, by following the instructions provided under the Supplemental Action Memoranda issued by FHWA to the State DOTs for the above-referenced discretionary programs. The Supplemental Action Memoranda for the various discretionary programs are posted on the FHWA Web site:
Please address questions concerning this notice to Steve Rochlis, Office of Chief Counsel, Federal Highway Administration, U.S. Department of Transportation, via e-mail at
The FHWA Administrator, acting on behalf of the Secretary, is authorized to provide Federal grant assistance for the above programs on a discretionary basis, and is seeking applications for the Ferry Boat Discretionary Program, the Innovative Bridge Research and Construction Program, the Interstate Maintenance Discretionary Program, the Public Lands Highway Discretionary Program, the Highways for Life Pilot Program, the Transportation Community and System Preservation Program, the Truck Parking Facilities Pilot Program, and the Delta Region Transportation Development Program. This notice supplements FHWA's requests for applications to all eight discretionary programs. It seeks applications (either new or amended) to the programs that both meet the programs' respective statutory criteria and emphasize the proposed projects' highway safety and congestion reduction benefits.
In a 1999 report (GAO/RCED 99-263 “Transportation Infrastructure—FHWA Should Assess and Compare the Benefits of Projects When Awarding Discretionary Grants”), the Government Accountability Office (GAO) found that FHWA's process for considering applications for discretionary grants did not sufficiently emphasize a comparative analysis of the projects' transportation benefits. In the report, GAO urged FHWA to do more such analysis, and to ensure that FHWA funds projects that provide the greatest transportation benefits. To address the concerns outlined in the GAO report, as well as others raised during an internal review, FHWA has decided to be more strategic in its FY 2007 discretionary grant awards process by targeting its resources toward projects that provide the greatest benefits. FHWA is particularly focusing on projects with substantial benefits related to either highway safety or congestion relief and invites application of large-scale high-cost projects that provide strategic and substantial safety or congestion reduction benefits within the particular discretionary grant program.
Highway safety has been an increasing focus and priority for FHWA over the recent past. Targeting discretionary funding in a results-oriented comprehensive approach to safety is a means of directing limited discretionary funding to those projects that will yield tangible transportation and safety benefits. Improving highway safety is achieved most effectively through a comprehensive approach which integrates the “4Es” of safety: Engineering, Education, Enforcement, and Emergency Medical Systems. It allows safety professionals to consider the full range of safety tools to address problems, make the choice based on the most effective countermeasure, and implement strategies that may require not only an engineering fix but also targeted enforcement and greater public awareness.
Highway fatalities totaled 43,443 on our Nation's highways in 2005, up from 42,836 in 2004; according to the Fatality Analysis Reporting System (FARS). The rate of highway fatalities, measured in terms of deaths per 100 million vehicle miles traveled has remained relatively constant over the past several years at approximately 1.45; failing to maintain a steady decline in the 2000's as was seen over the previous 3 decades or more. If the fatality rate remains at the current level, the Nation would experience nearly 50,000 deaths a year by the end of this decade. In addition to the tragedy of lives lost and millions of serious injuries sustained, the economic impact to the Nation is enormous.
According to a study conducted by the National Highway Traffic Safety Administration, it is estimated that current levels of highway crashes have an annual economic impact of over $230 billion (in year 2000 dollars) in the United States,
Improving highway safety is achieved most effectively through a comprehensive approach which integrates the “4Es” of safety: Engineering, Education, Enforcement, and Emergency Medical Systems. It allows safety professionals to consider the full range of safety tools to address problems, make a choice based on the most effective countermeasure, and implement strategies that may require not only engineering solutions, but also targeted enforcement and greater public awareness.
Highway design, the infrastructure side of the engineering “E” of safety, also plays a significant role. The FHWA is focusing resources on three major crash types to improve infrastructure safety:
Transportation system congestion is one of the single largest threats to U.S. economic prosperity and the American way of life. In response to the challenges of congestion, in May 2006 the Department of Transportation established the
Traffic congestion affects people in nearly every aspect of their daily lives—where they live, where they work, where they shop, and how much they pay for goods and services. According to 2003 figures, in certain metropolitan areas the average rush hour driver loses as many as 93 hours per year to travel delay—the equivalent of more than two weeks of work that amounts annually to a “congestion tax” as high as $1,598 per traveler in wasted time and fuel.
Nationally, in a 2005 survey conducted by the National League of Cities, 35% of U.S. citizens reported traffic congestion as the most deteriorated living condition in their cities over the past five years; 85% responded that traffic congestion was as bad as, or worse than, it was in the previous year.
A variety of transportation policies and investments serve to reduce congestion, including design, engineering, operational and technological improvements. The most important—albeit often misunderstood—congestion reduction measure is congestion pricing. Congestion pricing leverages the principles of supply and demand to manage traffic. It does this by charging drivers a user fee that varies by traffic volume (or as a proxy for volume—by time of day), thus managing highway resources in a manner that promotes free-flow traffic conditions on highways virtually twenty-four hours per day. Congestion pricing achieves free-flow conditions by shifting rush hour highway travel to other transportation modes or routes or to off-peak periods, taking particular advantage of the fact that many rush hour drivers on typical urban highways are not commuters. By removing a fraction of the vehicles from a congested rush hour roadway, pricing enables the system to flow much more efficiently, allowing more cars to move through the same physical space. Similar variable charges have been successfully utilized in other industries (on airline tickets, cell phone rates, and electricity, for example), and there is a consensus among economists that congestion pricing represents the single most viable approach to reducing traffic congestion.
Congestion pricing is no longer simply a theory; it has demonstrated positive results both here in the U.S. and around the world. Successful American applications of congestion pricing include California's SR-91 between Anaheim and Riverside, portions of I-15 outside of San Diego, and Express Lanes on I-394 between downtown Minneapolis and the western suburbs. The pricing of each of these facilities has enabled congestion-free rush hour commuting and proven popular with drivers of all income levels. Internationally, congestion pricing has yielded dramatic reductions in traffic congestion and increases in travel speeds in Singapore, London, and Stockholm. Notably, a small reduction in vehicles can yield dramatic improvements in traffic, as demonstrated by a British study, which projected that a 9% drop in traffic could yield a 52% drop in congestion delay.
In all its forms, congestion pricing benefits drivers and businesses by reducing delays and stress, increasing the predictability of trip times, and allowing for more deliveries per hour. It benefits public transportation by improving transit speeds and the reliability of transit service, increasing transit ridership and lowering costs per traveler for transit providers. State and local governments benefit by improving the quality of transportation services without tax increases or large capital
Beyond pricing, technological advancements may be deployed to reduce urban congestion by improving system operations and safety. Examples of technological innovations that may help reduce congestion include:
•
•
•
Discretionary grant applications to any of the programs must be responsive to each program's specific statutory criteria. However, in addition to those criteria, the applicant should provide further description of the highway safety and congestion reduction benefits of the project, as follows:
1.
• Will result in a measurable reduction in the loss of property, injury, or life;
• Incorporates innovative safety design or operational techniques, including variable pricing for congestion reduction, electronic tolling, barrier systems, and intersection-related enhancements;
• Incorporates innovative construction work zone strategies to improve safety;
• Is located on a rural road that is in need of priority attention based on analysis of safety experience; and/or
• Is located in an urban area of high injury or fatality, and is an initiative to improve the design, operation or other aspect of the existing facility that will result in a measurable safety improvement.
2.
• Relieves congestion in an urban area or along a major transportation corridor;
• Employs operational and technological improvements that promote safety and congestion relief; and/or
• Addresses major freight bottlenecks.
In keeping with the Department's emphasis on congestion reduction, the Department has issued a number of other solicitations related to the Congestion Initiative. The Department encourages applicants to coordinate their responses to this Notice with any applications submitted in response to the solicitations listed below. Applicants that also apply for funding under the Urban Partnership Agreement Program (see (1) below), Intelligent Transportation System Operational Testing to Mitigate Congestion Program (see (2) below), Value Pricing Pilot Program (see (3) below), and/or Corridors of the Future Program (see (4) below) must respond separately to each solicitation from which they seek funding. However, the Department will give priority consideration in its funding decisions to parties designated as either Urban Partners or Corridors of the Future.
The related solicitations are:
(1)
(2)
(3)
(4) In addition to these solicitations, the DOT's new “Corridors of the Future Program” (CFP) is part of the Congestion Initiative, and is specifically designed to accelerate the development of multi-State, and possibly multi-use, transportation corridors to help reduce congestion. The primary goal of the CFP is to encourage States to leverage public and private resources to develop innovative national and regional approaches to reducing congestion, increase freight system reliability and enhance the quality of life for U.S. citizens. The CFP contributes to the objectives of the DOT corridor programs by specifically working with multi-State coalitions to identify innovative funding sources for corridors of national and regional significance in need of investment and improved operations for the purpose of reducing congestion. Eligible CFP public and private sector entities should work with their State DOT to identify and submit appropriate candidate applications for discretionary grant fund allocations under the discretionary programs discussed herein.
For more information on the DOT Congestion Initiative, please refer to
Applications for discretionary projects were generally solicited through FHWA Division offices to the State DOTs in early January 2007, with a deadline of March 30, 2007. This solicitation extends the deadline to April 30, 2007, except for the HfL program, which shall close two weeks after the publication of this notice. By this notice, and by the dissemination of the Supplemental Action Memoranda for the discretionary programs, the FHWA is issuing new notices amending prior notices and re-soliciting applications for these programs in accordance with their statutory criteria under a merit based selection process. This notice also clarifies that project applications should specify safety and congestion reduction benefits associated with the project, improvement, or activity. The amended grant application procedures are posted at
The Administrator, acting on behalf of the Secretary, may amend, revise, waive or modify the terms for funding set forth in this notice at any time.
23 U.S.C. 315.
Office of Foreign Assets Control, Treasury.
Notice.
The Treasury Department's Office of Foreign Assets Control (“OFAC”) is publishing the names of six newly-designated individuals whose property and interests in property are blocked pursuant to Executive Order 13405 of June 16, 2006, “Blocking Property of Certain Persons Undermining Democratic Processes or Institutions in Belarus.”
The designation by the Director of OFAC of six individuals identified in this notice, pursuant to Executive Order 13405, is effective on February 27, 2007.
Assistant Director, Compliance Outreach & Implementation, Office of Foreign Assets Control, Department of the Treasury, 1500 Pennsylvania Avenue, NW. (Treasury Annex), Washington, DC 20220, Tel.: 202/622-2490.
Information about this designation and additional information concerning OFAC are available from OFAC's Web site (
On June 16, 2006, the President issued Executive Order 13405 (the “Order”) pursuant to,
Section 1 of the Order blocks, with certain exceptions, all property, and interests in property, that are in, or hereafter come within, the United States or the possession or control of United States persons for persons listed in the Annex and those persons determined by the Secretary of the Treasury, after consultation with the Secretary of State, to satisfy any of the criteria set forth in subparagraphs (a)(ii)(A) through (a)(ii)(E) of Section 1. On February 27, 2007, the Director of OFAC exercised the Secretary of the Treasury's authority to designate, pursuant to one or more of the criteria set forth in Section 1, subparagraphs (a)(ii)(A) through (a)(ii)(E) of the Order, the following six individuals, whose names have been added to the list of Specially Designated Nationals and whose property and interests in property are blocked, pursuant to Executive Order 13405:
1. MIKLASHEVICH, Petr Petrovich (a.k.a. MIKLASHEVICH, Piotr Piatrovich); DOB 1954; POB Kosuta, Minsk district, Belarus; nationality Belarus; Prosecutor General (individual) [Belarus]
2. PODOBED, Yuri Nikolaevich; DOB 5 March 1962; POB Slutsk, Minsk district, Belarus; nationality Belarus; Lieutenant Colonel of the Special Riot Police in Minsk (OMON) (individual) [Belarus]
3. RADKOV, Aleksandr Mikhailovich (a.k.a. RADZKOU, Alaksandr Mikhailavich); DOB 1 July 1951; POB Votnya, Belarus; nationality Belarus; Minister of Education (individual) [Belarus]
4. RUSAKEVICH, Vladimir Vasilyevich (a.k.a. RUSAKEVICH, Uladzimir Vasilievich); DOB 13 September 1947; POB Vygonoshchi, Belarus; nationality Belarus; Minister of Information (individual) [Belarus]
5. SIVAKOV, Yury; DOB 5 August 1946; POB Onory, Kirov district, Belarus; nationality Belarus; former Minister of the Interior; former Minister of Sport and Tourism (individual) [Belarus]
6. SLIZHEVSKY, Oleg Leonidovich (a.k.a. SLIZHEUSKI, Aleh Leanidavich); nationality Belarus; Head of the Public Associations Department (individual) [Belarus]
The Department of Veterans Affairs (VA) gives notice under Public Law 92-463 (Federal Advisory Committee Act) that the Veterans' Disability Benefits Commission has scheduled a meeting for April 19-20, 2007 in the Almas Temple, adjacent to the Hamilton Crowne Plaza Hotel, at 1315 K Street, NW., Washington, DC 20005. The meeting will begin at 8:30 a.m. and end at 5 p.m. each day. The meeting is open to the public.
The purpose of the Commission is to carry out a study of the benefits under the laws of the United States that are provided to compensate and assist veterans and their survivors for disabilities and deaths attributable to military service.
The agenda for the meeting will feature updates on the progress of the studies being conducted by the Center for Naval Analyses (CNA) and the Institute of Medicine (IOM). The Commission will receive presentations on CNA's preliminary survey results and several draft Issue Papers in various stages of development. There will be additional discussions with CNA on the topic of earned income, employment and compensation. The Commission will also receive comments from interested parties on the research topics approved for study and analysis by the Commission on October 14, 2005, and posted on the Commission's Web site during March 2007 for public comment.
Interested persons may attend and present oral statements to the Commission on April 19. Oral presentations will be limited to five
By Direction of the Secretary.
Environmental Protection Agency (EPA).
Final rule.
This action finalizes a rule to govern the review and handling of air quality monitoring data influenced by exceptional events. Exceptional events are events for which the normal planning and regulatory process established by the Clean Air Act (CAA) is not appropriate. In this rulemaking action, EPA is finalizing the proposal to: Implement section 319(b)(3)(B) and section 107(d)(3) authority to exclude air quality monitoring data from regulatory determinations related to exceedances or violations of the National Ambient Air Quality Standards (NAAQS) and avoid designating an area as nonattainment, redesignating an area as nonattainment, or reclassifying an existing nonattainment area to a higher classification if a State adequately demonstrates that an exceptional event has caused an exceedance or violation of a NAAQS. The EPA is also requiring States to take reasonable measures to mitigate the impacts of an exceptional event.
This final rule is effective May 21, 2007.
The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2005-0159. All documents in the docket are listed on the
General questions regarding the final rule should be addressed to Mr. Larry D. Wallace, PhD, Office of Air Quality Planning and Standards, Air Quality Policy Division, Mail Code C539-01, Research Triangle Park, NC 27711; telephone (919) 541-0906, and e-mail address
Questions concerning technical and analytical issues related to this final rule should be addressed to Mr. Neil Frank, Office of Air Quality Planning and Standards, Air Quality Assessment Division, Mail Code C304-01, Research Triangle Park, NC 27711; telephone (919) 541-5560, and e-mail address
This list is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This list gives examples of the types of entities EPA is now aware could potentially be regulated by this action. Other types of entities not listed could also be affected. To determine whether your facility, company, business, organization, etc., is regulated by this action, you should examine the applicability criteria in section IV of this preamble. If you have any questions regarding the applicability of this action to a particular entity, consult the people listed in the preceding section.
The following is an outline of the preamble.
The following are abbreviations of terms used in the preamble.
We
In this final rule, EPA is establishing procedures and criteria related to the identification, evaluation, interpretation, and use of air quality monitoring data related to any NAAQS where States petition EPA to exclude data that are affected by exceptional events.
Section 319 defines an event as an exceptional event if the event affects air quality; is an event that is not reasonably controllable or preventable; is an event caused by human activity that is unlikely to recur at a particular location or a natural event; and is determined by EPA to be an exceptional event. The statutory definition of exceptional event specifically excludes stagnation of air masses or meteorological inversions; a meteorological event involving high temperatures or lack of precipitation; or air pollution relating to source noncompliance.
Section 319(b)(3)(B)(i) requires a State air quality agency to demonstrate through “reliable, accurate data that is promptly produced” that an exceptional event occurred.
The term exceedance refers to a measured or modeled concentration greater than the level of one or more for a pollutant. The NAAQS are also set with particular averaging periods (e.g., 3 years for ozone and PM
Section 319 also contains a set of five principles for EPA to follow in developing regulations to implement section 319:
(i) Protection of public health is the highest priority;
(ii) Timely information should be provided to the public in any case in which the air quality is unhealthy;
(iii) All ambient air quality data should be included in a timely manner in an appropriate Federal air quality database that is accessible to the public;
(iv) Each State must take necessary measures to safeguard public health regardless of the source of the air pollution; and
(v) Air quality data should be carefully screened to ensure that events not likely to recur are represented accurately in all monitoring data and analyses (42 U.S.C. 7619(b)(3)(A)).
In adopting revisions to section 319, Congress sought to provide statutory relief to States to allow them to avoid being designated as nonattainment or to avoid continuing to be designated
Since 1977, EPA guidance and regulations have either implied or documented the need for a flagging system for data affected by an exceptional event. The first EPA guidance related to the exclusion or discounting of data affected by an exceptional event was an Office of Air Quality Planning and Standards (OAQPS) guidance document entitled, “Guideline for the Interpretation of Air Quality Standards,” Guideline No. 1.2-008 (revised February 1977).
In July 1986, EPA issued the guidance entitled, “Guideline On the Identification and Use of Air Quality Data Affected By Exceptional Events” (the Exceptional Events Policy). The Exceptional Events Policy provided criteria for States to use in making decisions related to identifying data that have been influenced by an exceptional event.
In addition to the Exceptional Events Policy, on July 1, 1987, EPA promulgated the NAAQS for PM
In 1990, section 188(f) was added to the CAA. This section of the CAA provided EPA authority to waive either a specific attainment date or certain planning requirements for serious PM
On July 18, 1997, EPA issued a revised NAAQS for ozone and a new NAAQS addressing PM
Appendices K, I, and N, which are parts of the NAAQS for the affected pollutants as described above, provide that, while States must submit all valid ambient air quality data to EPA's Air Quality System (AQS) database for use in making regulatory decisions, in some cases it may be appropriate for EPA to exclude, discount, weight, or make adjustments to data that have been appropriately flagged from calculations in determining whether or not an area has attained the standard. These decisions are to be made on a case-by-case basis using all available information related to the event in question, and are required to be made available to the public for review. It should also be noted that, while it would be desirable to be able to adjust the daily value to exclude only those portions of the data that are attributable to the exceptional event, due to technical limitations, such subtraction has not been possible, and EPA's historical practice has been to exclude a daily measured value in its entirety when that value is found to be largely caused by an exceptional event.
Following the promulgation of the 8-hour ozone and the PM
Under the statutory scheme established by the CAA, States are primarily responsible for the administration of air quality management programs within their borders. This includes the monitoring and analysis of ambient air quality and submission of monitoring data to EPA, which are then stored in EPA's AQS database. The EPA retains an important oversight responsibility for ensuring compliance with CAA requirements. With respect to the treatment of air quality monitoring data, States are responsible for ensuring data quality and validity and for identifying measurements that they believe warrant special consideration, while EPA is
At present, only the NAAQS for ozone and particulate matter (PM) contain provisions which allow for the special handling of air quality data affected by exceptional and natural events (40 CFR part 50, appendices K, I, and N). The language of section 319 of the CAA is broad in terms of making its provisions applicable to events that “affect air quality” and to exceedances or violations of “the national ambient air quality standards” (42 U.S.C. 7619(b)(1)(A)(i), (b)(3)(B)(iv)). Thus, its provisions can apply to the NAAQS for any criteria pollutant. Because the NAAQS established for other criteria pollutants do not currently contain provisions permitting the discounting or exclusion of data due to exceptional events, we are only applying the provisions of this rule initially to ozone and PM.
Under the CAA and the Tribal Authority Rule (TAR), eligible Indian Tribes may develop and submit Tribal Implementation Plans (TIPs) for EPA approval, to administer requirements under the CAA on their reservations and other areas under their jurisdiction. However, Tribes are not required to develop TIPs or otherwise implement relevant programs under the CAA. The EPA has stated that it will continue to ensure the protection of air quality throughout the nation, including in Indian country, and will issue Federal Implementation Plans (FIPs) as necessary or appropriate to fill gaps in program implementation in affected areas of Indian country (63 FR 7254, 7265; February 12, 1998).
In cases where a Tribal air quality agency has implemented an air quality monitoring network, which is affected by emissions from exceptional events, the criteria and procedures identified in this final rule may be used to exclude or discount data for regulatory purposes. Certain Tribes may implement all relevant components of an air quality program for purposes of meeting the various requirements of this rule. In some cases, however, a Tribe may implement only portions of the relevant program and may not be in a position to address each of the procedures and requirements associated with excluding or discounting emissions data (e.g., a particular Tribe may operate a monitoring network for purposes of gathering and identifying appropriate data, but may not implement relevant programs for the purpose of mitigating the effects of exceptional events required under this rule). The EPA intends to work with Tribes on the implementation of this rule, which may include appropriate implementation by EPA of program elements ensuring that any exclusion or discounting of data in Indian country areas with air quality affected by exceptional events comports with the procedures and requirements of this rule.
The proposed rule on the “Treatment of Data Influenced by Exceptional Events” was issued on March 10, 2006 (71 FR 12592). We received 98 letters from commenters representing 587 comments from private citizens, State and local governments, industry, environmental groups, and Federal agencies. Sections V, VI, VII, and VIII of this notice describe the primary elements and requirements concerning the process for the handling of data influenced by exceptional events. Each section summarizes the relevant issues and options discussed in the proposed rule and provides the final decisions related to the issues for each section. In this preamble, we have provided responses to certain significant comments to elaborate or provide clarification for EPA's decision on an issue discussed in the relevant section of the rule. We have developed a response to comments document which addresses all of the timely comments received on the proposed rule. Following the promulgation of this rule, the response to comments document will be placed into the docket of this rulemaking action for public review (See Docket No. EPA-HQ-OAR-2005-0159).
In accordance with the language in section 319, EPA is defining the term “exceptional event” to mean an event that:
(i) Affects air quality;
(ii) Is not reasonably controllable or preventable;
(iii) Is an event caused by human activity that is unlikely to recur at a particular location or a natural event; and
(iv) Is determined by EPA through the process established in these regulations to be an exceptional event.
It is important to note that natural events, which are one form of exceptional events according to this definition, may recur, sometimes frequently (e.g., western wildfires). For the purposes of this rule, EPA is defining “natural event” as an event in which human activity plays little or no direct causal role to the event in question. We recognize that over time, certain human activities may have had some impact on the conditions which later give rise to a “natural” air pollution event. However, we do not believe that small historical human contributions should preclude an event from being deemed “natural.” In adopting section 188(f) of part D, subpart 4, of the 1990 amendments to
In this final rule, EPA also defines the term “exceedance” with respect to compliance with the NAAQS and establishes criteria for determining when an event can be said to “affect air quality.” We are not finalizing more detailed requirements for determining when an event is “not reasonably controllable or preventable” because we believe that such determinations will necessarily be dependent on specific facts and circumstances that cannot be prescribed by rule.
The EPA believes that the following types of events meet the definition of exceptional events, as defined above. This means that air quality data affected by these types of events may qualify for exclusion under this rule provided that all other requirements of the rule are met. By providing the examples listed below, EPA is not determining that such events are the only types of events that may qualify for exclusion under the rule as exceptional events. Other events that meet the statutory criteria for an exceptional event as defined in this rule may also qualify for exclusion. The AQS user documentation contains a list of other similar events that may be flagged for special consideration. (
In addition, in the sections below, we have provided responses to certain significant comments received during the comment period for the proposed rule regarding the examples of events that may meet the definition of an exceptional event in order to elaborate upon or provide clarification about what constitutes an exceptional event.
Emissions that result from accidents such as fires, explosions, power outages, train derailments, vehicular accidents, or combinations of these may be flagged as an exceptional event.
Structural fires include any accidental fire involving a manmade structure.
