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Agricultural Marketing Service, USDA.
Interim final rule with request for comments.
This rule revises the regulatory period for minimum grade, size, quality, and maturity requirements applicable to onions grown in South Texas under Marketing Order No. 959 (order). The current regulatory period for South Texas onions is March 1 through June 4 of each year. Changes in available varieties, growing seasons, and marketing opportunities over the years have resulted in a prolonged onion shipping season that now extends beyond June 4 into mid-July. The new regulatory period will extend through July 15. The South Texas Onion Committee (Committee), which locally administers the order, unanimously recommended the change.
Effective May 8, 2007. Comments received by July 6, 2007 will be considered prior to issuance of a final rule.
Interested persons are invited to submit written comments concerning this action. Comments must be sent to the Docket Clerk, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC 20250-0237; Fax: (202) 720-8938; or Internet:
Belinda G. Garza, Regional Manager, Texas Marketing Field Office, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA; Telephone: (956) 682-2833, Fax: (956) 682-5942, or e-mail:
Small businesses may request information on complying with this regulation by contacting Jay Guerber, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or e-mail:
This rule is issued under Marketing Agreement No. 143 and Order No. 959, both as amended (7 CFR part 959), regulating the handling of onions grown in South Texas, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”
The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866.
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This action is not intended to have retroactive effect. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.
This action, which was unanimously recommended by the Committee, extends the regulatory period when minimum grade, size, quality, and maturity requirements apply to onions grown under the order in South Texas.
Under the terms of the order, fresh market shipments of onions grown in a 35-county production area in South Texas are currently subject to handling regulations during the period March 1 through June 4 of each year. According to the Committee, changes in available varieties, growing seasons, and marketing opportunities over the years have resulted in a prolonged onion shipping season that now extends beyond June 4 into mid-July. Because the current regulatory period does not cover the present production season completely, not all onion shipments occurring after June 4 are currently subject to order requirements.
According to USDA Market News data, 40 percent of South Texas onions shipped in 2005 from District 2, or roughly 11 percent of total shipments for the production area, occurred after June 4. In 2006, 30 percent of onions shipped from District 2, or approximately 10 percent of total shipments for the production area, were shipped after June 4.
Section 959.110 of the order's rules and regulations apportions the 35 counties between two onion-growing areas known as District 1, designated as the Coastal Bend-Lower Valley area, and District 2, designated as the Laredo-Winter Garden area. District 1 is comprised of the counties of Victoria, Calhoun, Goliad, Refugio, Bee, Live Oak, San Patricio, Aransas, Jim Wells, Nueces, Kleberg, Brooks, Kenedy, Duval, McMullen, Cameron, Hidalgo, Starr, and Willacy. District 2 includes the counties of Zapata, Webb, Jim Hogg, De Witt, Wilson, Atascosa, Karnes, Val Verde, Frio, Kinney, Uvalde, Medina, Maverick, Zavala, Dimmit, and LaSalle.
Section 959.52(b) of the order provides authority to limit the handling of any grade, size, quality, maturity, or pack of onions within the production area during any period. Section 959.322 outlines the regulatory requirements authorized under § 959.52(b). Such
Currently, these handling regulations provide that shipments may not exceed 20 percent defects of U.S. No. 1 grade. In percentage grade lots, tolerances for serious damage shall not exceed 10 percent including not more than 2 percent decay. Double the lot tolerance is permitted in individual packages in percentage grade lots. Applications of tolerances in U.S. onion standards apply to in-grade lots.
Minimum size requirements for different size designations are outlined in the regulations. Specifically, for white onions only, the minimum diameter is 1 inch to 2
The regulations further specify that tolerances for size in the U.S. onion standards shall apply except that for repacker and medium sizes, not more than 20 percent, by weight, of onions in any lot may be larger than the maximum diameter specified.
The current South Texas regulatory period during which the aforementioned regulations are in effect runs from March 1 through June 4, annually. A final rule published on May 17, 1996 (61 FR 24877), established this regulatory period to promote the orderly marketing of onions.
Extending the end date of the regulatory period from June 4 to July 15 each year will provide the consumer with quality onions for a longer period of time because the entire production area will be regulated throughout its shipping period. Normally, South Texas onion handlers continue to voluntarily request inspection of their onions after June 4 to ensure product quality past the current regulatory period. Because the industry is already voluntarily having their onions inspected, the extension is not expected to negatively impact the industry and this change will align order requirements with present day industry operations.
Collecting assessments for an additional five weeks will provide the Committee with additional assessment revenue. Based on USDA Market News shipment 2005 data, an additional 1,086,600 fifty-pound equivalent cartons would have been assessed if the extended regulatory period had been in effect. At the current assessment rate of $0.02 per carton, this amount would have generated an additional $21,732 in assessment revenue. Similarly, Market News data for 2006 indicates that an additional 863,400 cartons would have been assessed between June 4 and July 15, and would have resulted in $17,268 of additional assessment revenue.
The additional revenue collected as a result of an extended regulatory period in 2007 will allow the Committee to further promote onions and conduct more research projects, making it advantageous to the industry as well as the consumer. All producers will realize a better return for a quality pack through research and market development projects funded by the collection of assessments through July 15.
Pursuant to the requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions so that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility. Small agricultural growers have been defined by the Small Business Administration (SBA) (13 CFR 121.201) as those having annual receipts of less than $750,000. Small agricultural service firms are defined as those with annual receipts of less than $6,500,000.
There are approximately 114 producers of onions in the production area and approximately 38 handlers subject to regulation under the order.
Most of the handlers are vertically integrated corporations involved in producing, shipping, and marketing onions. For the 2005-06 marketing year, the industry's 38 handlers shipped onions produced on 17,694 acres with the average and median volume handled being 182,148 and 174,437 fifty-pound equivalents, respectively. In terms of production value, total revenues for the 38 handlers were estimated to be $44.2 million, with average and median revenues being $l.6 million and $1.12 million, respectively.
The South Texas onion industry is characterized by producers and handlers whose farming operations generally involve more than one commodity, and whose income from farming operations is not exclusively dependent on the production of onions. Alternative crops provide an opportunity to utilize many of the same facilities and equipment not in use when the onion production season is complete. For this reason, typical onion producers and handlers either produce multiple crops or alternate crops within a single year.
Based on the SBA's definition of small entities, the Committee estimates that all of the 38 handlers regulated by the order would be considered small entities if only their onion revenues are considered. However, revenues from other productive enterprises would likely push a number of these handlers above the $6,500,000 annual receipt threshold. All of the 114 producers may be classified as small entities based on the SBA definition if only their revenue from onions is considered.
This rule extends the end date of the order's regulatory period from June 4 to July 15 of each year for Texas onions shipped to the fresh market. This action, which was unanimously recommended by the Committee, extends the regulatory period when minimum grade, size, quality, and maturity requirements apply to onions grown under the order. Authorization to implement such regulations is provided in § 959.52(b) of the order. Regulatory requirements authorized under this section are provided in § 959.322.
This action provides that fresh onion shipments from the entire South Texas onion production area meet all order requirements from March 1 through July 15 of each year. The current regulations require that onions grown in the production area meet order requirements from March 1 through June 4 of each year.
According to the Committee, changes in available varieties, growing seasons, and marketing opportunities over the years have resulted in a prolonged onion shipping season that now extends beyond June 4 into mid-July. Because the current regulatory period does not cover the present production season completely, not all onion shipments occurring after June 4 are currently subject to mandatory inspection under the order. Extending the regulatory period will ensure that all South Texas onions would be inspected to order specifications.
Many South Texas onion handlers currently continue to voluntarily request inspection of their onions after June 4 to ensure product quality. Because the industry is already
According to USDA Market News data, forty percent of South Texas onions shipped in 2005 from District 2, or roughly 11 percent of total shipments for the production area, occurred after June 4. In 2006, 30 percent of onions shipped from District 2, or approximately 10 percent of total shipments for the production area, were shipped after June 4.
This action is also expected to support Committee promotional and research activities and benefit consumers. The Committee has indicated that collecting assessments for an additional five weeks will provide them with additional assessment revenue.
Based on USDA Market News shipment 2005 data, an additional 1,086,600 fifty-pound equivalent cartons would have been assessed if the extended regulatory period had then been in effect. At the current assessment rate of $0.02 per carton, this amount would have generated an additional $21,732 in assessment revenue. Similarly, Market News data for 2006 indicates that an additional 863,400 cartons would have been assessed between June 4 and July 15, 2006, and would have resulted in $17,268 of additional assessment revenue.
The additional revenue will allow the Committee to further promote onions and conduct more research projects, making it advantageous to the industry as well as the consumer. All producers will realize a better return for a quality pack through research and market development projects funded by the collection of assessments through July 15.
The additional five weeks of assessment collection is not expected to significantly burden South Texas Onion handlers. A burden calculation of the additional assessments that would have been collected in 2006 if the regulatory period had been in effect for that season indicates that the additional assessment payments by handlers would have equaled 0.039 percent of total of 2006 production value [($17,268/$44.2 million) × 100 = 0.039]. Total 2006 revenues for the 38 handlers were estimated to be $44.2 million, with average and median revenues being $l.6 million and $1.12 million, respectively.
Extending the end date of the regulatory period from June 4 to July 15 each year will also provide the consumer with quality onions for a longer period of time because the entire production area will be regulated throughout its shipping period.
One alternative to this action would be to not extend the regulatory period beyond the current end date of June 4. However, the Committee believes that not extending the regulatory period would result in a significant portion of the South Texas onion crop not being consistently regulated.
While most handlers currently extend inspection beyond the June 4 regulatory deadline on a voluntary basis, such inspection is not required. By extending the regulatory period, such inspection would be mandatory. Mandatory inspection will ensure orderly marketing of all South Texas onions since all handlers and product will be required to fulfill the same inspection requirements and product standards under the order for the entire production period. Therefore, USDA determined that the end date of the regulatory period for South Texas onions should be extended from June 4 to July 15.
While this action will impose some additional costs on South Texas onion handlers and producers, the costs are expected to be minimal, and will be offset by the benefits of the action. The Committee believes that this modification will benefit consumers, producers, and handlers. The benefits of this action are not expected to be disproportionately greater or lesser for small entities than for large entities.
This rule will not impose any additional reporting or recordkeeping requirements on either small or large onion handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.
The AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.
In addition, USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule.
Further, the Committee's meeting was widely publicized throughout the South Texas onion industry and all interested persons were invited to attend the meeting and participate in Committee deliberations. All Committee meetings are public meetings and all entities, both large and small, are able to express their views. Finally, interested persons are invited to submit information on the regulatory and informational impacts of this action on small businesses.
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at:
This rule invites comments on the extension of the regulatory period under the South Texas onion marketing order. Any comments received will be considered prior to finalization of this rule.
After consideration of all relevant material presented, including the Committee's recommendations, and other information, it is found that this interim final rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.
Pursuant to 5 U.S.C. 553, it is also found and determined upon good cause that it is impracticable, unnecessary, and contrary to the public interest to give preliminary notice prior to putting this rule into effect and that good cause exists for not postponing the effective date of this rule until 30 days after publication in the
Marketing agreements, Onions, Reporting and recordkeeping requirements.
7 U.S.C. 601-674.
During the period beginning March 1 and ending July 15, no handler shall
Bureau of Industry and Security, Commerce.
Final Rule.
The Bureau of Industry and Security (BIS) is amending the Export Administration Regulations (EAR) to reflect changes to the Missile Technology Control Regime (MTCR) Annex that were agreed to by MTCR member countries at the October 2006 Plenary in Copenhagen, Denmark. The amendments set forth in this rule also include adding a new Export Control Classification Number (ECCN) 7A107 to control three axis magnetic heading sensors designed or modified to be integrated with flight control and navigation systems.
This rule is effective May 7, 2007. Although there is no formal comment period, public comments on this regulation are welcome on a continuing basis.
You may submit comments, identified by RIN 0694-AD96, by any of the following methods:
Send comments regarding the collection of information associated with this rule, including suggestions for reducing the burden, to David Rostker, Office of Management and Budget (OMB), by e-mail to
Dennis L. Krepp, Nuclear and Missile Technology Controls Division, Bureau of Industry and Security, Telephone: (202) 482-1309.
The Missile Technology Control Regime (MTCR) is an export control arrangement among 34 nations, including the world's most advanced suppliers of ballistic missiles and missile-related materials and equipment. The regime establishes a common export control policy based on a list of controlled items (the Annex) and on guidelines (the Guidelines) that member countries implement in accordance with their national export controls. The goal of maintaining the Annex and the Guidelines is to stem the flow in the global marketplace of missile systems capable of delivering weapons of mass destruction.
The MTCR was originally created to prevent the spread of missiles capable of carrying a nuclear warhead; it was expanded in January 1993 to also stem the flow of delivery systems for chemical and biological weapons. MTCR members voluntarily pledge to apply the Regime's export Guidelines and to restrict the export of items contained in the Regime's Annex. The Regime's Guidelines are implemented through the national export control laws and policies of the regime members.
In January 1993, complete rocket systems and unmanned aerial vehicle systems that were capable of a “range” equal to or greater than 300 km, regardless of the payload, were added to the MTCR Annex (Category II, Item 19). This was based on concerns by MTCR members that rocket systems and unmanned aerial vehicle systems that were capable of a “range” equal to or greater than 300 km, but did not meet the 500 kg “payload” parameter from Category I of the MTCR Annex, were a proliferation concern. “Missiles” are defined in § 772.1 of the EAR as being “ ‘capable of' delivering at least 500 kilograms payload to a range of at least 300 kilometers.”
Prior to publication of this rule, the items controlled in ECCNs 1A102, 1C101, 1C107, 6A108, 6B108, 7A102, 7A103, 9A111 and 9B105 included the defined term “missile” meaning they were controlled only when they were “ ‘capable of' delivering at least 500 kilograms payload to a range of at least 300 kilometers.” To accommodate the change made in 1993, the MTCR members decided at the 2006 Plenary to clarify the controls applicable to these ECCNs by making it clear that the items in these ECCNs were controlled when used in systems that were capable of a range of at least 300km, regardless of the payload capacity. Therefore, this rule clarifies the scope of these ECCNs by replacing the defined term “missile” with new language controlling rockets, missiles, and unmanned aerial vehicles “capable of a range of at least 300 km” to these ECCNs.
In § 772.1 (Definitions of Terms as Used in the Export Administration Regulations), this rule amends definitions of the terms “range” and “payload.” Specifically this rule adds double quotes around the terms “range” and “payload” in these definitions to signify these are defined terms under the EAR.
The Commerce Control List (CCL) (Supplement No. 1 to Part 774 of the EAR) is amended to reflect changes to the MTCR Annex agreed to at the October 2006 Plenary in Copenhagen, Denmark.
Specifically the following ECCNs are amended:
ECCN 1A102 is amended by substituting the defined term “missiles” with new text to the heading to clarify the scope of the entry (MTCR Annex Change Category II: Item 6.C.2). Under the new text, the materials in this entry are controlled if they are usable for any rockets, missiles, or unmanned aerial vehicles capable of a range of at least 300 km, regardless of the payload capability. This change is expected to have no impact on BIS licensing activity, because these commodities are controlled by the Department of State under the International Traffic in Arms Regulations (ITAR).
ECCN 1C101 is amended by substituting the defined term “missiles” with new text to the heading to clarify the scope of the entry (MTCR Annex
ECCN 1C107 paragraph (c) is amended by substituting the defined term “missile” with new text to clarify the scope of the entry (MTCR Annex Change Category II: Item 6.C.5). Under the new text, the materials in this entry are controlled if they are for use in missile radomes for any missile capable of a range of at least 300 km, regardless of the payload capability. This change is expected to have a minimal impact on licensing activity.
ECCN 1C107 is further amended by revising paragraph (d) to include additional text which adds reinforced silicon-carbide ceramics composites to the CCL (MTCR Annex Change Category II: Item 6.C.6). This material is being added to the EAR to address a concern raised by MTCR members at the Copenhagen Plenary that there is a proliferation concern in the use of this type of material for re-entry vehicles, nose tips and rocket motor nozzle flaps. BIS recognizes that there are also other commercial and civil uses for this material, but believes that the text is sufficiently focused to minimize the impact on industry. As such, BIS expects this change will have a minimal impact on licensing activity.
ECCN 1C111 paragraph (a)(3) is amended by rewording and adding additional text to clarify the scope and purpose of the entry (MTCR Annex Change Category II: Item 4.C.4.a). This amendment will help to clarify that the oxidizer substances identified in the ECCN are those useable in liquid propellant rocket engines, but allows that the substances themselves could be liquid or solid. This change is expected to have no impact on licensing activity.
ECCN 1C111 is further amended by adding a new paragraph (b)(5) and a technical note (MTCR Annex Change Category II: Item 4.C.5.f) which adds and defines the polymeric substance “polytetrahydrofuran polyethylene glycol (TPEG)” to the CCL. This substance is added as a result of its increasing use in MTCR-controlled rocket motors as a propellant binder. TPEG is believed to have minimal commercial use and therefore this change is expected to have a minimal impact on licensing activity.
ECCN 6A108 paragraph (b) is amended by substituting the defined term “missile” with new text to clarify the scope of the entry (MTCR Annex Change Category II: Item 12.A.5). Under this new text, the precision tracking systems in this entry are controlled if they are usable for any rocket, missile, or unmanned aerial vehicle capable of a range of at least 300 km, regardless of the payload capability. This change is expected to have a minimal impact on licensing activity.
ECCN 6A108 is further amended by deleting the control parameter of “0.5 mils” in paragraph (b)(2)(a) to clarify the control on these range instrumentation radars. The 0.5 mils control parameter was not equivalent to 3 milliradians, and therefore needed to be removed from that paragraph in order to not confuse the public regarding the correct control parameter for that paragraph, which is 3 milliradians. This clarification of the control parameter is expected to have no impact on licensing activity (MTCR Annex Category II: Item 12.A.5).
ECCN 6B108 is amended by substituting the defined term “missiles” with new text to the heading to clarify the scope of the entry (MTCR Annex Change Category II: Item 17.B.1). Under the new text, the radar cross section measurement systems in this entry are controlled if they are useable for any rockets, missiles, or unmanned aerial vehicles capable of a range of at least 300 km, regardless of the payload capability. This change is expected to have a minimal impact on licensing activity.
ECCN 7A002 paragraph (a)(2) and ECCN 7A102 are amended by adding technical notes to each of these ECCNs to define the term “stability” as it pertains to these MTCR defined gyros controlled on the CCL (MTCR Annex Change Category II: Item 9.A.4 Technical Notes). This amendment is made to bring these entries in line with current industry practice for defining these terms. This change is expected to have no impact on licensing activity.
ECCN 7A102 is further amended by substituting the defined term “missiles” with new text to the heading to clarify the scope of the entry (MTCR Annex Change Category II: Item 9.A.4). Under the new text, the gyros in this entry are controlled if they are usable in any rockets, missiles, or unmanned aerial vehicles capable of a range of at least 300 km, regardless of the payload capability. This change is expected to have a minimal impact on licensing activity.
ECCN 7A103 paragraphs (b) and (c) are amended by substituting the defined term “missiles” with new text to clarify the scope of the entry (MTCR Annex Change Category II: Item 9.A.1). Under the new text, the integrated flight instrument systems and navigation systems in this entry are controlled if they are designed or modified for use in any rockets, missiles, or unmanned aerial vehicles capable of a range of at least 300 km, regardless of the payload capability. This change is expected to have a minimal impact on licensing activity.
ECCN 7A107 is added to control three axis magnetic heading sensors designed or modified to be integrated with flight control and navigation systems (MTCR Annex Change Category II: Item 9.A.8). These three axis magnetic heading sensors are being added to the EAR to address a concern raised by MTCR members at the Copenhagen Plenary that there is a potential proliferation concern in the use of this type of equipment in Unmanned Aerial Vehicle (UAV) systems of concern. To conform with the addition of ECCN 7A107 to the EAR, this rule amends the headings of ECCNs 7D101 and 7E101, to include ECCN 7A107 in these software and technology entries, respectively (MTCR Annex Category II: Items 9.D.1 and 9.E.1). It is anticipated that this addition of one new MT controlled ECCN 7A107 and the conforming changes to ECCNs 7D101 and 7E101 will produce a slight increase in licensing activity.
ECCN 9A101 is amended by deleting the word “Lightweight” and the phrase “usable in ‘missiles’ ” from the heading text (MTCR Annex Change Category II: Item 3.A.1). This amendment will result in a more focused control on these engines, but this change is expected to have no impact on licensing activity.
ECCN 9A101 is further amended by deleting the unit “parts and accessories in $ value”. This unit is being removed from this ECCN, because parts and accessories are not controlled by this ECCN entry (MTCR Annex Category II: Item 3.A.1). This amendment is expected to have no impact on licensing activity.
ECCN 9A111 is amended by substituting the defined term “missiles” with new text to the heading to clarify the scope of the entry (MTCR Annex Change Category II: Item 3.A.2). Under the new text, the items in this entry are controlled if they are usable for any rockets, missiles, or unmanned aerial vehicles capable of a range of at least 300km, regardless of the payload capability. This change is expected to have no impact on BIS licensing activity, because these commodities are controlled by the Department of State under the International Traffic in Arms Regulations (ITAR).
ECCN 9A120 is amended by adding double quotes around the word
ECCN 9B105 is amended by substituting the defined term “missiles” with new text to the heading to clarify the scope of the entry (MTCR Annex Change Category II: Item 15.B.2). Under the new text, the wind tunnels in this entry are controlled when usable for any rocket, missile, or unmanned aerial vehicle systems capable of a range of at least 300 km, regardless of the payload capability, and their subsystems. This change is expected to have a minimal impact on licensing activity.
ECCN 9B117 paragraph (a) is amended by replacing the control parameter of “90 kN” with “68 kN” such that the text reads as follows, “* * *a thrust greater than 68 kN;” (MTCR Annex Change Category II: Item 15.B.3). This lowering of the test stand thrust capacity threshold is being made to the EAR to address a concern raised by MTCR members at the Copenhagen Plenary that there is a proliferation concern with this type of equipment and its usefulness in MTCR type systems. This change is expected to have a minimal impact on licensing activity.
ECCN 9C110 is amended by placing double quotes around the terms “specific tensile strength” and “specific modulus” in the heading text (MTCR Annex Change Category II: Item 6.C.1 Technical Notes) to indicate that these are defined terms in the CCL. This amendment will clarify the control text, but is expected to have no impact on licensing activity.
Shipments of items removed from eligibility for a License Exception or export or reexport without a license (NLR) as a result of this regulatory action that were on dock for loading, on lighter, laden aboard an exporting or reexporting carrier, or en route aboard a carrier to a port of export or reexport, on May 7, 2007, pursuant to actual orders for export or reexport to a foreign destination, may proceed to that destination under the previous eligibility for a License Exception or export or reexport without a license (NLR) so long as they are exported or reexported before June 6, 2007. Any such items not actually exported or reexported before midnight, on June 6, 2007, require a license in accordance with this rule.
Although the Export Administration Act expired on August 20, 2001, the President, through Executive Order 13222 of August 17, 2001 (3 CFR, 2001 Comp. 783 (2002)), as extended by the Notice of August 3, 2006, 71 FR 44551 (Aug. 7, 2006), has continued the Export Administration Regulations 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, unless that collection of information displays a currently valid Office of Management and Budget Control Number. This rule contains a collection of information subject to the Paperwork Reduction Act of 1980 (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
Exports.
Exports, Reporting and recordkeeping requirements.
50 U.S.C. app. 2401
The particular equipment, subsystems, or components to be included in the “payload” depends on the type and configuration of the vehicle under construction.
* * *
a. The maximum capability based on the design characteristics of the system, when fully loaded with fuel or propellant, will be taken into consideration in determining “range”.
b. The “range” for both rocket systems and UAV systems will be determined independently of any external factors such as operational restrictions, limitations imposed by telemetry, data links or other external constraints.
c. For rocket systems, the “range” will be determined using the trajectory that maximizes “range”, assuming ICAO standard atmosphere with zero wind.
d. For UAV systems, the “range” will be determined for a one-way distance using the most fuel-efficient flight profile (e.g. cruise speed and altitude), assuming ICAO standard atmosphere with zero wind.
50 U.S.C. app. 2401
c. Ceramic composite materials (dielectric constant is less than 6 at any frequency from 100 MHz to 100 GHz) for use in radomes useable in rockets, missiles, and unmanned aerial vehicles capable of achieving a “range” equal to or greater than 300 km;
d. Silicon-Carbide materials, useable in rockets, missiles, and unmanned aerial vehicles capable of achieving a “range” equal to or greater than 300 km, as follows:
d.1. Bulk machinable silicon-carbide reinforced unfired ceramic, usable for nose tips.
d.2. Reinforced silicon-carbide ceramic composites usable for nose tips, re-entry vehicles, nozzle flaps.
a. Propulsive substances:
a.1. Spherical aluminum powder, other than that specified on the U.S. Munitions List, with particles of uniform diameter of less than 200 micrometer and an aluminum content of 97% by weight or more, if at least 10 percent of the total weight is made up of particles of less than 63 micrometer, according to ISO 2591:1988 or national equivalents such as JIS Z8820.
A particle size of 63 micrometer (ISO R-565) corresponds to 250 mesh (Tyler) or 230 mesh (ASTM standard E-11).
a.2. Metal fuels, other than that controlled by the U.S. Munitions List, in particle sizes of less than 60 × 10
a.2.a Zirconium;
a.2.b Beryllium;
a.2.c Magnesium; or
a.2.d Alloys of the metals specified by a.2.a to a.2.c above.
The natural content of hafnium in the zirconium (typically 2% to 7%) is counted with the zirconium.
a.3. Oxidizer substances usable in liquid propellant rocket engines, as follows:
a.3.a. Dinitrogen trioxide;
a.3.b. Nitrogendioxide/dinitrogen tetroxide;
a.3.c. Dinitrogen pentoxide;
a.3.d Mixed oxides of nitrogen (MON); a.3.e Inhibited red fuming nitric acid (IRFNA);
Mixed oxides of nitrogen (MON) are solutions of nitric oxide (NO) in dinitrogen tetroxide/nitrogen dioxide(N
b. Polymeric substances:
b.1. Carboxy-terminated polybutadiene (CTPB);
b.2. Hydroxy-terminated polybutadiene (HTPB), other than that controlled by the U.S. Munitions List;
b.3. Polybutadiene-acrylic acid (PBAA);
b.4. Polybutadiene-acrylic acid -acrylonitrile (PBAN);
b.5 Polytetrahydrofuran polyethylene glycol (TPEG).
Polytetrahydrofuran polyethylene glycol (TPEG) is a block co-polymer of poly 1,4-Butanediol and polyethylene glycol (PEG).
c. Other propellant additives and agents:
c.1. Butacene;
c.2. Triethylene glycol dinitrate (TEGDN);
c.3. 2-Nitrodiphenylamine;
c.4. Trimethylolethane trinitrate (TMETN);
c.5. Diethylene glycol dinitrate (DEGDN).
a. Radar and laser radar systems designed or modified for use in “missiles”;
6A108.a includes the following:
a. Terrain contour mapping equipment;
b. Imaging sensor equipment;
c. Scene mapping and correlation (both digital and analog) equipment;
d. Doppler navigation radar equipment.
b. Precision tracking systems, usable for rockets, missiles, or unmanned aerial vehicles capable of achieving a “range” equal to or greater than 300 km, as follows:
b.1. Tracking systems which use a code translator installed on the rocket or unmanned aerial vehicle in conjunction with either surface or airborne references or navigation satellite systems to provide real-
b.2. Range instrumentation radars including associated optical/infrared trackers with all of the following capabilities:
b.2.a. Angular resolution better than 3 milliradians;
b.2.b. Range of 30 km or greater with a range resolution better than 10 m rms;
b.2.c. Velocity resolution better than 3 m/s.
a. A “drift rate” ‘stability', when measured in a 1 g environment over a period of one month and with respect to a fixed calibration value, of:
For the purpose of 7A002.a, ‘stability' is defined as a measure of the ability of a specific mechanism or performance coefficient to remain invariant when continuously exposed to a fixed operating condition. (This definition does not refer to dynamic or servo stability.) (IEEE STD 528-2001 paragraph 2.247)
a.1. Less (better) than 0.1 degree per hour when specified to function at linear acceleration levels below 12 g;
a.2. Less (better) than 0.5 degree per hour when specified to function at linear acceleration levels from 12 g to 100 g inclusive;
b. An angle random walk of less (better) than or equal to 0.0035 degree per square root hour;
7A002.b does not control spinning mass gyros (spinning mass gyros are gyros which use a continually rotating mass to sense angular motion).
For the purpose of 7A002.b, ‘angle random walk' is the angular error buildup with time that is due to white noise in angular rate. (IEEE STD 528-2001)
c. Specified to function at linear acceleration levels exceeding 100 g.
The list of items controlled is contained in the ECCN heading.
In this entry, the term ‘stability' is defined as a measure of the ability of a specific mechanism or performance coefficient to remain invariant when continuously exposed to a fixed operating condition. (This definition does not refer to dynamic or servo stability.) (IEEE STD 528-2001 paragraph 2.247)
b. Integrated flight instrument systems, which include gyrostabilizers or automatic pilots, designed or modified for use in rockets, missiles, or unmanned aerial vehicles capable of achieving a “range” equal to or greater than 300 km.
c. Integrated Navigation Systems, designed or modified for use in rockets, missiles, or unmanned aerial vehicles capable of achieving a “range” equal to or greater than 300 km and capable of providing a navigational accuracy of 200m Circular Error Probable (CEP) or less.
An ‘integrated navigation system' typically incorporates the following components:
1. An inertial measurement device (e.g., an attitude and heading reference system, inertial reference unit, or inertial navigation system);
2. One or more external sensors used to update the position and/or velocity, either periodically or continuously throughout the flight (e.g., satellite navigation receiver, radar altimeter, and/or Doppler radar); and
3. Integration hardware and software.
a. Internal tilt compensation in pitch (+/−90 degrees) and roll (+/−180 degrees) axes;
b. Capable of providing azimuthal accuracy better (less) than 0.5 degrees rms at latitudes of +/−80 degrees, referenced to local magnetic field;
c. Designed or modified to be integrated with flight control and navigation systems.
Flight control and navigation systems in 7A107 include gyrostabilizers, automatic pilots and inertial navigation systems.
a. Having any of the following:
a.1. An autonomous flight control and navigation capability;
a.2. Capability of controlled-flight out of the direct vision range involving a human operator;
b. Having any of the following:
b.1. Incorporating an aerosol dispensing system/mechanism with a capacity greater than 20 liters;
b.2. Designed or modified to incorporate an aerosol dispensing system/mechanism with a capacity of greater than 20 liters.
9A120 does not control model aircraft, specially designed for recreational or competition purposes.
1. An aerosol consists of particulate or liquids other than fuel components, by—products or additives, as part of the “payload” to be dispersed in the atmosphere. Examples of aerosols include pesticides for crop dusting and dry chemicals for cloud seeding.
2. An aerosol dispensing system/mechanism contains all above devices (mechanical, electrical, hydraulic, etc.), which are necessary for storage and dispersion of an aerosol into the atmosphere. This includes the possibility of aerosol injection into the combustion exhaust vapor and into the propeller slip stream.
a. The capacity to handle solid or liquid propellant rocket motors or rocket engines having a thrust greater than 68 kN; or
b. Capable of simultaneously measuring the three axial thrust components.
Coast Guard, DHS.
Notice of enforcement.
The Coast Guard will enforce the Annual Seattle Yacht Club's “Opening Day” Marine Parade Special Local Regulations in Portage Bay, Portage Cut (Montlake Cut), and Union Bay from 8 a.m. to 3 p.m. on May 5, 2007. This action is necessary to ensure the safety of participants and spectators during the Annual Seattle Yacht Club's “Opening Day” Marine Parade. During the enforcement period, the regulated area shall be closed to all vessel traffic not participating in the event and authorized by the event sponsor or Coast Guard Patrol Commander.