Transported pollution, whether national or international in origin, and whether from natural or anthropogenic sources, may cause exceedances eligible for exclusion under this rule, as long as all of the criteria and requirements related to exceptional events are met as defined in this rule. For example, States may flag, and EPA may exclude, data associated with fires occurring outside of the borders of the United States, such as forest fires in Mexico, Central America, and Canada; or transport events such as African dust and Asian dust which contribute significantly to ambient concentrations of a pollutant in an area, leading to exceedances or violations of a NAAQS. An example of interstate transported emissions which may be flagged as due to an exceptional event would be emissions due to smoke from wildfires or wildland fire use fires which cause exceedances or violations of the NAAQS at monitoring sites in other States. Other examples could include data affected by emissions from mining and agricultural activities when such emissions are subjected to long-range transport, and the criteria and
Emissions that result from a terrorist attack such as smoke from fires, dust, explosions, power outages, train derailments, vehicular accidents, or combinations of these may be flagged as an exceptional event.
No comments were received on this topic.
The natural events addressed by this final rule are: (1) Natural disasters and associated cleanup activities; (2) volcanic and seismic activities; (3) high wind events; (4) wildfires and wildland fire use fires; and (5) stratospheric ozone intrusions. The EPA will consider other types of natural events on a case-by-case basis.
For the purpose of flagging, major natural disasters such as hurricanes and tornadoes for which State, local, or Federal relief has been granted, and clean-up activities associated with these events, may be considered exceptional events. The EPA believes that for a major natural disaster, a timeframe up to 12 months is a reasonable time period to allow for clean-up activities associated with these types of activities. In cases where the damage caused by the event is so substantial that a 12-month period is inadequate to address the clean up that is necessary, a State may submit a request to EPA for an extension of the 12-month time period. The EPA will grant requests for extensions of the time period related to such events on a case-by-case basis if the States submit adequate supporting information concerning the reason for the extension as well as the length of time being requested for the extension.
Ambient concentrations of particulate matter for which volcanic or seismic activity caused or significantly contributed to high levels of particulate matter in an affected area will be treated as natural events. While generally not occurring frequently, volcanic and seismic activity can affect air quality data related to the particulate matter NAAQS for an extended period of time after an event. Volcanic activities can contribute to ambient concentrations in several ways: it may influence concentrations of particulate matter due to primary emissions (e.g., ash), and emissions of precursor pollutants (e.g., sulfur dioxide) that contribute to the secondary formation of particulate matter. Seismic activity (e.g., earthquakes) can also contribute to ambient particulate matter concentrations by shaking the ground, causing structures to collapse, and otherwise raising dust which may lead to exceedances or violations of the NAAQS.
High wind events are events that affect ambient particulate matter concentrations through the raising of dust or through the re-entrainment of material that has been deposited. In some locations, concentrations of coarse particles like PM
Federal land managers have afforded recognition to several different types of wildland fires (i.e., wildfire, wildland fire use fire and prescribed fire), depending on their causal circumstances and the role that such fires play in the affected ecosystems. Prescribed fire is addressed more fully in the following section.
The question of what is a natural versus an anthropogenic fire has particular significance when considering the impacts of wildland fires (wildfire, wildland fire use fire and prescribed fire) on air quality and how these impacts should be regarded under this rule. A “wildfire” is defined as an unplanned, unwanted wildland fire (such as a fire caused by lightning), and include unauthorized human-caused fires (such as arson or acts of carelessness by campers), escaped prescribed fire projects (escaped control due to unforeseen circumstances), where the appropriate management response includes the objective to suppress the fire. In contrast, a “wildland fire use” fire is the application of the appropriate management response to a naturally-ignited (e.g., as the result of lightning) wildland fire to accomplish specific resource management objectives in predefined and designated areas where fire is necessary and outlined in fire management or land management plans.
Using these definitions, we believe that both wildfires and wildland fire use fires fall within the meaning of “natural events” as that term is used in section 319. Therefore, ambient particulate matter and ozone concentrations due to smoke from a wildland fire will be considered for treatment as an exceptional event if the fire is determined to be either a wildfire or wildland fire use fire.
Stratospheric ozone intrusion is considered to be a natural event. A stratospheric ozone intrusion occurs when a parcel of air originating in the stratosphere, which is at an average height of 20 km or 12.4 miles, is transported directly to the surface of the earth. Stratospheric ozone intrusions are very infrequent, localized events of short duration. They are typically associated with strong frontal passages and, thus, may occur primarily during the spring season.
A “prescribed fire” is defined as any fire ignited by management actions to meet specific resource management objectives. According to existing Federal policy, prior to ignition a prescribed fire must have an approved prescribed fire plan and must meet the National Environmental Policy Act (NEPA) requirements (where applicable)(see National Wildland Fire Coordination Group Glossary of Wildland Fire Terminology, 2003). For purposes of section 319, a prescribed fire cannot be classified as “natural,” given the extent of the direct human causal connection, however, a prescribed fire may meet the statutory criteria defined in section 319 of “affect[ing] air quality,” being “unlikely to recur at a particular location” and is “not reasonably controllable or preventable.” The determination of whether a prescribed fire can be considered an exceptional event should be made on a case-by-case basis taking into account the factors described below.
A prescribed fire carried out for resource management objectives is frequently designed to restore essential ecological processes of fire and mimic fire under natural conditions. As such, a prescribed fire's expected frequency can vary widely, depending on the natural fire return interval of a particular landscape or wildland ecosystem. The natural fire return
A prescribed fire may also meet the condition of “not reasonably controllable or preventable” by examining whether there are reasonable alternatives to the use of fire in light of the needs and objectives to be served by it. For instance, there may be a significant build-up of forest fuels in a particular area that if left unaddressed would pose an unacceptable risk of catastrophic wildfire, which could result in adverse impacts of much greater magnitude, duration, and severity than would result from careful use of prescribed fire. A particular ecosystem may also be highly dependent on a natural fire return interval to maintain a sustainable natural species composition. Alternatively, pest or disease outbreaks in an area may be such that there are no reasonable alternatives to prescribed fire. In some cases, other legal requirements may preclude the use of mechanical fuel reduction methods such as in designated wilderness or National Parks. Where such ecological conditions exist, or where mechanical or other treatments are not reasonably feasible for reasons that include, but are not limited to, a lack of access, or severe topography, we believe that prescribed fire qualifies as being “not reasonably controllable or preventable.” Thus, we believe that a prescribed fire, conducted by Federal, State, Tribal or private wildland managers or owners, under the conditions described above may qualify as an exceptional event.
In addition, one of the principles contained in SAFE-TEA-LU, section 6013(b)(3)(A), includes the principle that States must take necessary measures to safeguard public health regardless of the source of air pollution. We believe it reasonable to tie the qualifying criteria for an anthropogenically generated prescribed fire to State accountability for public health protection. Consistent with historical practice governed by the guidance contained in the “Interim Air Quality Policy on Wildland and Prescribed Fires,” issued on May 15, 1998, EPA approval of exceedances linked to a prescribed fire used for resource management purposes is contingent on the State certifying that it has adopted and is implementing a Smoke Management Program (SMP) as described in that policy. A State SMP establishes a basic framework of procedures and requirements for managing smoke from a prescribed fire managed for resource benefits. A SMP is typically developed by a State or Tribe with cooperation and participation by wildland managers, both public and private, and the general public. As reflected in the Interim Air Quality Policy on Wildland and Prescribed Fires, States are provided flexibility on the structure of a SMP. Thus, a SMP can be extensive and detailed, or simply identify the basic smoke management practices for minimizing emissions, and controlling impacts from a prescribed fire.
The EPA proposed that, in order to exclude air quality data from consideration for regulatory purposes, States must follow the procedures, timelines, and other requirements described in the proposed rule. Under the Final Rule, if an event is determined to be a qualifying exceptional event according to section IV.D, a State, Tribe, or designated local agency may petition EPA to classify the event as exceptional and submit a demonstration to justify data exclusion.
The SAFE-TEA-LU requirements for exclusion of data from exceptional events are: (1) The occurrence of the exceptional event must be demonstrated by reliable and accurate data; (2) the State must show that there is a “clear causal relationship” between the NAAQS exceedances and the event; (3) there must be a public review process related to the exceptional event determination; and (4) the rule must set criteria and procedures for States to petition EPA to exclude data directly affected by an exceptional event. The sections below describe how each of these requirements must be met.
The sections below address the flagging of data as exceptional events that are determined to have affected air quality, submittal of demonstrations to request data exclusion, public review, and the schedule and timing for these processes. After an exceptional event occurs (judged according to section IV.D) and an agency determines that the event affected ambient air quality, flagging may occur according to section V.A. Section V.B describes the evaluation of whether or not the event affected ambient air quality. Section V.C describes the necessary “but-for” test that data would have complied with the applicable standard but for the occurrence of the exceptional event. Section V.D explains the schedules and procedures for the flagging and demonstration submittals, section V.E discusses the applicability to hourly readings, section V.F states the requirements for determination submittals if the agency requests EPA to exclude the data from consideration for regulatory purposes, and section V.G describes the public review requirements. Some commenters suggested that all data occurring from exceptional events should be flagged, and EPA will allow these flags for informational purposes, even if the data do not qualify for exclusion. If EPA concurs on the exclusion of data from qualifying exceptional events, the data will be excluded from regulatory consideration but will still count toward data capture requirements.
Air quality data are required, pursuant to 40 CFR 58.16, to be submitted to EPA by each State on a calendar quarterly basis, with submissions due not later than 90 days after the end of a quarterly reporting period. Once air quality data have been submitted to EPA, it is possible to “flag” specific values for various purposes. “Data flagging” refers to the act of making a notation in a designated field of an electronic data record. The principal purpose of the data flagging system in the AQS database is to identify those air quality measurements for which special attention or treatment is warranted. These include, but are not limited to, those measurements that are influenced by exceptional events.
The preamble to the proposed rule stated: “In the case of exceptional events, States place the initial flag on the data in the AQS database. Following an evaluation of the supporting documentation, EPA will decide whether to concur with the flag; concurrence will be marked by the placement of a second flag in the AQS database by EPA. Once EPA has concurred on the flag, the data will be excluded from regulatory decisions such as determinations of attainment or nonattainment.”
• “While the flagging of data by the State is the first step in an exceptional events demonstration, it is insufficient by itself to allow for the exclusion of data. In order to have EPA concur on a flag, States must meet the additional requirements described below. As stated previously, the State has the responsibility to document both the occurrence of the event and the causal connection to the monitoring data under consideration. Because the initial step of flagging the data is a relatively simple one, States may flag many more days than the number of days for which they ultimately submit documentation to support exclusion.”
In the case of exceptional events, States and Tribes place the initial flag on the data in the AQS database, but EPA determines the available flags.
Following an evaluation of the supporting documentation, EPA will make a decision concerning whether to concur with the flag; concurrence will be marked by the placement of a second flag in the AQS database by EPA. If EPA has concurred on the flag, the data will be excluded from regulatory determinations such as determinations related to attainment or nonattainment, or determinations concerning SIP development. The EPA will use the second flag to indicate the following conditions: EPA concurrence, EPA non-concurrence, and documentation submitted with EPA decision pending.
While flagging of the data in the AQS database by the affected State, local, or Tribe authority is the first step in an exceptional events demonstration, it is insufficient in and of itself to allow for the exclusion of data. In order for EPA to concur on an exceptional events flag, States, Tribes, and local agencies must meet the additional requirements described below. As explained, the State, Tribe, or local agency has the responsibility to document the occurrence of the event in question, to demonstrate that the event qualifies as an exceptional event in accordance with section IV.D, is consistent with EPA policies and guidance for certain events as described in section IV.E, has provided for public review in accordance with section V.G, and to document the causal connection between the measurement under consideration and the event that is claimed to have affected the air quality in the area. The State, Tribe, or local agency must also demonstrate that the event is associated with an unusual measured concentration beyond typical fluctuations including background, and that there would have been no exceedance or violation “but for” the event. Because the initial step of
It is important to recognize that any emissions-producing event has the potential to have some influence on downwind air quality. Indeed, on any given day, measured air quality at any given location will reflect the influences of a variety of activities, including both natural and anthropogenic emissions from both local as well as remote upwind sources. Given the directive in section 319(b)(3)(B)(ii), that a clear causal connection must exist between the “measured exceedances” and the exceptional event, EPA believes that it would be unreasonable to exclude data affected by an exceptional event simply because of a trivial contribution of an event to air quality. Furthermore, we believe that it would be unreasonable to exclude more significant, but routine background air quality impacts, as this would disregard an important part of the public's exposure to air pollution upon which EPA's air quality standards are based. The effect of such exclusion would be an inappropriate reduction in the stringency of the NAAQS, rather than providing specific relief under the circumstances provided in section 319 for which States should not be designated nonattainment or be required to prepare costly SIP control strategies.
Neither section 319, nor its legislative history, provides precise guidance on what should be considered when determining whether an event “affects air quality” and thus qualifies to be considered for exclusion or special treatment. However, section 319(b)(3)(B)(ii) and (iv) provides that there must be a “clear causal relationship” between a measured exceedance of a standard and the event to show that the event “caused a specific air pollution concentration;” and it must be shown that the data in question are “directly due” to an exceptional event. Moreover, one of the principles provided by section 319(b)(3)(A) indicates that the protection of public health is the highest priority. For these reasons, we proposed three conditions under which an event may qualify as “exceptional” for purposes of special regulatory consideration: Its air quality impact must (1) fall both above the level of the applicable standard (i.e., must be an “exceedance” as required by section 319), (2) be significantly beyond the normal fluctuating range of air quality, including background air quality concentrations, and (3) should be large enough such that without it there would have been no exceedance.
We next provided several alternative approaches to determining whether and when air quality is “affected by” exceptional events and requested comment on which of these approaches was most suitable for demonstrating such impacts. These approaches primarily applied to condition (2) above. Two of the approaches involved statistical comparisons of existing flagged data. The final rule most closely reflects the third proposed option with some modifications. This option considered a case-by-case evaluation of the data against historical, seasonally adjusted air quality levels. Finally, the proposed rule provided details regarding what is meant by an exceedance (1) and the “but-for” condition (3). These are discussed in detail in section V.C.
Under the Final Rule, the demonstration to justify data exclusion must provide a justification that: (a) The event qualifies in accordance with section IV.D. and if applicable, with EPA policies and guidance for certain events as described in section IV.E, (b) there is a clear causal relationship between the measurement under consideration and the event that is claimed to have affected the air quality in the area, (c) the event is associated with an unusual measured concentration beyond typical fluctuations including background, and (d) there would have been no exceedance or violation but for the event (discussed in section V.C). The second and third criteria establish that the event affected air quality.
The second criterion that the event caused an air quality impact may be shown through a number of methods including, but not limited to, modeling and speciation analysis. The third criterion distinguishes common events from those that are exceptional and may be accomplished through the presentation of historical evidence.
The final rule permits a case-by-case evaluation, without prescribed threshold criteria, to demonstrate that an event affected air quality. This demonstration would be based on the weight of available evidence, but must consider the historical frequency of such measured concentrations. While a State may determine the specific approach to use for such analysis, it must compare contemporary concentrations with the distribution of all measured data during the past several years. The evidence that an event affected air quality may be presented on a seasonal or other temporal basis to best compare contemporary concentrations with the distribution of historical values. For consistency with data reporting and computation of NAAQS statistics, a calendar quarter basis is suggested. Baseline data may also be defined differently for each event type (e.g., April and May data may be the most relevant information for statistical comparison with certain dust events).
The general statistical approach of using all measured data during the past several years is independent of historical flagging practices and allows States to accurately represent events not likely to recur by including all monitoring data in analyses.
In addition, the magnitude of the measured concentration on days affected by exceptional events relative to historical, temporally adjusted air quality levels can guide the level of necessary analysis and documentation to demonstrate that the event affected air quality. For extremely high concentrations relative to historical values (e.g., concentrations greater than the 95th percentile), a lesser amount of documentation or evidence may be required to demonstrate that the event affected air quality. The closer the event concentration is to typical levels (e.g., values less than the historical 75th percentile), the stronger the necessary evidence would have to be to justify exclusion of data for regulatory purposes. This weight of evidence approach is most nearly analogous to our historical treatment of exceptional events.
There may be instances in which exceptional events may have a significant impact on air quality on days when concentrations are already above the applicable standard in the absence of the influence of such events. In such cases, it is important to preserve and consider all valid air quality data influenced by such activities, which properly fall within the responsibilities of States to manage for purposes of air quality attainment and maintenance. For this reason, we proposed to require that air quality data may not be excluded except where States show that exceedances or violations of applicable standards would not have occurred “but for” the influence of exceptional events.
In other words, to the extent that it is possible to determine that the resulting air quality concentrations and appropriate design values for an area would be above the level of the standards even without the influence of the exceptional event, the air quality data for the day(s) in question should not be excluded. However, consideration of the impacts of exceptional events on air quality values for control strategy planning purposes may be appropriate, and States are encouraged to consult with the appropriate EPA regional office to further discuss this issue.
The EPA will maintain the proposed “but-for” requirement that air quality data may not be excluded except where States, Tribes, or local agencies show that exceedances or violations of applicable standards would not have occurred “but for” the influence of exceptional events. Through analyses, it is possible to demonstrate that an exceedance or violation would not have occurred but for the event [See sample “but-for” analysis in memo to docket, Husar
Because there are two standards for PM
On the other hand, the annual PM
In establishing procedures and time tables for States to request, and EPA to grant, exclusion of data affected by exceptional events, we are guided by two competing considerations: Ensuring States have adequate time and opportunity to compile and evaluate all relevant and available information in support of such requests; and making determinations in a timely manner so that all pertinent and valid air quality data would be appropriately considered in regulatory determinations. To assist EPA in determining the best approach to managing the data flagging process and submissions of demonstrations for the final rule, we proposed three alternatives for public review and comment. Public comments showed that each option had desirable aspects, and these are incorporated into the final rule.
A multi-step process will be established for identification of data and submission of demonstrations. The process is designed to ensure that States, Tribes, and local agencies have adequate opportunity to compile and present evidence of exceptional and natural events but also ensures timely submittals in order to make regulatory decisions and ensure the protection of human health through NAAQS determinations. The steps include State flagging, annual State submission of an initial event description, State submission of a demonstration to justify data exclusion and EPA review followed by approval or disapproval. Where air quality in an area is influenced by a relatively small set of emission sources with well-defined emission profiles and limited pollutant species, a demonstration that an air quality measurement influenced by a particular event merits exclusion may be relatively simple to make. In other cases, such as where the number and types of sources contributing to measured air quality concentrations are extremely complex and varied, making it more difficult to distinguish between the effects of routine activities and unusual ones, more time and effort will be needed for a State, Tribe, or local agency to provide an adequate demonstration in support of its request.
States, Tribes, and local agencies are encouraged to flag the data that they believe to be affected by exceptional events at the time of submission of the air quality data to EPA's AQS database, in accordance with the schedule described in 40 CFR 58.16, which is generally no later than 90 days after the end of the calendar quarter. This includes both flagging of data and insertion of the initial event description into the AQS comment field. This constitutes notification of the appropriate EPA Regional Office concerning the State's intention to seek exclusion of data. This approach would ensure that the flagging process remains consistent with the timeline set forth in rules governing data submission requirements. The EPA recognizes that laboratory analyses may delay these submissions and therefore is extending the required time period for submission to 180 days after the end of the calendar year (i.e., all flags, along with initial event descriptions, for a calendar year must be reported by July 1 of the following year).
We encourage States, Tribes, and local agencies to submit the demonstration to justify data exclusion annually for exceedances of short-term NAAQS by July 1. However, the demonstration to justify data exclusion must also be submitted no later than 12 months prior to a regulatory decision. For all flagged events, the demonstration to justify data exclusion must be submitted within 3 years of the calendar quarter following an event, but no later than 12 months prior to a regulatory decision. This period should be used primarily to support NAAQS compliance with annual averages and violations of the short-term standard that were not anticipated. For nonattainment designations, this would occur with the Governor's letter recommending the list of nonattainment areas. We also recognize that special circumstances could dictate more expedited data delivery, flagging, and minimal demonstrations (e.g., PM
Once EPA receives a State's demonstration, EPA generally will undertake to review the demonstration and provide a concurrence or nonconcurrence on the flag in the AQS database within 60 days. The EPA expects that, in most cases, this time period should be enough time to review and provide a concurrence or non-concurrence related to a State's request to exclude data affected by an exceptional event. However, for more complex demonstrations, EPA may require additional time to make its decision and will notify the State of the additional time required.
In general, EPA's historical practice has been to exclude a daily measured value in its entirety when an exceptional event causes that value, and we retained this approach in the proposed rule. With this approach, a determination is made that emissions from the event are largely responsible for the resultant ambient air pollutant concentration. For example, if the observed concentration is 200 μg/m
We believe it would be desirable to adjust the daily value to exclude only those portions of the data that are attributable to the exceptional event in question, and to retain the remainder of the day's measurement if appropriate and accurate methods were available to make such adjustments. For example, if an area affected by a wildfire had a measured 24-hour PM
We are retaining in this rule EPA's historical practice to exclude a daily measured value in its entirety when that value is found to be caused by a qualifying exceptional event that affected air quality in accordance with the conditions described in sections V.B and V.D. If precise and universally applicable techniques that are administratively and technically feasible and that could support partial adjustment of air quality data become available in the future, EPA will, through a rulemaking, propose, and as appropriate, finalize a technique for partial adjustment of data as well as any other matters in this rule which may be affected by the availability of this technology.
One exception may be made to this exclusion of the entire daily value for monitoring locations with hourly measurements by Federal Reference Methods (FRM), Federal Equivalent Methods (FEM), and/or Approved Regional Methods (ARM) where such data are submitted routinely to AQS. For example, in cases where stratospheric ozone intrusion occurs, those hourly (but not sub-hourly) measurements affected by the intrusion may be excluded in order to calculate the ozone measurements for the day. The individual hours are to be excluded however, if the resulting calculated NAAQS averaging time value exceeds the level of the standard, not just if the individual hourly values exceed that level. Thus, in the case of ozone, the resulting 8-hour average must exceed 0.08 ppm, and the resulting 24-hour average must exceed 15.0 μg/m
Section 319 requires that, in order to have a flagged value excluded from regulatory determinations, a State must make an affirmative demonstration that an event occurred (as shown by reliable and accurate data that is promptly produced) and that there is a clear causal relationship between measured exceedances or violations of a standard and the exceptional event in question to
Therefore, after flagging data in the AQS database, States are expected to develop appropriate documentation to support each individual flag. As a general matter, we believe that such demonstrations should include documentation showing that the event in fact occurred and that emissions related to the event were transported in the direction of the monitor(s) where measurements were recorded; the size of the area affected by the transported emissions; the relationship in time between the event, transport of emissions, and recorded concentrations; and, as appropriate, pollutant species-specific information supporting a causal relationship between the event and the measured concentration. The latter information could be based on available data provided by routine speciation, monitoring networks, or from selective laboratory analysis of archived particulate matter filters for the day thought to be impacted by specific events. In certain situations, such data might be useful for evaluation of impacts from exceptional events, e.g., to distinguish between impacts caused by natural fires versus impacts caused by industrial sources. States also need to show that appropriate mitigation actions were taken at the time that the event occurred, or after an event occurred in order to protect public health.
The following examples are intended to further illustrate the kinds of information that States could consider in preparing their demonstrations:
• Information demonstrating the occurrence of the event and its subsequent transport to the affected monitors. This could include, for instance, documentation from land owners/managers, satellite-derived pixels (portions of digital images) indicating the presence of fires; satellite images of the dispersing smoke and smoke plume transport or trajectory calculations (calculations to determine the direction of transport of pollutant emissions from their point of origin) connecting fires with the receptors.
• Identification of the spatial pattern of the affected area (the size, shape, and area of geographic coverage). This could include, for instance, the use of satellite or surface measurement data.
• Information about temporal patterns (e.g., the time and duration of an event in relation to measured downwind concentrations, air quality trends over time and space). This could include, for instance, observed sequential concentration spikes at multiple locations in a downwind direction.
• Identification of the chemical composition of measured concentrations. This could include, for instance, organic or crustal material in excess of typically observed quantities to differentiate from other high concentration events.
• High wind speeds relative to historically typical levels for the season of the year in which the claimed event occurred.
This list is not exhaustive and not all of these kinds of information and/or documentation will need to be provided in every instance. A particular instance may require more or less documentation, depending on the particular facts or circumstances in that instance. The simplest demonstrations could consist of newspaper accounts or satellite images to demonstrate that an event occurred together with daily and seasonal average ambient concentrations to demonstrate an unusually high ambient concentration level, which is clearly indicative of an exceptional impact. Such is the case with events such as volcanic eruptions and nearby forest fires. In one instance, we determined that wildfires upwind of the San Diego area very likely caused high concentrations of particulate matter measured in October 2003 based on the actual physical damage caused by fire to the ambient monitor. Depending on the nature of the event, meteorological conditions, severity and spatial extent of measured ambient concentrations (including relevant chemical components when available) relative to what typically occurs in the area, and on emissions of pollutants from the exceptional event which have similar characteristics to those of other sources in the area, additional showings could be required on a case-by-case basis. In particular, we anticipate that significantly more effort will be needed to establish that an exceptional event caused a particular concentration in an urban area in which there are numerous and diverse sources and complex meteorology and topography, and where the emissions from the event in question may well be similar to those from other sources contributing to measured concentrations, as compared to an area that has relatively few sources, simple terrain and less complex meteorology, and where emissions associated with the event are both substantially greater than and different in composition from those of other nearby sources.