The regulations in 33 CFR 100.1304 will be enforced from 8 a.m. to 3 p.m. on May 5, 2007.
Lieutenant Steve Kee, c/o Captain of the Port Puget Sound, Coast Guard Sector Seattle, 1519 Alaskan Way South, Seattle, WA 98134 at (206) 217-6002.
On May 4, 1989, the Coast Guard published a final rule (54 FR 19167) which established a
The Coast Guard will enforce the SLR for the Annual Seattle Yacht Club's “Opening Day” Marine Parade, Seattle, WA in 33 CFR 100.1304 on May 5, 2007, from 8 a.m. to 3 p.m.
Under the provisions of 33 CFR 100.1304, the regulated area shall be closed for the duration of the event to all vessel traffic not participating in the event and authorized by the event sponsor or Coast Guard Patrol Commander. All persons or vessels not registered with the sponsor as participants or not part of the regatta patrol are considered spectators. Spectator vessels must be at anchor within a designated spectator area or moored to a waterfront facility in a way that will not interfere with the progress of the event. The following are established as spectator areas:
(i) Northwest of the University Bridge.
(ii) North of the log boom that will be placed in Union Bay.
(iii) East of Webster Point so as not to interfere with the participating vessels departing Union Bay.
No spectators shall anchor, block, loiter in, or impede the through transit of participants or official patrol vessels in the regulated area during the effective dates and times unless cleared for such entry by the Patrol Commander.
Due to the large number of craft confined within this small body of water, all vessels, both spectator and participants, will maintain a “NO WAKE” speed. This requirement will be strictly enforced to preserve the safety of both life and property.
The Coast Guard may be assisted by other Federal, State, or local law enforcement agencies in enforcing this regulation.
This notice is issued under authority of 33 CFR 100.1304 (c) and 5 U.S.C. 552 (a).
Coast Guard, DHS.
Temporary final rule.
The United States Coast Guard is amending the security zone encompassing waters within 2-nautical miles of Church Point, Jamestown Island, VA, for America's 400th Anniversary celebration. This action is intended to restrict vessel traffic within the security zone. This security zone is necessary to protect attendees of this event from potential maritime hazards and threats and enhance public and maritime security.
This rule is effective from 7 a.m. on May 11, 2007 until 10 p.m. on May 13, 2007.
Documents indicated in this preamble as being available in the docket are part of docket CGD05-07-015 and are available for inspection or copying at USCG Sector Hampton Roads, 4000 Coast Guard Blvd., Portsmouth, Virginia 23703, between 9:30 a.m. and 2 p.m., Monday through Friday, except Federal holidays.
LCDR Thomas Tarrants, Enforcement Branch Chief, U.S. Coast Guard Sector Hampton Roads, Virginia at (757) 483-8571.
Pursuant to 5 U.S.C. 553(b)(B), a notice of proposed rulemaking (NPRM) was not published for this regulation. Good cause exists for not publishing a NPRM for this regulation. This amended temporary final rule is of limited duration and is necessary to provide for the security of dignitaries and the public attending the America's 400th Anniversary celebration.
For the same reasons good cause exists for making this regulation effective less than 30 days after
Following terrorist attacks on the United States in September 2001, there is now a heightened awareness that vessels or persons could engage in subversive activity against targets ashore in the United States. This regulation is necessary to protect attendees of America's 400th Anniversary celebration on Jamestown Island, VA, from potential maritime threats. The Coast Guard previously published a NPRM in the
As amended, this temporary security zone will only be in effect from 7 a.m. on May 11, 2007 until 10 p.m. on May 13, 2007. The operators of the Jamestown Ferry have already been contacted and agree to operate on a modified schedule within the security zone. This zone will have minimal impact on vessel transits because vessels can request authorization from the Captain of the Port (COTP) to safely transit through the zone and they are not precluded from using any portion of the waterway except the security zone area itself. Additionally, public notifications announcing this regulation will be made via marine information broadcasts prior to the zone taking effect.
The Coast Guard is amending the temporary security zone near Jamestown Island to provide protection to dignitaries and the public visiting the island. We are amending the temporary final rule to create a continuous effective period throughout the event. The amended security zone will be effective from 7 a.m. on May 11, 2007, until 10 p.m. on May 13, 2007. The amended security zone will also be enforced from 7 a.m. on May 11, 2007, until 10 p.m. on May 13, 2007.
The security zone will encompass all navigable waters around Jamestown Island, VA within a 2-nautical mile radius of Church Point at 37-12.45N, 076-46.66W. No persons or vessels may enter or remain in the regulated area
This 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 rule to be so minimal that a full regulatory evaluation is unnecessary. Although this rulemaking restricts access to the regulated area, the effect of this rulemaking will not be significant because: (i) The COTP may authorize access to the security zone; (ii) the security zone will be in effect for a limited duration; (iii) the Coast Guard will make notifications via maritime advisories so mariners can adjust their plans accordingly.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
However, this rule may affect the following entities, some of which may be small entities: the owners and operators of vessels intending to transit or anchor in the described portion of the security zone between 7 a.m. on May 11, 2007, to 10 p.m. on May 13, 2007. The security zone will not have a significant impact on a substantial number of small entities because the zone does not encompass a high vessel traffic area, and vessels can request authorization from the COTP to enter the zone. Maritime advisories will also be issued, so the mariners can adjust their plans accordingly.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rulemaking would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact LCDR Thomas Tarrants, Enforcement Branch Chief, U.S. Coast Guard Sector Hampton Roads, Virginia at (757) 483-8571.
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the U.S. Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).
This rule calls 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 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 rule will not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We have analyzed this 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. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
We have analyzed this rule under Commandant Instruction M16475.1D 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 concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, we believe that this rule should be categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” will be available in the docket where indicated under
Harbors, Marine safety, Navigation (water), Reporting & recordkeeping requirements, Security measures, Waterways.
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.
(d)
(e)
Forest Service, Agriculture; Fish and Wildlife Service, Interior.
Final rule.
This rule revises the list of nonrural areas identified by the Federal Subsistence Board (Board, we, us). Only residents of areas identified as rural are eligible to participate in the Federal Subsistence Management Program on Federal public lands in Alaska. We are changing Adak's status to rural. We also are adding Prudhoe Bay to the list of nonrural areas. The following areas continue to be nonrural, but we are changing their boundaries: the Kenai Area; the Wasilla/Palmer Area, including Point McKenzie; the Homer Area, including Fritz Creek East (except Voznesenka) and the North Fork Road area; and the Ketchikan Area. We have also added Saxman to the Ketchikan nonrural area. We are making no other changes in status. This final rule differs from the proposed rule relative to the Kodiak area and Saxman: For reasons set forth below, we did not change the status of the Kodiak area from rural to nonrural, as we had proposed, and we included Saxman in the nonrural Ketchikan area, which we had not proposed. Residents of those areas changing from rural to nonrural have 5 years to come into compliance with this rule.
Chair, Federal Subsistence Board, c/o U.S. Fish and Wildlife Service, Attention: Peter J. Probasco, Office of Subsistence Management; 3601 C Street, Suite 1030, Anchorage, AK 99503, telephone (907) 786-3888. For questions specific to National Forest System lands, contact Steve Kessler, Regional Subsistence Program Leader, USDA, Forest Service, Alaska Region, (907) 786-3888.
In Title VIII of the Alaska National Interest Lands Conservation Act (ANILCA) (16 U.S.C. 3111-3126), Congress found that “the situation in Alaska is unique in that, in most cases, no practical alternative means are available to replace the food supplies and other items gathered from fish and wildlife which supply rural residents dependent on subsistence uses * * *” and that “continuation of the opportunity for subsistence uses of resources on public and other lands in Alaska is threatened. * * *” As a result, Title VIII requires, among other things, that the Secretary of the Interior and the Secretary of Agriculture (Secretaries) implement a program to provide rural Alaska residents a priority for the taking of fish and wildlife on public lands in Alaska for subsistence uses, unless the State of Alaska enacts and implements laws of general applicability that are consistent with ANILCA and that provide for the subsistence definition, priority, and participation specified in Sections 803, 804, and 805 of ANILCA.
The State implemented a program that the Department of the Interior previously found to be consistent with ANILCA. However, in December 1989, the Alaska Supreme Court ruled in
As a result of this joint process between Interior and Agriculture, these regulations can be found in the titles for Agriculture and Interior in the Code of Federal Regulations (CFR) both in title 36, “Parks, Forests, and Public
Consistent with Subparts A, B, and C of these regulations, as revised May 7, 2002 (67 FR 30559), and December 27, 2005 (70 FR 76400), the Departments established a Federal Subsistence Board (Board) to administer the Federal Subsistence Management Program, as established by the Secretaries. The Board's composition includes a Chair appointed by the Secretary of the Interior with concurrence of the Secretary of Agriculture; the Alaska Regional Director, U.S. Fish and Wildlife Service; the Alaska Regional Director, U.S. National Park Service; the Alaska State Director, U.S. Bureau of Land Management (BLM); the Alaska Regional Director, U.S. Bureau of Indian Affairs; and the Alaska Regional Forester, USDA Forest Service. Through the Board, these agencies participate in the development of regulations for Subparts A, B, and C, and the annual Subpart D regulations.
With a
Federal subsistence regulations require that the rural/nonrural status of communities or areas be reviewed every 10 years, beginning with the availability of the 2000 census data. The Board evaluated several options for conducting the review and decided to adopt an approach similar to that taken in 1990, which used criteria established in Federal subsistence regulations.
Although the process uses data from the 2000 census for its review, some data were not compiled and available until 2005. Data from the Alaska Department of Labor were used to supplement the census data.
During February-July 2005, the staff of the Federal Subsistence Management Program conducted an initial review of the rural status of Alaska communities, looking at the 2000 census data for each community or area with an emphasis on what had changed since 1990. From this initial review, staff compiled a report that included a proposed list of communities and areas for which further analysis appeared warranted. In addition, the report described the method used to develop this list. In August-October 2005, the public and Federal Subsistence Regional Advisory Councils were invited to comment on the results of this initial review.
At a meeting in Anchorage on December 6-7, 2005, the Board took public testimony and determined that additional information was needed on 10 communities and areas before it decided upon any potential changes.
• For three communities, the further analysis that followed was focused on evaluation of rural/nonrural status, as follows:
• For five nonrural groupings of communities and areas, further analysis evaluated the possibility of excluding or including boundary areas, as follows:
• In addition, two areas were further analyzed as follows:
This assignment for additional analysis differed from the proposed list released for public comment in July 2005, in that: (1) The scope of the review was broadened for the Ketchikan area, considered nonrural, to include an analysis of rural/nonrural characteristics of the entire area; (2) the rural/nonrural status of Prudhoe Bay was added; and (3) additional analysis of Sitka was not believed to be necessary.
Sitka, whose population had increased from 8,588 people in 1990 to 8,835 in 2000, had been initially identified as an area possibly warranting further analysis. However, during its December 6-7, 2005, meeting, the Board heard substantial public testimony regarding the rural characteristics of Sitka and determined that no additional analysis was necessary, leaving Sitka's rural status unchanged.
During January-May 2006, Federal subsistence staff conducted in-depth analyses of each community or area on the Board-approved list of communities and areas identified for further analysis.
On June 22, 2006, the Board met in executive session to develop the list of communities and areas they proposed to be nonrural. Those communities and areas were identified in a proposed rule published in the
Population size is a fundamental distinguishing characteristic between rural and nonrural communities. Under the current programmatic guidance in Federal subsistence regulations:
• A community with a population of 2,500 or less is deemed rural, unless it possesses significant characteristics of a nonrural nature, or is considered to be socially, economically, and communally part of a nonrural area.
• A community with a population of more than 7,000 is presumed nonrural, unless it possesses significant characteristics of a rural nature.
• A community with a population above 2,500 but not more than 7,000 is evaluated to determine its rural/nonrural status. The community characteristics considered in this evaluation may include, but are not limited to, diversity and development of the local economy, use of fish and wildlife, community infrastructure, transportation, and educational institutions.
Communities that are economically, socially, and communally integrated are combined for evaluation purposes. The Board identified three guidelines or criteria for analysis to assist in its determination of whether or not to group communities in its review of rural determinations. The criteria that were used include: (1) Are the communities in proximity and road-accessible to one another? The first criterion, proximity and road accessibility, is considered a logical first step in evaluating the relationship between communities, and, applied in relation to the other two criteria, is considered a reasonable indicator of economic, social, and communal integration. (2) Do they share a common high school attendance area? The second criterion, regarding sharing a common high school attendance area, is taken to be an indicator of the social integration of communities. This is an improvement by way of modification from the former criterion of a shared school district. The public pointed out in past testimony that attendance in a common school district often reflects political or administrative boundaries rather than social integration. A shared social experience is better captured by the shared high school criterion. (3) Do 30 percent or more of the working people commute from one community to another? This criterion, regarding whether working people commute from one community to another, was identified as providing meaningful information relating to the grouping of communities. Also, the U.S. Census uses this criterion because commuting to work is an easily understood measure that reflects social and economic integration. These criteria were not considered separately, but assessed collectively, with the recommendation to group communities being dependent upon the collective assessment.
Community characteristics and specific indicators that the Board used to evaluate rural/nonrural status included: (1) Economy—wage employment, percent unemployment, per capita income, diversity of services, cost-of-food index, and number of stores of defined large national retailers; (2) Community infrastructure—including the cost of electricity; (3) Fish and wildlife use—variety of species used per household, percentage of households participating, level of average harvest per capita for all subsistence resources combined, and level of average harvest per capita for salmon and large land mammals only; (4) Transportation—variety of means, predominant means, and length of road system; and (5) Educational institutions present in the community.
The Board's analysis and preliminary efforts to distinguish between rural places and nonrural places were heavily reliant on population size, but when the Board used other characteristics, its approach was based on a totality of the circumstances. Unemployment is generally higher and per capita income is generally lower in rural places than in nonrural places. Cost of food and cost of electricity were generally higher in the rural communities than in the nonrural. Subsistence per capita harvest of all resources shows a pattern of increasing amount with decreasing population size among nonrural areas, and typically higher levels in rural communities. The per capita harvest of salmon and large land mammals also shows a general pattern of increasing amount with decreasing population size among nonrural areas, and typically higher levels in rural communities. The defined large national retailers were concentrated in the nonrural communities.
The Board published a proposed rule (71 FR 46416) on August 14, 2006, soliciting comments through October 27, 2006, on the proposed revision to the list of areas designated as nonrural. The Board then held public hearings in Kodiak on September 20-21, 2006, in Saxman on September 25, 2006, in Ketchikan on September 26, 2006, and in Sitka on October 10, 2006. Approximately 230 individuals testified at those hearings. During the public comment period, we received an additional 300 comments from individuals and 31 comments from organizations, agencies and government representatives, as well as 11 resolutions from city, borough, and tribal governments and organizations. Virtually all of the written comments from individuals came from Sitka, Kodiak, Ketchikan, and Saxman. Most expressed a desire for their communities to have a rural designation.
Five of the 10 Regional Councils had comments and recommendations to the Board on the proposed rule on the decennial review of rural/nonrural determinations.
We will address the major comments from all sources below:
Summarized below are the Board's final action for each area analyzed and the justification for that action. This final rule differs from the proposed rule relative to the Kodiak area and Saxman. The Board had proposed to add the Kodiak area to the list of nonrural areas but did not, for the reasons set forth below. The Board had also proposed that the nonrural Ketchikan area not include Saxman, but Saxman has been included, for the reasons set forth below.
The four places grouped into the Delta Junction Area will remain rural in status. The population size of the grouping (3,921) places it in the nonpresumptive midrange, and information on the characteristics of the grouping, although somewhat limited, is indicative of a rural character. The recent economic upswing to the area due to construction of the Missile Defense system at Fort Greely and development of the Pogo Mine is thought to be temporary.
The Board found that residents of the North Fork Road area fully meet two of the three criteria, proximity and commuting of workers. For the third criteria, although students have the option of attendance in Nikolaevsk School or Ninilchik High School, the vast majority go to Homer High School. This is sufficient basis for considering the North Fork Road area of the Anchor Point CDP to be economically, socially, and communally integrated with the nonrural Homer Area.
The Board found that residents of the Happy Valley CDP fulfill only the proximity criterion for grouping with the Homer Area. Happy Valley students are within the Ninilchik High School attendance area, and less than 30 percent of Happy Valley workers commute to the Homer Area (14.4 percent). The residents of the Happy Valley CDP will not be included with the Homer Area.
Nikolaevsk CDP, north of the Anchor Point CDP and connected to the Homer Area by the North Fork Road, does not warrant inclusion in the Homer Area. There is a K-12 school in Nikolaevsk, and data show that only 22 percent of jobs held by Nikolaevsk residents were located in the Homer Area.
The residents of Fox River CDP, primarily in the communities of Razdolna and Kachemak Selo, do not meet any of the three criteria, which would indicate that Fox River residents are not economically, socially, or communally integrated with the Homer Area.
The Remainder area fulfills all three criteria for grouping with the Ketchikan Area: (1) The Remainder, other than nearby Gravina and Pennock Islands which are connected by a very short skiff ride, is road-connected to the City of Ketchikan; (2) Students in the Remainder attend high school in Ketchikan; and (3) Over 30 percent of the workers from the Remainder commute to work in the City of Ketchikan. Presently, most of the Remainder is included in the nonrural Ketchikan Area, established in 1990. The Board action adds additional areas where development has occurred that is connected to the road system and additional parts of Gravina Island that are being developed. The Board action also treats any future developed areas connected to the road system the same as the existing road system.
The population of the Ketchikan Area was estimated at 13,125 in 2005 (including Saxman), having decreased slightly from 1990. Ketchikan possesses many nonrural characteristics, including having a 2-year college, a large national retailer, car dealerships, fast food restaurants, and roads linking the outlying surrounding area to the city. Ferry service is more dependable with greater frequency of service than in most other locations in Alaska. Although the pulp mill closed, there is still diversity in the economy, with tourism, fishing, fish processing, timber, dry docking services, retail services, and government providing the majority of employment. There is a hospital and a high diversity of services offered. The Ketchikan Area had the sixth highest population in the state in 2005, considering community groupings as defined by the Board. All other areas with higher populations are currently considered nonrural in Federal subsistence regulations. Three areas with smaller populations are currently classified as nonrural and are not being changed in status: the Homer Area, Seward Area, and Valdez. Harvest of subsistence resources in the Ketchikan Area is lower than is characteristic of rural communities.
This Board action changes the status of portions of the road-connected area of Ketchikan, including Saxman, and additional portions of Gravina Island from their current rural status to a nonrural status.
The revised list of nonrural communities and areas, including other nonrural communities or areas whose status would remain unchanged, is published herein as the final rule. All other communities and areas of Alaska not listed herein will retain their rural determination. We are amending § __ .23, which identifies those communities and areas of Alaska that are determined to be rural and nonrural. We have made maps available for the nonrural areas. The purpose of these maps is to provide to the public a graphic representation of the extent of the nonrural areas. To view maps, go to the Office of Subsistence Management Web site at
The effective date of any community or area changing from a rural to nonrural status is 5 years after the date of publication of this final rule in the
Because the Federal Subsistence Management Program relates to public lands managed by an agency or agencies in both the Departments of Agriculture and the Interior, we are incorporating identical text into 36 CFR part 242 and 50 CFR part 100.
A Draft Environmental Impact Statement (DEIS) for developing a Federal Subsistence Management Program was distributed for public comment on October 7, 1991. That document described the major issues associated with Federal subsistence management as identified through public meetings, written comments, and staff analysis, and examined the environmental consequences of four alternatives. Proposed regulations (subparts A, B, and C) that would implement the preferred alternative were included in the DEIS as an appendix. The DEIS and the proposed administrative regulations presented a framework for an annual regulatory
Based on the public comments received, the analysis contained in the FEIS, and the recommendations of the Federal Subsistence Board and the Department of the Interior's Subsistence Policy Group, the Secretary of the Interior, with the concurrence of the Secretary of Agriculture, through the U.S. Department of Agriculture—Forest Service, implemented Alternative IV as identified in the DEIS and FEIS (Record of Decision on Subsistence Management for Federal Public Lands in Alaska (ROD), signed April 6, 1992). The DEIS and the selected alternative in the FEIS defined the administrative framework of an annual regulatory cycle for subsistence hunting and fishing regulations. The final rule for Subsistence Management Regulations for Public Lands in Alaska, Subparts A, B, and C, published May 29, 1992, implemented the Federal Subsistence Management Program and included a framework for an annual cycle for subsistence hunting and fishing regulations. The following
An environmental assessment was prepared in 1997 on the expansion of Federal jurisdiction over fisheries and is available from the office listed under
The intent of all Federal subsistence regulations is to accord subsistence uses of fish and wildlife on public lands a priority over the taking of fish and wildlife on such lands for other purposes, unless restriction is necessary to conserve healthy fish and wildlife populations. A Section 810 analysis was completed as part of the FEIS process. The final Section 810 analysis determination appeared in the April 6, 1992, ROD, which concluded that the Federal Subsistence Management Program may have some local impacts on subsistence uses, but that the program is not likely to significantly restrict subsistence uses.
This rule contains no new information collection requirements subject to Office of Management and Budget (OMB) approval under the Paperwork Reduction Act of 1995. The information collection requirements described in the CFR regulations were approved by OMB under 44 U.S.C. 3501 and were assigned control number 1018-0075, which expires October 31, 2009. We may not conduct or sponsor and you are not required to respond to a collection of information request unless it displays a currently valid OMB control number.
Regulatory Planning and Review (E.O. 12866). In accordance with the criteria in Executive Order 12866, this rule is a significant regulatory action. OMB makes the final determination of significance under Executive Order 12866.
a. Analysis indicates this rule will not have an annual economic effect of $100 million or adversely affect an economic sector, productivity, jobs, the
b. This rule will not create serious inconsistencies or otherwise interfere with the actions of other agencies.
c. This rule will not materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients.
d. This rule raises novel legal or policy issues. This rule raises a novel policy issue in that Federal subsistence regulations require that the rural/nonrural status of communities or areas be reviewed every 10 years, beginning with the availability of the 2000 census data, this thereby being the first such decennial review. Although the process uses data from the 2000 census for its review, some data was not compiled and available until 2005. Data from the Alaska Department of Labor were used to supplement the census data.
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601
This rulemaking will impose no significant costs on small entities; the exact number of businesses and the amount of trade that will result from this Federal land-related activity is unknown. The aggregate effect is an insignificant positive economic effect on a number of small entities, such as tackle, boat, sporting goods dealers, and gasoline dealers. The number of small entities affected is unknown; however, the fact that the positive effects will be seasonal in nature and will, in most cases, merely continue preexisting uses of public lands indicates that the effects will not be significant.
Title VIII of ANILCA requires the Secretaries to administer a subsistence preference on public lands. The scope of this program is limited by definition to certain public lands. Likewise, these regulations have no potential takings of private property implications as defined by Executive Order 12630.
The Secretaries have determined and certify pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502
The Secretaries have determined that these regulations meet the applicable standards provided in Sections 3(a) and 3(b)(2) of Executive Order 12988 on Civil Justice Reform.
In accordance with Executive Order 13132, the rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. Title VIII of ANILCA precludes the State from exercising subsistence management authority over fish and wildlife resources on Federal lands unless the State program is compliant with the requirements of that Title.
In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), 512 DM 2, and E.O. 13175, we have evaluated possible effects on Federally-recognized Indian tribes and have determined that there are no substantial direct effects. The Bureau of Indian Affairs is a participating agency in this rulemaking.
On May 18, 2001, the President issued Executive Order 13211 on regulations that significantly affect energy supply, distribution, or use. This Executive Order requires agencies to prepare Statements of Energy Effects when undertaking certain actions. As this rule is not a significant regulatory action under Executive Order 13211, affecting energy supply, distribution, or use, this action is not a significant action and no Statement of Energy Effects is required.
William Knauer drafted these regulations under the guidance of Peter J. Probasco of the Office of Subsistence Management, Alaska Regional Office, U.S. Fish and Wildlife Service, Anchorage, Alaska. Chuck Ardizzone, Alaska State Office, Bureau of Land Management; Greg Bos, Carl Jack, and Jerry Berg, Alaska Regional Office, U.S. Fish and Wildlife Service; Sandy Rabinowitch and Nancy Swanton, Alaska Regional Office, National Park Service; Dr. Warren Eastland, and Dr. Glenn Chen, Alaska Regional Office, Bureau of Indian Affairs; and Steve Kessler, Alaska Regional Office, USDA-Forest Service provided additional guidance.
Administrative practice and procedure, Alaska, Fish, National forests, Public lands, Reporting and recordkeeping requirements, Wildlife.
Administrative practice and procedure, Alaska, Fish, National forests, Public lands, Reporting and recordkeeping requirements, Wildlife.
16 U.S.C. 3, 472, 551, 668dd, 3101-3126; 18 U.S.C. 3551-3586; 43 U.S.C. 1733.
(a) The Board has determined all communities and areas to be rural in accordance with § __.15, except those set forth in this paragraph. You may obtain maps delineating the boundaries of nonrural areas from the U.S. Fish and Wildlife Service, Office of Subsistence Management. The nonrural areas include:
(1) Anchorage, Municipality of;
(2) Fairbanks North Star Borough;
(3) Homer area—including Homer, Anchor Point, North Fork Road area, Kachemak City, and the Fritz Creek East area (not including Voznesenka);
(4) Juneau area—including Juneau, West Juneau, and Douglas;
(5) Kenai area—including Kenai, Soldotna, Sterling, Nikiski, Salamatof, Kalifonsky, Kasilof, and Clam Gulch;
(6) Ketchikan area—including all parts of the road system connected to the City of Ketchikan including Saxman, Pennock Island and parts of Gravina Island;
(7) Prudhoe Bay;
(8) Seward area—including Seward and Moose Pass;
(9) Valdez; and
(10) Wasilla/Palmer area—including Wasilla, Palmer, Sutton, Big Lake, Houston, Point MacKenzie, and Bodenburg Butte.
(b) [Reserved]
Environmental Protection Agency.
Final rule.
The Environmental Protection Agency (EPA) is promulgating a source-specific Federal Implementation Plan (FIP) to regulate emissions from the Four Corners Power Plant (FCPP), a coal-fired power plant located on the Navajo Indian Reservation near Farmington, New Mexico.
This rule is effective on June 6, 2007.
Rebecca Rosen, EPA Region IX, (415) 947-4152,
EPA has established a docket for this action under Docket ID No. R09-OAR-2006-0184. All documents in the docket are listed in the Federal eRulemaking portal index at
Throughout this document, “we,” “us” and “our” refer to EPA.
FCPP is a privately owned and operated coal-fired power plant located on the Navajo Indian Reservation near Farmington, New Mexico. Based on lease agreements signed in 1960, FCPP was constructed and has been operating on real property held in trust by the federal government for the Navajo Nation. The facility consists of five coal-fired electric utility steam generating units with a total capacity in excess of 2000 megawatts (MW).
In 1999, EPA initially proposed to promulgate a FIP to regulate emissions from FCPP. At that time, FCPP had historically achieved certain emissions limits which had been approved by EPA into the New Mexico SIP. See 40 CFR 52.1640. However, because the New Mexico SIP is not approved to apply on the Navajo Indian Reservation, and because the Navajo Nation did not have a federally applicable tribal implementation plan (TIP), EPA proposed to promulgate a FIP to remedy the existing regulatory gap. 64 FR 48731 (September 8, 1999) (1999 proposed FIP). The proposed FIP would have, in essence, federalized the requirements contained in the New Mexico SIP which FCPP had historically followed. In explaining the basis for its proposed action, EPA stated that given the magnitude of emissions from the plant, the Agency believed the proposed FIP provisions were necessary and appropriate to ensure the protection of air quality on the Reservation. 64 FR at 48733.
Before EPA took final action on the 1999 proposed FIP, a stakeholders group of environmental organizations (Environmental Defense, Western Resource Advocates, and New Mexico Citizens for Clean Air and Water), the National Park Service (NPS), and Arizona Public Service (APS), the operating agent for FCPP, convened to discuss the facility. The stakeholders group negotiated substantial additional sulfur dioxide (SO
EPA did not finalize the proposed 1999 FIP after the stakeholders group began negotiations. Instead, after the stakeholders group had finished its work, EPA proposed a new FIP in September, 2006. 71 FR 53631 (September 12, 2006) (2006 proposed FIP).
In the 2006 proposed FIP, EPA again explained that to remedy the regulatory gap that exists with regard to FCPP, the Agency was proposing to issue a source-specific FIP. EPA proposed to establish federally enforceable emission limits for SO
EPA's objective at this time in promulgating a FIP for FCPP is to remedy the existing regulatory gap described above. Today's action will make federally enforceable the emission limitations which FCPP has historically followed as well as ensuring that FCPP continues to significantly reduce its emissions of SO
EPA received 43 comment letters on the proposal. The Navajo Nation EPA and one environmental organization provided comments in support of the proposed FIP. Other commenters raised concerns which focused on EPA's jurisdiction over FCPP and our exercise of FIP authority, general concerns about air quality and health in the Four Corners area, more specific comments about the emission limits and control requirements in the proposed FIP, and questions as to whether FCPP's SO
EPA held a public informational workshop and public hearing on the proposed FIP in Farmington, New Mexico, on October 5, 2006. EPA received approximately 36 written and e-mail comments and 7 oral comments. Many of those commenting at the public hearing also submitted their comments in writing.
Our complete Response to Comments is contained in a separate document in the docket for this rulemaking. A summary of the significant comments and responses is provided below.
As explained in the 1999 and 2006 proposed FIPs, a regulatory gap exists with regard to FCPP. 64 FR at 43,955; 71 FR at 53,632. Although FCPP has historically followed the rules in the New Mexico SIP, EPA has not found that New Mexico had regulatory authority under the CAA on the Navajo Indian Reservation and has not approved the State's implementation plan for any area on the Reservation. It is EPA's position that, absent an explicit finding of jurisdiction and approval in Indian country, State and local governments lack authority under the CAA over air pollution sources, and the owners or operators of air pollution sources, throughout Indian country. See 63 FR 7254, 7259 (February 12, 1998) (responding to comment that EPA should “ ‘grandfather' existing facility subject to state authority so that states continue to regulate those facilities until the affected parties all agree cooperatively to a transition from state to tribal jurisdiction”). Therefore, the New Mexico SIP does not apply to FCPP and there is a regulatory gap.
EPA is exercising its discretion to promulgate emission limitations for FCPP to close this regulatory gap in light of the magnitude of the emissions of NO
The source-specific FIP published today is based on the same CAA authority that EPA has used elsewhere in rulemakings and that has been affirmed by the courts. EPA's interpretation of its authority in the TAR was affirmed by the U.S. Court of Appeals for the District of Columbia Circuit in
EPA has used its authority in CAA sections 301(a) and (d), as implemented through 40 CFR Part 49, to issue a number of FIPs to address air pollution concerns at specific facilities located in Indian country.
Therefore, we disagree with those comments challenging EPA's authority to promulgate a FIP for FCPP.
Today's action is an important step in protecting air quality on the Reservation. As noted in the proposal, this action will contribute towards ensuring continued maintenance of the NAAQS and towards protecting visibility. EPA acknowledges that additional regulatory actions by EPA may be necessary or appropriate in the future to further protect air quality on the Navajo Reservation, depending on, among other things, conditions on the Reservation and the decisions of the Navajo Nation to exercise its discretionary authority under the CAA.
EPA intends to apply any requirements for FCPP to achieve a reduction in its NO
EPA agrees with one commenter that the regulatory language establishing the 88% removal efficiency should be clarified in the final FIP. Instead of stating the limit as “12 percent of that which is produced by the coal burning equipment * * * ”, EPA will change the FIP to reflect that the SO
The Navajo Nation EPA has specifically requested EPA to take this action, and in doing so stated: “Given the results of the APS study, the Navajo Nation agrees that an 88% SO
Units 4 and 5 have always operated with an exemption from opacity limits during shutdown. The commenter has not provided any information demonstrating that exempting these units during shutdown harms the environment or public health.