The demonstration to justify data exclusion will address specific monitor readings reported to the AQS database. As stated in the previous sections, a complete demonstration shall justify that: (a) The event qualifies in accordance with section IV.D. and with EPA policies and guidance for certain events as described in section IV.E, (b) there is a clear causal relationship between the measurement under consideration and the event that is claimed to have affected the air quality in the area, (c) the event is associated with an unusual measured concentration beyond typical fluctuations including background, (d) there would have been no exceedance or violation but for the event, and (e) the State has provided an opportunity for the public to comment as required under section V.G. The level of documentation may vary by the type of event and can be guided in part by the relative magnitude of the observed concentrations. To obtain concurrence, EPA must determine that the demonstration is complete and provides a reasonable technical demonstration.
Because of the variability in the nature of exceptional events and the resulting demonstration requirements, States should consult with the appropriate EPA Regional Office early in the process of preparing their demonstrations. We are not specifying what will be required as a minimum level of documentation in all cases because facts and circumstances will vary significantly based on, among other things, geography, meteorology and the relative complexity of source contributions to measured concentrations in any particular location. We believe, however, that at a minimum, the elements of such a demonstration should include a showing that an event occurred at a time when meteorological conditions were conducive to transporting emissions from the event downwind to the monitor recording a high concentration of one or more criteria pollutants. Acceptable documentation will be determined through consultation with the EPA regional offices. However, certain minimum requirements (e.g., “but for” test) will be necessary as discussed in the earlier sections of this rule.
Section 40 CFR part 58.16 of EPA's air quality monitoring rules state that all ambient air quality data and associated quality assurance data, including metadata records and information specified by the AQS Data Coding Manual
We are requiring that all relevant flagged data, along with the reasons for the data being flagged, and a demonstration that the flagged data are caused by exceptional events be made available by the State for 30 days of public review and comment. The State or designated local agency should consider the public comments prior to the final demonstration being submitted to EPA for a decision concerning whether to exclude the data from regulatory consideration. Notice and availability of such data and demonstrations must be adequate and consistent with States' administrative procedures governing similar submissions. The EPA does not require that public hearings be held on exceptional events demonstrations but leaves this matter to the States' discretion consistent with their administrative procedures. With the submission of the demonstration, the State should document that the public comment process was followed.
Pursuant to section 319, EPA is finalizing this rule to address data that has been influenced by exceptional events. Also, EPA is finalizing one of four options put forth in the proposed rule to address the issue of whether, and to what extent, States are required to adopt specific mitigation plans or measures to protect the public from emissions due to exceptional events. Section 319 states that in promulgating regulations under the section, EPA shall follow certain, enumerated principles and that regulations must contain certain requirements. Section 319(b)(3)(A) contains five principles, including the principle that each State “must take necessary measures to safeguard public health regardless of the source of air pollution.” In order to address this principle, EPA is finalizing its proposal to exclude trivial and more routine air quality impacts from qualifying as an exceptional event and is also finalizing a “but for” test as a precondition to qualification as an exceptional event (See: section V.C above).
The EPA proposed one approach and took comments on three alternative options concerning what actions a State should take in anticipation of, or in response to, the occurrence of an exceptional event. The options that were proposed ranged from being very detailed and prescriptive to being very flexible and less prescriptive in terms of the actions that States should take to mitigate the impact of an exceptional event on the public. While EPA does not believe that section 319(b)(3)(A) explicitly requires, in and of itself, that States must develop mitigating measures or plans, EPA solicited comment in the proposed rule on whether this subparagraph supports the use of other legal authority to require mitigating actions or plans when an exceptional event occurs, and solicited comment on issues regarding its legal authority to require mitigation measures and plans, and the legal basis for not requiring mitigation measures or plans.
Option 1 in the proposed rule provided that in cases where exceedances of a NAAQS are caused by an exceptional event, once a State becomes aware that an exceptional event is occurring, is predicted to occur, or has occurred, the State must take reasonable and appropriate actions to:
• Provide notice to the public of the event. This may include, but is not limited to, using the media to alert the public of the event.
• Provide public education concerning the potential health risks associated with being exposed to high ambient concentrations of pollutant(s) related to the event. This may include, but is not limited to, providing information to sensitive populations related to the health risks associated with the event.
• Take appropriate and reasonable measures to abate or minimize the exposure of the public to high
Under option 1, EPA also proposed that, where a State is requesting that air quality data be excluded as an exceptional event, the State must submit, as a part of its demonstration, appropriate documentation to show that the State provided public notice and public education concerning the event in question, and that the State took reasonable and appropriate measures to abate or minimize the exposure of the public to the emissions from the event, where appropriate.
Option 2 in the proposed rule provided that, States are required to adopt a general mitigation plan to address exceptional events before the occurrence of an event as a part of the State's SIP required under section 110(a)(1) of the CAA. Section 110(a)(1) requires States to adopt and submit to EPA, within 3 years following the promulgation of a new or revised NAAQS, a plan which provides for the implementation, maintenance, and enforcement of the standard in each air quality region within the State. Under this option, States would be required to develop and adopt the general requirements and procedures necessary for the implementation of a mitigation plan to address exceptional events as a part of its section 110(a)(1) SIP to address a new or revised NAAQS. The general plan related to exceptional events would include provisions providing for public notice, public education related to an event, and provide a requirement for a State to take reasonable and appropriate measures to mitigate the public health impacts of an exceptional event. Under this option, in cases where control measures are required to address the impacts associated with an exceptional event, the State would be required to implement appropriate measures on an episodic basis, meaning in response to a specific event that affects the air quality of a particular area.
Option 3 in the proposed rule required that, where appropriate, EPA would require a State to develop and implement a mitigation plan for an area following the occurrence of an exceptional event. This is in contrast to option 2 above, which would require each State to adopt a plan under section 110(a)(1) of the CAA which would contain the general provisions of a mitigation plan in advance of the occurrence of any exceptional event. Under option 3, the mitigation plan would only be developed by the State following the occurrence of an exceptional event for which the State requested exclusion of the air quality data, and would not be submitted as a part of the SIP. The mitigation plan would be required to address the actions that would be taken by the State related to future similar events. The mitigation plan under this option would have the same provisions as required of plans developed under Option 2 above, including the requirements to notify the public that an event is expected to occur, or is occurring, or has occurred, to provide for public education related to the health effects associated with the event, and to identify the actions that would be taken by the State to mitigate the impact of any recurrence of the event on public health.
Option 4 provided that EPA would not require a State to develop and implement a mitigation plan for exceptional events, or to take specific mitigation measures as described in options 1-3 in order for EPA to exclude data from regulatory consideration. This approach proposed to allow States to have the maximum degree of flexibility in determining what actions should be taken to mitigate the impacts of exceptional events, e.g., public notification, public education, efforts to reduce exposures, or other necessary measures to safeguard public health. Thus, under this proposed option States would not be obligated to take any particular actions to mitigate exposures such as those contained in Option 1, to develop and implement a formal mitigation plan as part of the SIP such as those contained in Option 2, or to develop a more formal plan with requirements not a part of the SIP such as those contained in Option 3.
The EPA is adopting a modified version of Option 1 from the proposed rule, as described above. This option does not require States to submit formal mitigation plans; however, States must provide public notice, public education, and must provide for implementation of reasonable measures to protect public health when an event occurs.
As stated in section IV.D above, this final rule applies to data affected by natural events (which are a subset of exceptional events) at air quality monitoring sites where it has been determined that concentrations due to these events have caused, or substantially contributed to, exceedances of the NAAQS in an affected area. This final rule applies to several types of natural events, including, but not limited to, volcanic and seismic activities, natural disasters, high wind events, certain fires, and stratospheric ozone intrusions. It also applies to transported pollution originating from national and international sources that otherwise meets the criteria and requirements for exceptional events. Some types of exceptional events have unusual characteristics that require special consideration in the context of this final rulemaking. We discuss each of these special issues, and the necessary accommodations, below.
Volcanic and seismic activities may affect air quality for an extended period of time after the initial occurrence of the event in question. Therefore, EPA believes that it is appropriate to consider an extended timeframe for flagging and exclusion of data associated with such events. Specifically, EPA believes that emissions attributed to anthropogenic activities associated with clean-up that re-entrain volcanic ash and dust from seismic activity during the first year (12 months) following an event will be treated as due to the natural event.
The EPA is finalizing its proposal with regards to volcanic and seismic activities. The EPA will allow up to 12 months for the clean-up of ash deposits due to volcanic/seismic events. During that time period, emissions of re-entrained dust due to anthropogenic activities associated with cleanup may be treated as exceptional events. In cases where the damage caused by the event is so substantial that a 12-month period is inadequate to address the clean-up that is necessary, a State may submit a request for an extension of the 12-month time period to EPA. As stated elsewhere in this rule, EPA will grant requests for extensions of the time period related to such events on a case-by-case basis. States are encouraged to submit supporting information concerning the reason for the extension and the length of time being requested for the extension.
Where high wind events result in exceedances or violations of the particulate matter standards, EPA proposed that they be treated as natural events if there is a clear causal relationship demonstrated between the exceedances measured at the air quality monitoring site and the high wind event in question, and if anthropogenic activities which contribute to particulate matter emissions in conjunction with the high wind event are reasonably well-controlled.
The EPA's final rule concerning high wind events states that ambient particulate matter concentrations due to dust being raised by unusually high winds will be treated as due to uncontrollable natural events where (1) the dust originated from nonanthropogenic sources, or (2) the dust originated from anthropogenic sources within the State, that are determined to have been reasonably well-controlled at the time that the event occurred, or from anthropogenic sources outside the State. These events are also discussed in section IV.E.5.c above. In cases where anthropogenic sources are determined to have contributed to exceedances or violations due to high wind events at air quality monitoring sites, per our decision in this rulemaking concerning the action that States must take to mitigate the impact of exceptional events on public
Since the conditions that cause or contribute to high wind events vary from area to area with soil type, precipitation, and the speed of wind gusts, States should provide appropriate documentation which indicates what types of circumstances contributed to the exceedances or violations at the monitoring site in question.
Consideration of stratospheric ozone intrusions applies only to the 8-hour ozone standard. The occurrence of such intrusions are extremely difficult to measure or document given currently measured meteorological parameters and the locations of these measurements. The infrequency, short durations, and localized nature of such events makes it difficult to use currently available, general meteorological data, which are usually collected at isolated locations such as airports, to determine whether a stratospheric ozone intrusion has occurred. The EPA believes that it is important to differentiate between stratospheric ozone intrusion, which is an exceptional event for the purpose of flagging data, and other non-exceptional meteorological events. Although data have been identified in the past showing the result of stratospheric ozone intrusion, no standard definition or criteria have been established for concrete identification. Therefore, EPA's determination of whether a stratospheric ozone intrusion has occurred is a case-by-case decision based on reasonable judgment considering the season of the year, time of day, persistence, duration, type and severity of accompanying meteorological conditions associated with the ozone measurement in question, and other data showing that conditions were not conducive to local high ozone production but for this intrusion.
The EPA is finalizing its rule as proposed. The EPA's determination of whether a stratospheric ozone intrusion has occurred will be made on a case-by-case basis based on reasonable judgment considering the criteria as noted above. It is our intention to review this type of exceptional event during the next review of the NAAQS for ozone. A review of historical data related to the flagging of stratospheric ozone intrusion as an exceptional event shows that the event has only been flagged on a few isolated occasions.
The EPA proposed to treat emissions due to fireworks displays in a manner similar to exceptional events. Some national and/or cultural traditions, such as July 4th Independence Day and the Chinese New Year, have long included fireworks displays as important elements of their observances. While this issue is not specifically covered in CAA section 319, EPA believes that Congress did not intend to require EPA to consider air quality violations associated with such cultural traditions in regulatory determinations.
We are not aware of any information showing adverse air quality impacts caused by individual use of fireworks in relatively small quantities. However, analyses of monitoring data collected on July 4th and July 5th indicates that large fireworks displays, in combination with other sources, can in some circumstances be potentially significant sources of air pollutant emissions. For this reason, States are encouraged to take reasonable precautions to minimize exposures to emissions from fireworks displays, to explore the use of lower emitting fireworks, as well as to manage associated activities that may also have significant air quality impacts in the areas where these events are held. Such precautions may include alerting the public to the potential for short-term air quality impacts that may result from the discharge of fireworks at large displays, monitoring prevailing winds, and locating displays downwind of concentrations of people. For these reasons, where States can show that the use of fireworks displays was integral to significant traditional national, ethnic, or other cultural events, we proposed that air quality data associated with such events could be excluded similar to exceptional events under this rule.
The EPA is finalizing the approach as stated in the proposed rule to treat emissions from fireworks similar to the treatment of exceptional events in the final rule provided that the event meets the other criteria as stated in this rulemaking. For example, the event must be determined to have affected air quality. Where a State can show that the use of fireworks is significantly integral to traditional national, ethnic, or other cultural events (e.g., July Fourth celebrations, Chinese New Year celebrations, Diwali, etc.), EPA will exclude data from regulatory determinations for monitoring stations whose exceedances or violations has been determined to be caused by emissions from fireworks displays on a case-by-case basis. As stated in other parts of the rule, States must assure that reasonable measures were taken to protect the public from the emissions created by the fireworks display. Under this rule, States are also strongly encouraged to institute educational programs that alert the public to the
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is a significant regulatory action because it raises novel legal or policy issues arising out of legal mandates. Accordingly, EPA submitted this action to the Office of Management and Budget (OMB) for review under Executive Order 12866 and any changes made in response to OMB recommendations have been documented in the docket for this action.
This action does not impose an information collection burden. The information being requested under this rule is consistent with current requirements related to information needed to verify the authenticity of monitoring data submitted to EPA's AQS database, and to justify data that has been flagged as being affected by exceptional or natural events. However, the OMB has previously approved the information collection requirements regulations for ambient air monitoring contained in 40 CFR part 58, subparts A through E, under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
Burden means that total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An Agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in the CFR are listed in 40 CFR part 9.
The Regulatory Flexibility Act generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedures Act or any other statute unless the EPA certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For the purpose of assessing the impacts of this final rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominate in its field.
Courts have interpreted the RFA to require a regulatory flexibility analysis only when small entities will be subject to the requirements of the rule. See,
After considering the economic impacts of this final rule on small entities, I certify that this rule will not have a significant economic impact on a substantial number of small entities.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal Agencies to assess the effects of their regulatory actions on State, local and Tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State governments, in the aggregate, or to the private sector, of $100 million or more in any 1 year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation of why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including Tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments to have meaningful and timely input in the
We have determined that this rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and Tribal governments, in the aggregate, or the private sector in any 1 year. This action simply provides the criteria for State, local, or Tribal air quality agencies to flag data to be discounted for regulatory purposes that is being influenced by exceptional or natural events. Thus, this rule is not subject to the requirements of sections 202, 203, and 205 of the UMRA.
Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, or the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
This final rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. The CAA establishes the scheme whereby States take the lead in developing plans to meet the NAAQS. Thus, Executive Order 13132 does not apply to this rule.
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by Tribal officials in the development of regulatory policies that have Tribal implications.” This final rule does not have “Tribal implications” as specified in Executive Order 13175. The rule provides information concerning what action should be taken by a State, local, or Tribal air quality agency implementing relevant air quality programs to protect public health once EPA has provided a concurrence on data that has been flagged as being influenced by an exceptional or natural event. The CAA and the Tribal Authority Rule (TAR) give Tribes the opportunity to develop and implement CAA programs, but it leaves to the discretion of the Tribe whether to develop these programs and which programs, or appropriate elements of a program, the Tribe will adopt through the Tribal Implementation Plan (TIP).
This rule does not have Tribal implications as defined by Executive Order 13175. It does not have a substantial direct effect on one or more Indian Tribes, because no Tribe has implemented a TIP related to the PM or the 8-hour ozone NAAQS at this time. Furthermore, this rule does not affect the relationship or distribution of power and responsibilities between the Federal government and Indian Tribes. The CAA and the TAR establish the relationship of the Federal government and Tribes in developing plans to attain the NAAQS, and this rule does nothing to modify that relationship. Because this rule does not have Tribal implications, Executive Order 13175 does not apply. However, even though we found that this rule does not have Tribal implications, we nevertheless were aware of Tribes that had an interest in this rule. Therefore, we conducted communications and outreach related to the rule with the Tribes through discussions via conference calls with the Tribal Association. We also provided information to the Tribes on the rule via the Quarterly Tribal Air Newsletter.
This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because EPA does not have reason to believe that the environmental health risks or safety risks addressed by this rule present a disproportionate risk or safety risk to children. The rule provides information concerning what action should be taken by a State, local, or Tribal air quality agency to protect public health once EPA has provided a concurrence on data that has been flagged as being influenced by an exceptional or natural event.
This rule is not a “significant energy action” as defined in Executive Order 13211, “Actions That Significantly Affect Energy Supply, Distribution, or Use,” (66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Further, we have concluded that this rule is not likely to have any adverse energy effects.
Section 12(d) of the National Technology Transfer Advancement Act of 1995 (NTTAA), Public Law No. 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards (VCS) in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impracticable. Voluntary consensus standards are technical standards (
This action does not involve technical standards. Therefore, EPA did not consider the use of any VCS.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the District of Columbia Circuit by May 21, 2007. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review must be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See CAA Section 307(b)(2).
Environmental protection, Air pollution control, National parks, Wilderness areas.
Environmental protection, Air pollution control, Administrative practice and procedure, Reporting and recordkeeping requirements.
42 U.S.C. 7401
(j)
(k)
(l)
(a)
(2) Demonstration to justify data exclusion may include any reliable and accurate data, but must demonstrate a clear causal relationship between the measured exceedance or violation of such standard and the event in accordance with paragraph (c)(3)(iii) of this section.
(b)
(2) EPA shall exclude data from use in determinations of exceedances and NAAQS violations where a State demonstrates to EPA's satisfaction that emissions from fireworks displays caused a specific air pollution concentration in excess of one or more national ambient air quality standards at a particular air quality monitoring location and otherwise satisfies the requirements of this section. Such data will be treated in the same manner as exceptional events under this rule, provided a State demonstrates that such use of fireworks is significantly integral to traditional national, ethnic, or other cultural events including, but not limited to July Fourth celebrations which satisfy the requirements of this section.
(3) EPA shall exclude data from use in determinations of exceedances and NAAQS violations, where a State demonstrates to EPA's satisfaction that emissions from prescribed fires caused a specific air pollution concentration in excess of one or more national ambient air quality standards at a particular air quality monitoring location and otherwise satisfies the requirements of this section provided that such emissions are from prescribed fires that EPA determines meets the definition in § 50.1(j), and provided that the State has certified to EPA that it has adopted and is implementing a Smoke Management Program or the State has ensured that the burner employed basic smoke management practices. If an exceptional event occurs using the basic smoke management practices approach, the State must undertake a review of its approach to ensure public health is being protected and must include consideration of development of a SMP.
(4) [Reserved]
(c)
(i) All States and, where applicable, their political subdivisions must notify the public promptly whenever an event occurs or is reasonably anticipated to occur which may result in the exceedance of an applicable air quality standard.
(ii) [Reserved.]
(2) Flagging of data.
(i) A State shall notify EPA of its intent to exclude one or more measured exceedances of an applicable ambient air quality standard as being due to an exceptional event by placing a flag in the appropriate field for the data record of concern in accordance with the schedules for submission of data to the AQS database in 40 CFR 58.16.
(ii) Flags placed on data in accordance with this section shall be deemed informational only, and the data shall not be excluded from determinations with respect to exceedances or violations of the national ambient air quality standards unless and until, following the State's submittal of its demonstration pursuant to paragraph (c)(3) of this section and EPA review, EPA notifies the State of its concurrence by placing a concurrence flag in the appropriate field for the data record in the AQS database.
(iii) Flags placed on data as being due to an exceptional event together with an initial description of the event shall be submitted to EPA not later than July 1st of the calendar year following the year in which the flagged measurement occurred, except as allowed under paragraph (c)(2)(iv) of this section.
(iv) For PM
(v) When EPA sets a NAAQS for a new pollutant, or revises the NAAQS for an existing pollutant, it may revise or set a new schedule for flagging data for the initial designation of areas for those NAAQS.
(3)
(i) A State that has flagged data as being due to an exceptional event and is requesting exclusion of the affected measurement data shall, after notice and opportunity for public comment, submit a demonstration to justify data exclusion to EPA not later than the lesser of, 3 years following the end of the calendar quarter in which the flagged concentration was recorded or, 12 months prior to the date that a regulatory decision must be made by EPA. A State must submit the public comments it received along with its demonstration to EPA.
(ii) A State that flags data collected during calendar years 2004-2006, pursuant to paragraph (c)(2)(iv) of this section, must adopt the procedures and requirements specified in paragraph (c)(3)(i) of this section and must include a demonstration to justify the exclusion of the data not later than the submittal of the Governor's recommendation letter on nonattainment areas.
(iii) The demonstration to justify data exclusion shall provide evidence that:
(A) The event satisfies the criteria set forth in 40 CFR 50.1(j);
(B) There is a clear causal relationship between the measurement under consideration and the event that is claimed to have affected the air quality in the area;
(C) The event is associated with a measured concentration in excess of normal historical fluctuations, including background; and
(D) There would have been no exceedance or violation but for the event.
(iv) With the submission of the demonstration, the State must document that the public comment process was followed.
(v) [Reserved.]
(A) [Reserved]
23 U.S.C. 101; 42 U.S.C. 7401-7671q.
(a) A State requesting to exclude air quality data due to exceptional events must take appropriate and reasonable actions to protect public health from exceedances or violations of the national ambient air quality standards. At a minimum, the State must:
(1) Provide for prompt public notification whenever air quality concentrations exceed or are expected to exceed an applicable ambient air quality standard;
(2) Provide for public education concerning actions that individuals may take to reduce exposures to unhealthy levels of air quality during and following an exceptional event; and
(3) Provide for the implementation of appropriate measures to protect public health from exceedances or violations of ambient air quality standards caused by exceptional events.
(b) [Reserved]
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Summary presentation of interim and final rules.
This document summarizes the Federal Acquisition Regulation (FAR) rules agreed to by the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council in this Federal Acquisition Circular (FAC) 2005-16. A companion document, the Small Entity Compliance Guide (SECG), follows this FAC. The FAC, including the SECG, is available via the Internet at
For effective dates and comment dates, see separate documents, which follow.
The analyst whose name appears in the table below in relation to each FAR case or subject area. Please cite FAC 2005-16 and specific FAR case number(s). For information pertaining to status or publication schedules, contact the FAR Secretariat at (202) 501-4755.
Summaries for each FAR rule follow. For the actual revisions and/or amendments to these FAR cases, refer to the specific item number and subject set forth in the documents following these item summaries.
FAC 2005-16 amends the FAR as specified below:
This final rule implements the Department of Labor (DOL) Wage Determinations OnLine (WDOL) Internet website as the source for Federal contracting agencies to obtain wage determinations issued by the DOL for service contracts subject to the McNamara-O'Hara Service Contract Act (SCA) and for construction contracts subject to the Davis-Bacon Act (DBA). The rule amends the FAR to direct Federal contracting agencies to obtain DBA and SCA wage determinations from the WDOL website.
The WDOL and e98 processes replace the paper Standard Forms 98 and 98a. In addition, Standard Forms 98, 98a, and 99 are deleted from FAR Part 53. This final rule also incorporates new geographical jurisdictions for DOL's Wage and Hour Regional Offices and eliminates FAR references to the Government Printing Office publication of general wage determinations.
The rule revises the Federal Acquisition Regulation (FAR) to correct the inadvertent omission of an appropriate reference in FAR Part 13.302-4(a) for termination for cause of those purchase orders that have been accepted in writing. This FAR revision is a correction to a reference and not a change to the contract termination options available in 52.212-4(l) or (m). If a purchase order that has been accepted in writing by the contractor is to be terminated, contracting officers have the option to terminate for cause as well as terminate for convenience.
This interim rule amends FAR Subpart 22.8, Equal Employment Opportunity, and the associated clause at 52.222-26, Equal Opportunity, to add an exemption for religious entities to the prohibition of discrimination on the basis of religion. Executive Order (E.O.) 13279 amended Section 204 of E.O. 11246 to permit religious entities to consider employment of individuals of a particular religion to perform work connected with carrying on the entity's activities. Religious entities remain subject to other Equal Employment Opportunity requirements. When awarding a contract to a religious entity that contains the clause at FAR 52.222-26, Equal Opportunity, the requirements of the clause with respect to employment of individuals of a particular religion to perform work connected with the carrying on of the contractor's activities do not apply to a contractor that is a religious corporation, association, educational institution, or society.
The final rule revises the Federal Acquisition Regulation (FAR) to update the required contract clauses that implement provisions of law or executive orders for acquisitions of commercial items.
Federal Acquisition Circular (FAC) 2005-16 is issued under the authority of the Secretary of Defense, the Administrator of General Services, and the Administrator for the National Aeronautics and Space Administration.
Unless otherwise specified, all Federal Acquisition Regulation (FAR) and other directive material contained in FAC 2005-16 is effective March 22, 2007.
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Final rule.
The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) have agreed to adopt the interim rule published in the
Effective Date: March 22, 2007.
Mr. Ernest Woodson, Procurement Analyst, at (202) 501-3775 for clarification of content. Please cite FAC 2005-16, FAR case 2005-033. For information pertaining to status or publication schedules, contact the FAR Secretariat at (202) 501-4755.
DoD, GSA, and NASA published an interim rule in the
The interim rule eliminated the requirement for the contracting officer to submit a copy of collective bargaining agreements (CBAs) to the DOL for the purpose of obtaining a wage determination under Section 4(c) of the SCA, unless directed by the DOL to do so. The rule also deleted the FAR clause at 52.222-47, SCA Minimum Wages and Fringe Benefits Applicable to Successor Contract Pursuant to Predecessor Contractor Collective Bargaining Agreements (CBA), because the WDOL process makes it unnecessary. Additionally, the rule revised FAR clause 52.222-49, Service Contract Act—Place of Performance Unknown, to make conforming changes to FAR references, and deleted Standard Forms 98, 98a, and 99 from FAR Part 53 in their entirety.
The Councils considered the comment to be outside the scope of the rule and referred the comment to the Department of Defense Labor Committee for their review and input. Therefore, the councils have agreed to implement the interim rule as written without changes.
This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
The Department of Defense, the General Services Administration, and the National Aeronautics and Space Administration certify that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
The Paperwork Reduction Act does not apply because the changes to the FAR do not impose information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501,
Government procurement.
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Final rule.
The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) have agreed on a final rule amending the Federal Acquisition Regulation (FAR) to correct the inadvertent omission of an appropriate reference pertaining to the termination for cause procedures for purchase orders that have been accepted in writing.
For clarification of content, contact Mr. Michael Jackson, Procurement Analyst, at (202) 208-4949. Please cite FAC 2005-16, FAR case 2005-029. For information pertaining to status or publication schedules, contact the FAR Secretariat at (202) 501-4755.
This final rule amends the Federal Acquisition Regulation to amend FAR 13.302-4 by reinstating the appropriate coverage for termination for cause of commercial purchase orders. For commercial purchase orders that have been accepted in writing by the contractor, current references to FAR 12.403(d) and FAR 52.212-4(l) as stated in 13.302-4(a) address termination for convenience. The current FAR language at 13.302-4(a) was established under FAC 97-3, published in the
DoD, GSA, and NASA published a proposed rule in the
FAR 13.302-4(a) is revised to reinstitute references to procedures for termination for cause as well as termination for convenience under FAR 12.403 and 52.212-4(l) or (m).
This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
The Department of Defense, the General Services Administration, and the National Aeronautics and Space Administration certify that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
The Paperwork Reduction Act does not apply because the changes to the FAR do not impose information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501,
Government procurement.
40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c).
(a) * * *
(1) 12.403 and 52.212-4(l) or (m) for commercial items; or
(b) * * *
(2) If the contractor does not accept the cancellation or claims that costs were incurred as a result of beginning performance under the purchase order, the contracting officer shall process the action as a termination prescribed in paragraph (a) of this subsection.
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Interim rule with request for comments.
The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) have agreed on an interim rule amending the Federal Acquisition Regulation (FAR) to implement Executive Order (E.O.) 11246, as amended, Equal Employment Opportunity, to incorporate the exemption for religious entities prescribed in E.O. 13279.
Submit comments identified by FAC 2005-16, FAR case 2006-019, by any of the following methods:
• Federal eRulemaking Portal:
You may also search for any document by clicking on the “Advanced search/document search” tab at the top of the screen, selecting from the agency field “Federal Acquisition Regulation”, and typing the FAR case number in the keyword field. Select the “Submit” button.
• Fax: 202-501-4067.
• Mail: General Services Administration, Regulatory Secretariat (VIR), 1800 F Street, NW, Room 4035, ATTN: Laurieann Duarte, Washington, DC 20405.
For clarification of content, contact Mr. Ernest Woodson, Procurement Analyst, at (202) 501-3775. Please cite FAC 2005-16, FAR case 2006-019. For information pertaining to status or publication schedules, contact the FAR Secretariat at (202) 501-4755.
This rule amends FAR Part 22 to implement Executive Order (E.O.) 11246, as amended, to incorporate the exemption for religious entities prescribed in E.O. 13279. E.O. 11246, as amended, prohibits Government contractors and subcontractors, and Federally assisted construction contractors and subcontractors from discriminating in employment, and requires these contractors to take affirmative action to ensure that employees and applicants are treated without regard to race, color, religion, sex, or national origin. Section 4 of E.O. 13279 amended Section 204 of E.O. 11246 to exempt religious corporations, associations, educational institutions and societies from certain nondiscrimination requirements. E.O. 11246, as amended, permits religious entities to consider employment of individuals of a particular religion to perform work connected with carrying on the entity’s activities. Religious entities are not exempt from other requirements of the Executive order.
The Department of Labor (DOL) implemented the exemption at 41 CFR part 60-1, Obligations of Contractors and Subcontractors, in the
This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
The interim rule is not expected to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act,5 U.S.C. 601,
The Paperwork Reduction Act does not apply because the changes to the FAR do not impose information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501,
A determination has been made under the authority of the Secretary of Defense (DoD), the Administrator of General Services (GSA), and the Administrator of the National Aeronautics and Space Administration (NASA) that urgent and compelling reasons exist to promulgate this interim rule without prior opportunity for public comment. This action is necessary to ensure compliance with Executive Order 11246 and consistency with the Department of Labor regulations. Contracting officers need to be aware of the exemption for religious entities and to understand when and how to apply it. This will avoid confusion and potential disagreements between the Government and religious entities competing for Federal contracts. The Executive order was published on December 16, 2002 and the DOL regulations went into effect on October 30, 2003. However, pursuant to Public Law 98-577 and FAR 1.501, the Councils will consider public comments received in response to this interim rule in the formation of the final rule.
Government procurement.
40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c).
(b) * * *
(7)
The revised text reads as follows:
(b)(1) If, during any 12-month period (including the 12 months preceding the award of this contract), the Contractor has been or is awarded nonexempt Federal contracts and/or subcontracts that have an aggregate value in excess of $10,000, the Contractor shall comply with this clause, except for work performed outside the United States by employees who were not recruited within the United States. Upon request, the Contractor shall provide information necessary to determine the applicability of this clause.
(2) If the Contractor is a religious corporation, association, educational institution, or society, the requirements of this clause do not apply with respect to the employment of individuals of a particular religion to perform work connected with the carrying on of the Contractor’s activities (41 CFR 60-1.5).
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Final rule.
The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) have agreed on a final rule amending the Federal Acquisition Regulation (FAR) to update the required contract clauses that implement provisions of law or executive orders for acquisitions of commercial items.
For clarification of content, contact Mr. Michael O. Jackson, Procurement Analyst, at (202) 208-4949. Please cite FAC 2005-16, FAR case 2006-012. For information pertaining to status or publication schedules, contact the FAR Secretariat at (202) 501-4755.
In accordance with Section 8002 of Public Law 103-355 (41 U.S.C. 264, note), contract clauses applicable to acquisitions of commercial items are limited, to the maximum extent practicable, to clauses that are—
(1) Required to implement provisions of law or executive orders applicable to the acquisition of commercial items; or
(2) Determined to be consistent with customary commercial practice.
The FAR clause at 52.212-5, Contract Terms and Conditions Required to Implement Statutes or Executive Orders—Commercial Items, incorporates, by reference, the contract clauses that the contracting officer may select to implement provisions of law or executive orders for acquisitions of commercial items. The FAR clause at 52.219-16, Liquidated Damages—Subcontracting Plan, is a contract clause that is required to implement 15 U.S.C. 637(d)(4)(F)(i). However, the FAR clause 52.219-16 is not included in the list of clauses for commercial contracts in FAR 52.212-5. The rule incorporates the FAR clause 52.219-16 in the list of clauses for commercial contracts that the contracting officer may select.
DoD, GSA, and NASA published a proposed rule in the
This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
The Department of Defense, the General Services Administration, and the National Aeronautics and Space
The Paperwork Reduction Act does not apply because the changes to the FAR do not impose information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501,
Government procurement.
40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c).
CONTRACT TERMS AND CONDITIONS REQUIRED TO IMPLEMENT STATUTES OR EXECUTIVE ORDERS— COMMERCIAL ITEMS (MAR 2007)
(b) * * *
_(10) 52.219-16, Liquidated Damages—Subcontracting Plan (JAN 1999) (15 U.S.C. 637(d)(4)(F)(i)).
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Small Entity Compliance Guide.
This document is issued under the joint authority of the Secretary of Defense, the Administrator of General Services and the Administrator of the National Aeronautics and Space Administration. This
Laurieann Duarte, FAR Secretariat, (202) 501-4225. For clarification of content, contact the analyst whose name appears in the table below.
Summaries for each FAR rule follow. For the actual revisions and/or amendments to these FAR cases, refer to the specific item number and subject set forth in the documents following these item summaries.
FAC 2005-16 amends the FAR as specified below:
This final rule implements the Department of Labor (DOL) Wage Determinations OnLine (WDOL) Internet website as the source for Federal contracting agencies to obtain wage determinations issued by the DOL for service contracts subject to the McNamara-O'Hara Service Contract Act (SCA) and for construction contracts subject to the Davis-Bacon Act (DBA). The rule amends the FAR to direct Federal contracting agencies to obtain DBA and SCA wage determinations from the WDOL website.
The WDOL and e98 processes replace the paper Standard Forms 98 and 98a. In addition, Standard Forms 98, 98a, and 99 are deleted from FAR Part 53. This final rule also incorporates new geographical jurisdictions for DOL's Wage and Hour Regional Offices and eliminates FAR references to the Government Printing Office publication of general wage determinations.
The rule revises the Federal Acquisition Regulation (FAR) to correct the inadvertent omission of an appropriate reference in FAR Part 13.302-4(a) for termination for cause of those purchase orders that have been accepted in writing. This FAR revision is a correction to a reference and not a change to the contract termination options available in 52.212-4(l) or (m). If a purchase order that has been accepted in writing by the contractor is to be terminated, contracting officers have the option to terminate for cause as well as terminate for convenience.
This interim rule amends FAR Subpart 22.8, Equal Employment Opportunity, and the associated clause at 52.222-26, Equal Opportunity, to add an exemption for religious entities to the prohibition of discrimination on the basis of religion. Executive Order (E.O.) 13279 amended Section 204 of E.O. 11246 to permit religious entities to consider employment of individuals of a particular religion to perform work connected with carrying on the entity's activities. Religious entities remain subject to other Equal Employment Opportunity requirements. When awarding a contract to a religious entity that contains the clause at FAR 52.222-26, Equal Opportunity, the requirements of the clause with respect to employment of individuals of a particular religion to perform work connected with the carrying on of the contractor's activities do not apply to a contractor that is a religious corporation, association, educational institution, or society.
The final rule revises the Federal Acquisition Regulation (FAR) to update the required contract clauses that implement provisions of law or executive orders for acquisitions of commercial items.
Mine Safety and Health Administration (MSHA), Labor.
Final rule.
This final rule revises MSHA's existing civil penalty assessment regulations and implements the civil penalty provisions of the Mine Improvement and New Emergency Response (MINER) Act of 2006.
This final rule will increase mine operator compliance with the Federal Mine Safety and Health Act of 1977 (Mine Act), as amended by the MINER Act, and the agency's safety and health standards and regulations, thereby improving safety and health for miners.
Patricia W. Silvey, Director, Office of Standards, Regulations, and Variances, MSHA, 1100 Wilson Boulevard, Room 2350, Arlington, Virginia 22209-3939,
On September 8, 2006, MSHA published a proposed rule to revise its civil penalty regulations (71 FR 53054). MSHA received written comments in response to the proposed rule. In addition, the agency held six public hearings on September 26, 2006 in Arlington, Virginia, September 28, 2006, in Birmingham, Alabama, October 4, 2006, in Salt Lake City, Utah, October 6, 2006, in St. Louis, Missouri, October 17, 2006, in Charleston, West Virginia, and October 19, 2006, in Coraopolis, Pennsylvania. The comment period closed on October 23, 2006. On October 26, 2006, MSHA reopened and extended the comment period to November 9, 2006 (71 FR 62572). MSHA reopened the comment period to restate and clarify language in the proposed rule pertaining to the proposed deleting of the existing single penalty assessment provision. MSHA clarified that violations that would have been processed under the single penalty provision of the existing rule would, under the proposed rule, be processed under the regular assessment provision.
In addition, MSHA reopened the comment period to provide interested persons additional time to comment on an issue that was raised at the public hearings in Charleston, West Virginia, and Pittsburgh, Pennsylvania, pertaining to safety and health conferences. MSHA stated that it intended to include a requirement in the final rule that a request for a safety and health conference be in writing and include a brief statement of the reason why each citation or order should be conferenced.
The section-by-section analysis of the final rule addresses issues raised by comments and testimony.
This final rule results in an across-the-board increase in penalties from the existing regulations; however, penalties increase more significantly for large mine operators, operators with a history of repeated violations of the same standard and for operators whose violations involve high degrees of negligence or gravity. The higher penalties in the final rule are intended to increase the incentives for mine operators to prevent and correct violations.
MSHA notes that under the Federal Civil Monetary Penalty Inflation Adjustment Act of 1990 (Inflation Adjustment Act), as amended by the Debt Collection Improvement Act of 1996, the Agency is required to review and, as warranted, adjust penalties based on inflation at least every four years. On June 15, 2006, the MINER Act was enacted and amended section 110 of the Mine Act raising the maximum civil penalty to $220,000 for violations that are deemed to be flagrant. This final rule codifies the maximum penalty of $220,000 for flagrant violations. In addition, the MINER Act established minimum penalties of $2,000 and $4,000 for unwarrantable failure violations, and minimum penalties for failure to timely notify violations. Although this final rule does not increase the $60,000 maximum civil penalty for non-flagrant violations, the effect of the across-the-board penalty increases from the existing regulations is tantamount to an inflation adjustment. Due to these penalty increases, the penalties in this final rule will not be adjusted under the Inflation Adjustment Act until 2011.
MSHA received numerous comments in support of and opposed to the proposed rule. Many commenters stated that the proposed penalty increases were unnecessary because between 1990 and 2005, both injuries and fatalities have steadily declined. Other commenters stated that the proposed increased penalties will not induce greater compliance with the Mine Act or MSHA's safety and health standards and regulations. Some of these commenters stated that the proposed increases will merely result in operators diverting money from safety and health programs to penalty payments. Other commenters expressed concern that MSHA did not provide evidence that increased penalties would result in increased compliance and requested that MSHA immediately release all of the citation and accident history data necessary to do a thorough analysis of the premise underlying the Agency's proposal. One commenter stated the example that in the year following MSHA's increase in penalties in 2003, the number of citations actually increased by approximately 10%, from 110,038 to 121,225, and that that trend continued in 2005, when the number of citations again increased to 128,225. MSHA used 2005 assessed violation data as the baseline for its calculations of the
Although some commenters stated that increasing penalties will not result in increased compliance by operators, MSHA's experience shows that penalties are an important tool in reducing fatalities, injuries, illnesses, and violations. The Supreme Court recognized that civil penalties provide a “deterrence” that necessarily infrequent inspections cannot generate.
The Agency recognizes that civil penalties alone may not significantly affect compliance with the Mine Act and MSHA's safety and health standards and regulations or reduce the number of mining accidents and injuries. The reductions in accidents and injuries that have been achieved since the civil penalty regulation was originally implemented are the result of a combination of factors such as stronger enforcement, changes in mining technology, improved training, accident reduction initiatives, compliance assistance activities, better safety and health programs and more attention to them on the part of mine management and miners, and the continued issuance of citations and orders and related civil penalties.
In addition, the Agency recognizes that the citations and orders are issued to induce miner operators to correct hazardous conditions thus reducing miners' exposure. Experience and data show that far greater resources are associated with the correction of hazardous conditions than payment of a civil penalty. Correcting the hazardous condition may require an interruption in production or other scheduled activities, necessitating change in personnel and equipment.
Nonetheless, civil penalties have contributed to improvements in fatalities and accident and injury rates in the mining industry. MSHA reviewed the Agency's accident and injury statistics for metal and nonmetal mines from 1973 to 2005. Since 1977, the year that the civil penalty sanction was applied to metal and nonmetal mining operations, the incidence rate for fatal injuries declined, and the incidence rate for the total of fatal injuries, non-fatal days lost injuries, and no days lost injuries also declined.
In October 1977, when Congress discussed adopting mandatory civil penalties for metal and nonmetal mines under the Mine Act, the Senate Committee on Human Resources (Committee) discussed the relative improvements in rates of fatal and serious non-fatal occurrences in the coal industry, where civil penalties had been mandatory since 1970, versus the non-coal segment of the industry, where there had been no provision for civil penalties, mandatory or permissive. Comparing the fatal and disabling injury rates between coal mines and metal and nonmetal mines for the years 1966 through 1976, the Committee found that the comparison:
MSHA's approach under this final rule is consistent with the intent of the drafters of the Mine Act. One of the goals of revising the civil penalty regulations in this final rule is to place more emphasis on the most severe violations, such as those contributing to accidents and injuries, and the most severe violators, such as those operators who exhibit high levels of negligence. MSHA has achieved this goal by revising the point tables for Negligence and Gravity-Severity and -Likelihood, so that the more severe violations will receive civil penalties at levels more likely to induce the operator's compliance.
Penalties are one of many tools that Congress approved to ensure “a safe and healthful” workplace for miners. Congress's intent was that civil penalties under the Mine Act be used to “induce those officials responsible for the operation of a mine to comply with the Act and its standards.” S. Rep. No. 95-181, at 41. Civil penalties were singled out by the sponsors of the Mine Act as “the mechanism for encouraging operator compliance with safety and health standards.” 123 Cong. Rec. 4388 (1977) (Feb. 11, 1977) (statement of Sen. Williams).
MSHA has structured the final rule so that increased penalties will induce operators to be more proactive in their approach to miner safety and health and will lead to overall safety and health improvements. Increasing penalties is consistent with Congress's intent that penalties:
In response to comments that stated that the proposed penalty increases were unnecessary because injuries and fatalities have steadily declined since 1990, MSHA notes that the Mine Act has resulted in significant improvements in the health and safety of miners. Nevertheless, a review of MSHA's historical data shows a high number of fatal accidents in 2006—47 fatalities in coal mines and 25 fatalities in metal and nonmetal mines—and a rising number of violations in the past three years, including a rising number of violations of the same standard and a rise in the number of serious violations.
Several commenters supported increased penalties, but stated that the proposed increases were not sufficiently high to provide operators with enough compliance incentive. In support of this statement, these commenters provided the example that a violation that receives 50 points under the existing regulations would only receive the minimum penalty under the penalty conversion table in the proposed rule. MSHA notes that points assigned in the penalty tables for each of the statutory criteria have been changed in the proposed rule and, that this change prevents accurate comparisons between points assigned in the penalty tables under the existing regulation with the penalty conversion table in the proposed rule. Using the commenters' example, the 774 violations that received 50 penalty points under the penalty tables of the existing regulation received an average penalty of $636 (including a 30% discount for good faith, where applicable). These same violations would receive an average of 93 penalty points under the penalty tables in the proposed rule and would receive an average penalty of $2,134 (including a 10% discount for good faith, where applicable).
Several commenters stated that the proposed penalty increases were too high. These commenters provided MSHA with specific examples comparing penalties under the existing rule with projected penalties under the proposed rule. MSHA is impressed with the specific examples they submitted which included thoughtful analysis and attention to detail. MSHA has analyzed these examples using its data for 2005 assessed violations. MSHA notes that its data is comprised of all violations that were assessed in 2005. Some commenters may have submitted specific examples that relied on the issuance date rather than the assessment date of the violation. MSHA's analysis shows the following for some of the specific examples submitted by commenters.
1. Jim Walter Resources, Inc., (JWR) submitted summary estimates for Mine Number 4 and Mine Number 7. Regarding Mine Number 4, JWR stated that total penalties for 2005 were $97,288 and projected that penalties under the proposal would be $421,521, an increase of 333%. MSHA's analysis shows that total penalties assessed in 2005 for this mine were $128,540 and that the amount under the proposed rule would be $421,128, an increase of 228%. Under the final rule, the total penalties would be $344,423 or an increase of 168%.
Regarding Mine Number 7, JWR stated that total penalties for 2005 were $55,131 and projected that penalties under the proposal would be $286,389, representing an increase of 419%. MSHA's analysis shows that total penalties assessed in 2005 for this mine were $65,775 and that the amount under the proposed rule would be $378,907, an increase of 476%. Under the final rule, the total penalties would be $333,559 which is an increase of 407%. MSHA notes that the increase in penalties for Mine Number 7 as compared to Mine Number 4 is predominantly attributable to the difference in the number of penalty points for violations per inspection day. In addition, as stated above, MSHA's analysis is based on violations that were assessed in 2005 even though the violation may have been issued in a different year.
2. Peabody Energy (Peabody) provided projections of penalties for “typical” § 75.400 violations stating that if the single penalty is eliminated and penalties are solely based on points, large operators will be at an extreme disadvantage due to their sheer size and production. In each example, the size of the mine is over two million tons, the size of controlling entity is over 10 million tons, the history consists of a VPID exceeding 2.1 and more than 20 violations of the same standard, and the gravity consists of one person potentially affected. The first example involves a non-significant and substantial (non-S&S) violation: moderate negligence, “unlikely” occurrence, and “lost work days or restricted duty.” Peabody projected that under the proposed rule this violation would incur 106 penalty points for an initial proposed penalty of $4,440, which would be offset by a $444 reduction for timely abatement, resulting in a total penalty of $3,996.
The second example involves an S&S violation: moderate negligence, “reasonably likely” to occur, and “lost work days or restricted duty.” Peabody projected that under the proposed rule this violation would incur 126 penalty points for an initial proposed penalty of $21,993, which would be offset by a $2,199 reduction for timely abatement, resulting in a total penalty of $19,794.
The third example involves an S&S violation: High negligence, “reasonably likely” to occur, and “lost work days or restricted duty.” Peabody projected that under the proposed rule this violation would incur 141 penalty points for an initial proposed penalty of $60,000 which would be offset by a $6,000 reduction for timely abatement, resulting in a total penalty of $54,000.
MSHA reviewed its 2005 assessment violation data for all § 75.400 violations issued for Peabody's largest mines in 2005. MSHA calculated the average total penalty points and average proposed penalties under the existing, proposed, and final rules for Peabody mines that received maximum points for mine size. The results of MSHA's analysis are shown in the following table.
MSHA's analysis shows that under the existing rule, the total average points for all non-S&S § 75.400 violations was 43, resulting in an average proposed penalty of $68. MSHA's analysis revealed total average points for all S&S § 75.400 violations of 47, resulting in an average proposed penalty of $576.
Under the proposed rule, MSHA's analysis shows that the total average points for all non-S&S § 75.400 violations was 87, resulting in an average proposed penalty of $874, which includes the “good faith” reduction. MSHA's analysis revealed total average points for all S&S § 75.400 violations of 106, resulting in an average proposed penalty was $3,996, which includes the “good faith” reduction.
Under the final rule, MSHA's analysis shows that the total average points for all non-S&S § 75.400 violations was 82, resulting in an average proposed penalty of $586. MSHA's analysis revealed total average points for all S&S § 75.400 violations of 102, resulting in an average proposed penalty of $2,902, which includes the “good faith” reduction.