With regards to comments requesting an exemption from the opacity limit during malfunctions, EPA has explained below its reasons for providing an affirmative defense for these periods. With regards to the comment on the phrasing for exempting water vapor, EPA agrees that this should be changed to uncombined water droplets. With respect to the commenter requesting a demonstration that the opacity was caused by uncombined water droplets, EPA believes this is not necessary. The opacity limit for this facility is set to assure proper operation of the baghouse. The rule will require that the facility assure that there has been no bypass through the bypass damper during these periods of assumed water droplet interference. The facility will be required to report these as apparent excess emissions in their quarterly excess emissions report. If anything inappropriate shows up in the reports, EPA can follow up to get better clarification of the issue.
We do note that changes in the heat input reflected by the “EPA Acid Rain Scorecard” do not necessarily indicate that an electric generating unit (EGU) has made a major modification. For example, the methodology for determining heat input to EGUs used in the Scorecard changed with the 1995 data. For the years before this, the Scorecard relied on coal consumption data provided to the EIA, while from 1995 on it was determined by flow measurements in the stack and calculated based on 40 CFR Part 60, Appendix A, Method 19.
CAM is designed as a gap filling mechanism where the parametric monitoring required for an applicable requirement is insufficient to ensure compliance. All rules, such as the FCPP FIP, should have sufficient monitoring to assure compliance rather than rely on
EPA has set forth its position on numerous occasions stating that emissions during startup, shutdown and malfunction events are considered violations of the underlying emissions limitations. For startup and shutdown events, EPA may set alternate limits where it is technically infeasible for the equipment to meet the emissions limit for a defined period of time. Such alternate startup and shutdown limits are not exemptions. For excess emissions resulting from malfunctions, EPA's longstanding position, as reflected in numerous policy documents and rulemakings, is that those emissions are violations of the underlying requirement but that the regulatory agency may provide that the violator may assert an affirmative defense to a claim for penalties based on the affirmative defense language such as we proposed.
FCPP's arguments on the issue, which are legal rather than technical, boil down to: (1) The CAA should only require excess malfunction emissions to be violations if those emissions would cause a violation of the NAAQS, (2) it is unfair to find a violation where the emissions are sudden and unavoidable, (3) the requirement to take all steps and to do everything possible renders the affirmative defense provision a “nullity,” and (4) the provision improperly usurps the judicial function of establishing the burden of proof. In response to the first point, the CAA contains numerous requirements that cannot be directly correlated with an exceedance of the NAAQS. (See,
Under Executive Order (E.O.) 12866, 58 FR 51735 (October 4, 1993), all “regulatory actions” that are “significant” are subject to Office of Management and Budget (OMB) review and the requirements of the Executive Order. A “regulatory action” is defined as “any substantive action by an agency (normally published in the
The FIP is a “significant regulatory action” because it raises novel legal or policy issues. Nevertheless, after reviewing information regarding this action, the Office of Management and Budget waived review of this action.
This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control
The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
After considering the economic impacts of this final action on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. The FIP for FCPP being finalized today does not impose any new requirements on small entities.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. L. 04-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments and the private sector. Under UMRA section 202, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed rules and for final rules for which EPA published a notice of proposed rulemaking, if those rules contain “federal mandates” that may result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. If UMRA section 202 requires a written statement, UMRA section 205 generally requires EPA to identify and consider a reasonable number of regulatory alternatives. Under UMRA section 205, EPA must adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule, unless the Regional Administrator publishes with the final rule an explanation why EPA did not adopt that alternative. The provisions of UMRA section 205 do not apply when they are inconsistent with applicable law. UMRA section 204 requires EPA to develop a process to allow elected officers of State, local, and Tribal governments (or their designated, authorized employees), to provide meaningful and timely input in the development of EPA regulatory proposals containing significant Federal intergovernmental mandates.
EPA has determined that the final FIP contains no Federal mandates on State, local or Tribal governments, because it will not impose any additional enforceable duties on any of these entities. EPA further has determined that the final FIP is not likely to result in the expenditure of $100 million or more by the private sector in any one year. Although the final FIP imposes enforceable duties on an entity in the private sector, the costs are expected to be minimal. Consequently, UMRA sections 202, 204, and 205 do not apply to the final FIP.
Before EPA establishes any regulatory requirements that might significantly or uniquely affect small governments, it must have developed under UMRA section 203 a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.
EPA has determined that the final FIP will not significantly or uniquely affect small governments, because it imposes no requirements on small governments. Therefore, the requirements of UMRA section 203 do not apply to the final FIP. Nonetheless, EPA worked closely with representatives of the Tribe in the development of today's action.
This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because it merely approves a State rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, Nov. 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.” Under Executive Order 13175, to the extent practicable and permitted by law, EPA may not issue a regulation that has tribal implications, that imposes substantial direct compliance costs on Indian tribal governments, and that is not required by statute, unless the Federal government provides the funds necessary to pay direct compliance costs incurred by tribal governments, or EPA consults with tribal officials early in the process of developing the proposed regulation and develops a tribal summary impact statement. In addition, to the extent practicable and permitted by law, EPA may not issue a regulation that has tribal
EPA has concluded that this final rule may have tribal implications because it will impose federally enforceable emissions limitation on a major stationary source located and operating on the Navajo reservation. However, this final rule will neither impose substantial direct compliance costs on tribal governments nor pre-empt Tribal law because the final FIP imposes obligations only on the owner or operator of FCPP.
EPA has also consulted extensively with officials of the Navajo Nation in the process of developing this regulation. EPA had discussions with Tribal representatives during proposal of the FIP in 1999. By letter dated December 5, 2005, the Navajo Nation EPA supported the action taken in this FIP. Tribal officials attended the public information workshop and public hearing on the proposed FIP. Therefore, EPA has allowed Navajo Nation to provide meaningful and timely input into development of this FIP.
This rule 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 approves a state rule implementing a Federal standard.
This 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.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Pub L. 104-113, 12 (10) (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 impractical. VCS are technical standards (
Consistent with the NTTAA, the Agency conducted a search to identify potentially applicable VCS. For the measurement of the sulfur in the coal for calculating the efficiency of the SO
In regard to the remaining measurement needs as listed below, there are a number of VCS that appear to have possible use in lieu of the EPA test methods and performance specifications (40 CFR Part 60, Appendices A and B) noted next to the measurement requirements. It would not be practical to specify these standards in the current rulemaking due to a lack of sufficient data on equivalency and validation and because some are still under development. However, EPA's Office of Air Quality Planning and Standards is in the process of reviewing all available VCS for incorporation by reference into the test methods and performance specifications of 40 CFR Part 60, Appendices A and B. Any VCS so incorporated in a specified test method or performance specification would then be available for use in determining the emissions from this facility. This will be an ongoing process designed to incorporate suitable VCS as they become available.
Executive Order 12898 (59 FR 7629, February 16, 1994), establishes Federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.
EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it strengthens the level of protection provided to human health or the environment. This final rule requires emissions reductions and makes emissions limitations federally enforceable for a major stationary source.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 6, 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
Environmental protection, Administrative practice and procedure, Air pollution control, Indians, Intergovernmental relations, Reporting and recordkeeping requirements.
42 U.S.C. 7401,
(a)
(b)
(c)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
(d)
(i) 12.0 percent of the potential combustion concentration assuming all of the sulfur in the coal is converted to SO
(ii) 17,900 pounds of total SO
(2)
(3)
(4)
(5)
(i) From either Unit 1 or 2 in excess of 0.85 lb/MMBtu of heat input per unit, and from either Units 3, 4, or 5 in excess of 0.65 lb/MMBtu of heat input per unit averaged over any successive thirty (30) boiler operating day period;
(ii) In excess of 335,000 lb per 24-hour period when coal burning equipment is operating, on a plant-wide basis; for each hour when coal burning equipment
(e)
(1) The owner or operator shall maintain and operate CEMS for SO2, NO or NO
(2)
(i) The inlet sulfur dioxide concentration shall be calculated using the following formula:
(ii) The total pounds of SO
(3)
(4)
(5) Continuous emissions monitoring shall apply during all periods of operation of the coal burning equipment, including periods of startup, shutdown, and malfunction, except for CEMS breakdowns, repairs, calibration checks, and zero and span adjustments. Continuous monitoring systems for measuring SO
(6) The owner or operator shall maintain a set of opacity filters to be used as audit standards.
(7) Nothing herein shall limit EPA's ability to ask for a test at any time under Section 114 of the Clean Air Act, 42 U.S.C. 7414, and enforce against any violation.
(8) In order to provide reasonable assurance that the scrubbers for control of particulate matter from Units 1, 2, and 3 are being maintained and operated in a manner consistent with good air pollution control practice for minimizing emissions, the owner or operator shall comply with the following provisions:
(i) The owner or operator shall develop a plan to monitor, record, and report parameter(s) indicative of the proper operation of the scrubbers to provide a reasonable assurance of compliance with the particulate matter limits in paragraph (d)(2) of this section. The owner or operator shall submit this plan to the Regional Administrator no later than sixty (60) days after the effective date of this FIP. The owner or operator shall implement this plan within 90 days of approval by the Regional Administrator and shall commence reporting the data generated pursuant to the monitoring plan in accordance with the schedule in paragraph (e)(8)(v) of this section. If requested by the Regional Administrator, this plan shall be revised and submitted to the Regional Administrator for approval within sixty (60) days of the request. The revised plan shall be implemented within sixty (60) days of the Regional Administrator's approval.
(ii) In the event that the owner or operator is unable to develop the plan required in paragraph (e)(8)(i) of this section due to technical difficulties, fails to submit the plan within sixty (60) days of the effective date of this FIP, or the Regional Administrator disapproves the plan, the owner or operator shall install and operate devices to measure the pressure drop across each scrubber module and the total flow of scrubbing liquid to the venturi section of each scrubber module. The data from these instruments shall be monitored and recorded electronically. A minimum of one reading every 15 minutes shall be used to calculate an hourly average which shall be recorded and stored for at least a five-year period. The owner or operator shall report in an electronic format either all hourly data, or one-hour averages deviating by more than 30 percent from the levels measured during the last particulate matter stack test that demonstrated compliance with the limit in this section. The owner or operator shall implement this requirement no later than one hundred eighty (180) days after the effective date of this FIP if it failed to submit the plan within sixty (60) days after the effective date of this FIP; or no later than 60 days after the Regional Administrator's disapproval of the plan.
(iii) The monitoring required under paragraphs (e)(8)(i) and (e)(8)(ii) of this section shall apply to each Unit at all times that the Unit is operating, except for monitoring malfunctions, associated repairs, and required quality assurance or control activities (including, as applicable, calibration checks and required zero and span adjustments). A monitoring malfunction is any sudden, infrequent, not reasonably preventable failure of the monitoring to provide valid data. Monitoring failures that are caused in part by poor maintenance or careless operation are not malfunctions.
(iv) The owner or operator may petition the Regional Administrator for an extension of the sixty (60) day deadline. Such extension shall be granted only if the owner or operator demonstrates to the satisfaction of the Regional Administrator that:
(A) The delay is due to technical infeasibility beyond the control of the owner or operator; and
(B) The requested extension, if granted, will allow the owner or operator to successfully complete the plan.
(v) The owner or operator shall submit to the Regional Administrator reports of the monitoring data required by this section semi-annually. The reports shall be postmarked within 30 days of the end of each calendar quarter.
(vi) The owner or operator shall develop and document a quality assurance program for the monitoring and recording instrumentation. This program shall be updated or improved as requested by the Regional Administrator.
(vii) In the event that a program for parameter monitoring on Units 1, 2, and 3 is approved pursuant to the Compliance Assurance Monitoring rule, 40 CFR Part 64, such program will supersede the provisions contained in paragraph (e)(8) of this section.
(f)
(1) For each emissions limit in this section, comply with the notification and recordkeeping requirements for CEMS compliance monitoring in 40 CFR 60.7(c) and (d). For Units 4 and 5, periods of excess opacity due to water droplets shall be reported in the summary report required by 40 CFR 60.7(d).
(2) For each day, provide the 365 day percent SO
(3) Furnish the Regional Administrator with reports describing the results of the annual particulate matter emissions tests postmarked within sixty (60) days of completing the tests. Each report shall include the following information:
(i) The test date;
(ii) The test method;
(iii) Identification of the coal burning equipment tested;
(iv) Values for stack pressure, temperature, moisture, and distribution of velocity heads;
(v) Average heat input;
(vi) Emissions data, identified by sample number, and expressed in pounds per MMBtu;
(vii) Arithmetic average of sample data expressed in pounds per MMBtu; and
(viii) A description of any variances from the test method.
(4)
(A) The name and title of the person reporting;
(B) The identity and location of the Plant and Unit(s) involved, and the emissions point(s), including bypass, from which the excess emissions occurred or are occurring;
(C) The time and duration or expected duration of the excess emissions;
(D) The magnitude of the excess emissions expressed in the units of the applicable emissions limitation and the operating data and calculations used in determining the magnitude of the excess emissions;
(E) The nature of the condition causing the excess emissions and the reasons why excess emissions occurred or are occurring;
(F) If the excess emissions were the result of a malfunction, the steps taken to remedy the malfunction and the steps taken or planned to prevent the recurrence of such malfunction;
(G) For an opacity exceedance, the 6-minute average opacity monitoring data greater than 20 percent for the 24 hours prior to and during the exceedance for Units 4 and 5; and
(H) The efforts taken or being taken to minimize the excess emissions and to repair or otherwise bring the Plant into compliance with the applicable emissions limit(s) or other requirements. For this reporting requirement, excess opacity due to saturated stack conditions is exempted.
(ii) If the period of excess emissions extends beyond the submittal of the written report, the owner or operator shall also notify the Regional Administrator in writing of the exact time and date when the excess emissions stopped. Compliance with the excess emissions notification provisions of this section shall not excuse or otherwise constitute a defense to any violations of this section or of any law or regulation which such excess emissions or malfunction may cause.
(g)
(h)
(2) During periods of startup and shutdown the otherwise applicable emission limits or requirements for opacity and particulate matter shall not apply provided that:
(i) At all times the facility is operated in a manner consistent with good practice for minimizing emissions, and the owner or operator uses best efforts regarding planning, design, and operating procedures to meet the otherwise applicable emission limit;
(ii) The frequency and duration of operation in start-up or shutdown mode are minimized to the maximum extent practicable; and
(iii) The owner or operator's actions during start-up and shutdown periods are documented by properly signed, contemporaneous operating logs, or other relevant evidence.
(3) Emissions in excess of the level of the applicable emission limit or requirement that occur due to a malfunction shall constitute a violation of the applicable emission limit. However, it shall be an affirmative defense in an enforcement action seeking penalties if the owner or operator has met with all of the following conditions:
(i) The malfunction was the result of a sudden and unavoidable failure of process or air pollution control equipment or of a process to operate in a normal or usual manner;
(ii) The malfunction did not result from operator error or neglect, or from improper operation or maintenance procedures;
(iii) The excess emissions were not part of a recurring pattern indicative of inadequate design, operation, or maintenance;
(iv) Steps were taken in an expeditious fashion to correct conditions leading to the malfunction, and the amount and duration of the excess emissions caused by the malfunction were minimized to the maximum extent practicable;
(v) All possible steps were taken to minimize the impact of the excess emissions on ambient air quality;
(vi) All emissions monitoring systems were kept in operation if at all possible; and
(vii) The owner or operator's actions in response to the excess emissions were documented by properly signed, contemporaneous operating logs, or other relevant evidence.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; specifications.
The following Total Allowable Catches (TACs) in the United States (U.S.)/Canada Management Area are implemented for the 2007 fishing year (FY): 494 mt of Georges Bank (GB) cod, 6,270 mt of GB haddock, and 900 mt of yellowtail flounder. This action is intended to meet the conservation and management requirements of the Magnuson-Stevens Fishery Conservation and Management Act. These TACs may be adjusted during FY 2007, if NMFS determines that the harvest of these stocks in FY 2006 exceeded the TACs specified for FY 2006.
This rule is effective May 3, 2007, through April 30, 2008.
Copies of the Transboundary Management Guidance Committee's (TMGC) 2006 Guidance Document and copies of the Environmental Assessment (EA) of the 2007 TACs (including the Regulatory Impact Review and Final Regulatory Flexibility Analysis (FRFA)) may be obtained from NMFS at One Blackburn Drive, Gloucester, MA 01930; telephone (978) 281-9315. NMFS prepared a summary of the FRFA, which is contained in the Classification section of this rule.
Tobey Curtis, Fishery Management Specialist, (978) 281-9273, fax (978) 281-9135, e-mail
A proposed rule for this action was published on March 12, 2007, (72 FR 10967) with public comments accepted though April 11, 2006. A detailed description of the administrative process used to develop the TACs was contained in the preamble of the proposed rule and is not repeated here.
For GB cod, the TMGC concluded that the most appropriate combined U.S./Canada TAC for FY 2007 is 1,900 mt. The U.S. is entitled to 26 percent and Canada to 74 percent, resulting in a national quota of 494 mt of cod for the U.S. and 1,406 mt of cod for Canada. For GB haddock, the TMGC concluded that the most appropriate combined U.S./Canada TAC for FY 2007 is 19,000 mt. The U.S. is entitled to 33 percent and Canada to 67 percent, resulting in a national quota of 6,270 mt of haddock for the U.S. and 12,730 mt of haddock for Canada. For GB yellowtail flounder, the TMGC concluded that the most appropriate combined U.S./Canada TAC for FY 2007 is 1,250 mt. The U.S. is entitled to 72 percent and Canada to 28 percent, resulting in a national quota of 900 mt of yellowtail flounder for the U.S. and 350 mt of yellowtail flounder for Canada. On November 16, 2006, the New England Fishery Management Council (Council) approved, consistent with the 2006 Guidance Document, the following U.S. TACs recommended by the TMGC and recommended their adoption to NMFS: 494 mt of GB cod, 6,270 mt of GB haddock, and 900 mt of GB yellowtail flounder (Table 1). The 2007 haddock and yellowtail flounder TACs represent a decrease from 2006 TAC levels, and the 2007 cod TAC represents an increase from the 2006 TAC (Tables 1 and 2).
The 2007 TACs are based upon stock assessments conducted in July 2006 by the Transboundary Resource Assessment Committee (TRAC). The TACs are consistent with the results of the TRAC and the TMGC's harvest strategy.
The regulations for the U.S./Canada Management Understanding, implemented by Amendment 13, at § 648.85(a)(2)(ii), state the following: “Any overages of the GB cod, haddock, or yellowtail flounder TACs that occur in a given fishing year will be subtracted from the respective TAC in the following fishing year.” Therefore, should an analysis of the catch of the shared stocks by U.S. vessels indicate that an overage occurred during FY 2006, the pertinent TAC will be adjusted downward in order to be consistent with the regulations. Although it is very unlikely, it is possible that a very large overage could result in an adjusted TAC of zero. If an adjustment to one of the 2007 TACs for cod, haddock, or yellowtail flounder is necessary, the public will be notified through publication in the
No comments relevant to the proposed rule were received by the close of business on April 11, 2007.
NMFS has determined that this final rule is consistent with the FMP and is consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws.
This final rule is published pursuant to 50 CFR part 648 and has been determined to be not significant for purposes of Executive Order 12866.
NMFS prepared a FRFA, which incorporates the IRFA and this final rule, and describes the economic impact that this action may have on small entities. No comments on the economic impacts of the TACs were received.
The specification of hard TACs for the U.S./Canada shared stocks of Eastern GB cod, Eastern GB haddock, and GB yellowtail flounder is necessary in order to ensure that the fishing mortality levels for these shared stocks are achieved in the U.S./Canada Management Area (the geographic area on GB defined to facilitate management of stocks of cod, haddock, and yellowtail flounder that are shared with Canada). A full description of the objectives and legal basis for the TACs is contained in the preamble of the proposed rule. A summary of the analysis follows. A copy of this analysis is available from NMFS (see ADDRESSES).
The specification of hard TACs is necessary in order to ensure that the agreed upon U.S./Canada fishing mortality levels for these shared stocks of fish are achieved in the U.S./Canada Management Area. A description of the objectives and legal basis for these TACs is contained in the SUMMARY of the proposed rule.
Under the Small Business Administration (SBA) size standards for small fishing entities ($3.5 million), all permitted and participating vessels in the groundfish fishery are considered to be small entities and, therefore, there are no differential impacts between large and small entities. Gross sales by any one entity (vessel) do not exceed this threshold. The maximum number of small entities that could be affected by the TACs is approximately 1,000 vessels, i.e., those with limited access NE multispecies days-at-sea (DAS) permits that have an allocation of Category A or B DAS. Realistically, however, the number of vessels that choose to fish in the U.S./Canada Management Area, and that therefore would be subject to the associated restrictions, including hard TACs, would be substantially less.
From May 2005 through April 2006 (i.e., FY 2005), 184 individual NE multispecies DAS vessels fished in the U.S./Canada Management Area. Because the regulatory regime in FY 2007 will be similar to that in place in FY 2005, it is likely that the number of vessels that choose to fish in the area during FY 2007 will be similar to the number of vessels that fished in the area during FY 2005.
The economic impacts of these TACs are difficult to predict due to several factors, but are based on the amount of catch, as well as the price of the fish. Furthermore, the economic impacts are difficult to predict due to the relative newness of these regulations (May 2004; Amendment 13 to the FMP). Therefore, there are relatively few historic data, and little is known about the specific fishing patterns or market impacts that may be caused by this hard TAC management system. In general, the rate at which yellowtail flounder is caught in the Eastern and Western U.S./Canada Management Area and the rate at which cod is caught in the Eastern U.S./Canada Area will determine the length of time the Eastern U.S./Canada Area will remain open. The length of time the Eastern U.S./Canada Area is open will determine the amount of haddock that is caught. During the 2004 and 2005 fishing years, the TACs were not fully utilized, and inseason changes to the regulations impacted the fishery. Two of the three specified TACs are being reduced (haddock and yellowtail flounder), and could, under certain circumstances, constrain fishing opportunity on cod (for which the TAC is increasing).
The amount of GB cod, haddock, and yellowtail flounder landed and sold will not be equal to the sum of the TACs, but will be reduced as a result of discards (discards are counted against the hard TAC), and may be further reduced by limitations on access to stocks that may result from the associated rules. Reductions to the value of the fish may result from fishing derby behavior and the potential impact on markets. The overall economic impact of the proposed 2007 U.S./Canada TACs will likely be different from the economic impacts of the 2006 TACs due to the reduced yellowtail flounder TAC, and may result in reduced revenue. Although the 2007 cod TAC represents an increase from 2006, the 2007 haddock and yellowtail flounder TACs represent decreases from 2006. For yellowtail flounder, the decrease is substantial. Based on the estimates in the EA, revenues from cod caught in the Eastern U.S./Canada Area may increase from 2006 to 2007 by approximately 32 percent, and revenue from haddock and yellowtail flounder in the U.S./Canada Management Area may decline by 16 percent and 57 percent, respectively. According to the analysis, the overall change in revenue from 2006 to 2007 for the 3 species combined could amount to a 33-percent decline (or approximately $ 3.5 million), although it is difficult to predict future fishing patterns, and there are factors that may mitigate the decline in overall revenue. For example, there could be an increase in yellowtail flounder price, as well as the potential for increased opportunity to harvest haddock from the Eastern U.S./Canada Area. If the larger GB cod TAC results in a longer period of time that the Eastern U.S./Canada Area is open, and if vessels attempt to, and are successful in avoidance of cod, the Eastern Area may be open for a longer period of time, resulting in additional revenue from haddock.
Although unlikely, a downward adjustment to the TACs specified for FY 2007 could occur after the start of the fishing year, if it is determined that the U.S. catch of one or more of the shared stocks during the 2006 fishing year exceeded the relevant TACs specified for FY 2006. The economic effects of this downward adjustment would likely result in a short term loss of revenue proportional to the magnitude of the adjustment.
Three alternatives were considered for FY 2007: The proposed TACs, the status quo TACs, and the no action alternative. No additional set of TACs are proposed because the process involving the TMGC and the Council yields only one proposed set of TACs. Accordingly, NMFS chooses to either accept or reject the recommendation of the Council. The TACs implemented through this action would have a similar economic impact as the FY 2006 TACs. Adoption of the status quo TACs, however, would not be consistent with the FMP because the status quo TACs do not represent the best available scientific information incorporated from the most recent TRAC. The status quo TACs are based on stock assessments conducted in 2005, and are therefore outdated and do not reflect the most recent status of the stocks determined during the 2006 assessments. Although the no action alternative (no TACs) would not constrain catch in the U.S./Canada Management Area, and therefore would likely provide some additional fishing opportunity, the no action alternative is not a reasonable alternative because it is inconsistent with the FMP in both the short and long term. On the short term, the no action alternative would not prevent overfishing, and in the long term, the no action alternative would not rebuild the stocks and consistently attain optimum yield for the fishery.
There is good cause under 5 U.S.C. 553(d)(3), to waive the 30-day delay in effective date because doing otherwise may compromise full and effective management of the FMP. If the 30-day delay in effectiveness is not waived, the hard TACs would not be in effect at the beginning of the fishing year (May 1, 2007). Such a delay in implementation could impact the fishery in several different ways.
Implementation of the hard TAC after the beginning of the fishing year would prevent NMFS from being able to prevent the possible overharvest of some or all of the stocks managed by a hard TAC. Most notably, in the case of Eastern GB cod and GB yellowtail flounder, because the size of the TACs are relatively small, and the possibility that the catch rate of cod and yellowtail flounder could be high during the month of May, it is likely that the TACs could be reached and exceeded during the 30-day delay in effectiveness period. If no TACs are in place, the Regional Administrator would be unable to take action to stop fishing on these stocks. Failure to stop fishing on the stocks when the TAC is caught would undermine the GB cod and yellowtail flounder rebuilding schedules of the FMP. Furthermore, any resulting TAC overages must be deducted from the following year's TAC, which would result in a negative economic impact to the fishery for FY 2007. Due to the fact that the TAC specifications originally recommended by the TMGC were remanded by the Council, there was a delay of over two months in the Council's final recommendation to NMFS for the FY 2007 TACs on November 16, 2006. This caused subsequent delays in the TAC specification process by NMFS, which includes comprehensive environmental and socioeconomic analyses, internal review, and rule-making, thereby resulting in later than normal publication of the proposed rule for this action.
The specified TACs do not modify any collection of information, reporting, or recordkeeping requirements. The specified TACs do not duplicate, overlap, or conflict with any other Federal rules.
Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a letter to permit holders that also serves as a small entity compliance guide (the guide) was prepared. Copies of this final rule are available from the Northeast Regional Office, and the guide, i.e., permit holder letter, will be sent to all holders of limited access DAS permits for the NE multispecies fishery. The guide and this final rule will be posted on the NMFS NE Regional Office web site at
16 U.S.C. 1801
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to establish a high altitude RNAV route in the Seattle, WA area to facilitate air traffic operations by providing a direct route to the Phoenix, AZ area. The FAA is implementing this route to enhance safety and to provide a more efficient use of navigable airspace.
Comments must be received on or before June 21, 2007.
Send comments on this proposal to the Docket Management System, U.S. Department of Transportation, Room Plaza 401, 400 Seventh Street, SW., Washington, DC 20590-0001. You must identify FAA Docket No. FAA-2007-27270 and Airspace Docket No. 07-ANM-1, at the beginning of your comments. You may also submit comments on the Internet at
Ken McElroy, Airspace and Rules, Office of System Operations and Safety, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone: (202) 267-8783.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers (FAA Docket No. FAA-2007-27270 and Airspace Docket No. 07-ANM-1) and be submitted in triplicate to the Docket Management System (see
Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2007-27270 Airspace Docket No. 07-ANM-1.” The postcard will be date/time stamped and returned to the commenter.
All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded through the Internet at
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see “
Persons interested in being placed on a mailing list for future NPRM's should contact the FAA's Office of Rulemaking, (202) 267-9677, for a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.
As part of the on-going efforts to establish area navigation routings the FAA is establishing RNAV routes to provide greater freedom to properly equipped users, and to achieve the safety and economic benefits of flying user-selected non-restrictive routings. The new RNAV routes will be identified by the letter prefix “Q” followed by a number consisting of from one to three digits. The International Civil Aviation Organization (ICAO) has allocated the “Q” prefix, along with the number set 1 through 499, for use by the U.S. for designating domestic RNAV routes.
The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 to establish an RNAV route within the airspace assigned to the Seattle, Los Angeles, Albuquerque, Salt Lake City and Denver Air Route Traffic Control Center (ARTCC). This route is proposed to provide a direct route from the Seattle, WA area to Phoenix, AZ, that would enhance the safety, and facilitate a more flexible and efficient use of navigable airspace for en route instrument flight rules operations.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this proposed regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures”, paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
1. The authority citation for part 71 continues to read as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.9P, Airspace Designations and Reporting Points, dated September 1, 2006, and effective September 16, 2006, is amended as follows:
Department of Defense.
Proposed rule.
The Department of Defense proposes to amend the current rule addressing military recruiting and Reserve Officer Training Corps program access at institutions of higher education. This proposed rule would implement 10 U.S.C. 983, as amended by the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005 (Pub. L. 108-375 (October 28, 2004)). As amended, 10 U.S.C. 983 clarifies access to campuses, access to students and access to directory information on students for the purposes of military recruiting, and now states that access to campuses and students on campuses shall be provided in a manner that is at least equal in quality and scope to that provided to any other employer. The prohibition against providing Federal funds when there is a violation of 10 U.S.C. 983 has an exception for any Federal funds provided to an institution of higher education, or to an individual, that are available solely for student financial assistance, related administrative costs, or costs associated with attendance. Such funds may be used for the purpose for which the funding is provided. A similar provision in section 8120 of the Department of Defense Appropriations Act of 2000 (Pub. L. 106-79; 113 Stat. 1260) has been repealed. This rule also rescinds the previous policy that established an exception that would limit recruiting on the premises of the covered school only in response to an expression of student interest when the covered school certified that too few students had expressed interest to warrant accommodating military recruiters.
Comments must be received by July 6, 2007.
You may submit comments, identified by docket number and or RIN number and title, by any of the following methods:
•
•
Brenda Leong, Office of the Under Secretary of Defense (Personnel and Readiness), 4000 Defense Pentagon, Washington, DC 20301-4000 (telephone: (703) 695-5529).
“Covered funds” is defined in 10 U.S.C. 983 to be any funds made available for the Departments of Defense, Transportation, Homeland Security, or National Nuclear Security Administration of the Department of Energy, the Central Intelligence Agency, or for any department or agency in which regular appropriations are made in the Departments of Labor, Health and Human Services, Education, and Related Agencies Appropriations Act. None of these covered funds may be provided by contract or grant to a covered school (including any subelement of a covered school) that has a policy or practice (regardless of when implemented) that either prohibits, or in effect prevents, the Secretary of Defense from establishing or operating a Senior Reserve Officer Training Corps (ROTC) at that covered school (or any subelement of that covered school); or that either prohibits, or in effect prevents, a student at that covered school (or any subelement of that covered school) from enrolling in a ROTC unit at another institution of higher education. The Federal law further provides similar sanctions
“The statute requires the Secretary of Defense to compare the military's ‘access to campuses’ and ‘access to students’ to ‘the access to campuses and to students that is provided to
The Solomon Amendment does not focus on the content of a school's recruiting policy, [but instead on] the result achieved by the policy and compares the ‘access * * * provided’ military recruiters to that provided other recruiters. Applying the same policy to all recruiters is therefore insufficient to comply with the statute if it results in a greater level of access for other recruiters than for the military. * * *
Not only does the text of the statute support this view, but this interpretation is necessary to give effect to the Solomon Amendment's recent revision.”
As an exception to the above rule, any Federal funding provided to a covered school or to an individual that is available solely for student financial assistance, related administrative costs, or costs associated with attendance, may be used for the purpose for which the funding is provided.
The Department of Defense drafted this proposed rule in consultation with other Federal agencies, including the Departments of Education, Labor, Transportation, Health and Human Services, Homeland Security, Energy, and the Central Intelligence Agency. Agencies affected by this rule will continue to coordinate with other organizations as they implement their provisions.
This proposed rule defines the criteria for determining whether an institution of higher education has a policy or practice prohibiting or preventing the Secretary of Defense from maintaining, establishing, or efficiently operating a Senior ROTC unit; or has a policy of denying military recruiting personnel access that is at least equal in quality and scope to the access to campuses and students provided to any other employer, or access to directory information on students. Pursuant to 10 U.S.C. 983 and this proposed rule, institutions of higher education having such policies or practices are ineligible for certain Federal funding.
The criterion of “efficiently operating a Senior ROTC unit” refers generally to an expectation that the ROTC Department would be treated on a par with other academic departments; as such, it would not be singled out for unreasonable actions that would impede access to students (and vice versa) or restrict its operations.
This proposed rule also defines the procedures that would be followed in evaluating reports that a covered school has not met requirements defined in this rule. When a component of the Department of Defense (DoD component) believes that policies or practices of an institution of higher education might require such an evaluation, that component is required to confirm the institution's policy in consultation with the institution. If that exchange suggests that the policy or practice could trigger a denial of funding, as required by the Act, the supporting facts would be forwarded through Department of Defense channels to the decision authority, the Principal Deputy Under Secretary of Defense for Personnel and Readiness (PDUSD(P&R)).
In evaluating whether an institution that provides information in response to a request from a military recruiter for military recruiting purposes would violate the Family Educational Rights and Privacy Act of 1972, as amended, (FERPA; 20 U.S.C. 1232g), the Department of Education has informed the Department of Defense that it will not consider the act of providing responsive student information as required under the Act and this rule as an act that violates FERPA. Institutions must take care, however, to release only that information specifically required under 10 U.S.C. 983 and this proposed rule.
Regarding the opportunity for a student to “opt-out” of or object to the release of “directory information” under FERPA, the Department of Defense provides the following clarification. If an institution receives a request for student-recruiting information, and that request seeks information that the institution has included in its definition of “directory information” that is releasable under FERPA, and a student has previously requested, in writing, that the “directory information” not be disclosed to any third party, the Department of Defense agrees that information for that student will not be provided to the requesting military recruiter or Department of Defense. If an institution declines to provide student-recruiting information because a student has “opted-out” from the institution's policy of disclosing “directory information” under FERPA, the Department of Defense will not consider that institution to have denied access under 10 U.S.C. 983. The Department of Defense will honor only those student “opt-outs” from the disclosure of directory information that are even-handedly applied to all prospective employers seeking information for recruiting purposes. In those circumstances where an institution's “directory information” definition does not include all of the student-recruiting information required under 10 U.S.C. 983, the Department of Defense will also honor the student's “opt-out” decision that was made regarding the release of the institution's “directory information.”
If an institution does not release all of the requested student-recruiting information as part of its “directory information” policy under FERPA (or has a policy of disclosing no “directory information”), the institution must nevertheless honor the request from a military recruiter for student-recruiting information concerning students who have not “opted-out”, even if that information would not be available to the public under FERPA. Because this information is requested exclusively for military recruiting, a special opportunity for a student to decline the release of student-recruiting information is not necessary or appropriate.
In carrying out their customary activities, DoD components must identify any covered school that, by policy or practice, denies military recruiting personnel access to its campus or access to its students on campus in a manner that is at least equal in quality and scope to access provided to any other employer, in effect denies students permission to participate, or prevents students from participating in recruiting activities, or denies military recruiters access to student-recruiting information. The term “equal in quality and scope” means the same access to campus and students provided to the nonmilitary recruiter receiving the most favorable
“The statute requires the Secretary of Defense to compare the military's ‘access to campuses’ and ‘access to students’ to ‘the access to campuses and to students that is provided to
The Solomon Amendment does not focus on the content of a school's recruiting policy, [but instead on] the result achieved by the policy and compares the ‘access * * * provided’ military recruiters to that provided other recruiters. Applying the same policy to all recruiters is therefore insufficient to comply with the statute if it results in a greater level of access for other recruiters than for the military. * * *
Not only does the text of the statute support this view, but this interpretation is necessary to give effect to the Solomon Amendment's recent revision.”
Similarly, in carrying out their customary activities, DoD components also must identify any covered school that, by policy or practice, denies establishment, maintenance, or efficient operation of a unit of the Senior ROTC, or denies students permission to participate, or effectively prevents students from participating in a unit of the Senior ROTC at another institution of higher education. The DoD component concerned must seek written confirmation of the school's policy from the head of the covered school through a letter of inquiry, allowing 30 days for response. If written confirmation cannot be obtained, oral policy statements or attempts to obtain such statements from an appropriate official of the school shall be documented. A copy of the documentation shall be provided to the covered school, which shall be informed of its opportunity to forward clarifying comments within 30 days to accompany the DoD component's submission to the PDUSD(P&R). When that 30-day period has elapsed, the DoD component will forward the case for disposition.
The recommendation of the DoD component then must be reviewed by the Secretary of the Military Department concerned, or designee, who shall evaluate responses to the letter of inquiry and other such information obtained in accordance with this part, and submit to the PDUSD(P&R) the names and addresses of covered schools that are believed to be in violation of 10 U.S.C. 983. Full documentation must be furnished to the PDUSD(P&R) for each such covered school, including the school's formal response to the letter of inquiry, documentation of any oral response, or evidence showing that attempts were made to obtain either written confirmation or an oral statement of the school's policies. Under agreement with the Department of Homeland Security, reports of covered schools believed to be in violation of 10 U.S.C. 983 with regard to the Coast Guard when not operating as a Service in the Navy shall be furnished to the PDUSD(P&R) for disposition.
Following any determination by the PDUSD(P&R) that the policies or practices of an institution of higher education require ineligibility for certain Federal funding, as required by the Act, the PDUSD(P&R) shall:
• Disseminate to Federal entities affected by the decision, including the DoD components and the General Services Administration (GSA), and to the Secretary of Education and the head of each other department and agency the funds of which are subject to the determination, the names of the affected institutions. The PDUSD(P&R) also shall notify the Committees on Armed Services of the Senate and the House of Representatives;
• Publish in the
• Inform the affected institution that its funding eligibility may be restored if the school provides sufficient new information to establish that the basis for the determination no longer exists.
This proposed rule contains procedures under which funding may be restored. Not later than 45 days after receipt of a school's request to restore funding eligibility, the PDUSD(P&R) must determine whether the funding status of the covered school should be changed and notify the applicable school of that determination. Pursuant to that determination, entities of the Federal government affected by the decision, including the DoD components and the GSA, shall be notified of any change in funding status.
In the event of any determination of ineligibility by the PDUSD(P&R), Federal departments and agencies concerned shall determine what funds provided by grant or contract to the covered school are affected and take appropriate action. As a result of this division of responsibility and the large number of Federal departments and agencies affected, this rule does not detail what specific funds are affected by any determination of ineligibility.
This proposed rule does not affect or cover any Federal funding that is provided to an institution of higher education or to an individual, to be available solely for student financial assistance, related administrative costs, or costs associated with attendance. This includes, but is not limited to, funds under the Federal Supplemental Educational Opportunity Grant Program (Title IV, Part A, Subpart 3 of the Higher Education Act of 1965, as amended), the Federal Work-Study Program (Title IV, Part C), and the Federal Perkins Loan Program (Title IV, Part E), the Federal Pell Grant Program (Title IV, Part A, Subpart 1), the Federal Family Education Loan Program (Title IV, Part B), and the William D. Ford Federal Direct Loan Program (Title IV, Part D). The Secretary of Education will provide additional information about the applicability of the rule to other Department of Education programs in communications to the affected communities.
This proposed rule is a significant regulatory action that OMB has approved for publication.
The Secretary certifies that these proposed regulations would not have a significant economic impact on a substantial number of small entities since recent history indicates that their provisions are not applicable to the vast majority of institutions of higher education.
It has been certified that this rule does not contain a Federal mandate that may result in the expenditure by State, local and tribal governments, in aggregate, or by the private sector, of $100 million or more in any one year.
It has been certified that this rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities. This rule establishes procedures for on-campus military recruiting and student access to Reserve Officer Training Corps (ROTC) programs in implementation of 10 U.S.C. 983.
This proposed rule will not impose any additional reporting or record keeping requirements under the Paperwork Reduction Act.
It has been certified that this rule does not have federalism implications, as set forth in Executive Order 13132. This rule does not have substantial direct effects on:
(1) The States;
(2) The relationship between the National Government and the States; or
(3) The distribution of power and responsibilities among the various levels of government.
Armed forces; Colleges and universities.
Accordingly, 32 CFR part 216 is proposed to be revised to reflect the most recent statutory changes and to read as follows:
10 U.S.C. 983.
(a) Implements 10 U.S.C. 983.
(b) Updates policy and responsibilities relating to the management of covered schools that have a policy of denying or effectively preventing military recruiting personnel access to their campuses or access to students on their campuses in a manner that is at least equal in quality and scope to the access to campuses and to students provided to any other employer, or access to student-recruiting information. The term “equal in quality and scope” means the same access to campus and students provided to the nonmilitary recruiter receiving the most favorable access.
“The statute requires the Secretary of Defense to compare the military's ‘access to campuses’ and ‘access to students’ to ‘the access to campuses and to students that is provided to
The Solomon Amendment does not focus on the content of a school's recruiting policy, [but instead on] the result achieved by the policy and compares the ‘access * * * provided’ military recruiters to that provided other recruiters. Applying the same policy to all recruiters is therefore insufficient to comply with the statute if it results in a greater level of access for other recruiters than for the military. * * *
Not only does the text support this view, but this interpretation is necessary to give effect to the Solomon Amendment's recent revision.”
(c) Updates policy and responsibilities relating to the management of covered schools that have an anti-ROTC policy.
This part applies to the Office of the Secretary of Defense, the Military Departments (including the Coast Guard when it is operating as a Military Service in the Navy), the Chairman of the Joint Chiefs of Staff, the Combatant Commands, the Defense Agencies, and the DoD Field Activities (hereafter referred to collectively as “the DoD components”). This part also applies, by agreement with the Department of Homeland Security (DHS), to the Coast Guard at all times, including when it is a service in the Department of Homeland Security. The policies herein also affect the Departments of Transportation, Homeland Security, Energy (National Nuclear Security Administration), the Central Intelligence Agency, and any department or agency in which regular appropriations are made in the Departments of Labor, Health and Human Services, Education, and Related Agencies Appropriations Act. The term “Military Services,” as used herein, refers to the Army, the Navy, the Marine Corps, the Air Force, and the Coast Guard, including their Reserve or National Guard components. The term “Related Agencies” as used herein refers to the Armed Forces Retirement Home, the Corporation for National and Community Service, the Corporation for Public Broadcasting, the Federal Mediation and Conciliation Service, the Federal Mine Safety and Health Review Commission, the National Commission on Libraries and Information Science, the National Council on Disability, the National Education Goals Panel, the National Labor Relations Board, the National Mediation Board, the Occupational Safety and Health Review Commission, the Social Security Administration, the Railroad Retirement Board and the United States Institute of Peace.
(a)
(b)
(c)
(1) A determination (§ 216.5(a)) affecting only a subelement of a parent institution (see § 216.3(f)) effects a limitation on the use of funds (§ 216.4(a)) applicable to the parent institution as a whole, including the institution's offending subelement and all of its subelements, if any.
(2) When an individual institution of higher education that is part of a single university system (e.g., University of (State) at (City)—a part of that state's university system) has a policy or practice that prohibits, or in effect prevents, access to campuses or access to students on campuses in a manner
(d)
(e)
“The statute requires the Secretary of Defense to compare the military's ‘access to campuses’ and ‘access to students’ to ‘the access to campuses and to students that is provided to
The Solomon Amendment does not focus on the content of a school's recruiting policy, [but instead on] the result achieved by the policy and compares the ‘access * * * provided’ military recruiters to that provided other recruiters. Applying the same policy to all recruiters is therefore insufficient to comply with the statute if it results in a greater level of access for other recruiters than for the military. * * *
Not only does the text support this view, but this interpretation is necessary to give effect to the Solomon Amendment's recent revision.”
(f)
(g)
(h)
(i)
(j)
(a) Under 10 U.S.C. 983, no covered funds may be provided by contract or grant (to include payment on such contracts or grants previously obligated) to a covered school if the Secretary of Defense determines that the covered school:
(1) Has a policy or practice (regardless of when implemented) that either prohibits or in effect prevents the Secretary of Defense or Secretary of Homeland Security from obtaining, for military recruiting purposes, access to campuses or access to students on campuses that is at least equal in quality and scope, as defined in § 216.3(d), to the access to campuses and to students provided to any other employer, or access to directory information on students;
(2) Has failed to disseminate military visit information or alerts at least on par with nonmilitary recruiters since schools offering such services to nonmilitary recruiters must also send e-mails, post notices, etc., on behalf of military recruiters to comply with the Solomon Amendment;
(3) Has failed to schedule visits at times requested by military recruiters that coincide with nonmilitary recruiters' visits to campus if this results in a greater level of access for other recruiters than for the military (e.g., offering non-military recruiters a choice of a variety of dates for on-campus interviews while only offering the military recruiters the final day of interviews), as schools must ensure that their recruiting policies operate such that military recruiters are given access to students at least equal to that provided to any other employer;
(4) Has failed to provide military recruiters with a mainstream recruiting location amidst nonmilitary employers to allow unfettered access to interviewees since military recruiters must be given the same access as recruiters who comply with a school's nondiscrimination policy;
(5) Has failed to enforce time, place, and manner policies established by the covered school such that the military recruiters experience an inferior or unsafe recruiting climate, as schools must allow military recruiters on campus and must assist them in whatever way the school assists other employers;
(6) Has through policy or practice in effect denied students permission to participate, or has prevented students from participating, in recruiting activities; or
(7) Has an anti-ROTC policy or practice, as defined in this rule, regardless of when implemented.
(b) The limitations established in paragraph (a) of this section shall not apply to a covered school if the Secretary of Defense determines that the covered school:
(1) Has ceased the policies or practices defined in paragraph (a) of this section;
(2) Has a long-standing policy of pacifism (see § 216.3(j)) based on historical religious affiliation;
(3) When not providing requested access to campuses or to students on campus, certifies that all employers are similarly excluded from recruiting on the premises of the covered school, or presents evidence that the degree of access by military recruiters is the same access to campuses or to students on campuses provided to the nonmilitary recruiter receiving the most favorable access;
(4) When not providing any student-recruiting information, certifies that such information is not maintained by the covered school; or that such information already has been provided
(5) When not providing student-recruiting information for a specific student certifies that the student concerned has formally requested, in writing, that the covered school withhold this information from all third parties;
(c) A covered school may charge military recruiters a fee for the costs incurred in providing access to student-recruiting information when that institution can certify that such charges are the actual costs, provided that such charges are reasonable, customary and identical to fees charged to other employers.
(d) An evaluation to determine whether a covered school maintains a policy or practice covered by paragraphs (a)(1) through (6) of this section shall be undertaken when:
(1) Military recruiting personnel are prohibited, or in effect prevented, from the same access to campuses or access to students on campuses provided to the nonmilitary recruiter receiving the most favorable access, or are denied access to student-recruiting information;
(2) Information or alerts on military visits are not distributed at least on par with nonmilitary recruiters since schools offering such services to nonmilitary recruiters must also send e-mails, post notices, etc., on behalf of the military recruiter to comply with the Solomon Amendment;
(3) Military recruiters are prohibited from scheduling their visits at requested times that coincide with nonmilitary recruiters' visits to its campus if this results in a greater level of access for other recruiters than for the military as schools must ensure their recruiting policy operates in such a way that military recruiters are given access to students at least equal to that provided to any other employer;
(4) Military recruiters do not receive a mainstream recruiting location amidst nonmilitary employers to allow unfettered access to interviewees since military recruiters must be given the same access as recruiters who comply with the school's nondiscrimination policy;
(5) The school has failed to enforce time, place, and manner policies established by that school such that military recruiters experience an inferior or unsafe recruiting climate, as schools must allow military recruiters on campus and must assist them in whatever way the school chooses to assist other employers;
(6) Evidence is discovered of an institution-sponsored policy or practice that in effect denied students permission to participate, or prevented students from participating in recruiting activities.
(7) The costs being charged by the school for providing student-recruiting information are believed by the military recruiter to be excessive, and the school does not provide information sufficient to support a conclusion that such are the actual costs, provided that they are reasonable and customary, and are identical to those costs charged to other employers; or
(8) The covered school is unwilling to declare in writing, in response to an inquiry from a representative of a DoD component or a representative from the Department of Homeland Security, that the covered school does not have a policy or practice of prohibiting, or in effect preventing, the Secretary of a Military Department or Secretary of Homeland Security from the same access to campuses or access to students on campuses provided to the nonmilitary recruiter receiving the most favorable access, or access to student-recruiting information by military recruiters for purposes of military recruiting.
(e) An evaluation to determine whether a covered school has an anti-ROTC policy covered by paragraph (a)(7) of this section shall be undertaken when:
(1) A Secretary of a Military Department or designee cannot obtain permission to establish, maintain, or efficiently operate a unit of the Senior ROTC; or
(2) Absent a Senior ROTC unit at the covered school, students cannot obtain permission from a covered school to participate, or are effectively prevented from participating, in a unit of the Senior ROTC at another institution of higher education.
(a) The Principal Deputy Under Secretary of Defense for Personnel and Readiness (PDUSD(P&R)), under the Under Secretary of Defense for Personnel and Readiness, shall:
(1) Not later than 45 days after receipt of the information described in paragraphs (b)(3) and (c)(1) of this section:
(i) Inform the Office of Naval Research (ONR) and the Director, Defense Finance and Accounting Service that a final determination will be made so that those offices can make appropriate preparations to carry out their responsibilities should a covered school be determined ineligible to receive Federal funds.
(ii) Make a final determination under 10 U.S.C. 983, as implemented by this part, and notify any affected school of that determination and its basis, and that the school is therefore ineligible to receive covered funds as a result of that determination.
(iii) Disseminate to Federal entities affected by the decision, including the DoD components and the General Services Administration (GSA), and to the Secretary of Education and the head of each other department and agency the funds of which are subject to the determination, the names of the affected institutions identified under paragraph (a)(1)(ii) of this section.
(iv) Notify the Committees on Armed Services of the Senate and the House of Representatives of the affected institutions identified under paragraph (a)(1)(ii) of this section.
(v) Inform the affected school identified under paragraph (a)(1)(ii) of this section that its funding eligibility may be restored if the school provides sufficient new information that the basis for the determination under paragraph (a)(1)(ii) of this section no longer exists.
(2) Not later than 45 days after receipt of a covered school's request to restore its eligibility:
(i) Determine whether the funding status of the covered school should be changed, and notify the applicable school of that determination.
(ii) Notify the parties reflected in paragraphs (a)(1)(i), (a)(1)(iii), and (a)(1)(iv) of this section when a determination of funding ineligibility (paragraph (a)(1)(ii) of this section) has been rescinded.
(3) Publish in the
(4) Publish in the
(5) Enter information into the Excluded Parties List System
(6) Provide ONR with an updated list of the names of institutions identified under paragraph (a)(1)(ii) of this section whenever the list changes due to an institution being added to or dropped from the list, so that ONR can carry out its responsibilities for post-award administration of DoD Components' contracts and grants with institutions of higher education.
(7) Provide the Office of the Deputy Chief Financial Officer, DoD, and the Director, Defense Finance and Accounting Service with an updated list of the names of institutions identified under paragraph (a)(1)(ii) of this section whenever the list changes due to an institution being added or dropped from the list, so that those offices can carry out their responsibilities related to cessation of payments of prior contract and grant obligations to institutions of higher education that are on the list.
(8) Publish in the
(b) The Secretaries of the Military Departments and the Secretary of Homeland Security shall:
(1) Identify covered schools that, by policy or practice, prohibit, or in effect prevent, the same access to campuses or access to students on campuses provided to the nonmilitary recruiter receiving the most favorable access, or access to student-recruiting information by military recruiters for military recruiting purposes.
(i) When requests by military recruiters to schedule recruiting visits are unsuccessful, the Military Service concerned, and the Office of the Secretary of Homeland Security when the Coast Guard is operating as a service in the Department of Homeland Security, shall seek written confirmation of the school's present policy from the head of the school through a letter of inquiry. A letter similar to that shown in Appendix A of this part shall be used, but it should be tailored to the situation presented. If written confirmation cannot be obtained, oral policy statements or attempts to obtain such statements from an appropriate official of the school shall be documented. A copy of the documentation shall be provided to the covered school, which shall be informed of its opportunity to forward clarifying comments within 30 days to accompany the submission to the PDUSD(P&R).
(ii) When a request for student-recruiting information is not fulfilled within a reasonable period, normally 30 days, a letter similar to that shown in Appendix A shall be used to communicate the problem to the school, and the inquiry shall be managed as described in 216.5.(b)(1)(ii). Schools may stipulate that requests for student-recruiting information be in writing.
(2) Identify covered schools that, by policy or practice, deny establishment, maintenance, or efficient operation of a unit of the Senior ROTC, or deny students permission to participate, or effectively prevent students from participating in a unit of the Senior ROTC at another institution of higher education. The Military Service concerned, and the Office of the Secretary of Homeland Security when the Coast Guard is operating as a service in the Department of Homeland Security, shall seek written confirmation of the school's policy from the head of the school through a letter of inquiry. A letter similar to that shown in Appendix B of this part shall be used, but it should be tailored to the situation presented. If written confirmation cannot be obtained, oral policy statements or attempts to obtain such statements from an appropriate official of the school shall be documented. A copy of the documentation shall be provided to the covered school, which shall be informed of its opportunity to forward clarifying comments within 30 days to accompany the submission to the PDUSD(P&R).
(3) Evaluate responses to the letter of inquiry, and other such evidence obtained in accordance with this part, and submit to the PDUSD(P&R) the names and addresses of covered schools that are believed to be in violation of policies established in § 216.4. Full documentation shall be furnished to the PDUSD(P&R) for each such covered school, including the school's formal response to the letter of inquiry, documentation of any oral response, or evidence showing that attempts were made to obtain either written confirmation or an oral statement of the school's policies.
(c) The Heads of the DoD components and Secretary of Homeland Security shall:
(1) Provide the PDUSD(P&R) with the names and addresses of covered schools identified as a result of evaluation(s) required under § 216.4(d) and (e).
(2) Take immediate action to deny obligations of covered funds to covered schools identified under paragraph (a)(1)(ii) of this section, and to restore eligibility of covered schools identified under paragraph (a)(2) of this section.
The information requirements identified at § 216.5(b) and (c)(1) have been assigned Report Control Symbol DD-P&R-(AR)-2038 in accordance with DoD 8910.1-M.
I understand that military recruiting personnel [have been unable to recruit or have been refused student-recruiting information
Current Federal law
“The statute requires the Secretary of Defense to compare the military's ‘access to campuses’ and ‘access to students’ to ‘the access to campuses and to students that is provided to
The Solomon Amendment does not focus on the content of a school's recruiting policy, [but instead on] the result achieved by the policy and compares the ‘access * * * provided' military recruiters to that provided other recruiters. Applying the same policy to all recruiters is therefore insufficient to comply with the statute if it results in a greater level of access for other recruiters than for the military. * * *
Not only does the text of the statute support this view, but this interpretation is necessary to give effect to the Solomon Amendment's recent revision.”
This letter provides you an opportunity to clarify your institution's policy regarding military recruiting on the campus of [University]. In that regard, I request, within the next 30 days, a written policy statement of the institution with respect to access to campus and students by military recruiting personnel. Your response should highlight any difference between access for military recruiters and access for recruiting by other potential employers.
Based on this information and any additional facts you can provide, Department of Defense officials will make a determination as to your institution's eligibility to receive funds by grant or contract. That decision may affect eligibility for funding from appropriations of the Departments of Defense, Transportation, Labor, Health and Human Services, Education, and related agencies. Should it be determined that [University] as an institution of higher education (or any subelement of the institution) is in violation of the aforementioned statutes and regulations, such funding would be stopped, and the institution of higher education (including any subelements of the institution) would remain ineligible to receive such funds until and unless the Department of Defense determines that the institution has ceased the offending policies and practices.
I regret that this action may have to be taken. Successful recruiting requires that Department of Defense recruiters have equal access to students on the campuses of colleges and universities [and student-recruiting information], and at the same time, have effective relationships with the officials and student bodies of those institutions. I hope it will be possible to identify and correct any policies or practices that inhibit military recruiting at your school. [My representative, (name), is] [I am] available to answer any of your questions by telephone at [telephone number]. I look forward to your reply.
I understand that ABC University has [refused a request from a Military Department to establish a Senior ROTC unit at your institution][refused to continue existing ROTC programs at your institution][prevented students from participation at a Senior ROTC program at another institution] by a policy or practice of the University.
Current Federal law
This letter provides you an opportunity to clarify your institution's policy regarding ROTC access on the campus of ABC University. In that regard, I request, within the next 30 days, a written statement of the institution with respect to [define the problem area(s)].
Based on this information, Department of Defense officials will make a determination as to your institution's eligibility to receive the above-referenced funds by grant or contract. That decision may affect eligibility for funding from appropriations of the Departments of Defense, Transportation, Labor, Health and Human Services, Education, and related agencies. Should it be determined that [University] as an institution of higher education (or any subelement of the institution) is in violation of the aforementioned statutes and regulations, such funding would be stopped, and the institution of higher education (including any subelements of the institution) would remain ineligible to receive such funds until and unless the Department of Defense determines that the institution has ceased the offending policies and practices.
I regret that this action may have to be taken. Successful officer procurement requires that the Department of Defense maintain a strong ROTC program. I hope it will be possible to [define the correction to the aforementioned problem area(s)]. [My representative, (name), is] [I am] available to answer any of your questions by telephone at [telephone number]. I look forward to your reply.
Coast Guard, DHS.
Notice of Proposed Rulemaking.
The Coast Guard is proposing to establish a Safety Zone in Chicago Harbor. This zone is intended to restrict vessels from portions of Chicago Harbor during fireworks displays that pose a hazard to public safety. This zone is necessary to protect the public from the hazards associated with fireworks displays.
Comments and related materials must reach the Coast Guard on or before June 6, 2007.
You may mail comments and related material to Commander Coast Guard Sector Lake Michigan, 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 between 8 a.m. and 3 p.m., Monday through Friday, except Federal holidays.
If you have further questions on this rule, contact CWO Brad Hinken, Prevention Department, Coast Guard Sector Lake Michigan, Milwaukee, WI at (414) 747-7154.
We encourage you to submit comments and related materials. If you submit a comment, please include your name and address, identify the docket number for this rulemaking [CGD09-07-007], indicate the specific section of this document to which each comment applies, and give the reason for each
We do not now plan to hold a public meeting. But you may submit a request for a public meeting (see
This safety zone is necessary to protect vessels and people from the hazards associated with fireworks displays. Such hazards include the explosive danger of fireworks and debris falling into the water that may cause death or serious bodily harm.
The proposed safety zone is necessary to ensure the safety of vessels and people during fireworks displays in Chicago Harbor. The proposed safety zone encompasses the waters of Lake Michigan within Chicago Harbor between the east end of near Navy Pier and the Chicago Harbor breakwater.
The Coast Guard Patrol Commander will be on-scene while the safety zone is enacted and inform the public that the safety zone is being enforced. The Captain of the Port will cause notice of enforcement of the safety zone established by this section to be made by all appropriate means to the affected segments of the public including publication in the
The proposed safety zone replaces 33 CFR 165.918 Safety Zones; Annual fireworks events in the Captain of the Port Chicago Zone, paragraph (a)(13) and (14). The safety zone will encompass the waters of Lake Michigan within Chicago Harbor between the east end of Navy Pier and the Chicago Harbor breakwater beginning at 41°53′37″ N, 087°35′26″ W; then south to 41°53′24″ N, 087°35′26″ W; then east to 41°53′24″ N, 087°35′55″ W; then north to 41°53′37″ N, 087°35′55″ W; then back to the point of origin.
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. It has not been reviewed by the Office of Management and Budget under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS).
We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. The Coast Guard's use of this safety zone will be periodic in nature and will likely not exceed 10, one-hour events per year. This safety zone will only be enforced during the time the safety zone is actually in use. Furthermore, 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.
We suspect that there may be small entities affected by this rule but are unable to provide more definitive information as to the number of small entities that may be affected. The risk, outlined above, is severe and requires that immediate action be taken. The Coast Guard will evaluate whether a substantial number of small entities are affected as more information becomes available.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule will have a significant economic impact on it, please submit a comment to the Docket Management Facility at the address under
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process. Small businesses may send comments on actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).
This proposed rule calls 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 rule will not result in such an expenditure, we do discuss the effects of this proposed rule elsewhere in this preamble.
This proposed rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with
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 does not create an environmental risk to health or risk to safety that may disproportionately affect children.
The Coast Guard recognizes the treaty rights of Native American Tribes. Moreover, the Coast Guard is committed to working with Tribal Governments to implement local policies and to mitigate tribal concerns. We have determined that this proposed safety zone and fishing rights protection need not be incompatible. We have also determined that this Proposed Rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Nevertheless, Indian Tribes that have questions concerning the provisions of this Proposed Rule or options for compliance are encourage to contact the point of contact listed under
We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
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, which guides 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 this rule should be categorically excluded, under figure 2-1, paragraph 34 (g) from further environmental documentation. This proposed rule establishes a safety zone and as such is covered by this paragraph.
A preliminary “Environmental Analysis Check List” and a preliminary “Categorical Exclusion Determination” are available in the docket where indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard 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 § 165.933 to read as follows:
(a)
(b)
(2) Public vessel means vessels owned, chartered, or operated by the United States, or by a State or political subdivision thereof.
(c)
(2) All persons and vessels must comply with the instructions of the Coast Guard Captain of the Port or a designated representative. Upon being hailed by the U.S. Coast Guard by siren, radio, flashing light or other means, the operator of a vessel shall proceed as directed.
(4) All vessels must obtain permission from the Captain of the Port or a designated representative to enter, move within or exit the safety zone established in this section when this safety zone is enforced. Vessels and persons granted permission to enter the safety zone shall obey all lawful orders or directions of the Captain of the Port or a designated representative. While within a safety zone, all vessels shall operate at the minimum speed necessary to maintain a safe course.
(d)
(e)
(f)
Office of Governmentwide Policy, General Services Administration (GSA).
Proposed rule.
The General Services Administration is proposing to amend the Federal Property Management Regulations (FPMR) by revising coverage on the hazardous and certain categories of personal property and moving it into the Federal Management Regulation (FMR) addressing all types of property requiring special handling. A cross-reference is added to the FPMR to direct readers to the coverage in the FMR. The FMR coverage is written in plain language to provide agencies with updated regulatory material that is easy to read and understand.
Interested parties should submit comments in writing on or before June 6, 2007 to be considered in the formulation of a final rule.
Submit comments identified by FPMR case 2003-101-1 by any of the following methods:
• Federal eRulemaking Portal:
• Fax: 202-501-4067.
• Mail: General Services Administration, Regulatory Secretariat (VIR), 1800 F Street, NW., Room 4035, ATTN: Laurieann Duarte, Washington, DC 20405.
The Regulatory Secretariat, Room 4035, GS Building, Washington, DC 20405, at (202) 501-4755 for information pertaining to status or publication schedules. For clarification of content, contact Robert Holcombe, Director, Asset Management (MTA), at (202) 501-3828. Please cite FPMR Case 2003-101-1.