Peabody also submitted a fourth example showing the “cheapest typical non-S&S” violation. In this example, the size of mine is over two million tons, the size of controlling entity is over 10 million tons, the history consists of a VPID exceeding 2.1 and five or fewer repeat violations in the last 15 months, moderate negligence, an “unlikely” occurrence, a severity of “lost work days or restricted duty,” and one person potentially affected. Peabody projected that, under the proposed rule, such a violation would incur 86 penalty points for an initial proposed penalty of $897 which would be offset by a $90 reduction for timely abatement, resulting in a total penalty of $807. MSHA's analysis of an average non-S&S violation for Peabody mines with maximum points for mine size shows that under the existing rule, the average proposed penalty was $68, under the proposed rule, the average proposed penalty was $874, and under the final rule, the average proposed penalty was $586.
3. Pennsylvania Coal Association stated that the removal of the single penalty assessment will greatly increase penalties for non-S&S violations that present no real degree of hazard. Pennsylvania Coal gave the example that under the proposal, a section 104(a), non-S&S violation with moderate negligence, 1.1 violations per inspection day, production over two million tons per year, an unlikely likelihood of occurrence, a severity of lost work days, and two persons potentially affected would receive a penalty of $512, more than 8 times the $60 single penalty under the existing rule. Under MSHA's analysis, assuming three points for size of the controlling entity, the penalty for this violation would be $212 under the proposed rule, or $190 with the “good faith” reduction, an increase of 216%. Under the final rule, assuming five points for size of the controlling entity, the penalty for this violation would be $196 or $176 with the “good faith” reduction.
Pennsylvania Coal further stated that it believed that penalties under the proposal would result in an increase of 10 times over the existing penalties for commonly cited violations. Pennsylvania Coal provided the example that if the severity of the injury in the foregoing violation were permanently disabling and there was a “repeat” history of 10 points, the penalty would increase to $1,140. Under MSHA's analysis, assuming three points for size of the controlling entity, the penalty for this violation would be $473 under the proposed rule, or $425 with the “good faith” reduction, an increase of 7 times over the existing penalty. Under the final rule, assuming five points for size of the controlling entity, the penalty would be $651 or $586 with the “good faith” reduction.
After analyzing the commenters' projected penalties, MSHA agrees that the penalty increases can be substantial under the proposed rule; however, in many instances, the increases are not as great as commenters projected. This is due to a number of reasons including data based on issued rather than assessed violations, and use of hypothetical violations with sometimes incomplete data. The Agency believes that the penalty increases in the final rule are consistent with Congressional intent and are at an appropriate level to increase operator compliance with the Mine Act and MSHA's safety and health standards and regulations.
MSHA discussed the regulatory impact analysis in support of the proposed rule in Section IV of the preamble to the proposed rule. The analysis of costs contained three inadvertent errors: (1) MSHA used the wrong employment size for a few independent contractor violations; (2) there was a small error in the formula for calculating the history for repeat violations; and (3) violation history penalty points were improperly assigned to operators with fewer than 10 violations over the previous 15-month period. The net effect of these errors was to underestimate the impact of costs of the proposal by about 2%. These errors have been corrected in MSHA's analysis of the final rule. A more detailed explanation is provided later in Section III (Executive Order 12866) of this preamble, and any data referenced by MSHA in support of the proposed rule reflect the corrections.
Some commenters expressed concern that MSHA does not use the Small Business Administration (SBA) definition of small business, creating an unfair trade disadvantage for crushed stone, sand, and gravel mines, which tend to be smaller mines. In analyzing the impact of a rule on small entities, MSHA must use the SBA definition for a small entity or, after consultation with the SBA Office of Advocacy, establish an alternative definition for the mining industry by publishing that definition in the
MSHA has also examined the impact of agency rules on a subset of mines with 500 or fewer employees, i.e., those with fewer than 20 employees, which MSHA and the mining community traditionally have referred to as “small mines.” These small mines differ from larger mines not only in the number of employees, but also in economies of scale in material produced, in the type and amount of production equipment, and in supply inventory. Because of these factors, their costs of complying with MSHA's rules and the impact of the agency's rules on them also will tend to be different. It is for this reason that “small mines,” traditionally defined by MSHA as those employing fewer than 20 workers, are of special concern to MSHA. In addition, for this final rule, MSHA has examined the cost on mines with five or fewer employees to ensure that they are not significantly and adversely impacted by the final rule.
In the final rule, MSHA has carefully evaluated all of the comments and concerns. The Agency has revised some of the proposed provisions to reflect many of the commenters' concerns. MSHA's primary objective continues to be to develop and issue a final rule which promotes operator compliance with the Mine Act and MSHA's standards and regulations and thereby reduces violations and injuries, illnesses and fatalities in mines. By establishing more serious consequences for noncompliance with the Mine Act and MSHA's safety and health standards and regulations, the highest penalties under this final rule are directed towards those mine operators who continually allow hazardous conditions to exist. The final rule aims to direct mine operators who violate the Mine Act and MSHA's safety and health standards and regulations toward a more proactive approach to miner safety and health.
Final § 100.1, like the existing rule, sets forth the scope and purpose of the final rule. It provides the criteria and procedures that MSHA uses to propose civil penalties under sections 105 and 110 of the Mine Act. Final § 100.1, like the existing rule, provides that the purpose of this rule is to: establish a fair and equitable procedure for the application of the statutory criteria in determining proposed penalties for violations; maximize the incentives for mine operators to prevent and correct hazardous conditions; and assure the prompt and efficient processing and collection of penalties.
Some commenters suggested that the final rule should be limited to the specific penalties mandated by the
Although Congress mandated only certain penalties under the MINER Act, it did so by amending the Mine Act and providing the Secretary with additional tools “to improve the safety of mines and mining.” PL 109-236, 120 Stat. 493 (June 15, 2006). MSHA has determined that there would be no benefit for miner safety and health by convening an advisory committee. The final rule is consistent with both the Mine Act and MINER Act's goals to improve miner safety and health through the use of effective civil penalties. In response to comments, and consistent with the MINER Act, under the final rule, operators who exhibit a lack of commitment to miner safety and health will receive the greatest increase in penalties.
Some commenters opposed the proposed rule's across-the-board penalty increases, stating that this was a one-size-fits-all approach that unfairly penalized operators with good safety records. Specifically, a number of sand and gravel operators commented that the proposed increases should be limited to coal mines because disasters in coal mines generated changes in the MINER Act. These commenters further stated that coal mines pose greater health and safety hazards to miners and that such mines experience a higher number of violations. Some small sand and gravel operations further commented that the proposed increases were excessively high and would put them out of business. These commenters provided no specific data in support of their conclusion. Under the final rule, MSHA estimates that metal and nonmetal operators, which include small sand and gravel operators, with one to five employees would average a yearly increase of $149 per mine, compared to $213 for those with one to 20 employees.
Under the final rule, like the existing rule, the size of the mining operation and the effect of a penalty on an operator's ability to continue in business are two of the statutory factors taken into consideration in determining penalties. MSHA's goal for this final rule is that all mine operators, consistent with the statutory purpose, will be in compliance with the Mine Act and Agency safety and health standards and regulations. In addition, consistent with the MINER Act, the Agency projects that operators who are the worst safety and health offenders will experience the largest penalty increases under the final rule.
One commenter expressed concern that the proposed rule did not provide equitable procedures for the application of the statutory criteria in determining proposed penalties because the proposed rule treated small mines differently from large mines and because it treated coal mines differently from metal and non-metal mines. MSHA does not agree that its application of the mine size penalty criteria is inequitable. Under the final rule, like the existing rule, the points and the penalties increase as the size of the operator or its parent company grows. In doing so, MSHA is assuring optimal consistency in accordance with Congressional intent in applying the statutory criteria pertaining to the size of the operator's business.
Historically, MSHA has treated coal mining operations differently from metal and nonmetal mining operations when determining size for purposes of assigning civil penalty points. This historical distinction was based on both Agency experience and mining industry conditions. MSHA has found that measuring the size of coal mining operations by tonnage produced is a reasonable indicator of the size of the business for coal operations. Tonnage produced, however, is not usually a useful indicator of size for metal and nonmetal mining operations because of the vast differences in commodities mined and methods of mining within that segment of the mining industry. In some instances, large volumes of material are mined for only a few ounces of a marketable commodity; in others, nearly one hundred percent of the mined material is marketable. In addition, the costs of production and the market prices may vary markedly within the metal and nonmetal industry. Thus, an annual tonnage measurement of metal and nonmetal operations would not enable MSHA to fairly evaluate the economic impact of the proposed penalty on each operator. MSHA's experience is that tonnage produced has proven to be effective for measuring the size of coal mining operations and annual hours worked has proven to be effective for measuring the size of metal and nonmetal operations.
No substantive changes to proposed § 100.1 were made in the final rule. Final § 100.1 adopts the language in the proposed rule.
Final § 100.2, like the existing rule, sets forth the applicability of the final rule and provides that the criteria and procedures in this part are applicable to all proposed assessments of civil penalties for violations of the Mine Act and the standards and regulations promulgated pursuant to the Mine Act, as amended. Final § 100.2, like the existing rule, further provides that MSHA shall review each citation and order and shall make proposed assessments of civil penalties.
MSHA received no significant comments regarding proposed § 100.2. Final § 100.2 adopts the language in the proposed rule.
This section of the final rule addresses the determination of a penalty amount under the regular assessment provision. Final § 100.3(a)(1) is derived from existing § 100.3(a), and provides the criteria for determining penalty assessments. The final rule, like the proposal, makes several non-substantive, clarifying changes. It divides existing § 100.3(a) into two paragraphs designated as § 100.3(a)(1) and (a)(2).
Final § 100.3(a)(1), like the proposed rule, provides that the operator of any mine in which a violation of a mandatory health or safety standard occurs or who violates any other provision of the Mine Act shall be assessed a civil penalty of not more than $60,000. It further provides that each occurrence of a violation of a mandatory safety or health standard may constitute a separate offense. In addition, it provides that the amount of the proposed civil penalty shall be based on the criteria set forth in sections 105(b) and 110(i) of the Mine Act. These criteria are:
(1) The appropriateness of the penalty to the size of the business of the operator charged;
(2) The operator's history of previous violations;
(3) Whether the operator was negligent;
(4) The gravity of the violation;
(5) The demonstrated good faith of the operator charged in attempting to achieve rapid compliance after notification of a violation; and
(6) The effect of the penalty on the operator's ability to continue in business.
MSHA received no comments on proposed § 100.3(a)(1) and final § 100.3(a)(1) adopts the language in the proposed rule.
Final § 100.3(a)(2), substantively unchanged from the existing rule, sets forth the process for determining a penalty under the regular assessment provision. Under paragraph (a)(2), a regular assessment is determined by first assigning the number of penalty points to the violation by using the criteria and tables set forth in this section. The total number of penalty points is then converted into a dollar amount under the penalty conversion table in paragraph (g) of this section. If applicable, the amount of the penalty will be adjusted for good faith as provided under paragraph (f) of this section, and/or the operator's ability to continue in business as provided under paragraph (g) of this section.
Several commenters suggested that MSHA replace the proposed point system with alternative methods for computing penalties. For example, one commenter suggested that MSHA consider an alternative to the regular assessment process in which each violation would have a designated baseline penalty. Under this suggested approach, factors such as an operator's history and negligence, and the gravity of the violation would be used to increase the penalty, but the baseline penalty would not be reduced because of an operator's size, good faith in abatement, or ability to continue in business. MSHA has evaluated this suggested alternative and determined that it is not in accord with the intent of the drafters of the Mine Act because it does not appropriately consider the statutory factors when determining penalties. Therefore, final § 100.3(a)(2) retains the proposed regular assessment structure and language.
Final § 100.3(b) is derived from existing § 100.3(b). Like the existing rule, final § 100.3(b) continues to provide that the appropriateness of the penalty to the size of the operator's business is calculated by using both the size of the mine and the size of the controlling entity of the mine. In addition, final paragraph (b) continues to provide that the terms “annual tonnage” and “annual hours worked” mean coal produced and hours worked, respectively, in the previous calendar year. It also continues to provide that where a full year of data is not available, the coal produced or hours worked is prorated on an annual basis. Finally, it increases the maximum number of points that can be accrued under this criterion, from 15 points under the existing rule to 25 points.
MSHA proposed editorial, clarifying changes to this provision. MSHA proposed adding the statement that the size of coal mines and their controlling entities is measured by coal production, the size of metal and nonmetal mines and their controlling entities is measured by hours worked, and the size of independent contractors is measured by the total hours worked at all mines. No comments were received regarding this proposed clarification. Therefore, final § 100.3(b) adopts the additional statement as proposed.
Although final § 100.3(b) retains the proposed 25 maximum number of points under the size criterion, allocation of points based on the size of coal mines, metal and nonmetal mines, controlling entities, and independent contractors is different from the proposed rule. Under final § 100.3(b), the maximum number of points based on the size of coal mines and metal and nonmetal mines is reduced from the proposed 20 points to 15 points, and the maximum number of points for controlling entities of coal mines and metal and nonmetal mines is increased from the proposed five points to 10 points. Accordingly, the total maximum number of points for the size of a coal or metal or nonmetal mining operation is 25. In addition, the maximum number of points for independent contractors is increased from 20 to 25 points.
MSHA received numerous comments both in support of and against point increases based on mine size. Commenters opposed to giving consideration to size expressed concern that, under the proposed rule, nearly a quarter of all coal mines and more than half of all metal and nonmetal mines were receiving fewer points merely because of size even though many health and safety violations are cited at such smaller operations. In addition, commenters expressed concern that larger operations would receive excessive points under the proposed rule even though larger mines typically have more comprehensive safety programs than smaller mines. This final rule is responsive to many of these concerns.
With respect to comments pertaining to the proposed increase in points for mine size, the Mine Act specifically requires that the size of an operator's business be considered in determining the amount of a penalty. In response to comments, however, MSHA has made several changes to the mine size point tables in the final rule. First, MSHA created more categories for the annual tonnage range for smaller coal mines and the annual hours worked range for smaller metal and nonmetal mines.
In addition, MSHA raised the penalty points for the smallest coal mine size from zero points to one point. This is because coal mines in the smallest mine size, according to annual tonnage, include preparation plants that report no production, although many employ 20 or more workers. Therefore, MSHA determined that it would further the purpose of this rulemaking to increase points in this size range. As a result of these changes, smaller coal mines would tend to receive more size penalty points on average under the final rule as compared with the proposed rule. For example, a small coal mine with coal production between 0 and 7,500 tons will receive one point under the final rule as opposed to 0 points under the proposed rule.
Under final § 100.3(b), MSHA has increased the maximum number of points from 10 under the existing rule to 15 for the largest coal operations and metal and nonmetal operations. MSHA proposed increased points for larger operations because in order to provide an equal deterrent, the penalties must be higher for larger mines (with potentially higher revenue) in order to provide an equal deterrent. In addition, the Agency anticipated that higher penalties would be needed to help induce these operations, with more complex management structures, to take notice of and correct safety and health violations. Accordingly, final § 100.3(b) increases the maximum number of points from 10 under the existing rule to 15 (as opposed to the 20 points in the proposal).
With respect to independent contractors, MSHA proposed to increase the maximum number of penalty points from 10 to 20 to assure that the amount of the penalty is an appropriate economic inducement of future compliance by the independent contractor. This was accomplished by doubling the number of penalty points for any given number of annual hours worked. MSHA has reviewed the violations assessed in 2005 pertaining to independent contractors and determined that the maximum number of points for independent contractor size should be raised from 20 in the proposed rule to 25 in the final rule.
In addition, as was done for operators, MSHA has created more categories capturing the annual hours worked range for smaller independent contractors. As a result, smaller independent contractors would tend to receive more penalty points for size on average under the final rule than under the proposed rule. For example, an independent contractor with 5,001 to 10,000 annual hours worked would receive two penalty points for size under the final rule as compared to zero penalty points for size under the proposed rule.
In reallocating the points for size for independent contractors, MSHA evaluated the violations that were assessed in 2005 and compared the number of violations per contractor with the given contractor size points under the existing rule, proposed rule, and final rule. MSHA's primary concern was to ensure that the average penalties per violation for independent contractors of any given employment size would be similar to the average penalties for coal and metal and nonmetal operators of a similar employment size.
In addition, MSHA received comments both in support of and against the Agency's request for comments pertaining to whether greater weight should be placed on the size of controlling entities. Proposed § 100.3(b) retained the existing maximum of five points for controlling entities; however, MSHA specifically requested comments on whether, in considering the size of the operator, greater weight should be placed on the size of the controlling entity. Some commenters supported placing greater weight on controlling entities so that smaller individual mines that are owned and controlled by larger entities would receive higher penalties. Those commenters stated, however, that for purposes of assessing a sufficiently high penalty that would get the attention of the controlling entity, an accurate measure of the controlling entity's size should be revenues, and not annual tonnage or hours worked, because many controlling entities could be involved in a number of industries and businesses that are not mining-related. Other commenters who supported placing greater weight on controlling entities questioned whether it would be a workable provision. Those commenters were concerned that because the mining industry is so fluid, tracking such information may be all but impossible, overly burdensome, and too labor intensive, and therefore beyond the agency's ability to administer.
Some commenters opposed placing greater weight on the controlling entity. Some of those commenters stated that the Mine Act only specifies the size of the operator as a penalty criterion, and such specification implies that the size of some other entity in the corporate chain should not be a consideration in calculating the size of the penalty. Other commenters opposed placing greater weight on the controlling entity because it would create a financial disadvantage for small operations owned by larger companies and thereby promote an adverse competitive environment in local markets.
MSHA agrees with comments in support of placing greater weight on controlling entities and accordingly has increased the maximum controller size penalty points from five to 10. Congress specifically required that the size not only of the particular mine involved in the violation, but the size of the operator's “business” is to be taken into account. MSHA has historically interpreted this statutory provision to include both the size of the mine and the size of the entity that controls the mine. Business judgments affecting the health and safety of miners are made at various levels of an organization's structure. Penalties are intended to encourage management at all levels to respond positively to the health and safety concerns affecting miners. In addition, Congress expressed its intent to place the responsibility for compliance with the Mine Act on those who control or supervise the operation of mines as well as on those who operate them. S. Rep. No. 95-181, at 40-41. Upper-level management decisions such as those affecting capital expenditures, the basic nature and scope of a corporate safety and health program, the hiring of top mine management officials, and other policy matters have a profound effect upon safety and health conditions at individual mines. Thus, penalties should be increased for controlling entities in order to influence all levels of decisionmaking. Further, the Mine Act specifically requires consideration be given to the size of the operator's business. MSHA reallocated the points for controlling entities and coal and metal and nonmetal mine size to achieve a more equitable distribution of points.
MSHA does not think that the specific comment that opposed placing greater weight on the controlling entity because it would create a financial disadvantage for small operations owned by larger companies is accurate. The comment assumes that fines assessed against smaller operations owned by larger entities are not reflected in the overall profit margin of the controlling entity.
In addition, for the same reasons stated in the above discussion concerning measuring the size of coal mines and metal and nonmetal mines, MSHA will continue to measure the size of controlling entities under this final rule as it does under the existing rule. The size of a controlling entity for coal mines is measured by annual tonnage and the size of a controlling entity for metal and nonmetal mines is measured by annual hours worked. MSHA intends to continue its existing practice of considering only the mining operations in which a controlling entity is involved in when determining the size of the controlling entity. This method has been effective as a proxy for revenue and the data are readily available to MSHA through the existing reporting requirements under 30 CFR part 50.
Final § 100.3(b) modifies the points for size from the proposed rule. Relative to the existing rule, final § 100.3(b) increases the points for the size according to the following tables.
Final § 100.3(c) is derived from existing § 100.3(c). Final § 100.3(c), like the proposed rule, provides that an operator's history of previous violations is based on both the total number of violations and the number of repeat violations of the same citable provision of a standard in a preceding 15-month period. Final § 100.3(c) clarifies that the repeat aspect of the history criterion in paragraph (c)(2) applies to operators only after an operator has received 10 violations, and to independent contractor operators only after an independent contractor has received 6 violations. In addition, only assessed violations that have been paid or finally adjudicated, or have become final orders of the Federal Mine Safety and Health Review Commission (Commission), will be included in determining an operator's history.
Proposed § 100.3(c) clarified the existing provision by adding the phrase “or have become final orders of the Commission” in the second sentence of this paragraph to reflect MSHA's intent that only violations which have become final be included in an operator's history. In addition, the proposal made several substantive changes to existing § 100.3(c). An operator's history of violations under existing § 100.3(c) was based solely on the overall number of violations cited against an operator during a preceding 24-month period. Under the proposal, the period of time would be shortened to 15 months and an operator's history of violations would include two components: the total number of violations and the number of repeat violations in that 15-month period.
MSHA received numerous comments with respect to these proposed changes. Several commenters opposed the 15-month period. These commenters expressed concern that the proposed 15-month period would deprive MSHA of critical information about an operator's past safety record, particularly for aggregate mining operations that are seasonal or intermittent, and could result in lower penalties, particularly for repeat violators. One commenter criticized MSHA for not publishing data that the Agency used to determine that the effect of the shorter time period would have a negligible effect on an independent contractor's history. On the other hand, many commenters supported the shorter time period because it provided a more current or
MSHA has determined that the proposed 15-month period will provide the Agency with sufficient data to accurately evaluate an operator's compliance record, including any trend, even for mining operations that are inspected on a less-frequent basis, e.g., seasonal or intermittent operations. MSHA reviewed violations that were assessed in 2005 and determined that because it takes approximately three months for a penalty assessment to become a final order of the Commission, the proposed 15-month period would provide the Agency with at least one full year of data for coal and metal and nonmetal operations, and for independent contractors.
The shortened timeframe of 15 months provides MSHA with a more recent compliance history than the 24-month period under the existing rule. In addition, MSHA believes that operators who violate the Mine Act and MSHA's health and safety standards and regulations should receive penalties for those violations as close as practicable to the time the violation occurs in order to provide a more appropriate incentive for changing compliance behavior.
For coal and metal and nonmetal operations, the data would be normalized by the amount of inspection time resulting in data comparable to that of the 24-month period under the existing rule. MSHA analyzed the data for operator violations that were assessed in 2005 to determine the impact of changing to a 15-month period. For coal and metal and nonmetal operator violations that were assigned history penalty points in 2005, and had a minimum of 10 violations during the 15-month period, the average penalty points using a preceding 24-month period was 7.5 per violation. Using a preceding 15-month period, the average was 7.6 penalty points per violation.
For independent contractors, there is a negligible difference between calculating an independent contractor's history of violations under the proposed rule and under the existing rule. This is so because it generally takes up to three months for a violation to become a final order and, therefore, the 15-month period provides MSHA with at least one full year of data from which to calculate violation history. MSHA reviewed violations that were assessed in 2005, which show that there were 3,844 contractors that were issued at least one citation in the 24-month period from January 1, 2004 to December 31, 2005. Using the same number of months and the annualized calculation that is used to determine violation history in the existing rule, these contractors were issued an average of 2.3 violations per year with a median of one violation per year during this time frame. Using the 15-month period without annualizing the number of violations as proposed, these same contractors were issued an average of 2.9 violations with a median of one violation during the 15-month period between October 1, 2004 and December 31, 2005.
Several commenters expressed concern with the Agency's proposal to use violations that have become final orders of the Commission, stating that this will encourage operators to increase penalty contests to avoid counting the violation in an operator's history. MSHA included the insertion of the phrase “final orders of the Commission” to clarify the Agency's practice, in existence since 1982, to use only violations that have become final orders of the Commission in determining an operator's history of violations. This practice will continue to provide a measure of fairness by not including in an operator's history those violations that are in the adjudicatory process which may ultimately be dismissed or vacated. As each penalty contest becomes final, however, the violation will be included in an operator's history as of the date it becomes final.
In consideration of all comments, final § 100.3(c) retains the final order language and shortens the period of time from 24 to 15 months for determining an operator's history of violations as proposed.
Several commenters expressed confusion regarding the number of violations that would trigger application of the repeat violation provision in proposed paragraph (c)(2). MSHA intends that the repeat violation provision in final paragraph (c)(2) would only apply to contractors after an operator has received 10 violations, and to independent contractor operators only after an independent contractor has received 6 violations. Therefore, final § 100.3(c) includes clarifying language.
Final § 100.3(c)(1) is a new paragraph derived from existing § 100.3(c). Final § 100.3(c)(1), like the proposed rule, provides that history penalty points are assigned on the basis of the number of violations per inspection day (VPID) for coal operations and metal and nonmetal operations. Under final paragraph (c)(1), penalty points are not assigned to coal operations and metal and nonmetal operations that receive fewer than 10 violations in a preceding 15-month period. For independent contractors, final § 100.3(c)(1), like the proposed rule, provides that penalty points are assigned on the basis of the total number of violations at all mines. Penalty points are not assigned to independent contractors with fewer than 6 violations. The maximum number of points that an operator may receive for this criterion is 25 points.
Most commenters supported the proposed continuation of using VPID to calculate points for coal and metal and nonmetal operator's history of violations, stating that VPID provides the truest measure of an operator's compliance. Some of these commenters, however, requested that MSHA clarify its definition of an inspection day. These commenters stated that MSHA's method of determining inspection days is different between coal mines and metal and nonmetal mines, which affects how points are computed.
MSHA's definition of VPID (Violations per Inspection Day) is calculated by taking the total number of assessed violations at a mine for a specified period that have either been paid or have become a final order of the Commission and dividing it by the total number of inspection days at the mine during the same specified period. There is no functional difference between a violation that an operator pays and a final order of the Commission.
Prior to April 2005, MSHA used different definitions of an inspection day for coal and metal and nonmetal mines. For coal mines, each mine visit by each Authorized Representative of the Secretary (AR) was considered a separate inspection day. For metal and nonmetal mines, the total time for each inspection event was divided by five hours to determine the number of inspection days for that event. For both coal and metal and nonmetal operations, the number of inspection days were then summed for the specified period. In April 2005, MSHA began its transition to use the per-visit method previously used only for coal mines for all types of mines. MSHA currently calculates inspection days for assessment purposes by counting one inspection day for each AR that spends any on-site inspection time during any calendar day. Supervisory and trainee time is excluded from the inspection day calculation as are non-inspection activities. The same method is used for all coal, metal, and nonmetal mines.
Some commenters expressed concern that the proposed new provision that history penalty points not be assigned to coal operations and metal and nonmetal operations with fewer than 10 violations in a preceding 15-month period essentially amounted to a free pass for small mines and constituted selective enforcement of the Mine Act. MSHA
Several commenters suggested, as an alternative to the proposal, that the final rule include a provision that history penalty points not be assigned to independent contractors with fewer than 10 violations in a preceding 15-month period. In considering this suggestion, MSHA reviewed its violation data which showed that between October 1, 2004 and December 31, 2005, approximately 500 contractors would have received history penalty points for 6 or more violations during a 15-month period. This number would be reduced, however, to approximately 200 if contractors with fewer than 10 violations were not assessed history points. Stated differently, under MSHA's violation data, 11% of the independent contractor violations would have received history penalty points for six or more violations during a previous 15-month period. This percentage would be reduced, however, to approximately 6% if contractors with fewer than 10 violations were not assessed history points. Although there was strong support for the suggested alternative, MSHA has decided that the alternative does not further the purpose of this rulemaking and that the Agency will retain the proposed language that penalty points not be assigned to independent contractors with fewer than 6 violations in a preceding 15-month period.
MSHA specifically requested comments as to whether the Agency should adopt the proposed approach for calculating an independent contractor's history of violations by using the total number of assessed violations at all mines during a preceding 15-month period, or whether the Agency should use an annualized 2-year average as it does under the existing rule. Under the existing rule, the number of violations for independent contractors is based on an annual average of all violations over a two year period at all mines. MSHA received several comments expressing skepticism with the Agency's statement that only a minimal increase in the average assessment issued to independent contractors would result by eliminating the annualized average. In addition, some commenters suggested that MSHA use VPIDs when computing contractor history. These commenters stated that contractors are required to have a single MSHA contractor ID number for nationwide operations, and that if working daily at multiple mine sites across the country, that contractor is likely to be inspected far more frequently than the average mine operator. These commenters concluded that MSHA's proposal lacks an adequate foundation and results in unfair treatment of independent contractors.
VPID cannot be used to calculate a contractor's history of violations because MSHA does not record inspection time for contractors. As explained above, MSHA tracks contractor violations by counting total violations within a specified period. Although MSHA received some comments critical of the proposed method, it has proved to be both successful and practical in calculating a contractor's violation history under the existing rule.
The proposed rule increased the maximum number of points under this criterion from 20 under the existing regulation to 25 points. The final rule retains the proposed 25 maximum points; however, MSHA raised penalty points for independent contractors with 8 to 50 violations during the previous 15-month period, relative to what was proposed. The additional increase in points reflects MSHA's desire to increase points for independent contractors so as to reduce the discrepancy in penalties between operators and independent contractors.
Tables II-6 and II-7 compare the existing and final penalty point scales for coal and metal and nonmetal operators and independent contractors.
In the proposal, the Agency added a new component to the history criterion to target operators who allowed the same violations to recur, without correcting the underlying root cause. The new § 100.3(c)(2), like the proposal,
In response to MSHA's request for comments on this proposal, many commenters opposed it because they believed that it counted some violations twice, once in the overall violation history and again in the repeat violation category, merely for the purpose of increasing penalties. In addition, some of these commenters stated that MSHA's many broad performance-oriented standards are sometimes applied to multiple conditions that are in reality, quite different and that, in these circumstances, operators would be unfairly penalized for repeat violations which were intended to cover only the same or similar conditions. Also, some commenters expressed concern that increased penalties for repeat violations would be unfair in situations in which an MSHA inspector issues multiple citations for multiple violations of the same hazard.
Although some commenters opposed the repeat violation provision as being unfair and redundant, other commenters supported it. MSHA believes that this new provision is consistent with and responsive to Congress's desire to curb repeat violations. Reporting on the bill that became the Mine Act, the Senate Committee on Human Resources stated:
In evaluating the history of the operator's violations in assessing penalties, it is the intent of the Committee that repeated violations of the same standard, particularly within a matter of a few inspections, should result in the substantial increase in the amount of the penalty to be assessed. Seven or eight violations of the same standard within a period of only a few months should result, under the statutory criteria, in an assessment of a penalty several times greater than the penalty assessed for the first such violation.
MSHA analyzed violation data for the 15-month period from January 1, 2005, through March 31, 2006. These data showed that often inspectors issued citations for the same safety and health hazards at the same operation within a specified period of time. From these data, the Agency concludes that once a condition is identified, these operators are correcting that particular condition without addressing the root cause of the problem. This new provision is aimed at preventing these types of occurrences and thereby providing a systematic improvement to miner safety and health.
Some of the commenters who supported the proposed repeat violation provision expressed concern that it was too narrowly construed because it only counted violations of the same subsection of an MSHA standard. One commenter provided the example that violations for combustible materials under 30 CFR 75.400 should not be dissected into the specific nature of the combustible material, i.e., paper, coal dust, wood, etc., when considering repeat status. Another commenter suggested, as an alternative, that MSHA retain its discretion to use broader categories of violations of standards in determining whether a company is a repeat violator.
MSHA does not agree that the repeat provision should include broader categories of violations. MSHA analyzed violation data for the 15-month period from January 1, 2005, through March 31, 2006. MSHA's analysis, interpreting “same standard” to mean “same citable provision,” showed that 698 of the 10,227 mines with violations had at least 6 violations of the same citable provision of a standard. Further, 99 of the 698 mines had more than 20 violations of the same citable provision during the 15-month period. Limiting repeat violations to the same citable provision targets those operators who show a repeated lack of commitment to miner safety and health; this is precisely the type of behavior that the Agency seeks to change.
MSHA specifically requested comments on whether, in determining penalty points for repeat violations, the Agency should factor in the number of inspection days during which the repeat violations were cited.
Several commenters opposed factoring in the number of inspection days when counting violations under this provision. Most commenters, however, supported using repeat violations per inspection day (RPID) to calculate repeat violations. These commenters expressed concern that operators of large mines generally receive more violations than smaller mines solely because larger mines have a greater number of inspections and, therefore, calculating repeat violations using RPID would provide a level of fairness missing from the proposed rule. The application of RPID to the new repeat provision would account for increased inspector presence in large mines and would place all mines on a more equitable basis. Therefore, this final rule incorporates a new repeat violations table which applies RPID to the calculation for coal and metal and nonmetal operations. Under this table, repeat points apply only where there have been a minimum of 6 repeat violations. In addition, for the same reasons as stated previously, MSHA will not apply the repeat criterion until a coal and metal and nonmetal operator has received a minimum of 10 violations within a preceding 15-month period.
RPID cannot be used to calculate repeat violations for independent contractors because MSHA does not record inspection time for contractors. Therefore, the final rule, like the proposed rule, uses the total number of violations in a 15-month period for establishing repeat violation history for independent contractors. Although MSHA received some comments critical of the proposal with respect to independent contractors, the Agency's historical method of calculating history for independent contractors has proved to be both successful and practical.
The final rule revises the proposed table for repeat violations for independent contractors by raising the penalty points for contractors with 6 to 20 repeat violations during the previous 15-month period. Under the final rule, an independent contractor will receive the maximum 20 points for 15 or more repeat violations during the previous 15-month period. These revisions reflect MSHA's desire to increase points for independent contractors, so as to reduce the discrepancy in penalties between operators and independent contractors. The final rule, therefore, retains the proposed provision for repeat violations for independent contractors.
MSHA requested comments on whether all violations should be used to calculate repeat violations, or whether only S&S violations should be used. Many commenters stated it is unfair to count non-S&S violations in the repeat violations provision because it would subject operators to significantly higher penalties for repeated violations that have little or nothing to do with miner safety and health, such as repeated violations of paperwork standards or merely technical violations.
Other commenters, however, stated that MSHA should look at all violations, including non-S&S citations, in calculating penalties for repeat violations because even non-S&S violations can adversely affect miner safety and health. MSHA agrees. The final rule includes all violations, both S&S and non-S&S, in the calculation of repeat violation history. Even though the violations that were assessed in 2005 show that two-thirds of all violations were non-S&S violations, non-S&S violations of technical
Some commenters who opposed the proposed repeat violation provision stated that, if the provision is adopted, MSHA should avoid retroactive application of the provision by not including violations that occurred before promulgation of the final rule. These commenters stated that, had they known that violations that occurred prior to the final rule could be used to trigger significantly higher penalties, they would have contested those violations to avoid inclusion under the repeat violations provision. Final paragraph (c)(2) does not apply the repeat violation provision retroactively. The repeat violation provision under paragraph (c)(2), like the total number of violations provision under paragraph (c)(1), imposes higher penalties for violations that occur after publication of this final rule. MSHA, however, has the authority to consider violations which occurred before promulgation of this final rule as part of an operator's history of violations, when determining penalties for violations that occur after issuance of the final rule. In taking this action, MSHA would not be impairing operator rights, increasing an operator's liability for past violations, or imposing new duties with respect to violations that have already occurred. Rather, MSHA would be taking past violations into consideration in determining a penalty for a violation that occurred after promulgation of this final rule. MSHA, however, plans to pay particular attention to any circumstances resulting in an unfair penalty increase. Under such circumstances, MSHA may process the violation under the special assessment provision to determine a more appropriate penalty.
Penalty points for the number of repeat violations for coal and metal and nonmetal operations are presented in Table II-8. Penalty points for the number of repeat violations for independent contractors are presented in Table II-9.
Final § 100.3(d), derived from the existing rule, provides for evaluating the degree of negligence involved in a violation under five categories: No negligence, low negligence, moderate negligence, high negligence, and reckless disregard. Under the final rule, like the proposal, no negligence receives 0 points, low negligence receives 10 points, moderate negligence receives 20 points, high negligence receives 35 points, and reckless disregard receives 50 points. Moderate negligence, high negligence, and reckless disregard receive increasingly higher penalty points under the final rule. Penalty points for these latter categories also are higher than those in the existing rule, reflecting MSHA's intent to target operators who exhibit an increasing lack of commitment to and disregard for miner safety and health.
Several commenters agreed with the proposed points increase for the three highest levels of negligence. Several commenters opposed the proposed increases as being excessive and stated that the degrees of negligence are subjective and are often evaluated inconsistently by MSHA inspectors.
MSHA expanded the levels of negligence from three to five in 1982, in response to comments recommending more definite criteria for the assignment of penalty points to an operator's negligence. 47 FR 22286, 22289-90 (May 21, 1982). In so doing, MSHA intended that five levels of negligence would allow inspectors to more appropriately consider all of the facts and circumstances surrounding a violative condition or practice. Although negligence evaluations can be subjective, the five levels of negligence permit MSHA inspectors to exercise independent judgment based on the circumstances surrounding the violation and to make appropriate decisions with respect to the nature or existence of mitigating circumstances. Negligence is defined in the rule and in the negligence section of the “Citation and Order Writing Handbook for Coal Mines and Metal and Nonmetal Mines” at
MSHA disagrees with the comments that the increase in penalty points for negligence is excessive. The increase in penalty points included in the final rule is in accord with the Mine Act's requirement to consider an operator's negligence when assessing penalties. This aspect of the final rule was designed so that higher penalties would be assigned to operators who exhibit increasingly higher levels of negligence, i.e., a lack of care towards protection of miners from safety and health hazards. MSHA intends that the final rule's increase in penalty points for the negligence criterion will result in increased compliance with the Mine Act and MSHA's safety and health standards and regulations and a greater commitment to safety and health on the part of mine operators. No changes were made to the proposal; the final rule adopts the proposed language.
Table II-10 shows the penalty points for negligence under the existing and final rule.
Final § 100.3(e) is derived from the existing provision and, like the proposal, provides that the gravity or seriousness of a violation is determined by three factors: (1) The likelihood of occurrence of an event, (2) the severity of injury or illness if the event has occurred or were to occur, and (3) the number of persons potentially affected. The final rule, like the proposal, increases penalty points assigned under this provision for each of the three gravity factors as follows: (1) Points for likelihood of occurrence increase from 10 to 50; (2) points for severity of injury or illness increase from 10 to 20; and (3) points for the number of persons potentially affected increase from 10 to 18. The total maximum points is increased from 30 to 88 under the final gravity criterion.
Several commenters supported the proposed increased points for gravity. One commenter suggested that the proposed points for the severity and persons potentially affected should have increased at the same rate as the likelihood factor. Another commenter, who supported increased points for gravity in general, expressed concern that the factor pertaining to persons potentially affected is routinely understated by MSHA inspectors, and results in fewer penalty points and thus a lower penalty than what should be assessed.
Other commenters opposed the increase in points for gravity. These commenters expressed concern that MSHA essentially eliminated the distinction between S&S and non-S&S violations from a penalty perspective. These commenters gave the example that a non-S&S violation with an unlikely likelihood and a fatal severity would receive 30 gravity points whereas an S&S violation with a reasonably likely likelihood and a lost workdays severity would receive 35 gravity points.
MSHA disagrees with comments stating that proposed increased points for gravity are excessively high. Increased points for gravity are directed at operators whose mines experience the more serious mine safety and health hazards. Increased points, which result in increased penalties, should encourage these operators to place greater emphasis on immediately correcting the more serious violations
The Agency does not believe that this aspect of the final rule results in a blurred distinction between S&S and non-S&S violations. MSHA reviewed violations that were assessed in 2005 and projects that S&S violations would receive an average penalty of $1,385 under the final rule and non-S&S violations would receive an average penalty of $207.
Moreover, MSHA's intent is to place much more emphasis on the overall gravity of a violation. To achieve this goal, each of the three gravity point tables is revised to increase the points for likelihood, severity, and persons potentially affected. In doing so, the Agency allocated twice as many points for a permanently disabling injury than an injury that resulted only in lost work days. MSHA also doubled the number of points for a fatal injury, as compared with a permanently disabling injury. This approach to increasing gravity points for severity is reasonable and necessary because MSHA believes that, while all three components of the gravity determination are important in determining risk, the likelihood or probability of an injury occurring should carry more weight in the overall penalty determination.
For likelihood, MSHA made the increase in gravity points between levels more pronounced as the likelihood of an injury increased. An unlikely situation has some potential to result in an injury, and a reasonably likely situation has a higher potential for an injury to occur. MSHA's position is that those violations with any degree of likelihood should receive more points and, as the likelihood increases, the number of associated points should increase significantly. The Agency considers a situation that resulted in a “highly likely” or “occurred” likelihood as a worst-case scenario deserving significantly higher points.
Regarding MSHA inspectors' evaluation of the number of persons potentially affected, MSHA continues to evaluate inspector citations to determine where improvements can be made. The “number of persons potentially affected” is a topic covered in the gravity section of the “Citation and Order Writing Handbook for Coal Mines and Metal and Nonmetal Mines” at
Final § 100.3(e) adopts the language in the proposed rule.
Tables II-11, II-12, and II-13 show the existing and final penalty points for gravity.
Final § 100.3(f), like the proposal, decreases the amount of the reduction of the penalty, where the operator abates the violation within the time set by the inspector, from 30% under the existing rule to 10% under this final rule. In addition, the final rule, like the proposal, eliminates the existing provision which adds 10 points where an operator does not abate the violation within the specified time period.
As stated throughout this rulemaking, MSHA takes the demonstrated good faith of the operator in abating the violation into consideration because it is one of the statutory criteria to be used in determining civil penalties under the Mine Act. Several commenters supported the proposed decrease in the “good faith” reduction from 30% to 10%, but others opposed the decrease, stating that MSHA should retain the existing 30% reduction because any smaller amount would be a disincentive for operators to promptly abate violations.
MSHA does not anticipate that changing the good faith reduction from 30% to 10% would adversely affect miner health and safety or the prompt abatement of violations. Based on 2005 assessed violation data, mine operators realized a $5.7 million decrease in proposed civil penalty assessments due to the 30% good faith reduction. MSHA projects that the 10% good faith reduction in the final rule will result in a $4.7 million decrease in proposed penalty assessments, although the Agency acknowledges that total penalties increase significantly under the final rule. MSHA believes that the $4.7 million decrease under the final rule provides an incentive equivalent to that in the existing rule for mine operators to abate violations in a timely manner.
The strongest incentive for abatement under the final rule is a withdrawal order issued under section 104(b) of the Mine Act. The Mine Act requires that the inspector set a “reasonable time” for abatement for all violations, regardless of severity. The inspector sets the abatement time based on the nature of the hazard and the corrective actions needed. Should the mine operator fail to abate the hazard within the prescribed time, the inspector will issue a withdrawal order closing the affected
All mine operators should take their responsibilities for mine safety and health seriously and promptly abate all violations of the Mine Act and MSHA's safety and health standards and regulations. The Agency also takes seriously its responsibility to administer the civil penalty provisions in the Mine Act in accordance with the statutory criteria. Congress intended that MSHA provide some consideration to mine operators who, when issued a citation for a violation of a safety and health standard, correct that violation within the time set by the inspector. In recognition of the statutory intent, the final rule includes an appropriate “good faith” reduction. MSHA continues to believe that operators should take prompt corrective action, regardless of the amount of the monetary incentive, in order to avoid the prolonged existence of a violative or dangerous condition in the mine. In the event, however, that an operator does not abate a violation within the time set by the inspector, MSHA believes that the Mine Act's provisions for withdrawal orders and daily penalties, discussed below, provide an adequate compliance incentive. For these reasons, and in response to comments, the final rule retains the 10% “good faith” reduction, as proposed.
Some commenters opposed eliminating the 10 additional points under the existing rule where an operator does not abate the violation within the time specified, while others supported the proposed elimination of 10 additional points. In retaining this aspect of the proposal, the Agency intends that the Mine Act's following two sanctions for an operator's failure to correct violations within the time set by the inspector be applied: (1) issuance of a withdrawal order under § 104(b) of the Mine Act,; and (2) application of the daily penalty under § 110(b) of the Act. MSHA believes that these two sanctions are adequate tools for the Agency to use to address the circumstances in which an operator does not abate the violation within the time specified by the MSHA inspector.
Final § 100.3(f) adopts the language in the proposed rule.
Final § 100.3(g), like the proposal, provides the penalty conversion table used to convert total penalty points to a dollar amount. The final rule, like the proposal, retains the statutory maximum penalty of $60,000. In addition, it establishes a new minimum penalty of $112, up from $72 in the existing rule.
The proposed rule converted points to dollars as follows: for 60 points or fewer, the minimum dollar amount was $112. Each additional point above 60 up to 133 caused the dollar value to increase by a fixed 8.33%. The dollar value assigned for 133 points was $38,387. At 133 points, the dollar value increased by approximately $3,070 for each additional penalty point. The maximum number of points was 140 and the maximum dollar value was $60,000.
MSHA received some comments stating that the $112 minimum penalty was too low. The final rule retains the $112 minimum penalty, which is a 56% increase from the minimum penalty under the existing rule, and which MSHA believes represents a reasonable adjustment upward from the $60 minimum penalty under the existing penalty regulations.
Several commenters stated that penalties under the proposed rule could result in lower penalties than under the existing regulations. One commenter provided the example that under the existing regulations 89 points are required before MSHA imposes a fine of more than $25,000, while under the proposed regulations, 128 points would be required before MSHA would impose a fine of more than $25,000. As stated earlier in this preamble, to accurately determine a penalty under the proposed rule one cannot do a side-by-side comparison of existing to proposed penalties without also considering how the point tables have changed.
Although MSHA projects that the vast majority of violations will receive an increase in penalties under this final rule, MSHA's analysis of violations that were assessed in 2005 shows that a small percentage of violations—5%, or 5,858 of the 116,673 total violations—would receive a lower penalty under the final rule than under the existing regulations. Of the violations that would receive a lower penalty, approximately 3,485 result from use of the 15-month period and the 10-violation threshold for assigning penalty points under violation history. MSHA believes that the penalty reductions in these cases are appropriate in that they generally reflect an improvement in the most recent violation history or a small number of safety and health hazards.
The remaining 2%, approximately 2,400 violations, involve a reduction in the penalty for other reasons. Of these, 945 are violations which were assessed under the special assessment provision of the existing rule, but would receive a regular assessment under the final rule. As mentioned, however, in any circumstance in which MSHA's regular assessment may result in anomalies or inequitable results, MSHA may choose to apply the special assessment provision of this final rule to assure that the penalty is appropriate. Another 671 are violations which, under the final rule, would not receive the 10-point penalty for failure to abate under the existing rule. As stated previously, MSHA believes that the Mine Act's two sanctions for an operator's failure to correct violations within the time set by the inspector—the issuance of a withdrawal order under § 104(b) of the Mine Act and the daily penalty under § 110(b) of the Act—are adequate tools for the Agency to use to address the circumstances in which an operator does not abate the violation within the time specified by the MSHA inspector. The final 757 violations involve a lowering of the penalty by a negligible amount.
Final § 100.3(g) adopts the language in the proposed rule.
Final § 100.3(h), like the proposal, provides that MSHA presumes that the operator's ability to continue in business will not be affected by payment of a civil penalty. In addition, like the proposal, it provides that MSHA may adjust the penalty if the operator submits information to MSHA concerning the operation's financial status which shows that payment of the penalty will adversely affect the operator's ability to continue in business.
In the proposal, MSHA made several non-substantive editorial changes for clarity.
Several commenters expressed concern that the proposed increase in penalties would put small operations out of business. Many of these commenters requested a variance from the penalty regulations. In addition, one commenter stated that MSHA should not take an operator's ability to continue in business into consideration when determining a penalty. This commenter expressed concern that an operator that cannot afford to pay its penalties should not operate at all.
MSHA takes an operator's ability to continue in business into consideration because it is one of the statutory criteria to be used in determining civil penalties under the Mine Act. Under this final rule, as in the existing rule, MSHA may adjust the penalty if the operator demonstrates that the amount of the penalty will adversely affect the operator's ability to continue in business. A variance cannot be granted, however, because under the Mine Act, MSHA may modify only the application of a safety standard.
Final § 100.3(h) adopts the language in the proposed rule.
Final § 100.4, like the proposal, deletes the single penalty assessment provision in existing § 100.4. The existing single penalty assessment provided for a $60 penalty for certain non-S&S violations,
MSHA received numerous comments on the proposed deletion of the single penalty assessment provision. Some commenters supported deleting the single penalty assessment because they stated that these violations were often perceived as insignificant and accepted as the cost of doing business. Some of these commenters provided examples of operators receiving $60 single penalties for violations pertaining to accumulations of combustible material, roof control problems, and ventilation problems, where it was cheaper to pay the $60 penalty than to correct the underlying violative condition.
Other commenters opposed deleting the single penalty assessment. Those commenters stated that the single penalty is generally reserved for non-S&S violations that have little or no safety consequences and, therefore, these violations should receive minimal penalties. Most of the commenters opposed to deleting the single penalty assessment expressed concern that operators would be required to spend disproportionate amounts of time and resources on violations having minimal impact on safety and health. In addition, some commenters expressed concern that deleting the single penalty assessment will result in increased contests and litigation. After careful review of all comments, an examination of Agency data, and based upon Agency experience, MSHA has decided that the single penalty assessment should not be included in the final rule.