This proposed rule updates, streamlines, and clarifies FPMR part 101-42 and moves the part into the FMR as part 102-40. This proposed rule also removes §§ 101-45.001, 101-45.002, and 101-45.004. The subject matter of these sections is addressed in section 102-40.190 (disposal of items requiring demilitarization); section 102-40.50 (handling of property reported to GSA so as to preserve civilian utility as far as possible); section 102-40.220 (disposal of gold as a precious metal); and section 102-40.135 (disposal of ATVs).
In addition, this proposed rule removes section 101-45.003 regarding vehicle reconditioning. That section provides guidance that the Federal fleet community considers standard business practices, and is more prescriptive of specific tasks than is intended by this Governmentwide policy regulation.
The proposed rule is written in a plain language question and answer format. This style uses an active voice, shorter sentences, and pronouns. A question and its answer combine to establish a rule. The employee and the agency must follow the language contained in both the question and its answer.
Proposed FMR part 102-40 includes the following specific changes from FPMR part 101-42:
1. Proposed section 102-40.30 includes the following terms and definitions not found in section 101-42.001:
Ammunition
Commerce Control List Item (CCLI)
Demilitarization
Material Safety Data Sheet (MSDS)
Medical devices
Precious metal
2. Proposed section 102-40.95 revises FPMR section 101-42.401, Sales responsibilities for hazardous material, by allowing agencies to sell property with special handling requirements.
3. Proposed section 102-40.150 has special requirements for handling asbestos products.
4. Proposed section 102-40.140 introduces the topic of disposal of ammunition which does not appear in part 101-42. The disposition of ammunition and ammunition components are combined in this part 102-40. A new policy contained in part 102-40 allows the sale of ammunition and ammunition components to activities licensed to perform manufacturing/ demanufacturing/remanufacturing, or licensed to recover basic material content of the ammunition or ammunition components. Expended ammunition cartridge cases may be transferred or donated when the recipient certifies that the cartridge case will be reloaded and used only for law enforcement purposes.
5. Proposed section 102-40.195 has special requirements for handling Commerce Control List items.
6. Proposed part 102-40 incorporates topics that appeared in 41 CFR part 101-45; specifically, the provisions appearing at section 101-45.001, “Demilitarization and decontamination”; section 101-45.002, “Gold”; and section 101-45.004, “All terrain vehicles.” The subject matter of these sections is addressed in section 102-40.190 (disposal of items requiring demilitarization); section 102-40.50
This proposed rule removes section 101-45.003 regarding vehicle reconditioning. That section provides guidance that the Federal fleet community considers standard business practices, and is more prescriptive of specific tasks than is intended by this Governmentwide policy regulation.
7. Proposed part 102-40 is less prescriptive. It is GSA's intention to use these FMR regulations to describe “what” is to be accomplished, not “how” to perform a specific task.
GSA has determined that this proposed rule is not a significant rule for the purposes of Executive Order 12866 of September 30, 1993.
This proposed rule is not required to be published in the
The Paperwork Reduction Act does not apply because this proposed rule does not impose recordkeeping or information collection requirements, or the collection of information from offerors, contractors, or members of the public which require the approval of the Office of Management and Budget (OMB) under 44 U.S.C. 3501,
This proposed rule is exempt from Congressional review prescribed under 5 U.S.C. 801 since it relates solely to agency management and personnel.
Government property management.
For the reasons set forth in the preamble, GSA proposes to amend 41 CFR chapters 101 and 102 as follows:
1. Part 101-42 is revised to read as follows:
40 U.S.C. 121(c).
For information on the disposition of personal property with special handling requirements previously contained in this part, see FMR part 40 (41 CFR part 102-40), Disposition of Personal Property with Special Handling Requirements.
2. The authority citation for part 101-45 continues to read as follows:
40 U.S.C. 545 and 121(c).
3. Section 101-45.001 is removed.
4. Section 101-45.002 is removed.
5. Section 101-45.003 is removed.
6. Section 101-45.004 is removed.
7. Part 102-40 is added to subchapter B of chapter 102 to read as follows:
40 U.S.C. 121(c).
This part provides guidance on the transfer, donation, sale and other disposal of Government personal property with special handling requirements located in the United States, the District of Columbia, the U.S. Virgin Islands, American Samoa, Guam, Puerto Rico, the Northern Mariana Islands, Federated States of Micronesia, the Marshall Islands, and Palau. For guidance on disposing of personal property located outside these areas, see §§ 102-36.380 through 102-36.400 of this subchapter B.
Section 121(c) of title 40 of the United States Code, Subtitle I—Federal Property and Administrative Services, authorizes the Administrator of General Services to prescribe regulations necessary to perform functions under this part.
All executive agencies must comply with the provisions of this part unless authorized by separate statutory authority to do otherwise. Legislative and judicial agencies are encouraged to follow these provisions.
The pronouns “we”, “you”, and their variants throughout this part refer to the agency.
See §§ 102-2.60 through 102-2.110 of subchapter A to request a deviation from the requirements of this part.
The following definitions apply to this part:
(1) Any narcotic, depressant, stimulant, or hallucinogenic drug, or any other drug or substance included in Schedules I, II, III, IV, or V of section 202 of the Controlled Substances Act (21 U.S.C. 812), except exempt chemical preparations and mixtures and excluded substances listed in 21 CFR part 1308;
(2) Any other drug or substance that the Attorney General determines to be subject to control under Subchapter I of the Controlled Substances Act (21 U.S.C. 801 to 904); or
(3) Any other drug or substance that by international treaty, convention, or protocol is to be controlled by the United States.
(1) Has a flash point below 200°F (93.3°C), closed cup, or is subject to spontaneous heating.
(2) Is subject to polymerization with the release of large amounts of energy when handled, stored, or shipped without adequate controls.
(3) In the course of normal operations, may produce fibers, dusts, gases, fumes, vapors, mists, or smokes which have one or more of the following characteristics:
(i) Causes 50 percent fatalities to test animals below 500 mg/kg of test animal weight when a single oral Lethal Dose, 50% (LD50) or semi-lethal dose is used.
(ii) Is a flammable solid or a strong oxidizing or reducing agent.
(iii) Causes first degree burns to skin in a short time exposure, or is systematically toxic by skin contact.
(iv) Has a permissible exposure limit (PEL) below 1000 parts per million for gases and vapors, below 500 mg/mm3 for fumes, or below 2 fibers/CM3 for dust.
(v) Causes occupational chemical dermatitis, which is any abnormality of the skin induced or aggravated by the work environment which includes but is not limited to primary irritant categories, allergic sensitizers, and photo sensitizers.
(4) Is radioactive to the extent it requires special handling.
(5) Is a recognized carcinogen according to Occupational Safety and Health Administration (OSHA) regulations at 29 CFR part 1910.
(6) Possesses special characteristics which, in the opinion of the holding agency, could be hazardous to health, safety, or the environment if improperly handled, stored, transported, disposed of, or otherwise improperly used.
(1)
(2)
(3)
Personal property containing hazardous materials or other elements that require compliance with Federal, State, and local laws in their usage, storage, transportation and disposal, and the inadequate control of which may lead to potential safety, health, environmental, economic, or national security risks.
You are responsible for—
(a) Identifying and accounting for property with special handling requirements;
(b) Complying with applicable Federal, State, and local laws and regulations concerning the handling, storage, labeling, use, and final disposition of such property;
(c) Ensuring adequate storage and safeguard of such property,
(d) Transporting materials requiring special handling in accordance with Department of Transportation (DOT), Environmental Protection Agency (EPA), and State and local regulations.
You must properly mark, tag, or label personal property with special handling requirements in accordance with applicable Federal law, including the Occupational Safety and Health Administration requirements (29 CFR 1910.1200), regarding the actual or potential hazard associated with the property, and ensure that such information is maintained and perpetuated in the official agency property records. Labeling requirements for substances that are excluded from the requirements of 29 CFR 1910.1200 are found in the references listed in 29 CFR 1910.1200(b)(5) and (6).
Except for the items listed in § 102-40.55, you must report personal property with special handling requirements that you no longer need to the General Services Administration (GSA) for Federal or donation screening. Dispose of property not required to be reported to GSA in accordance with applicable Federal, State, and local laws and regulations, and your agency procedures. Disposal must be accomplished so as to preserve as much as possible any civilian utility or commercial value of the property.
No. Because of their characteristics, certain items are not subject to the usual disposal procedures. You should not report to GSA excess personal property with special handling requirements in any of the categories listed below.
(a)
(b)
(c)
(d)
The holding agency is responsible for the custody of hazardous materials and property requiring special handling. Custody of these items may be transferred in whole or in part to another Federal agency with that agency's consent.
The holding agency is responsible for the care and handling of hazardous materials and property requiring special handling until the time the property has completed the disposal process; and has been transferred, donated, sold, or destroyed, as authorized by this part. The nature of this material may require extra precautions, processes, or equipment, thereby increasing the cost of care and handling.
You must include with your report of excess a complete description of the characteristics of the property, use or disposal restrictions, and the actual or potential hazard associated with the use, handling, or storage of the item. You should include a Material Safety Data Sheet (MSDS) or Hazardous Material Information System (HMIS) record (or equivalent) if available. The physical item which requires special handling must also be marked so as to identify its special characteristic.
Generally, yes, with the exceptions contained in this part, personal property requiring special handling is available for transfer or donation in accordance with 41 CFR parts 102-36 and 102-37 of this subchapter B respectively. However, all transfer and donation documents must include a complete description of the actual or potential hazard associated with the handling, storage, use, or disposal of the item.
Yes, GSA will not approve a donation to a State Agency for Surplus Property (SASP) unless an eligible donee has been identified. The transfer document must contain a full description of the actual or potential hazard(s) and restriction(s) associated with the handling, storage, use, transportation, or disposal of the item. In addition, the following certification (or an equivalent) must be signed by the donee:
I (We), the undersigned, hereby certify that the donee has knowledge and understanding of the hazardous nature of the property hereby donated and will comply with all applicable Federal, State, and local laws, ordinances, and regulations with respect to the care, handling, storage, shipment, and disposal of the hazardous material(s). The donee agrees and certifies that the United States shall not be liable for personal injuries to, disabilities of, or death of the donee or the donee's employees, or any other person arising from or incident to the donation of the hazardous material(s) or its final disposition. Additionally, the donee agrees and certifies to hold the United States harmless from and shall indemnify the United States against any or all debts, liabilities, judgments, costs, demands, suits, actions, or claims of any nature arising from or incident to the donation of the hazardous material(s), its use, or final disposition.
______________
Name of Donee (print or type)
______________
Signature of Donee
Yes, you are responsible for establishing appropriate safeguards and providing instructions for personal protection to screeners who are inspecting property with special handling requirements.
You may charge the Federal agency or donation recipient any costs you incurred in packing, preparing for shipment, and transporting property with special handling requirements (see parts 102-36 and 102-37 of this subchapter B).
Generally, yes, you may sell personal property with special handling requirements when you (1) comply with applicable Federal, State, and local laws and regulations, including 41 CFR part 102-38, and (2) follow applicable precautions including but not limited to proper packaging of the property, labeling of appropriate warning signs, and allowing for inspection of the property with proper safeguards.
Yes, you may use any of the sales methods provided in part 102-38 of this subchapter B, but you must—
(a) Hold sales of such property separately from other sales,
(b) Store and display such property in a safe and controlled manner as required by applicable statutes or regulations,
(c) Indicate if the property is being sold only for scrap, and/or if there are any use requirements, and
(d) Comply with the requirements of other Federal, State, and local laws and regulations.
In addition to the recommended sales terms and conditions contained in part 102-38 of this subchapter B, when selling personal property with special handling requirements you must include the following in the sales terms and conditions:
(a) A full description of the actual or potential hazard(s) associated with handling, storage, or use of the item, as well as any use restrictions or limitations.
(b) A MSDS, when available.
(c) A certification, executed by a duly authorized agency official, that the item is appropriately labeled and packaged in accordance with applicable regulatory and statutory requirements.
(d) Any additional requirements the purchaser must comply with prior to removal,
(e) The necessary steps the purchaser must take in the handling and transportation of the property when the property is sold.
(f) A statement that it is the purchaser's responsibility to comply with all applicable Federal, State, local, and export laws and regulations to ensure the proper registration, licensing, possession, transportation, and subsequent use, resale or disposal of the property. You must use the following certification (or an equivalent certification) when offering for sale an item requiring special handling. Failure to sign the certification may result in the bid being rejected as nonresponsive:
The undersigned bidder hereby certifies that if awarded a contract under this invitation for bids, the bidder will comply with all applicable Federal, State, and local laws, ordinances, and regulations with respect to the care, handling, storage, shipment, resale, export, or other use of the material hereby purchased. The bidder will hold the United States harmless from and indemnify the United States against any or all debts, liabilities, judgments, costs, demands, suits, actions, or other claims of any nature arising from or incident to the handling, use, storage, shipment, resale, export, or other disposition of the items purchased.
______________
Name of bidder (print or type)
______________
Signature of bidder
Yes, in addition to receiving a certification that the purchaser will comply with all Federal, State, and local laws and regulations with respect to the care, handling, storage, shipment, and disposal of personal property with special handling requirements, you must obtain from the purchaser a certification that the purchaser will comply with any additional requirements associated with the property, such as demilitarization, export controls on Commerce-controlled list items, or mutilation requirements for flight safety critical aircraft parts.
It is your responsibility to prepare items with special handling requirements for sale, provide all necessary information to ensure that prospective bidders are informed of hazards, and identify precautions that bidders should take to protect themselves while inspecting, packing or moving items with special handling requirements. You must make any safety gear or equipment needed during the sales process available to prospective bidders and others involved in the inspection, packing, or moving of these items.
Yes, you may dispose of personal property requiring special handling by abandonment or destruction. However, in addition to the requirements for the abandonment or destruction of property in §§ 102-36.305 through 102-36.330 of this subchapter B, you must also satisfy applicable Federal, State, and local waste disposal and air and water pollution control standards, laws, and regulations. You must ensure that such property, including empty hazardous material containers, not be abandoned until made safe, demilitarized, reduced to scrap, or otherwise made innocuous. National security classified items must be declassified or destroyed in accordance with holding agency regulations.
Many categories of personal property have special handling requirements in compliance with applicable Federal, State, and local regulations and ordinances for their handling, transportation, storage, disposal and use. See Appendix A to this part for a listing of Federal Supply Classifications (FSCs) containing predominately hazardous items and Appendix B to this part for a listing of FSCs containing a significant number of hazardous items. See §§ 102-40.130 through 102-40.225 for special handling instructions for some categories of property that Federal property managers are likely to have responsibility for.
Acid-contaminated or explosive-contaminated property is considered extremely hazardous property and is not reported to GSA for subsequent transfer or donation. You may dispose of such property by sale, in accordance with subpart B of this part and with the condition that the purchaser sufficiently decontaminates the property to the degree that it is no longer extremely hazardous. When selling acid or explosive contaminated property, the sales terms and sales documentation must both include the following certification, or an equivalent certification, which must be signed by the successful bidder.
It is hereby certified that the undersigned purchaser will comply with all the applicable Federal, State, and local laws, ordinances and regulations with respect to the care, handling, storage, and shipment, resale, export, and other use of the materials, hereby purchased, and that he/she is a user of, or dealer in, said materials. This certification is made in accordance with and subject to the penalties of title 18, Section 1001, the United States Code, Crime and Criminal Procedures.
______________
Name of purchaser (print or type)
______________
Signature of purchaser
Three-wheeled and four-wheeled all terrain vehicles (ATVs) can be exchanged with a dealer under the provisions of part 102-39 of this subchapter B. ATVs may be offered for sale as either salvage or scrap only after they have been mutilated in a manner to prevent operational use.
(a) Report usable ammunition to GSA for possible transfer to a Federal agency. You must not donate surplus ammunition, but you may donate surplus ammunition components. You may sell ammunition and ammunition components only to companies licensed to perform manufacturing/demanufacturing/remanufacturing processes under the provisions of 18 U.S.C. 923 or other Federal law or regulation. You must follow any demilitarization requirements. When selling ammunition components, the sales terms and sales documentation must both include the following certification, or an equivalent certification, which must be signed by the successful bidder:
Item No. ______ contains ammunition components offered for sale in this invitation. The undersigned certifies that he/she will comply with all applicable local, State, and Federal laws and regulations concerning ammunition components. If the item being sold is scrap ammunition components, the undersigned certifies that these scrap ammunition components will not be used for the original manufactured purpose.
______________
Name of bidder (print or type)
______________
Signature of bidder
(b) Expended ammunition cartridge cases may be transferred or donated when the recipient certifies that the
(c) The transportation of primers or propellant powder is governed by 49 CFR parts 171 through 180.
When possible, you should report live animals and plants to GSA for transfer, donation, or sale. They are, however, considered perishables and could be immediately disposed of by abandonment/destruction procedures in accordance with abandonment/destruction authority in 41 CFR part 102-36 of this subchapter B. Unfit horses and mules may be destroyed or put out to pasture in accordance with 40 U.S.C. 1308. Under 40 U.S.C. 555, you may donate canines formerly used in the performance of law enforcement duties to an individual experienced in handling canines in the performance of those duties.
(a) Items with asbestos content must be handled in accordance with the EPA regulations found at 40 CFR part 61 subpart M.
(b) Report to GSA excess personal property containing nonfriable asbestos, as defined in 40 CFR 61.141, for subsequent transfer, donation or sale in accordance with part 102-36 of this subchapter B. Nonfriable asbestos materials cannot (1) when dry; be crumbled, pulverized, or reduced to powder by hand pressure, or (2) contain asbestos which is bonded or otherwise rendered unavailable for release into the atmosphere through normal usage. All documentation on excess personal property containing nonfriable asbestos, such as reporting, transfer, and sales documents, must include a warning statement that the item may contain asbestos and must not be cut, crushed, sanded, disassembled, or otherwise altered. The property must also be labeled or marked with such warning statements.
(c) You must use a warning such as the following on the documentation reporting the excess or transferring an item containing asbestos:
This property contains asbestos. Inhaling asbestos fibers may cause cancer. Do not release fibers by cutting, crushing, sanding, disassembling, or otherwise altering this property. End users and new owners, if transferred, should be warned. OSHA standards for personnel protection are codified at 29 CFR 1910.1001. EPA disposal standards are codified at 40 CFR part 61. State and local authorities may have additional restrictions on the disposal of items containing asbestos.
(d) Property containing asbestos should be labeled with a warning such as the following:
This property contains asbestos. Inhaling asbestos fibers may cause cancer. Do not release fibers by cutting, crushing, sanding, disa- ssembling, or otherwise altering this property.
(e) Nonfriable asbestos that is not transferred, donated, or sold may be abandoned as provided in §§ 102-36.305 through 102-36.330 of this subchapter B. If destroyed by burial, items containing friable or nonfriable asbestos must be disposed of by burial at a site that meets the requirements of 40 CFR 61.154.
(a) You are not required to report excess controlled substances to GSA, but you should make reasonable efforts to transfer them to Federal agencies in accordance with Drug Enforcement Administration (DEA) regulations (21 CFR 1307.22). The recipient agency must certify that it is authorized to procure the particular controlled substance and provide the registration number on the Certificate of Registration, issued by DEA.
(b) You must not donate controlled substances.
(c) In accordance with sales procedures specified in part 102-38 of this subchapter B, and under the conditions specified in this subsection (c), you may sell controlled substances by sealed bid only to bidders who have registered with DEA to manufacture, distribute, or dispense the particular controlled substance. As a condition of sale the bidder must submit verification of DEA registration. Prior to finalizing the sale, you must obtain confirmation from DEA of the bidder's status as a registered manufacturer, distributor, or dispenser of controlled substances.
(1) The following statement, or an equivalent statement, must be included in the sales terms and conditions when selling controlled substances:
The bidder shall complete, sign, and return with his/her bid the certificate as contained in this invitation. No award will be made or sale consummated until after this agency has obtained from the Drug Enforcement Administration, Department of Justice, verification that the bidder is registered to manufacture, distribute, or dispense those controlled substances which are the subject of the award.
(2) The following certification, or an equivalent certification, must be made a part of the Invitation for Bid to be completed and signed by the bidder and returned with the bid. Failure to sign the certification may result in the bid being rejected as nonresponsive:
The undersigned bidder certifies that he/she is Registered with the Drug Enforcement Administration, Department of Justice, as a manufacturer, distributor, or dispenser of the controlled substances for which a bid is submitted and the registration number is: ________.
______________
Name of bidder (print or type)
______________
Signature of bidder
______________
Address of bidder (print or type)
______________
City, State, Zip code
(d) You must not abandon controlled substances. You must destroy controlled substances in such a manner as to ensure total destruction to preclude any further use, and ensure such destruction is in compliance with DEA regulations, 21 CFR 1307.21, or other procedures approved by DEA, and coordinate with local air and water pollution control authorities when required. Destruction must be witnessed and certified by two employees of your agency.
The following certification, or an equivalent certification, must be used to document the destruction of controlled substances;
We, the undersigned, have witnessed the destruction of the (controlled substance(s)) described herein and in the manner and on the date stated herein:
_______ _______
Witness Date
_______ _______
Witness Date
(a) Drugs, biologicals, and reagents other than controlled substances may be transferred to another Federal agency for official purposes under procedures specified in part 102-36 and this subchapter B. For donation of drugs, biologicals, or reagents other than controlled substances, follow the procedures in part 102-37 of this subchapter B.
(b) Drugs, biologicals, and reagents other than controlled substances must be clearly identified when they are unfit for human use. As a general rule, you must destroy drugs, biologicals, and reagents unfit for human use, with destruction witnessed and certified by two representatives of your agency, and coordinated with local air and water pollution control authorities, when required. However, you may report such property to GSA for subsequent transfer or donation for the purpose of animal experimental use when the property is unfit due to expired shelf life. The following certification, or an equivalent
We, the undersigned, have witnessed the destruction of the (drugs, biologicals, and reagents) described in the foregoing certification in the manner and on the date stated herein:
_______ _______
Witness Date
_______ _______
Witness Date
(c) The sale of any unexpired drugs, biologicals, or reagents must be in accordance with rules published by the Food and Drug Administration (
(1) When selling drugs, biologicals, and reagents other than controlled substances, the following condition of sale (or an equivalent condition of sale) must be used:
The bidder shall complete, sign, and return with his/her bid the certification as contained in this invitation. No award will be made or sale consummated until after this agency has determined that the bidder is legally licensed to engage in the manufacture, sale, or distribution of drugs.
(2) The following certification, or an equivalent certification, must be made a part of the invitation for bids (and contract), to be completed and signed by the bidder, and returned with the bid with a copy of his/her license. Failure to sign the certification may result in the bid being rejected as nonresponsive.
The undersigned bidder certifies that he/she is legally licensed to engage in the manufacture, sale, or distribution of drugs, and proof of his/her license to deal in such materials is furnished with this bid.
______________
Name of bidder (print or type)
______________
Signature of bidder
______________
Address of bidder (print or type)
______________
City, State, Zip code
(d) Drugs, biologicals, and reagents that are controlled substances are subject to the same provisions as controlled substances in lieu of the provisions in this section.
(a) In accordance with the procedures in this section, excess electronic items for which radiation safety performance standards are prescribed by FDA under 21 CFR part 1010 must be reported to GSA for transfer to Federal agencies in accordance with part 102-36 of this subchapter B and may be donated or sold in accordance with parts 102-37 and 102-38 of this subchapter B, respectively. (See 21 CFR 1000.15 for items of electronic items that are required to follow radiation safety performance standards.) For items not meeting safety performance standards, excess reports must include a statement that the items are not in compliance with applicable radiation safety performance standards. Sales documents must also clearly warn purchasers that the items may not be in compliance with FDA radiation safety performance standards prescribed under 21 CFR part 1010 and that the purchaser assumes all risks associated with the use or resale of the items. The following type of warning may be placed on the sales documentation:
Purchasers are warned that the item purchased herewith may not be in compliance with Food and Drug Administration radiation safety performance standards prescribed under 21 CFR part 1010, and use may constitute a potential for personal injury unless modified. The purchaser agrees that the United States shall not be liable for personal injuries to, disabilities of, or death of the purchaser, the purchaser's employees, or to any other persons arising from or incident to the purchase of this item, its use, or disposition. The purchaser shall hold the United States harmless from and shall indemnify the United States against any or all debts, liabilities, judgments, costs, demands, suits, actions, or claims of any nature arising from or incident to purchase or resale of this item. The purchaser agrees to notify any subsequent purchaser of this property of the potential for personal injury in using this item without a radiation survey to determine the acceptability for use and/or modification to bring it into compliance with the radiation safety performance standard prescribed for the item under 21 CFR part 1010.
(b) In accordance with 21 CFR 1002.40 and 1002.41 (Dealer and Distributor Records), when you sell electronic products for which there are performance standards (listed in 21 CFR part 1010) you must obtain from the purchaser and forward to the appropriate manufacturer (unless authorized by 21 CFR 1002.4 to have the dealer or distributor hold and preserve) the following information:
(1) Name and address.
(2) Product name, to include brand name, model number, serial or other identification number.
(3) Date of sale, award, or lease.
(c) You must dispose of electronic equipment in accordance with all Federal and State laws, including the Solid Waste Disposal Act (42 U.S.C. 6901,
(a) You must submit reports and transfer documents on excess firearms to GSA (7FP-8), Denver, CO 80225-0506. GSA will approve transfers of firearms only to those Federal agencies authorized to acquire firearms for official use, and may require additional written justification from the requesting agency.
(b) GSA may donate only surplus hand guns, rifles, shotguns, and individual light automatic weapons previously used by the Federal Government, with less than .50 caliber in Federal Supply Classification (FSC) 1005, and rifle and shoulder fired grenade launchers in FSC 1010, with a disposal condition code of 4 or better (see condition codes in § 102-36.240 of this subchapter B). Only eligible law enforcement entities whose primary function is the enforcement of applicable Federal, State, and/or local laws, and whose compensated law enforcement officers have powers to apprehend and arrest, may obtain these donated firearms for law enforcement purposes.
(c) For purposes of donation under subsection (b) above, each Standard Form (SF) 123 must be accompanied by a conditional transfer document, signed by both the intended donee and the State Agency for Surplus Property (SASP), that includes the special terms, conditions, and restrictions prescribed by GSA, and any other required forms or information. Restrictions on donated firearms are perpetual and may not be amended by the SASP without prior written approval from GSA. You must release or ship donated firearms directly to the designated donee.
(d) When authorized by circumstances described in paragraphs (e), (f), (g), or (i) of this section, the destruction of firearms must be performed by an activity authorized by your agency head or designee. The destruction must be witnessed by two additional agency employees authorized by the agency head or designee.
(e) When the approved donee no longer needs the donated firearms, the donee must notify the SASP. The SASP
(f) You must not abandon firearms. You must destroy unneeded firearms by crushing, cutting, breaking, or deforming each firearm in a manner to ensure that each firearm is rendered completely inoperative. Destruction of firearms must be performed as stated in paragraph (d).
(g) You must not dispose of firearms under an exchange/sale transaction or by sale. Surplus firearms may be sold only for scrap after total destruction as described in (f) above to ensure that the firearms are rendered completely inoperative and to preclude their being made operative. Such sale shall be conducted under part 102-38 of this subchapter B.
(h) Firearms received as foreign gifts may be offered for transfer to Federal agencies or sold to the gift recipient in accordance with part 102-42 of this subchapter B.
(i) Firearms that are forfeited, voluntarily abandoned, or unclaimed as described in 40 U.S.C. 1306 and 40 USC 552, must be reported to GSA for disposal in accordance with § 102-41.195 of this subchapter B. The GSA will direct the disposition of these firearms under this section.
(a) You may use any of the following methods for the identification of hazardous materials:
(1) As part of the process under current acquisition standards, manufacturers must provide MSDSs to document potential hazards. MSDSs are also prescribed by OSHA under 29 CFR part 1910 and Executive Order 12196 paragraph 1-602(c), Occupational Safety and Health Programs for Federal Employees (February 26, 1980).
(2) An automated database maintained by GSA Federal Supply Service contains MSDS for all GSA-procured hazardous materials. To request an MSDS, you may send an e-mail to
(3) A collection of MSDS information in DOD's Hazardous Materials Information System (HMIS) provides transportation and disposal information.
(4) Appendix A to this part contains a list of the Federal Supply Classification (FSC) classes of property that are composed predominantly of hazardous items.
(5) When information is not available under paragraphs (a)(1), (a)(2), (a)(3), or (a)(4) of this section, contact the manufacturer, the procuring agency, or your technical staff for assistance in obtaining the MSDS information.
(b) You must verify items with an expired shelf life or reclassify them as hazardous wastes when required by Federal, State, or local environmental laws or regulations.
(c) For transportation of hazardous materials, see 49 CFR parts 171 through 180.
(d) For disposal of hazardous materials, see §§ 102-40.50 through 102-40.120.
(e) Unless authorized by GSA, extremely hazardous property may not be sold unless it is rendered innocuous, mutilated, or otherwise made safe. You should, however, render such property innocuous in a manner so as to preserve the maximum utility or commercial value of the property when possible.
(a) You may transfer, donate, or sell such items in compliance with requirements found in the Consumer Product Safety Commission regulations set forth in 16 CFR part 1303. You must not abandon banned items or their containers. You must destroy them. Any removal (stripping) of lead paint incident to disposal must be accomplished in conformance with Federal regulations and industry guidelines such as those promulgated by the EPA (
(b) If disposal of the items described in paragraph (a) is allowable, the following must be placed on the items:
(1) The following warning:
Contains Lead. Dried Film of This Paint May be Harmful If Eaten or Chewed.
(2) The following additional statement or its practical equivalent on their labels:
Do not apply on toys and other children's articles, furniture, or interior surfaces of any dwelling or facility which may be occupied or used by children. Do not apply on exterior surfaces of dwelling units, such as window sills, porches, stairs, or railings, to which children may be commonly exposed.
Keep Out of Reach of Children
(c) Donation documentation (including the Standard Form 123) must contain the following certification, or an equivalent certification:
The property requested herein shall be used only as specified in 16 CFR 1303.3 and in no case shall be in contact with children. I, the undersigned, agree the United States shall not be liable for personal injuries to, disabilities of, or death of the donee's employees, or any other person arising from or incident to the donation of this property, its use, or its final disposition; and to hold the United States harmless from and shall indemnify the United States against any or all debts, liabilities, judgments, costs, demands, suits, actions or claims of any nature arising from or incident to the donation of this property, its use, or its final disposition.
______________
Name of donee (print or type)
______________
Signature of donee
(d) When selling lead-containing paint or items bearing lead-containing paint, the sales terms and sales documentation must include this certification, or an equivalent certification. Failure to sign the certification where it appears as a sales term may result in the bid being rejected as nonresponsive:
I, the undersigned,certify that I have read and fully comprehend the aforementioned terms and conditions of this sale. I shall comply with the applicable Consumer Product Safety Commission regulations set forth in 16 CFR part 1303 if I am the successful bidder. I further agree the United States shall not be liable for personal injuries to, disabilities of, or death of any persons arising from or incident to the sale of this property, its uses, or its final disposition; and to hold the United States harmless from and shall indemnify the United States against any or all debts, liabilities, judgments, costs, demands, suits, actions, or claims of any nature arising from or incident to the sale of this property, its use, or its final disposition.
______________
Name of bidder (print or type)
______________
Signature of bidder
(a) Medical devices are subject to the laws and regulations administered by FDA. Provisions of the governing statute, the Federal Food, Drug and Cosmetic Act, appear in 21 U.S.C. 301-399. In summary, the Act prohibits the movement in interstate commerce of medical devices that are adulterated or misbranded (21 U.S.C. 351-352). The Act authorizes FDA to initiate criminal enforcement proceedings against companies and/or individuals responsible for violations of its provisions, and to initiate civil proceedings to seize or enjoin the distribution of such items.