As mentioned earlier, the agency has structured a civil penalty regulation which focuses on reducing all mine safety and health hazards—both non-S&S and S&S. MSHA believes that every violation has the potential to contribute to hazardous or unhealthful conditions and should be individually assessed a civil penalty that is commensurate with the severity of the violation. Also, MSHA's experience and data reveal that often non-S&S violations, if left uncorrected, will lead to more hazardous situations. For this reason, MSHA is deleting the single penalty assessment provision in an effort to prompt the mining community to pay attention to, and promptly abate, all violations.
Non-S&S violations are not always trivial violations deserving nominal penalties. Accurate recordkeeping, good housekeeping, and meaningful training are essential elements of an effective safety and health program in the workplace. For example, an operator's failure to properly train a miner in first aid is often classified as a non-S&S violation; however, such a violation sometimes can result in fatal consequences.
Moreover, a violation that is not reasonably likely to result in a reasonably serious injury or illness may eventually result in a serious injury or illness if it is not corrected. By deleting the single penalty assessment provision, the Agency believes that mine operators will focus more attention on identifying and correcting the root causes of mine safety and health hazards. These non-S&S violations should not be viewed as an insignificant part of the cost of doing business. Rather, they should be evaluated under the regular assessment provision so that the operator's size, history, negligence, and the gravity of the violation can be taken into consideration in determining the amount of the penalty assessment. Operators with a low history of violations, violations that truly involve minor or technical violations, that pose less serious threats to health and safety, that involve low or no negligence, and that are abated within the time set by the inspector, likely will receive a total of 60 points or fewer and a penalty of only $100 (including application of the “good faith” reduction) under the regular assessment provision of this final rule.
Some commenters requested that MSHA include empirical data and projections pertaining to deleting the single penalty assessment provision. MSHA, using violations that were assessed in 2005, converted penalties assessed under the single penalty provision of the existing rule to penalties under the regular assessment provision of this final rule. MSHA found that the $60 penalties assessed under the single penalty provision would range from $100 (assuming application of the “good faith” reduction) to $14,343 for metal and nonmetal mines and from $112 to $21,442 for coal mines. The Agency is providing this information for illustrative purposes only. The highest ranges of penalties occurred for one coal violation and for one metal/nonmetal violation and are anomalies. MSHA does not expect non-S&S violations to result in penalties of this level under the final rule; however, in the event that a regular assessment produces an inappropriate result, the penalty would be processed under the special assessment provision. Under the final rule, MSHA estimates the average non-S&S penalty would be $192.
In addition, under the final rule, MSHA projects that 44% of violations (32% for coal and 59% for metal and nonmetal mines) would receive the minimum penalty (including application of the “good faith” reduction). This compares with 64% of violations (58% for coal and 72% for metal and nonmetal mines) that received the single penalty under the existing rule.
Based on the Agency's evaluation of the violations that were assessed in 2005 and the Agency's experience gained under the existing single penalty provision, MSHA believes that deleting the single penalty assessment will encourage compliance with the Mine Act and MSHA's safety and health standards and regulations and prompt abatement of violations.
For the foregoing reasons, the single penalty assessment provision is deleted from this final rule.
Final § 100.4 is a new provision which replaces existing § 100.4 pertaining to the single penalty assessment. Final § 100.4, like the proposal, implements Section 8(a)(1)(B) of the MINER Act related to minimum unwarrantable failure penalties. It establishes a minimum penalty of $2,000 for any citation or order issued under section 104(d)(1) of the Mine Act, and establishes a minimum penalty of $4,000 for any order issued under section 104(d)(2) of the Mine Act.
Commenters generally were in agreement with the proposed provision. Some commenters, however, expressed concern that the statutory minimum penalties of $2,000 and $4,000 would become default penalties. They stated that these penalties should either be the statutory minimum amount or the amount assessed under the regular assessment formula, whichever is greater. MSHA agrees. Under the final rule, penalties for unwarrantable failure violations processed through the regular assessment provision will receive at least the minimum amount as specified in the MINER Act. Unwarrantable failure violations processed as regular assessments which generate a penalty greater than the statutory minimum will receive that penalty. As appropriate, unwarrantable failure violations also may continue to be processed under the special assessment provision.
Final § 100.4 adopts the language of the proposed rule.
Final § 100.5, like the proposed rule, is derived from existing § 100.5, and, like the proposal, provides for a special assessment for those violations which MSHA believes should not be processed under the regular assessment provision. It also removes the second sentence in existing § 100.5(a) which states that:
Although an effective penalty can generally be derived by using the regular assessment formula and the single assessment provision, some types of violations may be of such a nature or seriousness that it is not possible to determine an appropriate penalty under these provisions.
MSHA received numerous comments on the Agency's proposal to delete the eight categories of violations which are reviewed for special assessment in the existing rule. Some commenters supported processing most violations under the regular assessment provision, stating that the existing special assessment process sometimes results in extended periods between the issuance of a citation or order and the issuance of the penalty. These commenters indicated that MSHA has sometimes taken over one year to issue a penalty under the special assessment provision, and stated that penalties would be processed in a timelier manner under the proposal. Other commenters supported the proposal, stating that it would remove arbitrary penalties from being issued under the special assessment provision.
Some commenters opposed the proposal. They expressed concern that processing violations that fall in the eight categories in the existing rule as regular assessments would result in lower penalties. Some of these commenters stated that the final rule should levy heavy penalties on blatant violations and operators who flout the law, and that eliminating the eight categories of violations that receive consideration for special assessments under the existing rule will create confusion for companies by eliminating certainty about when they will be subject to special assessments. Other commenters who opposed the proposal expressed concern that MSHA would exercise unfettered discretion in assessing any violation under the special assessment provision.
MSHA agrees with the commenters who stated that processing most violations under the regular assessment provision will enhance the consistency
In addition, because MSHA is retaining its discretion to determine which types of violations would be reviewed for special assessment, removal of the eight categories of violations will not limit the Agency's authority to waive the regular assessment if the Agency determines that a special assessment is appropriate for any type of violation. Indeed, as stated in the preamble to the proposed rule, MSHA never intended the existing eight categories to be an exhaustive list of the types of violations that could be assessed under the special assessment provision. This final rule clarifies the Agency's intent. Further, as stated throughout this rulemaking, by removing the specific list of violations, MSHA will be able to focus its enforcement resources on more field enforcement activities, as opposed to administrative review activities.
MSHA projects that the regular assessment provision will provide an appropriate penalty for most violations. By way of illustration, using data for violations that were assessed in 2005, MSHA compared the penalty for 2,698 of the 3,189 violations assessed under the special assessment provision to the penalty that would have been assessed under the regular assessment provision of this final rule. The Agency excluded violations that involved a fatality and those issued to agents of the mine operator from this comparison because those violations would continue to be processed as special assessments under the final rule. MSHA found that the penalty for these 2,698 violations would have increased by approximately 98% under the regular assessment provision of this final rule. Nevertheless, MSHA expects that there will be circumstances in which the regular assessment provision of this final rule will not provide an appropriate penalty for particular violations. The Agency found, in reviewing violations that were assessed in 2005, approximately 35% of all violations issued under the special assessment provision of the existing rule would have received a lower penalty under the regular assessment provision of this final rule. MSHA intends to apply the special assessment provision of this final rule for those violations where the regular assessment does not provide an appropriate penalty. Consistent with a commenter's request, MSHA intends to review the special assessment provision in the future to determine whether it is achieving its purpose or whether changes are needed. MSHA monitors, on a monthly basis, the number of assessments under the existing special assessment provision. MSHA intends to continue this monitoring and to analyze the monitoring results. In addition, as stated previously, MSHA intends to continue to process violations involving a fatality and those issued to agents of the mine operator as special assessments. MSHA will also process flagrant violations, violations for failure to timely notify MSHA, and timely abate violations, and smoking violations, as listed under sections 100.5(c) through (f) as special assessments.
Final § 100.5(a) adopts the language of the proposed rule.
Final § 100.5(b), like the proposal, contains non-substantive changes for clarity. It removes the reference to existing § 100.4(b) because the single penalty provision is deleted in this final rule. MSHA received no comments on this proposal and made no changes to it. Therefore, final § 100.5(b) adopts the language of the proposed rule.
Final § 100.5(c), like the proposal, remains unchanged from existing § 100.5(c). It provides that any operator who fails to correct a violation for which a citation has been issued under section 104(a) of the Mine Act within the period permitted for its correction may be assessed a civil penalty of not more than $6,500 for each day during which such failure or violation continues.
One commenter stated that MSHA should apply the maximum daily penalty of $6,500 while abatement work is being performed and it should continue to be applied every day until all such work is completed. MSHA will continue to enforce the daily penalty in accordance with the Mine Act, which provides for a “reasonable time” for abatement. The final rule adopts the language used in the proposal.
Final § 100.5(d), like the proposed rule, remains unchanged from existing § 100.5(d). This provision pertains to penalties for miners who violate standards related to smoking and smoking materials. MSHA received a few comments on this proposal. They suggested that MSHA increase the maximum penalty that could be assessed against a miner for a smoking violation. One commenter suggested an increase from $275 to $500 and another commenter suggested an increase to $220,000, similar to the maximum penalty for flagrant violations. The maximum penalty for miners who violate standards related to smoking or smoking materials, however, is established by statute, and can be adjusted only for inflation unless specifically adjusted by Congress. Therefore, the final rule retains the language of existing paragraph (d) as proposed.
Final § 100.5(e), like the proposal, implements the provision of the MINER Act pertaining to penalties for flagrant violations. Under the MINER Act, violations that are deemed to be flagrant may be assessed a civil penalty of not more than $220,000. The proposal, which adopted the definition in the MINER Act, defined a “flagrant” violation as a reckless or repeated failure to make reasonable efforts to eliminate a known violation of a mandatory health or safety standard that substantially and proximately caused, or reasonably could have been expected to cause, death or serious bodily injury.
Several commenters stated that the proposed language with respect to flagrant violations was too vague. They suggested that flagrant violations be limited to repeated violations of the same standard that were issued under Section 104(d) of the Mine Act, characterized as involving reckless disregard. They further suggested that flagrant violations be limited to violations that have been finally adjudicated. MSHA considered these suggestions in developing this final rule and has determined that it would be most beneficial to miner's safety and health to retain the proposed language. In addition, the proposed language mirrors the MINER Act. Violations that are deemed to be flagrant would be subject to a penalty of up to $220,000 under the special assessment provision of this final rule.
Several commenters expressed concern that proposed § 100.5(e) wrongly applied the penalty for flagrant violations to violations under section 110(a) of the Mine Act. They stated that Congress adopted penalties for flagrant violations by amending section 110(b) of the Mine Act, which pertains to penalties assessed to operators who have failed to correct a violation. They asserted that Congress intended the
Section 1301 of the Pension Protection Act contains technical amendments to the MINER Act. Public Law No. 109-280 (Aug. 17, 2006). The provision for criminal penalties was moved from section 110(a)(2) of the Mine Act and is now the new section 110(d). Section 110(b) of the Mine Act now has two sub-subsections. Section 110(b)(1) provides for assessment of a daily civil penalty for violations that have not been corrected. Section 110(b)(2) provides for assessment of a civil penalty of not more than $220,000 for violations that are deemed to be flagrant.
For a number of reasons, MSHA believes that a flagrant violation under section 110(b)(2) is not limited to a violation that an operator has failed to correct under section 110(b)(1). First, section 110(b)(1) specifically applies to failure to correct a “violation for which a citation has been issued.” In contrast, section 110(b)(2) applies to failure to eliminate a “known violation,” and does not specify that a “known violation” must be a violation which has been cited.
Second, the Senate Report accompanying the MINER Act discusses flagrant violations without any reference to section 110(b) and without any indication that a flagrant violation must be a violation which has been cited. S. Rep. No. 109-365 (Dec. 6, 2006).
Third, section 110(b)(2) applies to failure to eliminate violations “under this section” (emphasis added) that are deemed to be flagrant. Section 110(b)(2) cannot be read as applying only to violations under section 110(b) because section 110(b) is a subsection, not a section. Instead, Section 110(b)(2) must be read as applying to violations under the section in which it appears—i.e., section 110—including section 110(a).
Fourth, section 110(b)(2) is, by virtue of its designation as a sub-subsection separate and distinct from section 110(b)(1), a provision distinct and independent from section 110(b)(1). That designation suggests that section 110(b)(2) is not limited to violations encompassed by section 110(b)(1).
Finally, it would be illogical to limit flagrant violations to violations which have been cited. Plainly, failure to eliminate a violation which is known to the operator but which has not been cited by MSHA—perhaps because MSHA has not conducted an inspection since the violation arose—can be just as dangerous, and just as deserving of an enhanced penalty, as a violation which is known to the operator and which has been cited.
Accordingly, the proposal has been modified. Final § 100.5(e) includes a reference to section 110(b)(2) of the Mine Act.
Final § 100.5(f), like the proposal, implements the penalty provisions of the MINER Act pertaining to prompt incident notification. Under the MINER Act, an operator who fails to provide timely notification to the Secretary, in the event of a death, or an injury or entrapment with reasonable potential to cause death, under section 103(j) (relating to the 15-minute requirement) shall be assessed a civil penalty of not less than $5,000 and not more than $60,000.
One commenter expressed concern that proposed § 100.5(f) would be applied to all violations under part 50.10, stating that for example, violations for failure to report a fire or hoist problems would be included. Final § 100.5(f), like the proposed rule, implements the penalty provisions of the MINER Act pertaining to prompt incident notification. In this regard, final § 100.5(f) is applicable only to the following events: the failure to notify MSHA of a death, or an injury or entrapment which has a reasonable potential to cause death.
Several commenters stated that this proposed provision is counterproductive and could inhibit first responders from time-critical stabilization of a victim. They suggested adding language, for example, that in a case in which delay has the potential to cause additional injuries, or the victim of an accident requires first aid, the 15 minutes shall begin upon stabilization of the site and the victim. This same issue was raised during the rulemaking concerning MSHA's Emergency Mine Evacuation Final Rule published on December 8, 2006. In the preamble to that rule, MSHA addressed the issue in the following manner:
If a situation were to arise involving extenuating circumstances, such as an operator having to choose between saving someone's life and notifying MSHA, enforcement discretion would take those circumstances into account. MSHA does not expect that an operator who has to make a decision between rendering life-saving assistance and calling MSHA would be penalized for providing that assistance.
No changes were made to proposed § 100.5(f) and the final rule adopts the proposed language.
Final § 100.6, like the proposed rule, contains requirements and administrative procedures for review of citations and orders.
Final § 100.6(a), like the proposal, contains the provision in existing 100.6(a) that all parties, i.e., the operator and miners or their representatives, shall have the opportunity to review each citation and order with MSHA. In addition, it incorporates existing § 100.6(c), which provides that the decision to grant a request for a conference is within MSHA's discretion. MSHA received no comments on the proposed reorganization of § 100.6(a). Therefore, the final rule adopts the language in the proposal.
Final § 100.6(b), like the proposal, is derived from existing § 100.6(b). MSHA proposed modifying the existing provision by reducing the period, from 10 days to five days, within which an operator could submit additional information or request a safety and health conference with the District Manager or designee.
In addition, at the last two public hearings during this rulemaking, the Agency stated in its opening statement that it intended to include a requirement that a request for a safety and health conference be in writing and include a brief statement as to why each citation or order should be conferenced. The Agency requested comment on this issue. To allow all parties an opportunity to comment on this issue, MSHA reopened the comment period to this rulemaking and specifically requested comments as to whether a request for a safety and health conference should be in writing and whether such a request should include a brief statement of the reason why each citation or order should be conferenced.
A few commenters supported the proposed reduction of the period within which an operator could submit additional information or request a safety and health conference. One commenter stated that the proposal would result in a more effective civil penalty system because penalties would be assessed closer in time to the issuance of the citation.
Almost all commenters, however, opposed the proposed reduction in the time period for requesting a safety and health conference. They stated that they would not have sufficient time to evaluate a citation or order and determine the appropriate course of action to take. In addition, they stated
After receiving comments, MSHA decided not to reduce the 10-day period within which a party may submit additional information or request a safety and health conference. In making this decision, the Agency believes that the safety and health of miners is improved when, after an inspection, operators and miners or their representatives are afforded an ample opportunity to discuss safety and health issues with the MSHA District Manager or designee.
MSHA received one comment in support of and several comments opposed to the proposed requirement that a request for a safety and health conference be in writing and include a brief statement of the reason why each citation or order should be conferenced. Commenters opposed to the proposal stated that a requirement that conference requests be in writing would cause extreme difficulties for the operator and ultimately result in discouraging the conference process. Specifically, these commenters stated that the proposed requirement places an unnecessary burden on operators who have limited administrative resources to thoroughly investigate citations and orders and gather documentation within a limited amount of time pertaining to each citation and order.
One commenter generally agreed with the proposal that the request for a safety and health conference be in writing and include a brief statement as to why each citation or order should be conferenced, but stated that the requirement should not be mandatory. Several commenters stated that some MSHA districts currently require safety and health conference requests to be in writing. One commenter mistakenly believed that the existing regulations require that safety and health conference requests be in writing.
After reviewing all comments, MSHA has decided to include in the final rule the proposed requirement that the request for a safety and health conference be in writing and include a brief statement as to why each citation should be conferenced. In making this decision, MSHA anticipates that this provision will assist parties requesting a conference to focus on the issues to be discussed at the conference. It is not MSHA's intent under this proposal to require operators and/or miners' representatives to provide a large amount of documentation. Rather, it is MSHA's intent that operators and/or miners' representatives provide a concise statement concerning the reason the requesting parties wish to discuss each violation. MSHA notes that the Agency does not intend to limit discussion at the safety and health conference to the specific points raised in the written statement.
MSHA projects that this proposed provision will lead to a more meaningful and effective conference for all parties. Also, it will help expedite the conference process by providing the District Manager with necessary information prior to conducting the conference, including information that may assist the District Manager in deciding whether to grant a conference. Therefore, the final rule includes the requirement that a request for a safety and health conference be in writing and include a brief statement as to why each citation should be conferenced.
Final 100.6(c), like the proposal, is derived from and remains unchanged from existing § 100.6(d). MSHA received no comments on this proposal.
Final 100.6(d), like the proposal, is derived from existing §§ 100.6(e), (f), and (g). The final rule remains substantively unchanged from the proposed rule. MSHA received no comments on the proposal.
Final § 100.7, like the proposal, is derived from existing 100.7, and provides for procedures applicable to a notice of proposed penalty and notice of penalty contest. Final paragraph (a) sets out the circumstances under which a notice of proposed penalty will be served on the parties, and final paragraph (b) sets out the procedures for contesting a notice of proposed penalty, and final order of the Commission.
The final rule, like the proposal, includes editorial changes for clarity, but remains substantively unchanged from the existing provision. Proposed paragraph (a) stated that a notice of proposed penalty will be issued and served by certified mail. MSHA is interpreting “certified mail” to include delivery methods such as Federal Express that offer proof of delivery. The existing provision is therefore amended to include the equivalent of certified mail as a means of service of the notice of proposed penalty.
Proposed § 100.7(b) deleted from the regulatory text the following: (1) The reference to a return mailing card that is used to request a hearing before the Commission, (2) the reference to providing instructions for returning the card to MSHA, and (3) the provision that MSHA will immediately advise the Commission of the contest and also advise the Office of the Solicitor of the contest. MSHA proposed these deletions because the Agency is no longer using a return mailing card. Instead, MSHA currently provides a statement that lists violations being assessed, instructions for paying or contesting assessments, and MSHA contact information to facilitate an operator's request for a hearing. MSHA intends to continue this practice. In addition, MSHA intends to continue to advise the Office of the Solicitor and the Commission of the notices of penalty contest. MSHA has determined that this manner of operator notification of contested assessments does not constitute an Information collection activity by MSHA.
Several commenters stated that MSHA should include in this rule a provision to force operators to pay assessed penalties. They expressed concern that uncollected fines send a message to all operators that MSHA is not serious about Mine Act enforcement. One commenter stated that it is within the Secretary's authority to pursue such operators aggressively, that MSHA should do so, and that if MSHA believes that it has insufficient authority to do this, MSHA should submit legislative proposals to strengthen its ability to enforce the law.
MSHA vigorously collects penalties and takes its collection activities seriously. In fact, for the 10-year period from 1997 through 2006, MSHA issued over $239 million in civil penalties and has collected nearly $175 million of that. In addition, MSHA notes that each agency that collects civil monetary penalties must have a policy to send delinquency letters to employers who have not made payments on the assessed penalties. According to the Debt Collection Improvement Act of 1996, once the debt has been delinquent for 180 days, the debt should be sent to the U.S. Department of Treasury for collection. MSHA has the authority to refer delinquent civil penalty debt to Treasury and, on a weekly basis, refers unpaid debt to Treasury. Furthermore, MSHA has explored innovative ways to legally force operators to pay penalties and to deal aggressively with those who do not. Further suggestions related to collection activities, however, are beyond the scope of this rulemaking.
No changes were made to proposed § 100.7 and the final rule adopts the proposed language.
Final § 100.8, like the proposal, is substantively unchanged from the existing rule. It provides that service of proposed civil penalties will be made at the mailing address of record for an operator and miners' representative, that penalty assessments may be mailed to a different address if MSHA is notified in writing of the new address, and that operators who fail to file a notification of legal identity under 30 CFR part 41 will be served at their last known business address. Like the proposed rule, specific references to part 40 (Representative of Miners) and part 41 (Notification of Legal Identity) have been changed from existing § 100.8 to indicate that they are parts contained in Chapter I of Title 30 CFR. MSHA received no comments on this proposal.
No changes were made to proposed § 100.8 and the final rule adopts the proposed language.
Executive Order 12866 as amended by Executive Order 13258 (Amending Executive Order 12866 on Regulatory Planning and Review) requires that regulatory agencies assess both the costs and benefits of regulations. To comply with Executive Order 12866, MSHA has prepared a Regulatory Economic Analysis (REA) for the final rule. The REA contains supporting data and explanation for the summary materials presented in sections III-VI of this preamble, including the covered mining industry, costs and benefits, feasibility, small business impact, and paperwork. The REA is located on MSHA's Web site at
Executive Order 12866 classifies a rule as a significant regulatory action requiring review by the Office of Management and Budget if it meets any one of a number of specified conditions, including: Having an annual effect on the economy of $100 million or more, creating a serious inconsistency or interfering with an action of another agency, materially altering the budgetary impact of entitlements or the rights of entitlement recipients, or raising novel legal or policy issues. MSHA has determined that, based on the REA, the final rule would not have an annual effect of $100 million or more on the economy and, therefore, would not be an economically significant regulatory action under Section 3, paragraph (f) of Executive Order 12866. MSHA, however, has concluded that the final rule is otherwise significant under Executive Order 12866 because it raises novel legal or policy issues.
Based on 2005 data, the final rule will apply to the entire mining industry, covering all 14,666 mine operators and 6,585 independent contractors in the United States, as well as the 261,449 miners and 83,267 contract workers they employ.
In order to derive and explain the cost impact of the final rule on the mining industry, MSHA has divided its analysis into three sections: (1) The baseline—the total number and monetary amount of civil penalty assessments proposed by MSHA in 2005; (2) the impact of the final rule on civil penalty assessments under the assumption that mine operators and independent contractors take no actions, in response to increased proposed penalty assessments, to improve compliance with MSHA standards and regulations; and (3) the impact of the final rule on the number and amount of civil penalty assessments taking into account the anticipated response of mine operators and independent contractors to increase compliance with MSHA standards and regulations and thereby reduce the number of civil penalty assessments they otherwise would receive. There is an additional cost in the final rule associated with a new requirement that mine operators request a safety and health conference in writing and include a brief statement of the reason why each citation or order should be conferenced.
It is important to note the nature of the increase in civil penalties as it impacts the mining industry. For most MSHA rules, the estimated impact reflects the cost to the mining industry of achieving compliance with the rule. For this final rule, the estimated impact consists of two parts: (1) Increased payments for penalties and (2) expenses incurred to increase compliance with MSHA standards and regulations so as to reduce the number and amount of civil penalties otherwise received. This analysis assumes, in the baseline against which the impacts of the rulemaking will be compared, a certain amount of non-compliance with current MSHA standards and regulations. Therefore, compliance efforts made in response to increased penalties are a cost shown in the final rule. This analysis reflects additional expenditures associated with improved compliance.
The first step in estimating the impact of the final rule is to establish a baseline: the number and monetary amount of civil penalty assessments in the absence of the final rule. For this purpose, MSHA chose all violations that were assessed in 2005. Table III-1 shows the number of civil penalty assessments issued in 2005, disaggregated by employment size for coal and metal and nonmetal (M/NM) operations, and independent contractors at coal and metal and nonmetal operations.