(b) Prescription devices are subject to additional Federal, State, local, and other applicable laws. Federal law requires that prescription devices be in the possession of either: persons lawfully engaged in the manufacture, transportation, storage, or wholesale or retail distribution of such device; or, practitioners licensed by their States. Federal law also requires that prescription devices be sold only to, or on the prescription or order of, a licensed practitioner for use in the course of his or her professional practice, and that the devices are labeled in a specific manner.
(c) Non-Federal recipients must certify in writing that such property will be used, resold or transported in conformance with FDA regulations. Any proposed destruction of medical equipment must be coordinated with local health and sanitation officials.
(a) Munitions List Items (MLIs) are listed in 22 CFR part 121. A system of demilitarization codes identifies the extent of alteration or destruction necessary when transferring or selling MLIs. The appropriate code is normally assigned to items when they enter the DOD supply system. These items may require demilitarization when issued to any non-DOD entity, and will require Department of State approval and appropriate licensing when exported from the U.S. Refer to DOD 4160.21-M-1 (Change No. 1) for a complete description of the program and the requirements to be followed. The manual is available from the Defense Logistics Agency, 8725 John J. Kingman Road, Fort Belvoir, VA 22060; or electronically at
(b) When disposing of MLIs, you must perpetuate these demilitarization codes; alert those to whom you are transferring or selling property that the item may require demilitarization; and perform any required demilitarization, or provide any documentation or certifications in accordance with the DOD demilitarization manual, DOD 4160.21-M-1 (Change No. 1).
(a) Commerce Control List Items (CCLIs) are subject to the controls of 15 CFR parts 738 and 774. Export licenses are required for transfer of items to the countries listed in 15 CFR part 738, Supp. No. 1. CCLIs may also be identified by the demilitarization code assigned to the item in the DOD supply system.
(b) When disposing of CCLIs, you must notify the recipient that the item, may be subject to Department of Commerce export licensing requirements when transported out of the U.S., for reasons of national security, crime control, technology transfer and scarcity of materials. Furthermore:
(1) The recipient must be notified that this notification must pass to all subsequent recipients of the item.
(2) When being sold, completed end-use certificates are required of all offerors or bidders. An end-use certificate is a statement signed by a prospective recipient indicating the intended designation and disposition of CCLIs to be acquired, and acknowledging U.S. export licensing requirements.
(3) All disposal activity must conform to the requirements of 15 CFR parts 730 through 774.
In accordance with 40 U.S.C. 113(e)(6), materials acquired for the national stockpile, the supplemental stockpile, or materials or equipment acquired under section 303 of the Defense Production Act of 1950, as amended (50 U.S.C. App. 2093), are not covered by the Federal Management Regulation. The policy covering the disposal of these assets is found at 50 U.S.C. 98d and 98e.
The Nuclear Regulatory Commission (NRC) has exclusive control over licensing, use, transfer, and disposition of NRC-controlled materials (see Chapter 1 of 10 CFR). Direct all inquiries to the U.S. Nuclear Regulatory Commission, Washington, DC 20555.
The Clean Air Act, as amended (42 U.S.C. Subchapter VI) requires certain substances which have destructive effects on the ozone layer not be vented to the environment and be phased out from production and use over an extended period of time. An overview of laws and regulations covering the use and disposal of ozone depleting substances can be found at the EPA website:
(a) In accordance with EPA regulations (40 CFR 761.1 and 761.3),property defined by EPA as excluded polychlorinated biphenyl (PCB) products may be transferred, donated, or sold in accordance with parts 102-36, 102-37, or 102-38 of this subchapter B. For additional guidance on PCB classifications and other Federal restrictions, contact: Director, National Program Chemicals Division (NPCD), (7404), Office of Pollution Prevention and Toxics, 1200 Pennsylvania Avenue, NW., Washington, DC or visit the EPA's website at:
(b) Property defined by the EPA in 40 CFR 761.3 as either a PCB item or PCB must be labeled or marked with a warning statement that the item contains PCB and must be handled and disposed of in accordance with EPA regulations (40 CFR part 761), Department of Transportation (DOT) regulations (49 CFR parts 171 through 180), and applicable State laws.
(1) PCB items and PCBs may be transferred or donated, provided:
(i) The items are intact, non-leaking, and totally enclosed.
(ii) The recipient provides to you the specific authorization covering the use of this item from 40 CFR part 761
(iii) The recipient certifies to you that the item will be handled and disposed of in accordance with EPA regulation 40 CFR part 761, DOT regulation 49 CFR parts 171 through 180, and applicable Federal and State laws.
(2) PCB and PCB items not transferred or donated must be disposed of under EPA regulations. You must not sell any PCB or PCB item unless 40 CFR part 761 authorizes the sale and continued use of the specific item.
(c) You must not transfer, donate, or sell items with an unknown level of concentrations of PCBs.
(d) Property containing PCBs and PCB items should be labeled with a warning such as the following:
Caution— This item contains PCBs (poly- chlorinated biphenyls), a toxic environmental contaminant requiring special handling and disposal in accordance with the U.S. Environmental Protection Agency regulation (40 CFR part 761), applicable State laws, and 41 CFR 102-40.215. For proper disposal information, contact the nearest EPA office. For transportation requirements, see 49 CFR parts 171 through 180.
(e) The State Agencies for Surplus Property must have the following certification, or an equivalent certification, on all transfer paperwork where PCBs are involved.
The undersigned donee is aware that the item(s) listed as containing polycholorinated biphenyls (PCBs), a toxic environmental contaminant, require(s) special handling and
______________
Name of donee (print or type)
______________
Signature of donee
(a) You must identify activities in your organization that generate precious metals; recover precious metals created from work processes, such as photographic film developing, and identify equipment or materials containing recoverable precious metals; and adequately control precious metals in your custody. You may contact the Defense Logistics Service Center if you wish to participate in the DOD precious metals recovery program. You may acquire recovered fine precious metals as Government Furnished Material or for other authorized uses by submitting a request to the Commander, Defense Industrial Supply Center (DISC), Attention: DISC-OIBA/YC, 700 Robbins Avenue, Philadelphia, Pennsylvania 19111-5096.
(b) Gold will be sold in accordance with this subpart and part 102-38 of the Federal Management Regulation.
(c) Sales of gold will be processed as follows:
(1) Use the sealed bid method of sale;
(2) Require a 20 percent bid deposit;
(3) Certify all forms of bid deposit and payments; and
(4) Include in the invitation for bids only gold and such other precious and semiprecious materials as may be available for sale at that time.
Some Government-owned vehicles might receive such extensive damage as a result of an accident, event, or other activity that makes them no longer suitable for donation or sale for highway use. Such vehicles may only be donated or sold for salvage or scrap. Prior to disposal of damaged vehicles, you must evaluate known damage to determine their suitability for continued highway use. When a determination is made that a vehicle is unfit for continued highway use, you must include such information in the property record and subsequent reports. When selling such vehicles, provide an appropriate warning statement in the solicitation regarding vehicle condition that the vehicle cannot be titled for highway use. Use Standard Form 97A, Certificate to Obtain a Non-Repairable or Salvage Certificate when donating or selling vehicles not suitable for highway use. See FMR 102-34.315 if the vehicle is not designed or not legal for operation on highways.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public hearings; correction.
The Mid-Atlantic Fishery Management Council will hold hearings to allow for public input on Amendment 9 to the Fishery Management Plan for the Atlantic Mackerel, Squid, and Butterfish Fishery (FMP).
Written comments will be accepted until May 27, 2007. All meetings begin at 7 p.m.
Comments may be submitted through any of the following methods:
• Mail: Daniel T. Furlong, Executive Director, Mid-Atlantic Fishery Management Council, Room 2115 Federal Building, 300 South New Street, Dover, Delaware 19904.
• FAX: 302-674-5399.
• E-mail:
• Federal e-Rulemaking Portal:
Daniel T. Furlong, Executive Director, Mid-Atlantic Fishery Management Council, Room 2115 Federal Building, 300 South New Street, Dover, Delaware 19904, 302-674-2331, ext. 19.
On April 30, 2007, a document announcing public hearings on Amendment 9 to the Fishery Management Plan for Atlantic Mackerel, Squid, and Butterfish Fishery (FMP) was published (FR Doc. E7-8197). That document incorrectly listed the meeting times for the hearings. This document corrects the meeting times see
Advisory Council on Historic Preservation.
Notice of meeting.
Notice is hereby given that the Advisory Council on Historic Preservation (ACHP) will meet on Thursday, May 10, 2007. The meeting will be held in Room MO9 of the Old Post Office Building, 1100 Pennsylvania Avenue, NW., Washington, DC at 1:30 p.m.
The ACHP was established by the National Historic Preservation Act of 1966 (16 U.S.C. 470
The agenda for the meeting includes the following:
The meetings of the ACHP are open to the public. If you need special accommodations due to a disability, please contact the Advisory Council on Historic Preservation, 1100 Pennsylvania Avenue, NW., Room 803, Washington, DC 202-606-8503, at least seven (7) days prior to the meeting.
Additional information concerning the meeting is available from the Executive Director, Advisory Council on Historic Preservation, 1100 Pennsylvania Avenue, NW., #803, Washington, DC 20004.
Pursuant to the Federal Advisory Committee Act, notice is hereby given of a meeting of the Advisory Committee on Voluntary Foreign Aid (ACVFA).
Please note that this is the anticipated agenda and is subject to change.
The meeting is free and open to the public. Persons wishing to attend the meeting can register online at
Forest Service, USDA.
Notice; request for comment.
In accordance with the Paperwork Reduction Act of 1995, the Forest Service is seeking comments
Comments must be received in writing on or before July 6, 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 Lynne M. Westphal, PhD, Project Leader & Research Social Scientist Natural Environments for Urban Populations, Northern Research Station, USDA Forest Service, 1033 University Place, Ste 360, Evanston, IL 60201.
Comments also may be submitted via facsimile to 847-866-9506 or by e-mail to:
The public may inspect comments received at Northern Research Station, USDA Forest Service, 1033 University Place, Ste 360, Evanston, IL during normal business hours. Visitors are encouraged to call ahead to 847-866-9311 to facilitate entry to the building.
Lynne M. Westphal, PhD, Project Leader & Research Social Scientist Natural Environments for Urban Populations, Northern Research Station, USDA Forest Service, 847-866-9311 extension 11. 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.
The Forest Service is requesting Office of Management and Budget (OMB) approval to study a range of current community programs designed to encourage homeowner participation in wildfire protection. Researchers will collect information from community residents living in high-risk wildfire areas in four communities: Grand Haven, Michigan; Ruidoso, New Mexico; Larimer County, Colorado; and Oakland, California. These sites were chosen based on differences in defensible space policy approaches and wildfire risk levels.
Two researchers (one from a university and one from the Forest Service Northern Research Station) will analyze the data collected. These researchers are experts in applied social psychology and survey research.
A random sample of homeowners who live in high-risk wildfire areas in the four communities will be mailed survey questionnaires. The homeowners will be told that the participation in the survey is voluntary.
Participating homeowners will first complete a questionnaire, sharing perceptions and beliefs about the local wildfire hazard and local government response. Specifically, homeowners will be asked about their knowledge and understanding of local wildfire programs, their own efforts to protect their homes from wildfires, and reasons why they do or do not comply with local wildfire guidelines and laws. In addition, homeowners will be asked for their opinions about the risk of wildfires and the effectiveness and fairness of local wildfire protection programs and programs used by other communities.
This information will assist the Forest Service in its efforts to implement the Healthy Forest Restoration Act by supporting development of Community Wildfire Protection Plans as required under this Act (Pub. L. 108-148). The Agency will use the collected information to help communities develop wildfire protection programs most appropriate for local conditions. Development of programs by local homeowners may increase local support, participation, and compliance with the programs. Local community and homeowner participation in wildfire protection activities are critical components of a comprehensive strategy to protect private property.
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.
Rural Business-Cooperative Service, USDA.
Proposed collection; comments requested.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Rural Business-Cooperative Service's (RBS) intention to request an extension for a currently approved information collection in support of the program for 7 CFR Part 4284, subpart G.
Comments on this notice must be received by July 6, 2007 to be assured of consideration.
Cindy Mason, Loan Specialist, Rural Business-Cooperative Service, USDA, STOP 3225, 1400 Independence Ave., SW., Washington, DC 20250, Telephone: (202) 690-1433.
Copies of this information collection can be obtained from Cheryl Thompson, Regulations and Paperwork Management Branch, Support Services Division at (202) 692-0043.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of RBS, including whether the information will have practical utility; (b) the accuracy of RBS' estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of 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. Comments may be sent to Cheryl Thompson, Regulations and Paperwork Management Branch, Support Services Division, U.S. Department of Agriculture, Rural Development, STOP 0742, Washington, DC 20250. All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Rural Business-Cooperative Service, USDA.
Notice; correction.
The Rural Business-Cooperative Service (RBS) published a document in the
Cindy Mason, Loan Specialist, USDA Rural Development, STOP 3225, Room 6866, 1400 Independence Avenue, SW., Washington, DC 20250-3225. Telephone: (202) 690-1433, FAX: (202) 720-2213.
In the
Additionally, the 2007 Appropriation continued the REDLG eligibility requirements implemented in FY 2006. Therefore, an organization is considered to be eligible to participate in the REDLG program if it can be described as:
1. Any former Rural Utilities Service borrower that has repaid or prepaid an insured, direct, or guaranteed loan under the Rural Electrification Act;
2. Any not-for-profit utility that is eligible to receive an insured or direct loan under such act; or
3. Any borrower under such act.
The Regulations for these programs are at 7 CFR part 1703, subpart B. The maximum loan and grant awards are determined in accordance with 7 CFR 1703.28. The maximum loan and grant awards are calculated at 3.0 percent of the projected program levels, rounded to the nearest $10,000; however, as specified in 7 CFR 1703.28(b), regardless of the projected total amount that will be available, the maximum size may not be lower than $200,000. The projected program level during FY 2007 for zero-interest loans is $25,215,484.47, and the projected level for grants is $10,000,000. Applying the 3.0 percent to the program level for loans, rounded to the nearest $10,000, results in a projected maximum loan award of $740,000. Applying the specified 3.0 percent to the program level for grants results in an amount higher than $200,000. Therefore, the projected grant award for FY 2007 is $300,000.
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer, (202) 482-0266, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW, Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to David Rostker, OMB Desk Officer, FAX number (202) 395-7258 or via the Internet at
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer, (202) 482-0266, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to Jasmeet Seehra, OMB Desk Officer, Fax number (202) 395-5806 or via the Internet at
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act of 1995, Public Law 104-13.
Copies of the above information collection can be obtained by calling or writing Diana Hynek, Departmental
Written comments and recommendations for the proposed information collection should be sent within 30 days of the publication of this notice to David Rostker, OMB Desk Officer, via the Internet
Proposed collection; comment request.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)).
Written comments must be submitted on or before July 6, 2007.
Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Joanne C. Dickinson, 301-763-4094, U.S. Census Bureau, HQ-8H187, Washington, DC 20233-0800 (or via the Internet at
The Census Bureau is requesting an extension of the generic clearance to conduct customer satisfaction research which may be in the form of mailed or electronic questionnaires and/or focus groups, telephone interviews, or personal interviews.
The Census Bureau has ranked a customer-focused environment as one of its most important strategic planning objectives. The Census Bureau routinely needs to collect and analyze customer feedback about its products and services to better align them to its customers' needs and preferences. Several programs, products, and distribution channels have been designed/redesigned based on feedback from its various customer satisfaction research efforts.
Each research design is reviewed for content, utility, and user-friendliness by a variety of appropriate staff (including research design and subject-matter specialists). The concept and design are tested by internal staff and a select sample of respondents to confirm its appropriateness, user-friendliness, and to estimate burden (including hours and cost) of the proposed collection of information. Collection techniques are discussed and included in the research concept design discussion to define the most time-, cost-efficient and accurate collection media.
The clearance operates in the following manner: a block of hours is reserved at the beginning of each year, and the particular activities that will be conducted under the clearance are not specified in advance. The Census Bureau provides information to the Office of Management and Budget (OMB) about the specific activities on a flow basis throughout the year. OMB is notified of each activity in a letter that gives specific details about the activity, rather than by means of individual clearance packages. At the end of each year, a report is submitted to OMB that summarizes the number of hours used as well as the nature and results of the activities completed under the clearance.
Some modifications of the clearance from previous years are planned. The number of burden hours will increase to 7,500 due to the anticipation of additional activities due to the 2010 Census.
This research may be in the form of mailed or electronic questionnaires and/or focus groups, telephone interviews, or personal interviews.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
Import Administration, International Trade Administration, Department of Commerce.
In response to timely requests, the Department of Commerce (the Department) is conducting an administrative review of the antidumping duty order on magnesium metal from the Russian Federation for the period of review (POR) October 4, 2004 through March 31, 2006. The
The Department preliminarily determines that Avisma and SMW made sales to the United States at less than normal value (NV). If these preliminary results are adopted in the final results of this administrative review, we will instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties on entries of Avisma's and SMW's merchandise during the POR. The preliminary results are listed below in the section titled “Preliminary Results of Review.”
May 7, 2007.
Gene Calvert or Jun Jack Zhao, AD/CVD Operations, Office 6, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-3586 or (202) 482-1396, respectively.
The Department of Commerce (the Department) published the antidumping duty order on magnesium metal from the Russian Federation on April 15, 2005.
On June 2, 2006, the Department issued sections A through E of the questionnaire to SMW.
On June 2, 2006, the Department issued sections A through D of the questionnaire to Avisma. Avisma submitted its section A questionnaire response on July 10, 2006, and submitted its responses to sections B through D on July 25, 2006. The Department issued a sections A through D supplemental questionnaire on September 15, 2006, and Avisma responded on October 18, 2006. On November 30, 2006, the Department issued a second section D supplemental questionnaire to Avisma; Avisma responded on December 29, 2006. On January 24, 2007, the Department issued a second sections A through C supplemental questionnaire to Avisma, and Avisma responded on February 14, 2007. Finally, on March 29, 2007, the Department issued a third section D supplemental questionnaire, and Avisma responded on April 12, 2007.
On December 13, 2006, the Department extended the deadline for the preliminary results of this antidumping duty administrative review from December 31, 2006 to April 30, 2007.
This review covers the period October 4, 2004 through March 31, 2006.
The merchandise covered by this order is magnesium metal (also referred to as magnesium), which includes primary and secondary pure and alloy magnesium metal, regardless of chemistry, raw material source, form, shape, or size. Magnesium is a metal or alloy containing by weight primarily the element magnesium. Primary magnesium is produced by decomposing raw materials into magnesium metal. Secondary magnesium is produced by recycling magnesium-based scrap into magnesium metal. The magnesium covered by this order includes blends of primary and secondary magnesium.
The subject merchandise includes the following pure and alloy magnesium metal products made from primary and/or secondary magnesium, including, without limitation, magnesium cast into ingots, slabs, rounds, billets, and other shapes, and magnesium ground, chipped, crushed, or machined into raspings, granules, turnings, chips, powder, briquettes, and other shapes: (1) Products that contain at least 99.95 percent magnesium, by weight (generally referred to as “ultra-pure” magnesium); (2) products that contain less than 99.95 percent but not less than 99.8 percent magnesium, by weight (generally referred to as “pure” magnesium); and (3) chemical combinations of magnesium and other material(s) in which the magnesium content is 50 percent or greater, but less that 99.8 percent, by weight, whether or not conforming to an “ASTM Specification for Magnesium Alloy”.
The scope of this order excludes: (1) magnesium that is in liquid or molten form; and (2) mixtures containing 90 percent or less magnesium in granular or powder form by weight and one or more of certain non-magnesium granular materials to make magnesium-based reagent mixtures, including lime, calcium metal, calcium silicon, calcium carbide, calcium carbonate, carbon, slag coagulants, fluorspar, nephaline syenite, feldspar, alumina (Al203), calcium aluminate, soda ash, hydrocarbons, graphite, coke, silicon, rare earth
The merchandise subject to this order is currently classifiable under items 8104.11.00, 8104.19.00, 8104.30.00, and 8104.90.00 of the Harmonized Tariff Schedule of the United States (HTSUS). Although the HTSUS item numbers are provided for convenience and customs purposes, the written description of the merchandise covered by this order is dispositive.
On November 9, 2006, in response to U.S. Magnesium's request for scope rulings, the Department issued final scope rulings in which we determined that the processing of pure magnesium ingots, imported from Russia by Timminco, a Canadian company, into pure magnesium extrusion billets constitutes substantial transformation. Therefore, such alloy magnesium extrusion billets produced and exported by Timminco are a product of Canada, and thus not included within the scope of the order.
On July 1, 2005, JSC Avisma Titanium-Magnesium Works (ATMW), a respondent in the investigation, merged with VSMPO, a controlling shareholder in ATMW since 1998, forming PSC VSMPO-AVISMA (referred to throughout this notice as “Avisma”), the respondent in this review. Because entries have been made under the name of the new company during the POR, the Department must make a successorship determination in order to apply the appropriate and necessary company-specific cash deposit rates.
In determining whether Avisma is the successor to ATMW for purposes of applying the antidumping duty law, the Department examines a number of factors including, but not limited to, changes in: (1) Management, (2) production facilities, (3) suppliers, and (4) customer base.
The evidence on the record, particularly Avisma's response to our questionnaire specifically addressing its claimed successorship (Appendix III of the October 19, 2006 supplemental questionnaire response), demonstrates that, with respect to the production and sale of the subject merchandise, Avisma is the successor to ATMW. Specifically, the evidence shows that Avisma uses the same magnesium production facilities (
In order to determine whether there was a sufficient volume of sales in the home market to serve as a viable basis for calculating NV (
In accordance with section 771(16)(A) of the Act, we considered all products produced by respondents that are covered by the description in the “Scope of the Order” section, above, and that were sold in the home market during the POR, to be foreign like products for purposes of determining appropriate product comparisons to U.S. sales. In accordance with sections 771(16)(B) and (C) of the Act, where there were no sales of identical merchandise in the home market to compare to U.S. sales, we compared U.S. sales to the most similar foreign like product on the basis of the characteristics determined by the Department in the investigation to be the most appropriate for purposes of product matching.
It is the Department's practice to use invoice date as the date of sale. However, 19 CFR 351.401(i) states that the Secretary may use a date other than the invoice date if the Secretary is satisfied that the material terms of the sale were established on some other date.
Both Avisma and SMW reported invoice date as the date of sale for all sales in both markets, consistent with our conclusions in the investigation regarding both spot sales and sales made according to short- and long-term agreements.
In its questionnaire responses, Avisma identified all of its sales to the United States as constructed export price (CEP) sales, except one, which it identified as an export price (EP) sale. With the exception of that one EP sale, all of Avisma's sales are properly classified as CEP sales because they were made for the account of Avisma, by Avisma's U.S. affiliate, VSMPO-Tirus, U.S., Inc. (Tirus US), to unaffiliated purchasers in the United States. U.S. sales to the first unaffiliated party were made in the United States, by the U.S. affiliate, thus satisfying the Department's requirements for treating sales as CEP sales.
In accordance with section 772(c)(2) of the Act, for Avisma's CEP sales and the single EP sale we made deductions from price for movement expenses and discounts, where appropriate. More specifically, after reviewing the terms of delivery for Avisma's sales to the United States, we deducted early payment discounts, Russian inland freight from plant to port, freight insurance, Russian brokerage, handling, and port charges, international freight and marine insurance, U.S. customs duties, U.S. brokerage, handling, and port charges, and U.S. warehousing and inland freight.
Section 772(d)(1) of the Act provides for additional adjustments to calculate CEP. Accordingly, we deducted direct selling expenses and indirect selling expenses related to commercial activity in the United States. Pursuant to section 772(d)(3) of the Act, we made an adjustment for CEP profit.
SMW identified all of its U.S. sales as CEP sales in its questionnaire responses. During the POR, all sales of SMW's subject merchandise to the United States were made through its U.S. affiliates, Solimin and Cometals. As in the investigation, we find that Cometals is affiliated with SMW by virtue of an agency agreement, in which Cometals acts as a North American distributor of pure and alloy magnesium products.
In accordance with section 772(c)(2) of the Act, for SMW's CEP sales, we made deductions from U.S. price for movement expenses and billing adjustments, where appropriate. More specifically, after reviewing the terms of delivery for SMW's CEP sales to the United States, we deducted Russian inland freight from plant to port, Russian brokerage, handling, and port charges, international freight and insurance, U.S. brokerage, handling, and port charges, U.S. warehousing, U.S. customs duties, and U.S. inland freight.
In accordance with section 772(d)(1) of the Act, we deducted direct selling expenses and indirect selling expenses related to commercial activity in the United States. Pursuant to section 772(d)(3) of the Act, we made an adjustment for CEP profit.
In accordance with section 773(a)(1)(B)(i) of the Act, we have based NV on the price at which the foreign like product was first sold for consumption in the home market, in the usual commercial quantities, in the ordinary course of trade, and, to the extent practicable, at the same level of trade (LOT) as the EP or CEP sale.
Where appropriate, we determined NV for Avisma and SMW based on home market prices. We did not deduct home market movement expenses, pursuant to section 773(a)(6)(A) of the Act, as both respondents billed their customers separately for these expenses. For SMW, we deducted billing adjustments. As in the U.S. market, Avisma did not have billing adjustments, and neither company had discounts or rebates in the home market. For home market sales compared to Avisma's EP sale, we made circumstances of sale (COS) adjustments for Avisma's transactions reflecting differences between direct selling expenses (credit expense) incurred on domestic (home market) and U.S. sales, in accordance with section 773(a)(6)(C)(iii) of the Act and 19 CFR 351.410. For home market sales compared to CEP sales, we only deducted domestic direct selling expenses from home market price, as U.S. direct selling expenses were deducted from U.S. price, as noted above. We also made adjustments for any differences in packing between domestic and U.S. sales, pursuant to section 773(a)(6)(B)(ii) of the Act, and any differences between the variable costs of the U.S. product and the matching home market product (the “DIFMER” adjustment), pursuant to section 773(a)(6)(C)(ii) of the Act and 19 CFR 351.411.
Section 773(a)(4) of the Act provides that, where NV cannot be based on comparison-market sales, NV may be based on constructed value (CV). Accordingly, for sales of magnesium for which we could not determine the NV based on comparison-market sales, either because there were no useable sales of a comparable product or all sales of the comparable products failed the sales-below-cost test, we based NV on CV.
Section 773(e) of the Act provides that CV shall be based on the sum of the cost of materials and fabrication for the imported merchandise, plus amounts for selling, general, and administrative expenses (SG&A), interest expense, profit, and U.S. packing costs. We calculated the cost of materials and fabrication based on the methodology described in the “Cost of Production Analysis” section below. We based SG&A, interest expense, and profit on the actual amounts incurred and realized by Avisma and SMW in connection with the production and sale of the foreign like product in the ordinary course of trade for consumption in the comparison market, in accordance with section 773(e)(2)(A) of the Act.
For Avisma's EP sale, we made adjustments to CV for differences in COS in accordance with sections 773(a)(6)(C)(iii) and 773(a)(8) of the Act and 19 CFR 351.410. For CV compared to CEP sales, we only deducted domestic direct selling expenses from home market price, as U.S. direct selling expenses were deducted from U.S. price, as noted above.
In accordance with section 773(b)(3) of the Act, we calculated a weighted-average COP based on the sum of the cost of materials and fabrication for the foreign like product, plus amounts for the home market SG&A expenses, interest expense, and packing expenses. We relied on the COP data submitted by Avisma and SMW in their cost questionnaire responses, with the following changes.
We relied upon Avisma's December 29, 2006 cost database, which incorporated the company's revised depreciation expense based on the revaluation of its fixed assets. We revised the reported general and administrative (G&A) and financial expense ratios to reflect the company's fiscal year, rather than the 18 months of the POR. Additionally, we included certain auxiliary services in the G&A expense ratio.
We used sales to affiliated customers in the home market only where we determined such sales were made at arm's-length prices (
Section 773(a)(1)(B)(i) of the Act states that, to the extent practicable, the Department will calculate NV based on sales at the same LOT as the EP or CEP sale. Sales are made at different LOTs if they are made at different marketing stages (or their equivalent).
Pursuant to section 773(a)(1)(B)(i) of the Act, in identifying levels of trade for EP and comparison market sales (
When the Department is unable to match U.S. sales to sales of the foreign like product in the comparison market at the same LOT as the EP or CEP sale, the Department may compare the U.S. sale to sales at a different LOT in the comparison market. However, in this case, the Department preliminarily determines that only one LOT existed in both markets for each respondent, consistent with what the parties reported and with our determination in the investigation. (SMW reported two LOTs in the home market, but one LOT consisted exclusively of sales to an affiliate. These sales were disregarded after failing the arm's length test. The Department determines that the downstream sales reported by SMW are at the same level of trade as the rest of the home market because the functions being performed by the affiliate, SZD, are essentially the same as those performed by SMW.) For further details on the LOT analysis,
For purposes of the preliminary results, in accordance with section 773A of the Act, we made currency conversions based on the official exchange rates in effect on the dates of the U.S. sales as certified by the Federal Reserve Bank of New York.
As a result of this review, we preliminarily find that the following weighted-average dumping margins exist:
If these preliminary results are adopted in the final results of review, the following deposit requirements will be effective upon completion of the final results of this administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication of the final results of this administrative review, as provided in section 751(a)(1) of the Act: 1) the cash deposit rate for Avisma will be that established in the final results of this review; 2) the cash deposit rate for SMW will be that established in the final results of this review; 3) for previously reviewed or investigated companies not covered in this review, the cash deposit rate will continue to be the company-specific rate published for the most recent period; 4) if the exporter is not a firm covered in this review, a prior review, or the less-than-fair-value (LTFV) investigation, but the manufacturer is a firm covered in this
Upon publication of the final results of this review, the Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries. Pursuant to 19 CFR 351.212(b)(1), the Department calculates an assessment rate for each importer of the subject merchandise for each respondent. In accordance with 19 CFR 351.212(b)(1), we will calculate importer-specific
The Department clarified its “automatic assessment” regulation on May 6, 2003.
Pursuant to 19 CFR 351.224(b), the Department will disclose to any party to the proceeding the calculations performed in connection with these preliminary results within five days after the date of publication of this notice. Pursuant to 19 CFR 351.309, interested parties may submit written comments in response to these preliminary results. Unless extended by the Department, case briefs are to be submitted within 30 days after the date of publication of this notice. Rebuttal briefs, limited to arguments raised in case briefs, may be submitted no later than five days after the time limit for filing case briefs. Parties who submit arguments in this proceeding are requested to submit with the argument: 1) a statement of the issues; 2) a brief summary of the argument; and 3) a table of authorities. Case and rebuttal briefs must be served on interested parties in accordance with 19 CFR 351.303(f).
Also, pursuant to 19 CFR 351.310(c), within 30 days of the date of publication of this notice, interested parties may request a public hearing on arguments to be raised in the case and rebuttal briefs. Unless the Secretary specifies otherwise, the hearing, if requested, will be held two days after the date for submission of rebuttal briefs. Parties will be notified of the time and location. The Department will publish the final results of this administrative review, including the results of its analysis of issues raised in any case brief, rebuttal brief, or hearing no later than 120 days after publication of these preliminary results, unless extended.
This notice serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
The preliminary results of this administrative review and this notice are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
May 7, 2007.
Scott Lindsay or Dara Iserson, AD/CVD Operations, Office 6, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington DC 20230; telephone: (202) 482-0780 or (202) 482-4052, respectively.
On August 31, 2006, the Department of Commerce (the Department) received timely requests for an administrative review of the antidumping duty order on oil country tubular goods, other than drill pipe (OCTG) from Korea, with respect to SeAH Steel Corporation, Husteel Co., Ltd, and Nexteel Co., Ltd. On September 29, 2006, the Department published a notice of initiation of this administrative review for the period of August 1, 2005 through July 31, 2006. See Notice of Initiation of Antidumping and Countervailing Duty Administrative Reviews, 71 FR 57465 (September 29, 2006).
Pursuant to section 751(a)(3)(A) of the Tariff Act of 1930, as amended (the Act), the Department shall issue preliminary results in an administrative review of an antidumping duty order within 245 days after the last day of the anniversary month of the date of publication of the order. The Act further provides, however, that the Department may extend that 245-day period to 365 days if it is not practicable to complete the review within the foregoing time period.
The Department finds that it is not practicable to complete the preliminary results by the current deadline of May 3, 2007 because this is Nexteel Co., Ltd.'s first appearance under this antidumping duty order and additional time is needed to analyze this company's information. We have also requested additional information from the respondents and we will need more
This notice is issued and published in accordance to sections 751(a)(1) and 777(i)(1) of the Act.
National Oceanic and Atmospheric Administration (NOAA).
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before July 6, 2007.
Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW, Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Raymond P. Clarke, National Marine Fisheries Service, 808-944-2205 or
The Treaty on Fisheries Between the Governments of Certain Pacific Island States and the Government of the United States, signed in Port Moresby, Papua New Guinea, in 1987, and its annexes, schedules and implementing agreements, as amended (Treaty), authorize U.S. tuna vessels to fish within fishing zones of a large region of the Pacific Ocean. The South Pacific Tuna Act (16 U.S.C. 973g and 973f) and U.S. implementing regulations (50 CFR 282.3 and 282.5) authorize the collection of information from participants in the Treaty fishery. Vessel operators who wish to participate in the Treaty fishery must submit annual license and registration applications and periodic written reports of catch and unloading of fish from a licensed vessel. The information collected is submitted to the Forum Fisheries Agency (FFA) through the U.S. government (National Marine Fisheries Service). The license and registration application information is used by FFA to determine the operational capability and financial responsibility of a vessel operator interested in participating in the Treaty fishery. Information obtained from vessel catch and unloading reports is used by FFA to assess fishing effort and fishery resources in the region and to track the amount of fish caught within each Pacific island state's exclusive economic zone for fair disbursement of Treaty monies. If the information is not collected, the U.S. government will not meet its obligations under the Treaty, and the lack of fishing information will result in poor management of the fishery resources.
All forms are to be submitted in hard copy, via mail.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
National Oceanic and Atmospheric Administration (NOAA), Department of Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before July 6, 2007.
Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to William Chappell, (301) 713-2337 or
The Magnuson-Stevens Fishery Conservation and Management Act (Act) authorizes the establishment of Regional Fishery Management Councils to exercise sound judgment in the stewardship of fishery resources through the preparation, monitoring, and revision of such fishery management plans under circumstances, (a) which will enable the States, the fishing industry, consumers, environmental organizations, and other interested persons to participate in the development of such plans, and (b) which take into account the social and economic needs of fishermen and dependent communities.
Section 302(j) of the Act requires that Council members appointed by the Secretary, Scientific and Statistical Committee (SSC) members appointed by a Council under Section 302(g)(1), or individuals nominated by the Governor of a State for possible appointment as a Council member disclose their financial interest in any Council fishery. These interests include harvesting, processing, lobbying, advocacy, or marketing activity that is being, or will be, undertaken within any fishery over which the Council concerned has jurisdiction, or with respect to an individual or organization with a financial interest in such activity. In 2008, the Secretary is required to submit an annual report to Congress for 2007 on action taken by the Secretary and the Councils to implement the disclosure of financial interest and recusal requirements, including identification of any conflict of interest problems with respect to the Councils and SSCs and recommendations for addressing any such problems.
Seated Council members appointed by the Secretary, including the Tribal Government appointee and SSC members, must file a financial interest form within 45 days of taking office and must provide an update of their statements at any time any such financial interest is acquired, or substantially changed.
The Act further provides that a member shall not vote on a Council decision that would have a significant and predictable effect on a financial interest if there is a close causal link between the Council decision and an expected and substantially disproportionate benefit to the financial interest of the affected individual relative to the financial interest of other participants in the same gear type or sector of the fishery. However, an affected individual who is declared ineligible to vote on a Council action may participate in Council deliberations relating to the decision after notifying the Council of his/her recusal and identifying the financial interest that would be affected.
Respondents submit paper forms.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
National Oceanic and Atmospheric Administration (NOAA), Department of Commerce.
Notice of availability and request for public comments.
The National Oceanic and Atmospheric Administration publishes this notice to announce the availability of the draft Prospectus for one of the U.S. Climate Change Science Program (CCSP) Synthesis and Assessment Products for public comments. This draft Prospectus addresses the following CCSP Topic:
After consideration of comments received on the draft Prospectus, the final Prospectus along with the comments received will be published on the CCSP web site.
Comments must be received by June 6, 2007.
The draft Prospectus is posted on the CCSP Program Office web site. The web address to access the draft Prospectus is:
Detailed instructions for making comments on the draft Prospectus is provided with the Prospectus. Comments should be prepared in accordance with these instructions.
Dr. Fabien Laurier, Climate Change Science Program Office, 1717 Pennsylvania Avenue NW, Suite 250, Washington, DC 20006, Telephone: (202)419-3481.
The CCSP was established by the President in 2002 to coordinate and integrate scientific research on global change and climate change sponsored by 13 participating departments and agencies of the U.S. Government. The CCSP is charged with preparing information resources that support climate-related discussions and decisions, including scientific synthesis and assessment analyses that support evaluation of important policy issues. The Prospectus addressed by this notice provides a topical overview and describes plans for scoping, drafting, reviewing, producing, and disseminating one of 21 final synthesis and assessment Products that will be produced by the CCSP.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; request for an exempted fishing permit; request for public comment.
This notice re-opens the comment period on an March 13, 2007,
The deadline for written comments on the April 11, 2007 (72 FR 18208), notice has been re-opened until 5 p.m. on June 20, 2007.
You may submit comments by any of the following methods:
• Email:
• Mail: Michael Clark, Highly Migratory Species Management Division (F/SF1), NMFS, 1315 East-West Highway, Silver Spring, MD 20910. Please mark the outside of the envelope “Comments on EFP Application.”
• Fax: (301)713-1917
Michael Clark, by phone: (301) 713-2347; fax: (301)713-1917.
EFPs are requested and issued under the authority of the Atlantic Tunas Convention Act (ATCA) (16 U.S.C. 971
On March 13, 2007 (72 FR 11327), NMFS published a notice announcing receipt of an application to conduct fishing activities from Pelagic Longline (PLL) vessels in portions of the East Florida Coast and Charleston Bump closed areas. The comment period was extended on April 11, 2007 (72 FR 18208). The objectives of this EFP request have not changed. The applicant states that these data would provide information on circle hook performance, target and bycatch species composition, and allow comparative analysis with historical pelagic longline logbook and observer program data. The applicant states that the goals of these fishing activities are to determine if implementation of new pelagic longline fishing practices justify the resumption of PLL fishing in the selected areas and to catch more of the United States swordfish quota. The proposed activities would occur in Federal waters of the Atlantic Ocean off Florida and South Carolina from the date of issuance through April 2008.
NMFS is re-opening the comment period until June 20, 2007, because of requests made by the South Atlantic Fishery Management and others. This will afford the Council an opportunity to consider the EFP request during their June 2007 meeting and will also provide additional time for the public to consider the application prior to the Agency making a determination.
16 U.S.C. 971
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of issuance of an incidental harassment authorization.
In accordance with provisions of the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that an Incidental Harassment Authorization (IHA) has been issued to the California Department of Transportation (CALTRANS) to take small numbers of California sea lions, Pacific harbor seals, harbor porpoises, and gray whales, by harassment, incidental to construction of a replacement bridge for the East Span of the San Francisco-Oakland Bay Bridge (SF-OBB) in California.
This authorization is effective from May 2, 2007 until May 1, 2008.
A copy of the application, IHA, and/or a list of references used in this document may be obtained by writing to P. Michael Payne, Chief, Permits, Conservation and Education Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-3225.
Shane Guan, NMFS, (301) 713-2289, ext 137, or Monica DeAngelis, NMFS, (562) 980-3232.
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
Permission shall be granted if NMFS finds that the taking will have no more than a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses and that the permissible methods of taking and requirements pertaining to the mitigation, monitoring, and reporting of such taking are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as ”...an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”
Section 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the United States can apply for an authorization to
any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].
Section 101(a)(5)(D) establishes a 45-day time limit for NMFS review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of small numbers of marine mammals. Within 45 days of the close of the comment period, NMFS must either issue or deny issuance of the authorization.
On October 16, 2006, CALTRANS sumbitted a request to NOAA requesting renewal of an IHA for the possible harassment of small numbers of California sea lions (
A notice of receipt and request for public comment on the application and proposed authorization was published on January 5, 2007 (72 FR 532). During the 30-day public comment period, the Marine Mammal Commission (Commission) provided the only comment.
General information on the marine mammal species found in California waters can be found in Caretta
The marine mammals most likely to be found in the SF-OBB area are the California sea lion, Pacific harbor seal, and harbor porpoise. From December through May gray whales may also be present in the SF-OBB area. Information on California sea lion, harbor seal, and gray whale was provided in the November 14, 2003 (68 FR 64595),
CALTRANS and NMFS have determined that open-water pile driving, as outlined in the project description, has the potential to result in behavioral harassment of California sea lions, Pacific harbor seals, harbor porpoises, and gray whales that may be swimming, foraging, or resting in the project vicinity while pile driving is being conducted. Pile driving could potentially harass those few pinnipeds that are in the water close to the project site, whether their heads are above or below the surface.
Based on airborne noise levels measured and on-site monitoring conducted during 2004 under the previous IHA, noise levels from the East Span project did not result in the harassment of harbor seals hauled out on Yerba Buena Island (YBI). Also, noise levels from the East Span project are not expected to result in harassment of the sea lions hauled out at Pier 39 as airborne and waterborne sound pressure levels (SPLs) would attenuate to below harassment levels by the time they reach that haul-out site, 5.7 km (3.5 miles) from the project site.
For reasons provided in greater detail in NMFS' November 14, 2003 (68 FR 64595)
The following mitigation measures are required under the IHA to reduce impacts to marine mammals to the lowest extent practicable.
An air bubble curtain system is required to be used only when driving the permanent open-water piles. While the bubble curtain is required specifically as a method to reduce impacts to endangered and threatened fish species in SFB, it may also provide some benefit for marine mammals. The NMFS' Biological Opinion and the California Department of Fish and Game's (CDFG) 2001 Incidental Take Permit also allow for the use of other equally effective methods, such as cofferdams, as an alternative to the air bubble curtain system to attenuate the effects of sound pressure waves on fish during driving of permanent in-Bay piles (NMFS 2001; CDFG, 2001). Piers E-16 through E-7 for both the eastbound and westbound structures of the Skyway will be surrounded by sheet-pile cofferdams, which will be de-watered before the start of pile driving. De-watered cofferdams are generally effective sound attenuation devices. For Piers E3 through E6 of the Skyway and Pier 1 the Self-Anchored Suspension span, it is anticipated that cofferdams will not be used; therefore, a bubble curtain will surround the piles.
As a result of the determinations made during the Pile Installation Demonstration Project (PIDP) restrike and the investigation at the Benicia-Martinez Bridge, NMFS determined in 2003 that CALTRANS must install an air bubble curtain for pile driving for the open-water piles without cofferdams
A safety zone is to be established and monitored and will include all areas where the underwater SPLs are anticipated to equal or exceed 190 dB re 1 microPa rms (impulse) for pinnipeds. Also, a 180-dB re 1 microPa rms (impulse) safety zone for gray whales and harbor porpoises must be established for pile driving occurring during the gray whale migration season from December through May. Prior to commencement of any pile driving, a preliminary 500-m (1,640-ft) radius safety zone for pinnipeds (California sea lions and Pacific harbor seals) will be established around the pile driving site, as it was for the PIDP. Once pile driving begins, either new safety zones can be established for the 500 kJ and 1,700 kJ hammers or the 500 m (1,640 ft) safety zone can be retained. If new safety zones are established based on SPL measurements, NMFS requires that each new safety zone be based on the most conservative measurement (i.e., the largest safety zone configuration). SPLs will be recorded at the 500-m (1,640-ft) contour. The safety zone radius for pinnipeds will then be enlarged or reduced, depending on the actual recorded SPLs.
Observers on boats will survey the safety zone to ensure that no marine mammals are seen within the zone before pile driving of a pile segment begins. If marine mammals are found within the safety zone, pile driving of the segment will be delayed until they move out of the area. If a marine mammal is seen above water and then dives below, the contractor will wait 15 minutes and if no marine mammals are seen by the observer in that time it will be assumed that the animal has moved beyond the safety zone. This 15-minute criterion is based on scientific evidence that harbor seals in San Francisco Bay dive for a mean time of 0.50 minutes to 3.33 minutes (Harvey and Torok, 1994), and the mean diving duration for harbor porpoises ranges from 44 to 103 seconds (Westgate
Once the pile driving of a segment begins it cannot be stopped until that segment has reached its predetermined depth due to the nature of the sediments underlying the Bay. If pile driving stops and then resumes, it would potentially have to occur for a longer time and at increased energy levels. In sum, this would simply amplify impacts to marine mammals, as they would endure potentially higher SPLs for longer periods of time. Pile segment lengths and wall thickness have been specially designed so that when work is stopped between segments (but not during a single segment), the pile tip is never resting in highly resistant sediment layers. Therefore, because of this operational situation, if seals, sea lions, or harbor porpoises enter the safety zone after pile driving of a segment has begun, pile driving will continue and marine mammal observers will monitor and record marine mammal numbers and behavior. However, if pile driving of a segment ceases for 30 minutes or more and a marine mammal is sighted within the designated safety zone prior to commencement of pile driving, the observer(s) must notify the Resident Engineer (or other authorized individual) immediately and follow the mitigation requirements as outlined previously in this document.
It should be recognized that although marine mammals will be protected from Level A harassment by establishment of an air-bubble curtain and marine mammal observers monitoring a 190-dB safety zone for pinipeds and 180-dB safety zone for cetaceans, mitigation may not be 100 percent effective at all times in locating marine mammals. Therefore, in order to provide additional protection to marine mammals near the project area by allowing marine mammals to vacate the area prior to receiving a potential injury, CALTRANS will also “soft start” the hammer prior to operating at full capacity. CALTRANS typically implements a “soft start” with several initial hammer strikes at less than full capacity (i.e., approximately 40-60 percent energy levels) with no less than a 1 minute interval between each strike. Similar levels of noise reduction are expected underwater. Therefore, the contractor will initiate hammering of both the 500-kJ and the 1,700-kJ hammers with this procedure in order to allow pinnipeds or cetaceans in the area to voluntarily move from the area, this should expose fewer animals to loud sounds both underwater and above water noise. This would also ensure that, although not expected, any pinnipeds and cetaceans that are missed during safety zone monitoring will not be injured.
To mitigate noise levels and, therefore, impacts to California sea lions, Pacific harbor seals, harbor porpoises, and gray whales, all construction equipment will comply with applicable equipment noise standards of the U.S. Environmental Protection Agency, and all construction equipment will have noise control devices no less effective than those provided on the original equipment.
The following monitoring measures are required under the IHA to reduce impacts to marine mammals to the lowest extent practicable.
The area-wide baseline monitoring and the aerial photo survey to estimate the fraction of pinnipeds that might be missed by visual monitoring have been completed under the current IHA and do not need to be continued.
Safety zone monitoring will be conducted during driving of all open-water, permanent piles without cofferdams and with cofferdams when underwater SPLs reach 190 dB RMS or greater. Monitoring of the pinniped and cetacean safety zones will be conducted by a minimum of three qualified NMFS-approved observers for each safety zone. One three-observer team will be required for the safety zones around each pile driving site, so that multiple teams will be used if pile driving is occurring at multiple locations at the same time. The observers will begin monitoring at least 30 minutes prior to startup of the pile driving. Observers will most likely conduct the monitoring from small boats, as observations from a higher vantage point (such as the SF-OBB) is not practical. Pile driving will not begin until the safety zone is clear of marine mammals. However, as described in the Mitigation section, once pile driving of a segment begins, operations will continue uninterrupted until the segment has reached its predetermined depth. However, if pile driving of a segment ceases for 30 minutes or more and a marine mammal is sighted within the designated safety zone prior to commencement of pile driving, the observer(s) must notify the Resident Engineer (or other authorized individual) immediately and follow the mitigation requirements as outlined previously (see Mitigation). Monitoring will continue through the pile driving period and will end approximately 30 minutes after pile driving has been completed. Biological observations will
In addition to monitoring from boats during open-water pile driving, monitoring at one control site (harbor seal haul-out sites and the waters surrounding such sites not impacted by the East Span Project's pile driving activities, i.e. Mowry Slough) will be designated and monitored for comparison. Monitoring will be conducted twice a week at the control site whenever open-water pile driving is being conducted. Data on all observations will be recorded and will include items such as species, numbers, behavior, details of any observed disturbances, time of observation, location, and weather. The reactions of marine mammals will be recorded based on the following classifications that are consistent with the Richmond Bridge Harbor Seal survey methodology (for information on the Richmond Bridge authorization, see 68 FR 66076, November 25, 2003): (1) No response, (2) head alert (looks toward the source of disturbance), (3) approach water (but not leave), and (4) flush (leaves haul-out site). The number of marine mammals under each disturbance reaction will be recorded, as well as the time when seal re-haul after a flush.
Airborne noise level measurements have been completed and underwater environmental noise levels will continue to be measured as part of the East Span Project. The purpose of the underwater sound monitoring is to establish the safety zone of 190 dB re 1 micro-Pa RMS (impulse) for pinnipeds and the safety zone of 180 dB re 1 micro-Pa RMS (impulse) for cetaceans. Monitoring will be conducted during the driving of the last half (deepest pile segment) for any given open-water pile. One pile in every other pair of pier groups will be monitored. One reference location will be established at a distance of 100 m (328 ft) from the pile driving. Sound measurements will be taken at the reference location at two depths (a depth near the mid-water column and a depth near the bottom of the water column but at least 1 m (3 ft) above the bottom) during the driving of the last half (deepest pile segment) for any given pile. Two additional in-water spot measurements will be conducted at appropriate depths (near mid water column), generally 500 m (1,640 ft) in two directions either west, east, south or north of the pile driving site will be conducted at the same two depths as the reference location measurements. In cases where such measurements cannot be obtained due to obstruction by land mass, structures or navigational hazards, measurements will be conducted at alternate spot measurement locations. Measurements will be made at other locations either nearer or farther as necessary to establish the approximate distance for the safety zones. Each measuring system shall consist of a hydrophone with an appropriate signal conditioning connected to a sound level meter and an instrument grade digital audiotape recorder (DAT). Overall SPLs shall be measured and reported in the field in dB re 1 micro-Pa rms (impulse). An infrared range finder will be used to determine distance from the monitoring location to the pile. The recorded data will be analyzed to determine the amplitude, time history and frequency content of the impulse.
Under previous IHAs, CALTRANS submitted weekly marine mammal monitoring reports when pile driving is commenced. In August 2006, CALTRANS submitted its Hydroacoustic Measurement at Piers T1 and E2 report. This report is available by contacting NMFS (see
Under the 2007 IHA, coordination with NMFS will occur on a weekly basis, or more often as necessary. During periods with open-water pile driving activity, weekly monitoring reports will be made available to NMFS and the public at
In addition, CALTRANS will provide NMFS' Southwest Regional Administrator with a draft final report within 90 days after completion of the westbound Skyway contract and 90 days after completion of the Suspension Span foundations contract. This report should detail the monitoring protocol, summarize the data recorded during monitoring, and estimate the number of marine mammals that may have been harassed due to pile driving. If comments are received from the Regional Administrator on the draft final report, a final report must be submitted to NMFS within 30 days thereafter. If no comments are received from NMFS, the draft final report will be considered to be the final report.
In November, 2003, NMFS prepared an Environmental Assessment (EA) and made a Finding of No Significant Impact (FONSI) on this action. Notice of public availability of the EA/FONSI was published on November 14, 2003 (68 FR 64595) and on October 20, 2004 (69 FR 61652). NMFS has reviewed the November 4, 2003 EA/FONSI in response to the request for renewal of this IHA and has determined that the findings and determinations made in the EA/FONSI continue to accurately address the impacts on the human environment through the taking of marine mammals by the CALTRANS project. Therefore, preparation of an environmental impact statement on this action is not required.
On October 30, 2001, NMFS completed consultation under section 7 of the ESA with the Federal Highway Administration (FHWA) on the CALTRANS' construction of a replacement bridge for the East Span of the SF-OBB. The finding contained in the Biological Opinion was that the proposed action at the East Span of the SF-OBB is not likely to jeopardize the continued existence of listed anadromous salmonids, or result in the destruction or adverse modification of designated critical habitat for these species. A conservation recommendation contained in the Biological Opinion was the use of an air bubble curtain to reduce impacts to salmonids.
Listed marine mammals are not expected to be in the area of the action and thus would not be affected. The issuance of this IHA to CALTRANS constitutes an agency action that authorizes an activity that may affect ESA-listed species and, therefore, is subject to section 7 of the ESA. However, as the effects of the underlying activities on listed salmonids were analyzed during a formal consultation between the FHWA and NMFS and as the underlying action has not changed from that considered in the consultation, the discussion of effects that are contained in the Biological Opinion issued to the FHWA on October 30, 2001, pertains also to this action. In conclusion, NMFS has determined that issuance of an IHA for this activity does not lead to any effects to listed species apart from those that were considered in the consultation on FHWA's action.
For the reasons discussed in this document and in previously identified supporting documents, NMFS has determined that the impact of pile driving and other activities associated with construction of the East Span Project should result, at worst, in the Level B harassment of small numbers of California sea lions, Pacific harbor seals, harbor porpoises, and potentially gray whales that inhabit or visit SFB in general and the vicinity of the SF-OBB in particular. While behavioral modifications, including temporarily vacating the area around the construction site, may be made by these species to avoid the resultant visual and acoustic disturbance, the availability of alternate areas within SFB and haul-out sites (including pupping sites) and feeding areas within the Bay has led NMFS to determine that this action will have a negligible impact on California sea lion, Pacific harbor seal, harbor porpoises, and gray whale populations along the California coast.
In addition, no take by Level A harassment (injury) or death is anticipated and harassment takes should be at the lowest level practicable due to incorporation of the mitigation measures mentioned previously in this document.
NMFS has issued an IHA to CALTRANS for the potential harassment of small numbers of harbor seals, California sea lions, harbor porpoises, and gray whales incidental to construction of a replacement bridge for the East Span of the San Franciso-Oakland Bay Bridge in California, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated.
Notice.
The U.S. Department of Commerce, as part of its continuing efforts to reduce paperwork and respondent burden, invites the general public and other Federal agencies to comment on a proposed information collection, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)).
Written comments must be submitted on or before July 6, 2007.
Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, U.S. Department of Commerce, Room 6625, 1401 Constitution Avenue, NW., Washington, DC 20230 (or via the Internet
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Clifton Beck, National Telecommunications and Information Administration (NTIA), Room 4888, U.S. Department of Commerce, 1401 Constitution Avenue, NW., Washington, DC 20230.
The purpose of the Low-Power Television and Translator Digital-to-Analog Conversion Program is to assist each eligible low-power television station to receive compensation toward the cost of the purchase of a digital-to-analog conversion device that enables it to convert the incoming digital signal of its corresponding full-power television station to analog format for transmission on the low-power television station's analog channel.
“The term ‘low-power television station’ means a low-power television broadcast station, Class A television station, television translator station, or television booster station—
(1) that is itself broadcasting exclusively in analog format; and
(2) that has not purchased a digital-to-analog conversion device prior to the date of enactment of the Digital Television Transition and Public Safety Act of 2005” (See Section 3008 of the Deficit Reduction Act of 2005, Pub. L. 109-171, 120 Stat. 4, 25 (2006)).
This information collection requests information necessary to determine the identity and the number of potentially eligible and priority applicant stations, and the type of equipment required. The information collection also requests optional information about the number of potentially eligible and priority applicant stations, and the type of equipment required which NTIA will use to design the Low-Power Television and Translator Upgrade Program, which is a follow-on program to the Low-Power Television and Translator Digital-to-Analog Conversion Program and is directed at the same applicant pool.
The method of collection will be electronic by the Internet.
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 will have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on respondents, e.g., the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of the information collection; they also will become a matter of public record.
Department of Defense.
Notice of meeting.
Pursuant to the Federal Advisory Committee Act of 1972 (5
Defense Health Board (DHB).
May 23, 2007.
9 a.m.-12 p.m. (Open Session). 2 p.m.-4 p.m. (Open Session).
Shenandoah Room, Holiday Inn National Airport/Crystal City, 2650 Jefferson Davis Highway, Arlington, Virginia 22202.
The purpose of the meeting is to address and deliberate pending and new Board issues and provide briefings for Board members on topics related to ongoing Board business.
The Board will deliberate the draft interim findings and recommendations of the Task Force on the Future of Military Health Care. Established by Congress and operating as a Defense Health Board subcommittee, the Task Force on the Future of Military Health Care is charged to assess and make recommendations for sustaining military health care services provided to members of the Armed Forces, retirees, and their families. The Defense Health Board will also receive updates from Department's Global Emerging Infections Surveillance and Reporting System and the status of DoD traumatic brain injury diagnostic, treatment, and preventive initiatives.
The Board will conduct an administrative session on the afternoon of May 3, 2007, in the same location following the open session. The administrative session is closed to the public.
Pursuant to 5 U.S.C. 552b, as amended, and 41 CFR 102-3.140 through 102-3.165 and subject availability of space, the Defense Health Board meeting from 9 a.m. to 4 p.m. on May 3, 2007 is open to the public. Any member of the public wishing to provide input to the Defense Health Board should submit a written statement in accordance with 41 CFR 102-3.140(C) and section 10(a)(3) of the Federal Advisory Committee Act, and the procedures described in this notice. Written statement should be not longer than two type-written pages and must address the following detail: The issue, discussion, and a recommended course of action. Supporting documentation may also be included as needed to establish the appropriate historical context and to provide any necessary background information.
Individuals submitting a written statement may submit their statement to the Designated Federal Officer at the address detailed below at any point. However, if the written statement is not received at least 10 calendar days prior to the meeting, which is subject to this notice, then it may not be provided to or considered by the Defense Health Board until the next open meeting.
The Designated Federal Officer will review all timely submissions with the Defense Health Board Chairperson, and ensure they are provided to members of the Defense Health Board before the meeting that is subject to this notice. After reviewing the written comments, the Chairperson and the Designated Federal Officer may choose to invite the submitter of the comments to orally present their issue during an open portion of this meeting or at a future meeting.
The Designated Federal Officer, in consultation with the Defense Health Board Chairperson, may, if desired, allot a specific amount of time for members of the public to present their issues for review and discussion by the Defense Health Board.
Colonel Roger L. Gibson, Executive Secretary, Defense Health Board, Five Skyline Place, 5111 Leesburg Pike, Room 810, Falls Church, Virginia 22041-3206, (703) 681-3279, Ext 123, Fax: (703) 681-3321, (
Department of Education.
The IC Clearance Official, Regulatory Information Management Services, Office of Management, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before July 6, 2007.
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The IC Clearance Official, Regulatory Information Management Services, Office of Management, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested, e.g. new, revision, extension, existing or reinstatement; (2) Title; (3) Summary of the collection; (4) Description of the need for, and proposed use of, the information; (5) Respondents and frequency of collection; and (6) Reporting and/or Recordkeeping burden. OMB invites public comment.
The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology.
Requests for copies of the proposed information collection request may be accessed from
Comments regarding burden and/or the collection activity requirements should be electronically mailed to
Department of Education.
The IC Clearance Official, Regulatory Information Management Services, Office of Management invites comments on the submission for OMB review as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before June 6, 2007.
Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Education Desk Officer, Office of Management and Budget, 725 17th Street, NW., Room 10222, Washington, DC 20503. Commenters are encouraged to submit responses electronically by e-mail to
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The IC Clearance Official, Regulatory Information Management Services, Office of Management, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested, e.g. new, revision, extension, existing or reinstatement; (2) Title; (3) Summary of the collection; (4) Description of the need for, and proposed use of, the information; (5) Respondents and frequency of collection; and (6) Reporting and/or Recordkeeping burden. OMB invites public comment.
This information collection is being submitted under the Streamlined Clearance Process for Discretionary Grant Information Collections (1890-0001). Therefore, the 30-day public comment period notice will be the only public comment notice published for this information collection.
Requests for copies of the information collection submission for OMB review may be accessed from
Comments regarding burden and/or the collection activity requirements should be electronically mailed to
Department of Education.
The IC Clearance Official, Regulatory Information Management Services, Office of Management, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before July 6, 2007.
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The IC Clearance Official, Regulatory Information Management Services, Office of Management, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested, e.g. new, revision, extension, existing or reinstatement; (2) Title; (3) Summary of the collection; (4) Description of the need for, and proposed use of, the information; (5) Respondents and frequency of collection; and (6) Reporting and/or Recordkeeping burden. OMB invites public comment.
The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology.
Requests for copies of the proposed information collection request may be accessed from
Comments regarding burden and/or the collection activity requirements should be electronically mailed to
Department of Education.
The IC Clearance Official, Regulatory Information Management Services, Office of Management, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before July 6, 2007.
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The IC Clearance Official, Regulatory Information Management Services, Office of Management, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested,
Requests for copies of the proposed information collection request may be accessed from
Comments regarding burden and/or the collection activity requirements should be electronically mailed to
United States Election Assistance Commission.
Notice of public meeting.
Thursday, May 17, 2007, 10 a.m.-1 p.m.
U.S. Election Assistance Commission, 1225 New York Ave., NW., Suite 150, Washington, DC 20005 (Metro Stop: Metro Center).
The Commission will receive updates on the activities of the following: The EAC Standards Board; the EAC Board of Advisors; and the EAC Technical Guidelines Development Committee (TGDC). The Commission will consider other administrative matters.
This meeting will be open to the public.
Bryan Whitener, Telephone: (202) 566-3100.
Environmental Protection Agency (EPA).
Notice.
The Great Lakes Initiative Toxicity Data Clearinghouse (Clearinghouse) is available for use by States, Tribes, and other interested parties. The online Clearinghouse, developed in cooperation with the United States Environmental Protection Agency (USEPA) Headquarters, Regions 2, 3, and 5, and the Great Lakes States and Tribes, acts as a central location for toxicity data, exposure parameters, and supporting documents used in deriving water quality criteria and guidance values in the Great Lakes Basin.
Brian Thompson, Water Quality Branch (WQ-16J), U.S. EPA, Region 5, Water Division, 77 West Jackson Blvd., Chicago, IL 60604, (312) 353-6066,
The Clearinghouse was developed to support implementation of the Final Water Quality Guidance for the Great Lakes System (GLI). Data from the Clearinghouse can be shared among States and Tribes to assist them in developing or updating numeric water quality standards and guidance values for the protection of aquatic life, human health, and wildlife. In particular, States and Tribes can use the information in the Clearinghouse to help derive criteria for pollutants without specific numeric criteria published in the GLI (40 CFR Part 132).
Data in the Clearinghouse can be viewed online or downloaded in spreadsheet format. The Clearinghouse includes PDF versions of “fact sheets,” which provide methodology information on how State agencies and USEPA derive criteria and guidance values. The Clearinghouse also includes links to GLI-related documents, including Federal Register notices and technical support documents, as well as formulas that allow users to calculate criteria according to GLI methodologies. To access the Clearinghouse go to
The Advisory Committee was established by Pub. L. 98-181, November 30, 1983, to advise the Export-Import Bank on its programs and to provide comments for inclusion in the reports of the Export-Import Bank of the United States to Congress.