The employment size categories being used are 1-5 employees, 6-19 employees, 20-500 employees, and more than 500 employees. These categories are relevant for the analysis of impact in Section V of this preamble, to determine whether small mines, as defined by the SBA and MSHA, will be significantly impacted by the final rule.
Of the 116,673 civil penalty assessments issued in 2005, 113,484, or approximately 97.3%, were single penalty or regular assessments. The remaining 3,189, or 2.7%, were special assessments.
As can be calculated from Table III-1, there were approximately 25% more coal violations than metal and nonmetal violations in 2005, even though there were more than 3
The amount used for each 2005 civil penalty assessment in the baseline was the penalty proposed by MSHA. Table III-2 shows, by employment size, the total baseline dollar amount of civil penalties proposed by MSHA in 2005 for coal and metal and nonmetal mining operations and for independent contractors at coal and metal and nonmetal mines.
Table III-2 reveals that total civil penalty assessments in 2005 were substantially larger—more than 50% larger—for coal mines than for metal and nonmetal mines. The larger aggregate penalty assessment for coal mines is due to the larger number of violations issued to coal mines and the increased average penalty per violation. Coal violations tend to be more serious, on average, than metal and nonmetal violations (e.g., 40% of coal violations are S&S, versus 23% for metal and nonmetal violations).
Of the $24.9 million in civil penalties proposed by MSHA in 2005, $16.6 million, or approximately 67%, were from single penalty and regular assessments. The remaining $8.2 million were from special assessments. Of this amount, approximately $0.3 million were issued to agents of mine operators and another $1.5 million were issued for violations involving a fatality.
Table III-3 displays the baseline average dollar amount of a proposed civil penalty in 2005 disaggregated by employment size for coal and metal and nonmetal mining operations and for independent contractors at coal and metal and nonmetal mines. The average penalty assessment for a violation in 2005 was $213. For a single penalty assessment, the average penalty was $60. For a regular penalty assessment, the average penalty was $316. For a special assessment, the average penalty was $2,574. For special assessments issued to agents of the mine operator, the average assessment was $582; for special assessments involving a fatality, the average penalty was $27,181; and for all other special assessments, the average penalty was $2,385.
Table III-3 shows that the average proposed penalty assessment in 2005 generally tended to increase as mine size increased. The result is consistent, particularly for mine operators with 20 or more employees.
Table III-3 also indicates that the difference in average penalties between coal and metal and nonmetal mining operations of a given employment size and between independent contractors for a given employment size at coal and metal and nonmetal mines is generally small.
With the baseline established, the next task in the cost analysis is to determine the impact of the final rule on civil penalty assessments under the assumption that mine operators and independent contractors take no actions, in response to increased proposed penalty assessments, to increase compliance with MSHA standards and regulations. This task is an intermediate step in determining the total cost impact of the final rule, as MSHA's assumption in III.B.3 of this preamble is that mine operators and independent contractors will change their compliance behavior in response to increased penalties.
Given the assumption of no compliance response by mine operators and independent contractors, the number of violations would not change in response to the final rule. They would remain the same as presented in Table III-1 for the baseline. The type of the violations, however, will change under the final rule. In the analysis, all 2005 regular and single penalty assessments will be issued as regular assessments under the final rule. MSHA assumed that most unwarrantable failure violations would be processed as regular assessments, but would receive at least the minimum penalty amounts required in the MINER Act. MSHA also assumed that violations issued to agents, those involving a fatality and processed as a special assessment in 2005, those involving failure to promptly notify MSHA, and those determined to be flagrant will be processed as special assessments under the final rule. For purposes of this analysis, MSHA further assumed that all other 2005 special assessments will be processed as regular assessments. Thus, under the final rule, MSHA estimates that the number of special assessments will decline by 85%, from 3,189 to 491. MSHA anticipates that, under the final rule, the regular assessment provision will generally provide an appropriate penalty for most violations previously processed as special assessments. Equally significant, this will allow MSHA to focus its enforcement resources on more field enforcement activities, as opposed to administrative review activities.
Tables III-4 and III-5 show the estimated total dollar amount and average dollar amount, respectively, of civil penalties under the final rule, assuming no compliance response by mine operators and independent contractors.
As indicated in these tables, MSHA estimates that total civil penalty assessments will increase under the final rule, assuming no compliance response, from $24.9 million to $69.3 million, an increase of $44.5 million, or 179%. Approximately $2.5 million, or 4%, will come from special assessments. Of the $44.5 million increase, approximately $1.9 million will result from the minimum penalty provisions for unwarrantable violations in the MINER Act. In its analysis of 2005 data, MSHA found one violation which met the failure to provide timely notification provision in the MINER Act. For this category of violations, the MINER Act imposes a penalty of $5,000 to $60,000. The particular violation, however, had already received a special assessment in excess of $5,000. Thus, MSHA did not adjust penalty totals to account for this provision of the MINER Act.
MSHA has determined that flagrant violations will be processed under the special assessment provision. As stated in the final rule, MSHA will use the definition for flagrant violation in the MINER Act, but the Agency cannot estimate, at this point in the rulemaking process, the specific impact of this new requirement in the MINER Act. The Agency does, however, anticipate that penalties will increase due to this provision.
MSHA estimates that the average penalty assessment will increase under the final rule, assuming no compliance response, from $213 (shown in Table III-3) to $594 (shown in Table III-5), an increase of 179% (shown in Table III-
For purposes of the analysis, special assessments that would be processed as special assessments under the final rule were assumed to receive the same penalty, unless they would be impacted by the minimum penalty provisions of the MINER Act. The average penalty for special assessments issued to agents of the mine operator is estimated to increase by 367% under the final rule. All of this increase is due to the application of the minimum penalty provisions for unwarrantable violations in the MINER Act.
For purposes of analysis, MSHA assumes that all specially assessed violations, except those involving fatalities, agents, failure to timely notify MSHA, and flagrant violations, would be processed as regular assessments under the final rule. In the analysis, the average penalty increased by 98% for those 2005 special assessments that would be processed as regular assessments under the final rule.
MSHA intends and expects that increased penalty assessments will lead to efforts by mine operators and independent contractors to increase compliance with MSHA standards and regulations and ultimately to fewer violations and improved mine safety and health. MSHA assumes that each violation is associated with a probability of occurrence that declines as penalty assessments rise. To estimate this impact, MSHA assumes that, at the margin, each 10% increase in penalty for a violation is associated with a 3% decrease in its probability of occurrence.
In economic terms, this is equivalent to assuming an elasticity of -0.3 between the number of violations and the dollar size of penalties. This elasticity of -0.3 was assumed by MSHA in its regulatory economic analysis for the 2003 direct final rule to adjust civil penalties for inflation.
MSHA has applied this assumption to each assessed violation in the 2005 database. For most violations, the final rule will result in a penalty increase. Accordingly, MSHA has computed a reduction (or in rare cases, an increase) in the probability of the violation's occurrence. The reduction is larger as the penalty increases.
Tables III-7 and III-8 estimate the improved compliance response of the industry to increased penalty assessments.
The “Increase in Penalties” column represents the increase in penalties, relative to the baseline, for remaining violations. The increase in proposed penalty assessments is approximately $17.1 million for coal mine operators,
To reduce the number of violations in response to the increased penalty assessments, MSHA assumes that mines will increase expenditures to improve compliance with MSHA safety and health standards. (The REA for the final rule provides an explanation of how expenditures are calculated.) The column, “Additional Expenditures to Improve Compliance,” represents MSHA's estimate of these expenditures. These estimates are based on the same assumption that the elasticity of response is −0.3 and the additional assumption that the increased compliance activities will be undertaken by the mining industry to avoid increased penalties.
Table III-9 summarizes the impact of the final rule by mining sector and indicates that the combined impact of additional expenditures to improve compliance and the increase in penalties, given improved compliance is $31.5 million a year.
Section 100.6 of 30 CFR allows all parties to request a safety and health conference with the district manager and designee. The final rule includes a new requirement in § 100.6(b) that the request for a safety and health conference be in writing and include a brief statement of the reason why each citation or order should be conferenced.
MSHA data indicate that 9,287 violations were conferenced in 2005-4,567 by coal operators and contractors, and 4,720 by metal and nonmetal operators and contractors.
MSHA estimates that it would take approximately 9 minutes per violation for a mine supervisor to prepare a written request for a safety and health conference. Because each request for a safety and health conference bundles together an average of between three and four violations, the 9 minutes per violation is equivalent to between 27 and 36 minutes to prepare a written request for each safety and health conference. The hourly wage rate for a coal supervisor is $63.39; the hourly wage rate for a metal and nonmetal supervisor is $47.10.
The benefits of the final rule are the reduced number of injuries and fatalities that would result from improved compliance with MSHA's health and safety standards and regulations in response to increased penalty assessments. MSHA projects that increased penalties will induce mine operators to reduce all safety and health violations. The reduction in all violations, and particularly S&S violations, or those reasonably likely to result in reasonably serious injury or illness, will reduce the number and severity of injuries and illnesses.
MSHA has concluded that the requirements of the final rule are technologically and economically feasible.
The final rule is a regulation, not a standard. It does not involve activities on the frontiers of scientific knowledge. The mining industry has been complying with the adjudication and payment of civil penalties for decades. MSHA concludes, therefore, that the final rule is technologically feasible.
MSHA estimates that the yearly increased compliance costs and penalty assessments for coal mines as a result of the final rule will be $25.1 million dollars, which is equal to approximately 0.09 percent of coal mine sector revenues of $26.7 billion in 2005. MSHA estimates that the yearly increased compliance costs and penalty assessments for metal and nonmetal mines as a result of the final rule will be $6.5 million dollars, which is equal to approximately 0.01 percent of metal and nonmetal mine sector revenues of $51.5 billion in 2005. Penalty assessment estimates for both coal and metal and nonmetal include MSHA's assumption that mine operators will change their behavior and improve compliance as a result of increased penalties, and thereby receive fewer violations. Since the total estimated increased penalty assessments for both the coal and metal and nonmetal mine operators are well below one percent of their estimated revenue, MSHA concludes that the final rule is economically feasible for the mining industry.
Pursuant to the Regulatory Flexibility Act (RFA) of 1980, as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA), MSHA has analyzed the impact of the final rule on small entities. Based on that analysis, MSHA certifies that the final rule will not have a significant economic impact on a substantial number of small entities. The factual basis for this certification is presented below.
Under the RFA, in analyzing the impact of a final rule on small entities, MSHA must use the Small Business Administration's (SBA) definition for a small entity, or after consultation with the SBA Office of Advocacy, establish an alternative definition for the mining industry by publishing that definition in the
MSHA has also examined the impact of agency rules on a subset of mines with 500 or fewer employees—mines with fewer than 20 employees, which MSHA and the mining community have traditionally referred to as “small mines.” These small mines differ from larger mines not only in the number of employees, but also in economies of scale in material produced, in the type and amount of production equipment, and in supply inventory. Therefore, their costs of complying with MSHA's rules and the impact of the agency's rules on them will also tend to be different. It is for this reason that “small mines,” as traditionally defined by MSHA as those employing fewer than 20 workers, are of special concern to MSHA. In addition, for this final rule, MSHA has examined the cost on mines with five or fewer employees to ensure that this subset of mines is not significantly and adversely impacted by the final rule.
This analysis complies with the legal requirements of the RFA for an analysis of the impact on “small entities” while continuing MSHA's traditional definition of “small mines.” Both the final rule and this analysis also reflect MSHA's concern for mines with five or fewer employees. MSHA concludes that it can certify that the final rule will not have a significant economic impact on a substantial number of small entities. MSHA has determined that this is the case for mines with fewer than 20 employees and mines with 500 or fewer employees. In its detailed factual basis below, MSHA will also show the impact of the final rule on mines with five or fewer employees.
MSHA's analysis of the economic impact on “small entities” begins with a “screening” analysis. The screening compares the estimated costs of a rule for small entities to the estimated revenue. When estimated costs are less than one percent of estimated revenue (for the size categories considered), MSHA believes it is generally appropriate to conclude that there is no significant economic impact on a substantial number of small entities. If estimated costs are equal to or exceed one percent of revenue, it tends to indicate that further analysis may be warranted.
Normally, the analysis of the costs or economic impact of a rule assumes that mine operators are in 100% compliance with a rule. Under the assumption that mine operators are in 100% compliance with all of MSHA's rules, there would be no cost of compliance with the final rule, since no mine operator would be liable for civil penalties. For purposes of analyzing the effects on small mines, MSHA reverses this usual assumption and instead analyzes the increased penalty assessments for mines not in compliance with the agency's safety and health standards and regulations.
Total underground and surface coal production was 368 million tons and 765 million tons, respectively. The 2005 price of underground and surface coal was $36.42 and $17.37 per ton, respectively.
For metal and nonmetal mines, the total 2005 estimated revenue generated by the metal and nonmetal industry ($51.5 billion)
Table V-1 below shows that when dividing the increase in penalties and safety and health conference costs by the revenue in each mine size category, the cost of the rule for coal mines is 0.46% of revenue for mines with 1-5 employees, 0.25% of revenue for mines with 1-19 employees, and 0.11% of revenue for mines with 1-500 employees. Table V-1 also shows the penalty and cost increase as a percentage of revenue for all coal mines to be 0.09%.
Table V-1 also shows that when dividing the increase in penalties and safety and health conference costs by the revenue in each mine size category, the cost of the rule for metal and nonmetal mines is 0.03% of revenue for mines with 1-5 employees, 0.01% of revenue for mines with 1-19 employees, and 0.01% of revenue for mines with 1-500 employees. Table V-1 shows the penalty and cost increase as a percentage of revenue for all metal and nonmetal mines to be 0.01%.
For coal mines, Table V-1 further shows that the final rule will result in an average increase in costs and penalties per mine of: $619 for mines with 1-5 employees; $1,405 for mines with 1-19 employees; and $10,821 for mines with 500 or fewer employees. For metal and nonmetal mines, Table V-1 shows that the final rule will result in an average increase in costs and penalties per mine of: $149 for mines with 1-5 employees; $213 for mines with 1-19 employees; and $457 for mines with 500 or fewer employees.
As shown in Table V-1, when applying MSHA's and SBA's definitions of small mines, yearly costs of the final rule are substantially less than one percent of estimated yearly revenue, well below the level suggesting that the rule might have a significant economic impact on a substantial number of small entities. Accordingly, MSHA has certified that the final rule will not have a significant economic impact on a substantial number of small entities that are covered by the rule.
This final rule contains no information collection requirements subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA).
Revised paragraph (b) in § 100.6 requires that a request for a safety and health conference be in writing and include a brief statement of the reason that each citation or order should be conferenced. MSHA views this new provision as an administrative action that is not subject to the PRA.
The final rule does not include any Federal mandate that may result in increased expenditures by State, local, or tribal governments; nor does it increase private sector expenditures by more than $100 million annually; nor does it significantly or uniquely affect small governments. Accordingly, the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501
The final rule will have no effect on family well-being or stability, marital commitment, parental rights or authority, or income or poverty of families and children. Accordingly, § 654 of the Treasury and General Government Appropriations Act of 1999 (5 U.S.C. 601 note) requires no further agency action, analysis, or assessment.
The final rule will not implement a policy with takings implications. Accordingly, Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights, requires no further agency action or analysis.
The final rule was drafted and reviewed in accordance with Executive Order 12988, Civil Justice Reform. The final rule was written to provide a clear legal standard for affected conduct and was carefully reviewed to eliminate drafting errors and ambiguities, so as to minimize litigation and undue burden on the Federal court system. MSHA has determined that the final rule meets the
The final rule will have no adverse impact on children. Accordingly, Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks, as amended by Executive Orders 13229 and 13296, requires no further agency action or analysis.
The final rule does not have “federalism implications” because it does not “have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Accordingly, Executive Order 13132, Federalism, requires no further agency action or analysis.
The final rule does not have “tribal implications” because it does not “have substantial direct effects 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.” Accordingly, Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, requires no further agency action or analysis.
The final rule has been reviewed for its impact on the supply, distribution, and use of energy because it applies to the coal mining industry. Insofar as the final rule will result in added yearly compliance costs and civil penalty assessments of approximately $25.1 million to the coal mining industry, relative to annual revenue of $26.7 billion in 2005, it is not a “significant energy action” because it is not “likely to have a significant adverse effect on the supply, distribution, or use of energy * * * (including a shortfall in supply, price increases, and increased use of foreign supplies).” Accordingly, Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use, requires no further Agency action or analysis.
MSHA has thoroughly reviewed the final rule to assess and take appropriate account of its potential impact on small businesses, small governmental jurisdictions, and small organizations. MSHA has determined and certified that the final rule will not have a significant economic impact on a substantial number of small entities.
Mine safety and health, Penalties.
30 U.S.C. 815, 820, 957.
This part provides the criteria and procedures for proposing civil penalties under sections 105 and 110 of the Federal Mine Safety and Health Act of 1977 (Mine Act). The purpose of this part is to provide a fair and equitable procedure for the application of the statutory criteria in determining proposed penalties for violations, to maximize the incentives for mine operators to prevent and correct hazardous conditions, and to assure the prompt and efficient processing and collection of penalties.
The criteria and procedures in this part are applicable to all proposed assessments of civil penalties for violations of the Mine Act and the standards and regulations promulgated pursuant to the Mine Act, as amended. MSHA shall review each citation and order and shall make proposed assessments of civil penalties.
(a)
(i) The appropriateness of the penalty to the size of the business of the operator charged;
(ii) The operator's history of previous violations;
(iii) Whether the operator was negligent;
(iv) The gravity of the violation;
(v) The demonstrated good faith of the operator charged in attempting to achieve rapid compliance after notification of a violation; and
(vi) The effect of the penalty on the operator's ability to continue in business.
(2) A regular assessment is determined by first assigning the appropriate number of penalty points to the violation by using the appropriate criteria and tables set forth in this section. The total number of penalty points will then be converted into a dollar amount under the penalty conversion table in paragraph (g) of this section. The penalty amount will be adjusted for demonstrated good faith in accordance with paragraph (f) of this section.
(b)
(c)
(1) Total number of violations. For mine operators, penalty points are assigned on the basis of the number of violations per inspection day (VPID)(Table VI). Penalty points are not assigned for mines with fewer than 10 violations in the specified history period. For independent contractors, penalty points are assigned on the basis of the total number of violations at all mines (Table VII). This aspect of the history criterion accounts for a maximum of 25 penalty points.
(2) Repeat violations of the same standard. Repeat violation history is based on the number of violations of the same citable provision of a standard in a preceding 15-month period. For coal and metal and nonmetal mine operators with a minimum of six repeat violations, penalty points are assigned on the basis of the number of repeat violations per inspection day (RPID) (Table VIII). For independent contractors, penalty points are assigned on the basis of the number of violations at all mines (Table IX). This aspect of the history criterion accounts for a maximum of 20 penalty points (Table VIII).
(d)
(e)
(f)
(g)
(h) The effect of the penalty on the operator's ability to continue in business. MSHA presumes that the operator's ability to continue in business will not be affected by the assessment of a civil penalty. The operator may, however, submit information to the District Manager concerning the financial status of the business. If the information provided by the operator indicates that the penalty will adversely affect the operator's ability to continue in business, the penalty may be reduced.
(a) The minimum penalty for any citation or order issued under section 104(d)(1) of the Mine Act shall be $2,000.
(b) The minimum penalty for any order issued under section 104(d)(2) of the Mine Act shall be $4,000.
(a) MSHA may elect to waive the regular assessment under § 100.3 if it determines that conditions warrant a special assessment.
(b) When MSHA determines that a special assessment is appropriate, the proposed penalty will be based on the six criteria set forth in § 100.3(a). All findings shall be in narrative form.
(c) Any operator who fails to correct a violation for which a citation has been issued under section 104(a) of the Mine Act within the period permitted for its correction may be assessed a civil penalty of not more than $6,500 for each day during which such failure or violation continues.
(d) Any miner who willfully violates the mandatory safety standards relating to smoking or the carrying of smoking materials, matches, or lighters shall be subject to a civil penalty which shall not be more than $275 for each occurrence of such violation.
(e) Violations that are deemed to be flagrant under section 110(b)(2) of the Mine Act may be assessed a civil penalty of not more than $220,000. For purposes of this section, a flagrant violation means “a reckless or repeated failure to make reasonable efforts to eliminate a known violation of a mandatory health or safety standard that substantially and proximately caused, or reasonably could have been expected to cause, death or serious bodily injury.”
(f) The penalty for failure to provide timely notification to the Secretary under section 103(j) of the Mine Act will be not less than $5,000 and not more than $60,000 for the following accidents:
(1) The death of an individual at the mine, or
(2) An injury or entrapment of an individual at the mine which has a reasonable potential to cause death.
(a) All parties shall be afforded the opportunity to review with MSHA each citation and order issued during an inspection. It is within the sole discretion of MSHA to grant a request for a conference and to determine the nature of the conference.
(b) Upon notice by MSHA, all parties will have 10 days within which to submit additional information or request a safety and health conference with the District Manager or designee. A conference request may include a request to be notified of, and to participate in, a conference initiated by another party. A conference request must be in writing and must include a brief statement of the reason why each citation or order should be conferenced.
(c) When a conference is conducted, the parties may submit any additional relevant information relating to the violation, either prior to or at the conference. To expedite the conference, the official assigned to the case may contact the parties to discuss the issues involved prior to the conference.
(d) MSHA will consider all relevant information submitted in a timely manner by the parties with respect to the violation. When the facts warrant a finding that no violation occurred, the citation or order will be vacated. Upon conclusion of the conference, or expiration of the conference request period, all citations that are abated and all orders will be promptly referred to MSHA's Office of Assessments. The Office of Assessments will use the citations, orders, and inspector's evaluation as the basis for determining the appropriate amount of a proposed penalty.
(a) A notice of proposed penalty will be issued and served by certified mail, or the equivalent, upon the party to be charged and by regular mail to the representative of miners at the mine after the time permitted to request a conference under § 100.6 expires, or upon the completion of a conference, or upon review by MSHA of additional information submitted in a timely manner.
(b) Upon receipt of the notice of proposed penalty, the party charged shall have 30 days to either:
(1) Pay the proposed assessment. Acceptance by MSHA of payment tendered by the party charged will close the case.
(2) Notify MSHA in writing of the intention to contest the proposed penalty. When MSHA receives the notice of contest, it advises the Federal Mine Safety and Health Review Commission (Commission) of such notice. No proposed penalty which has been contested before the Commission shall be compromised, mitigated or settled except with the approval of the Commission.
(c) If the proposed penalty is not paid or contested within 30 days of receipt, the proposed penalty becomes a final order of the Commission and is not subject to review by any court or agency.
(a) All operators are required by part 41 (Notification of Legal Identity) of this chapter to file with MSHA the name and address of record of the operator. All representatives of miners are required by part 40 (Representative of Miners) of this chapter to file with MSHA the mailing address of the person or organization acting in a representative capacity. Proposed penalty assessments delivered to those addresses shall constitute service.
(b) If any of the parties choose to have proposed penalty assessments mailed to a different address, the Office of Assessments must be notified in writing of the new address. Delivery to this address shall also constitute service.
(c) Service for operators who fail to file under part 41 of this chapter will be upon the last known business address recorded with MSHA.
Bureau of Indian Affairs, Interior.
Notice.
This notice publishes the current list of 561 tribal entities recognized and eligible for funding and services from the Bureau of Indian Affairs by virtue of their status as Indian tribes. The list is updated from the notice published on November 25, 2005 (70 FR 71194).
Daisy West, Bureau of Indian Affairs, Division of Tribal Government Services, Mail Stop 4513-MIB, 1849 C Street, NW., Washington, DC 20240.
This notice is published pursuant to Section 104 of the Act of November 2, 1994 (Pub. L. 103-454; 108 Stat. 4791, 4792), and in exercise of authority delegated to the Assistant Secretary—Indian Affairs under 25 U.S.C. 2 and 9 and 209 DM 8.
Published below is a list of federally acknowledged tribes in the contiguous 48 states and in Alaska.
The list does not include any additional new tribes. The updates are limited to several tribal name changes. To aid in identifying tribal name changes, the tribe's former name is included with the new tribal name. We will continue to list the tribe's former name for several years before dropping the former name from the list.
The listed entities are acknowledged to have the immunities and privileges available to other federally acknowledged Indian tribes by virtue of their government-to-government relationship with the United States as well as the responsibilities, powers, limitations and obligations of such tribes. We have continued the practice of listing the Alaska Native entities separately solely for the purpose of facilitating identification of them and reference to them given the large number of complex Native names.