Wednesday, May 30, 2007 from 9 a.m. to 12 p.m. The meeting will be held at Ex-Im Bank in the Main Conference Room 1143, 811 Vermont Avenue, NW., Washington, DC 20571.
In addition to a presentation from the Manufacturing Team of the 2007 Advisory Committee, the Committee will also focus on the Congressionally mandated Competitiveness Report, which focuses on how Ex-Im Bank's programs compare with their major G-7 ECA counterparts during 2006.
The meeting will be open to public participation, and the last 10 minutes will be set aside for oral questions or comments. Members of the public may also file written statement(s) before or after the meeting. If you plan to attend, a photo ID must be presented at the guard's desk as part of the clearance process into the building, and you may contact Teri Stumpf to be placed on an attendee list. If any person wishes auxiliary aids (such as a sign language interpreter) or other special accommodations, please contact, prior to May 22, 2007, Teri Stumpf, Room 1209, 811 Vermont Avenue, NW., Washington, DC 20571, Voice: (202) 565-3502 or TDD (202) 565-3377.
For further information, contact Teri Stumpf, Room 1209, 811 Vermont Ave., NW., Washington, DC 20571, (202) 565-3502.
Pursuant to the provisions of the “Government in the Sunshine Act” (5 U.S.C. 552b), notice is hereby given that at 10:30 a.m. on Tuesday, May 8, 2007, the Federal Deposit Insurance Corporation's Board of Directors will meet in closed session, pursuant to section 552b(c)(2), (c)(4), (c)(6), (c)(8), and (9)(A)(ii), Title 5, United States Code, to consider matters relating to the Corporation's supervisory and corporate activities.
The meeting will be held in the Board Room on the sixth floor of the FDIC Building located at 550 17th Street, NW., Washington, DC.
Requests for further information concerning the meeting may be directed to Mr. Robert E. Feldman, Executive Secretary of the Corporation, at (202) 898-7122.
Federal Deposit Insurance Corporation.
Pursuant to the provisions of the “Government in the Sunshine Act” (5 U.S.C. 552b), notice is hereby given that the Federal Deposit Insurance Corporation's Board of Directors will meet in open session at 10 a.m. on Tuesday, May 8, 2007, to consider the following matters:
No substantive discussion of the following items is anticipated. These matters will be resolved with a single vote unless a member of the Board of Directors requests that an item be moved to the discussion agenda.
Disposition of minutes of previous Board of Directors' meetings.
Summary reports, status reports, and reports of actions taken pursuant to authority delegated by the Board of Directors.
The meeting will be held in the Board Room on the sixth floor of the FDIC Building located at 550 17th Street, NW., Washington, DC.
The FDIC will provide attendees with auxiliary aids (e.g., sign language interpretation) required for this meeting. Those attendees needing such assistance should call (703) 562-6067 (Voice or TTY), to make necessary arrangements.
Requests for further information concerning the meeting may be directed to Mr. Robert E. Feldman, Executive Secretary of the Corporation, at (202) 898-7122.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States. Additional information on all bank holding companies may be obtained from the National Information Center website at
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than May 31, 2007.
Board of Governors of the Federal Reserve System, May 2, 2007.
Department of Health and Human Services, Office of the Secretary, Office of Public Health and Science, Office of Population Affairs.
Notice.
To receive consideration, applications must be received by the Office of Grants Management, Office of Public Health and Science (OPHS), Department of Health and Human Services (DHHS) no later than 5 p.m. Eastern Time on July 6, 2007. The application due date requirement in this announcement supersedes the instructions in the OPHS-1 form. Applications that do not meet the deadline will be returned to the applicant unread. See heading “IV. APPLICATION and SUBMISSION INFORMATION” for information on application submission mechanisms.
Application kits may be obtained electronically by accessing Grants.gov at
WilDon Solutions, Office of Grants Management Operations Center, 1515 Wilson Blvd., Third Floor Suite 310, Arlington, VA 22209 at 1-888-203-6161, e-mail
The Office of Population Affairs (OPA)/Office of Family Planning (OFP) announces the availability of approximately $300,000-$500,000 of Fiscal Year (FY) 2007 funds to support one National Family Planning Training Center cooperative agreement. Budgets submitted as part of the application for these funds should not exceed $500,000, inclusive of indirect costs.
The NTC cooperative agreement is intended to serve a national network of family planning providers to ensure that clients receive quality family planning services. In order to maximize the impact of the cooperative agreement on a national level, it is expected that the successful applicant will work closely with the OFP Central and Regional Offices, the ten Title X Regional Training Centers (RTCs), the Family Planning Male Training Center (FPMTC), and the Family Planning Clinical Training Center, as well as other federally funded training entities. It is expected that the project will have three major components:
A.
B.
C.
Applicants should use the Title X legislation, regulations, legislative mandates, and other information included in this announcement, and in the application kit, to guide them in developing their applications.
“None of the funds appropriated in this Act may be made available to any entity under title X of the Public Health Service Act unless the applicant for the award certifies to the Secretary that it encourages family participation in the decision of minors to seek family planning services and that it provides counseling to minors on how to resist attempts to coerce minors into engaging in sexual activities;” and “Notwithstanding any other provision of law, no provider of services under title X of the Public Health Service Act shall be exempt from any State law requiring notification or the reporting of child abuse, child molestation, sexual abuse, rape, or incest.”
1. Assuring ongoing high quality family planning and related preventive health services that will improve the overall health of individuals, with priority for services to individuals from low-income families;
2. Assuring access to a broad range of acceptable and effective family planning methods and related preventive health services that include natural family planning methods, infertility services, and services for adolescents; highly effective contraceptive methods; breast and cervical cancer screening and prevention services that correspond with nationally recognized standards of care; STD and HIV prevention education, counseling, testing, and referral; activities that promote positive family relationships for the purpose of increasing family participation in reproductive health decision-making; extramarital abstinence education and counseling; and other preventive health services. The broad range of services does not include abortion as a method of family planning;
3. Assuring compliance with State laws requiring notification or the reporting of child abuse, child molestation, sexual abuse, rape, or incest;
4. Encouraging participation of families, parents, and/or legal guardians in the decision of minors to seek family planning services; and providing counseling to minors on how to resist attempts to coerce minors into engaging in sexual activities;
5. Addressing the comprehensive family planning and other health needs of individuals, families, and communities through outreach to hard-to-reach and/or vulnerable populations, and partnering with other community-based health and social service providers that provide needed services.
The OPA/OFP anticipates awarding one National Family Planning Training Center cooperative agreement, funded with FY 2007 funds, in the amount of $300,000-$500,000. Total funding available is inclusive of indirect costs. The successful applicant should anticipate substantial involvement of the OFP project officer in the conduct of this cooperative agreement. The cooperative agreement will be funded in annual increments (budget periods), and may be approved for a project period of up to four years. The applicant should include a detailed budget for year one of the project period, and project total funding required for each subsequent year on the Standard Form (SF) 424 and SF 424A included in the Form OPHS-1 “Grant Application.” Funding for all budget periods beyond the first year of the cooperative agreement is contingent upon the availability of funds, satisfactory progress of the project, and adequate stewardship of Federal funds.
1.
2.
1.
2.
For all non-governmental applicants, documentation of nonprofit status must be submitted as part of the application. Any of the following constitutes acceptable proof of such status:
a. A reference to the applicant organization's listing in the Internal Revenue Service's (IRS) most recent list of tax-exempt organizations described in the IRS code;
b. A copy of a currently valid IRS tax exemption certificate;
c. A statement from a State taxing body, State attorney general, or other appropriate State official certifying that the applicant organization has a nonprofit status and that none of the net earnings accrue to any private shareholders or individuals; and,
d. A certified copy of the organization's certificate of incorporation or similar document that clearly establishes nonprofit status.
For local, nonprofit affiliates of State or national organizations, a statement signed by the parent organization indicating that the applicant organization is a local nonprofit affiliate must be provided in addition to any one of the above acceptable proof of nonprofit status.
A Dun and Bradstreet Universal Numbering System (DUNS) number is required for all applications for Federal assistance. Organizations should verify that they have a DUNS number or take the steps needed to obtain one. Instructions for obtaining a DUNS number are included in the application package, or can be downloaded from the OPA Web site.
Applications must include a one-page abstract of the proposed project. The abstract will be used to provide reviewers with an overview of the application, and will form the basis for the application summary in grants management documents.
Applicants should provide evidence of familiarity with Title X family planning requirements, the Title X grantee structure; and Title X-funded training entities (
Applicants must provide evidence of relevant administrative, management, and training expertise and experience that will ensure successful completion of all component requirements of the NTC. The proposed program plan should fully describe a strategy for each component, as well as an ongoing system for planning, monitoring, and evaluation. Goal statement(s) and related outcome objectives should be specific, measurable, achievable, realistic and time-framed (S.M.A.R.T.). The design of all training activities and materials, including all curricula and topic content, should be consistent with Title X statute, regulations, legislative mandates, program guidelines, and program priorities.
It is expected that the applicant will provide detailed information regarding organizational capacity and expertise of proposed staff. Applicants should propose a staffing pattern that includes sufficient detail for reviewers to assess adequacy related to the proposed work plan, and the expertise required to carry out the project.
The proposed budget should be consistent with the requirements of the national family planning training center cooperative agreement. Proposed project activities should be tied directly to budgeted costs. Both the final project plan and plan for utilization of funds will be negotiated with the OFP project officer within 60 days of the cooperative agreement award, and annually during the project period. It is expected that the successful applicant will maintain flexibility in schedule and resource planning in order to respond to emerging needs, lessons learned, and annual Title X program priorities.
A.
(1) Gathering stakeholder (Title X-funded training entities, Federal officials, etc.) input regarding this component;
(2) Ongoing collaboration with Title X-funded training entities;
(3) Ongoing interaction with other federally funded training entities;
(4) Systematically identifying training materials developed or used by all Title X-funded training entities over the past five years;
(5) Collecting current training information/materials/modules, and training calendars;
(6) Developing a catalog or index of available materials;
(7) Developing a speaker/consultant directory;
(8) Establishing a mechanism to ensure that the catalog/index of training materials and speaker/consultant directory are updated at least annually;
(9) Developing, implementing, and maintaining a NTC web site;
(10) Developing mechanisms for disseminating training information/materials;
(11) Proposing other tools or strategies for facilitating sharing of information among Title X training centers and projects. This might include a list serve of Title X-funded training centers, newsletters, linkages to other Title X- and federally-funded training entity web sites, etc.; and,
(12) Utilizing electronic technologies to address many of the requirements of this component. B.
(1)
(a) Developing the meeting agenda;
(b) Designing and disseminating meeting information;
(c) Arranging for hotel/meeting space for all aspects of the meeting (lodging rates are not to exceed the Federal rates for the year in which the meetings are held);
(d) Working with meeting site on all meeting requirements before, during, and after the meeting;
(e) Providing for expenses for up to 20 non-Federal participants (including travel, lodging, and per diem);
(f) Developing and implementing a Web site for meeting information dissemination and registration;
(g) Interfacing with meeting participants, including on-site check in;
(h) Compiling and producing all meeting materials;
(i) Identifying, contacting, and arranging for approximately 3 non-Federal speakers or consultants at a cost not to exceed $2000 per consultant (including consultant fees, travel expenses, lodging, and per diem);
(j) Providing for meeting facilitation;
(k) Evaluating the success of the meeting in achieving overall meeting objectives;
(l) Producing and disseminating meeting proceedings as appropriate; and,
(m) Compiling and disseminating information and/or materials identified or developed as a result of the meeting.
(2)
(3)
1. Meeting budget;
2. Meeting logistics (hotel, location, set-up, all meeting arrangements, etc. Hotel room cost should not exceed the most current Federal lodging rates);
3. Arrange for planning meetings with trainers and OPA/OFP staff, including at least two conference calls and one face-to-face meeting at the OPA/OFP office in Rockville.
4. Arrange for/communicate with trainers, including all correspondence and travel arrangements for planning meetings and health educator training. Consultant fees per trainer (approximately seven trainers) should average approximately $3,500 including preparation time, participation in all planning meetings, and the health educator training event. Travel expenses, lodging, and per diem for the face-to-face meeting and health educator event are provided in addition to consultant fees;
5. Prepare for AV needs;
6. Coordinate with OFP project officer in nomination, application process, and selection of trainees;
7. Develop a list of participants, trainers, and others to be determined with input from OFP project officer;
8. Provide for expenses for up to 35 participants for up to six days on-site at the health educator training event (this includes lodging and per diem, but does not include round trip travel expenses to the training site).
9. Design and implement a web site with meeting information/registration/etc.
10. Coordinate agenda development and training outline;
11. Produce meeting and training materials (signage, packets, notebooks, name tags, etc.);
12. Develop participant evaluation forms; and,
13. Any other activities/responsibilities for planning the meeting, working with collaborators and speakers, and disseminating meeting information.
1. Assess set-up/modify meeting room(s) as needed (including AV);
2. Coordinate with hotel/meeting site throughout meeting;
3. Set up for registration and materials dissemination;
4. Staff registration table;
5. Coordinate speaker arrival/address speaker needs;
6. Identify and appropriately address issues that arise throughout meeting;
7. Manage all on-site meeting issues (financial, logistics, etc.);
8. Distribute and collect participant meeting evaluation forms; and,
9. Any other issues related to managing the meeting on-site.
1. Evaluate the meeting
a. Process of planning and conducting meeting;
b. Outcome, including meeting participation and participant evaluation;
2. Produce/disseminate proceedings, as indicated;
3. Compile/make available information or materials identified/developed as a result of the meeting;
4. In collaboration with OFP, produce and disseminate trainer thank-you letters/other correspondence as necessary;
5. Ensure all meeting expenses are finalized and paid in a timely manner;
6. Produce and submit final meeting accounting and evaluation report within 45 days after the meeting is held; and,
7. Any other meeting follow-up identified and agreed upon by OFP and the successful applicant.
(4)
(5)
It is expected that persons working in Title X-funded agencies will attend the HIV meeting and the NGM at nominal or no charge. The successful applicant will be responsible for all costs associated with planning and conducting these meetings, excluding personal participant expenses such as travel, lodging, and per diem.
In close collaboration with the OFP project officer, the successful applicant will be responsible for all aspects of planning, producing, and evaluating both the HIV meetings and the NGMs. The process for planning these meetings will be negotiated with the OFP project officer within 45 days after funds are awarded. If a planning committee is used, it is expected that the NTC will be responsible for all costs associated with planning committee meetings.
The expectations for both the HIV meetings and the NGMs are the same. All aspects of these meetings, including, but not limited to, agenda, speakers, and meeting location, will be approved by the OFP project officer prior to implementation. At a minimum, the successful applicant will be responsible for the following, and should address how this will be accomplished in the project proposal:
1. Meeting budget;
2. Planning committee (if determined to be necessary);
3. Meeting logistics (hotel, location, set-up, all meeting arrangements, etc.);
4. Arrange for/communicate with speakers/moderators, including invitation letters and travel arrangements (cost per speaker should not exceed $2,000 for travel expenses and consultant fees);
5. Prepare for AV needs;
6. Develop invitation list of Title X grantee agencies, Federal participants, speakers, and others to be determined with input from OFP project officer;
7. Produce and disseminate a “Save the Date” card (may be by electronic means);
8. Design and implement a web site with meeting information/registration/etc.;
9. Coordinate agenda development;
10. Secure method for granting Continuing Education Units (CEUs);
11. Produce meeting materials (signage, packets, notebooks, name tags, etc.);
12. Develop participant evaluation forms; and,
13. Any other activities/responsibilities for planning the meeting, working with collaborators and speakers, and disseminating meeting information.
1. Assess set-up/modify meeting room(s) as needed (including AV);
2. Coordinate with hotel/meeting site throughout meeting;
3. Set up for registration and materials dissemination;
4. Staff registration table throughout meeting;
5. Coordinate speaker arrival/address speaker needs (speaker ready-room);
6. Identify and appropriately address issues that arise throughout meeting;
7. Manage all on-site meeting issues (financial, logistics, etc.);
8. Distribute and collect participant meeting evaluation forms; and,
9. Any other issues related to managing the meeting on-site.
1. Evaluate meeting;
a. process of planning and conducting meeting;
b. outcome, including meeting participation and participant evaluation;
2. Produce/disseminate proceedings (if determined to be necessary);
3. Compile/make available information or materials identified/developed as a result of the meeting;
4. In collaboration with OFP, produce and disseminate speaker/moderator thank-you letters/other correspondence as necessary;
5. Ensure that all meeting expenses are finalized and paid in a timely manner;
6. Produce and submit final meeting accounting and evaluation report within 45 days after the meeting is held; and,
7. Any other meeting follow-up identified and agreed upon by the OFP project officer and the successful applicant.
C.
(1) All aspects of researching evidence-based information on the chosen topic(s);
(2) Consulting with experts in the topic(s) chosen, as applicable;
(3) Preparing an overview and outline of the module/materials to be developed, including references;
(4) Obtaining OFP project officer approval prior to development;
(5) Developing strategies for notification and dissemination of modules/materials to Title X-funded entities. This may include hard copy, as well as electronic availability; and,
(6) Developing a strategy for review and updating of topic list at least annually.
1.
2.
a. Establish National Training Center operations, including finalizing staff;
b. Finalize a timeline for year one activities;
c. Establish and implement a system for ongoing communication with other Title X-funded training entities;
d. Develop and implement a system for collecting, compiling, and disseminating training materials from Title X-funded training entities, including developing and maintaining an index or catalog of materials;
e. Develop criteria for and establish an online directory of training consultants, including a mechanism for ensuring that information is current:
f. Assess current administrative, management, fiscal, clinical, and information/education issues facing providers of Title X-funded services;
g. Identify current Federal priorities and issues that impact Title X service delivery;
h. Identify and plan meetings to be held in year one of the project;
i. Conduct meetings as agreed upon with OFP project officer;
j. Plan and conduct the year one HIV grantee meeting;
k. Begin planning the NGM to be held early in year two of the project;
l. Identify possible topics for development of training materials;
m. Determine which topic(s) will be developed into training materials;
n. Develop and disseminate training module(s);
o. Draft a plan for training events to be held in subsequent project years; and,
p. Develop and submit non-competing continuation application for year two of the project, including progress report for year one and project plan, budget, and budget justification for year two.
3.
a. Review program plan and revise/modify as necessary;
b. Assess implementation and status of year one activities. Modify as necessary;
c. Review Title X priorities and their impact on training activities;
d. Review issues impacting service delivery;
e. Establish a timeline for year two activities;
f. Identify focus of training meetings to be held in year two;
g. Plan and conduct small meetings as agreed upon with OFP project officer;
h. Continue collecting, compiling, and disseminating training materials from other Title X-funded training entities, ensuring that all materials are the most current available;
i. Ensure that the consultant directory is current;
j. Plan and conduct the year two HIV grantee meeting;
k. Plan and conduct the National Grantee Meeting;
l. Review and update possible topics for development of training modules;
m. Select, develop, and disseminate training module(s);
n. Review and revise the plan for training events to be held in subsequent project years;
o. Develop and submit non-competing continuation application for year three of the project, including progress report for year two and project plan and budget for year three;
p. Establish schedule for meetings with OFP project officer; and,
q. Finalize activities for years three and four of the project period.
3.
While applications are accepted in hard copy, the use of the electronic application submission capabilities provided by the Grants.gov and GrantSolutions.gov systems is encouraged. Applications may only be submitted electronically via the electronic submission mechanisms specified below. Any applications submitted via any other means of electronic communication, including facsimile or electronic mail, will not be accepted for review.
In order to apply for new funding opportunities which are open to the public for competition, you may access the Grants.gov Web site Portal at
Electronic grant applications must be received no later than 5 p.m. Eastern Time on the deadline date specified in the
Applications will not be considered valid until all electronic application components, hard copy original signatures, and mail-in items are received by the OPHS Office of Grants Management according to the deadlines specified above. Application submissions that do not adhere to the due date requirements will be considered late and will be deemed ineligible.
Applicants are encouraged to initiate electronic applications early in the application development process, and to submit early on the due date or before. This will aid in addressing any problems with submissions prior to the application deadline.
In addition to electronically submitted materials, applicants may be required to submit hard copy signatures for certain Program-related forms, or original materials as required by the announcement. It is imperative that the applicant review both the grant announcement, as well as the application guidance provided within the Grants.gov application package, to determine such requirements. Any required hard copy materials, or documents that require a signature, must be submitted separately via mail to the OPHS Office of Grants Management, and, if required, must contain the original signature of an individual authorized to act for the applicant agency and the obligations imposed by the terms and conditions of the grant award. When submitting the required forms, do not send the entire application. Complete hard copy applications submitted after the electronic submission will not be considered for review.
Electronic applications submitted via the Grants.gov Web site Portal must contain all completed online forms required by the application kit, the Program Narrative, Budget Narrative and any appendices or exhibits. All required mail-in items must received by the due date requirements specified above.
Upon completion of a successful electronic application submission via the Grants.gov Web site Portal, the applicant will be provided with a confirmation page from Grants.gov indicating the date and time (Eastern Time) of the electronic application submission, as well as the Grants.gov Receipt Number. It is critical that the applicant print and retain this confirmation for their records, as well as a copy of the entire application package.
All applications submitted via the Grants.gov Web site Portal will be validated by Grants.gov. Any applications deemed “Invalid” by the Grants.gov Web site Portal will not be transferred to the GrantSolutions system, and OPHS has no responsibility for any application that is not validated and transferred to OPHS from the Grants.gov Web site Portal. Grants.gov will notify the applicant regarding the application validation status. Once the application is successfully validated by the Grants.gov Web site Portal, applicants should immediately mail all required hard copy materials to the OPHS Office of Grants Management to be received by the deadlines specified above. It is critical that the applicant clearly identify the Organization name and Grants.gov Application Receipt Number on all hard copy materials.
Once the application is validated by Grants.gov, it will be electronically transferred to the GrantSolutions system for processing. Upon receipt of both the electronic application from the Grants.gov Web site Portal, and the required hardcopy mail-in items, applicants will receive notification via mail from the OPHS Office of Grants Management confirming the receipt of the application submitted using the Grants.gov Web site Portal.
Applicants should contact Grants.gov regarding any questions or concerns regarding the electronic application process conducted through the Grants.gov Web site Portal.
Electronic applications submitted via the GrantSolutions system must contain all completed online forms required by the application kit, the Program Narrative, Budget Narrative and any appendices or exhibits. The applicant may identify specific mail-in items to be sent to the Office of Grants Management separate from the electronic submission; however these mail-in items must be entered on the GrantSolutions Application Checklist at the time of electronic submission, and must be received by the due date requirements specified above. When submitting the required forms, do not send the entire application. Complete hard copy applications submitted after the electronic submission will not be considered for review.
Upon completion of a successful electronic application submission, the GrantSolutions system will provide the applicant with a confirmation page indicating the date and time (Eastern Time) of the electronic application submission. This confirmation page will also provide a listing of all items that constitute the final application submission including all electronic application components, required hardcopy original signatures, and mail-in items, as well as the mailing address of the OPHS Office of Grants Management where all required hard copy materials must be submitted.
As items are received by the OPHS Office of Grants Management, the electronic application status will be updated to reflect the receipt of mail-in items. It is recommended that the applicant monitor the status of their application in the GrantSolutions system to ensure that all signatures and mail-in items are received.
Mailed or hand-delivered applications will be considered as meeting the deadline if they are received by the OPHS Office of Grant Management c/o WilDon Solutions, Office of Grants Management Operations Center, 1515 Wilson Blvd., Third Floor Suite 310, Arlington, VA 22209, Attention Office of Public Health and Science/Office of Grants Management, regarding Office of Population Affairs/Office of Family Planning National Family Planning Training Center Cooperative Agreement, no later than 5 p.m. Eastern Time on the deadline date specified in the
4.
5.
Indirect costs are limited to eight percent (8%) of modified total direct costs as a flat amount for reimbursement under training grants (Grants Policy Directive Part 3.01: Post-Award-Indirect Cost and other Cost Policies, HHS transmittal 98.01).
6.
1.
1. The degree to which the project plan adequately provides for the requirements set forth in the Title X regulations at 42 CFR 59.205 as they relate to the training expectations addressed in this announcement (25 points);
2. The extent to which the training program promises to fulfill the family planning services delivery needs of the area to be served (20 points);
3. The extent to which the proposed training program will increase and/or improve the delivery of services to people, particularly low-income groups, with a high percentage of unmet need for family planning services (15 points);
4. The administrative and management capability and competence of the applicant (15 points);
5. The competence of the applicant project staff in relation to the services to be provided (15 points); and,
6. The capacity of the applicant to make rapid and effective use of the grant assistance, including evidence of flexibility in the utilization of resources and in training plan design (10 points).
2.
Final award decisions will be made collaboratively by the Deputy Assistant Secretary for Population Affairs (DASPA) and the Director, Office of Family Planning. In making award decisions, one cooperative agreement will be awarded which best promotes the purposes of sections 1001 (family planning services) and 1003 (family planning training) of the Public Health Service Act, and the expectations of the cooperative agreement as described in this announcement. The decision will take into account the reasonableness of the estimated cost considering available funding, and the likelihood that the project activities will result in the benefits expected.
1.
This cooperative agreement will be awarded for a project period of up to four years, and will be funded in annual increments (budget periods). Funding for all approved budget periods beyond the first year of the cooperative agreement is contingent upon submission and approval of a non-competing continuation application, satisfactory progress of the project, efficient and effective use of cooperative agreement funds, and the continued availability of funds.
2.
Except as may otherwise be provided under the terms and conditions of the award, the grantee may copyright without prior approval any publications, films, or similar materials developed or resulting from a project supported by a grant under this part, subject, however, to a royalty-free, non-exclusive, and irrevocable license or right in the Government to reproduce, translate, publish, use, disseminate, and dispose of such materials and to authorize others to do so.
Federal grant support must be acknowledged in any publication developed or training provided using Title X funds. All publications developed or purchased with Title X funds must be consistent with the requirements of the program. The cooperative agreement recipient will be expected to make available, at cost, all materials developed with Title X funds as requested by other Title X projects.
The successful applicant will be responsible for the overall management of activities within the scope of the approved project plan, and will work closely with the OFP project officer. The project officer will review and approve all aspects of the planning, implementation, and evaluation of the project components, as well as plans for the use of resources as part of this cooperative agreement. Within 30 days of Notice of Grant Award, the successful applicant is expected to meet with the OFP project officer; Director, OFP; and others at the OFP Central Office in Rockville, MD to finalize a time line and schedule of activities for years one and two of the project. Schedule of activities for years three and four of the project will be developed and approved during year two of the project.
The OPHS requires all grant recipients to provide a smoke-free workplace and to promote the non-use of all tobacco products. This is consistent with the OPHS mission to protect and advance the physical and mental health of the American people.
The HHS Appropriations Act requires that when issuing statements, press releases, requests for proposals, bid solicitations, and other documents describing projects or programs funded in whole or in part with Federal money, grantees shall clearly state the percentage and dollar amount of the total costs of the program or project which will be financed with Federal money, and the percentage and dollar amount of the total costs of the project or program that will be financed by non-governmental sources.
3.
For component requirements, the progress report should contain, at a minimum, information related to the following:
Component A.,
Component B.,
Component C.,
All information should be provided in adequate detail for the reviewer to assess the planning, implementation, evaluation, and status of project activities compared to the approved work plan. If deviations from the approved work plan were necessary, the progress report should fully explain and justify modifications.
The work plan for the upcoming year should clearly reflect proposed NTC activities, including timeline; justification for any modifications from the previous year; S.M.A.R.T. objectives; and evaluation plan. The budget should reflect proposed costs to carry out the project plan. Sufficient detail should be provided so that the reviewer is able to determine the adequacy and appropriateness of budgeted items related to the proposed activities.
The cooperative agreement recipient is required to submit an annual Financial Status Report (FSR) within 90 days after the end of each budget period. Agencies that receive a total of $500,000 or greater of Federal funds must undergo an independent audit in accordance with OMB Circular A-133.
For application kits, submission of hard copy applications, and information on budget and business aspects of the application, please contact: WilDon Solutions, Office of Grants Management Operations Center, 1515 Wilson Blvd., Third Floor Suite 310, Arlington, VA 22209 at 1-888-203-6161, e-mail
For information related to family planning program requirements, contact: WilDon Solutions, Office of Grants Management Operations Center, 1515 Wilson Blvd., Third Floor Suite 310, Arlington, VA 22209 at 1-888-203-6161, e-mail
Agency for Healthcare Research and Quality (AHRQ), HHS.
Request for nominations for public members.
42 U.S.C. 299c, section 931 of the Public Health Service (PHS Act), established a National Advisory Council for Healthcare Research and Quality (the Council). The Council is to advise the Secretary of HHS and the Director of the Agency for Healthcare Research and Quality (AHRQ) on matters related to actions of the Agency to improve the quality, safety, efficiency, and effectiveness of health care for all Americans.
Seven current members' terms will expire in November 2007. To fill these positions in accordance with the legislative mandate establishing the
Nominations should be received on or before June 15, 2007.
Nominations should be sent to Ms. Deborah Queenan, AHRQ, 540 Gaither Road, Room 3238, Rockville, Maryland 20850. Nominations also may be faxed to (301) 427-1341.
Ms. Deborah Queenan, AHRQ, at (301) 427-1330.
42 U.S.C. 299c, section 931, of the PHS Act, provides that the National Advisory Council for Healthcare Research and Quality shall consist of 21 appropriately qualified representatives of the public appointed by the Secretary of Health and Human Services and, in addition, ex officio representatives from other Federal agencies specified in the authorizing legislation, principally agencies that conduct or support health care research, as well as Federal officials the Secretary may consider appropriate. The Council meets in the Washington, DC., metropolitan area, generally in Rockville, Maryland, approximately three times a year to provide broad guidance to the Secretary and AHRQ's Director on the direction of and programs undertaken by AHRQ.
Seven individuals will be selected presently by the Secretary to serve on the Council beginning with the meeting in the spring of 2008. Members generally serve 3-year terms. Appointments are staggered to permit an orderly rotation of membership.
Interested persons may nominate one or more qualified persons for membership on the Council. Self-nominations are accepted. Nominations shall include: (1) A copy of the nominee's resume or curriculum vitae; and (2) a statement that the nominee is willing to serve as a member of the Council. Selected candidates will be asked to provide detailed information concerning their financial interests, consultant positions and research grants and contracts, to permit evaluation of possible sources of conflict of interest.
The Department seeks a broad geographic representation and has special interest in assuring that women, minority groups, and the physically handicapped are adequately represented on advisory bodies, and therefore, particularly encourages nominations for appropriately qualified female, minority, and/or physically handicapped candidates.
In accordance with section 10(d) of the Federal Advisory Committee Act (5 U.S.C., Appendix 2), announcement is made of a Health Care Policy and Research Special Emphasis Panel (SEP) meeting.
A Special Emphasis Panel is group of experts in fields related to health care research who are invited by the Agency for Healthcare Research and Quality (AHRQ), and agree to be available, to conduct on an as needed basis, scientific reviews of applications for AHRQ support. Individual members of the Panel do not attend regularly-scheduled meetings and do not serve for fixed terms or a long period of time. Rather, they are asked to participate in particular review meetings which require their type of expertise.
Substantial segments of the upcoming SEP meeting listed below will be closed to the public in accordance with the Federal Advisory Committee Act, section 10(d) of 5 U.S.C., Appendix 2 and 5 U.S.C. 552b(c)(6). Grant applications for “Ambulatory Care Patient Safety Proactive Risk Assessment (P20),” are to be reviewed and discussed at this meeting. These discussions are likely to reveal personal information concerning individuals associated with the applications. This information is exempt from mandatory disclosure under the above-cited statutes.
Agenda items for this meeting are subject to change as priorities dictate.
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 is 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 Mimi Phan at 301-827-7001, 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).
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 a meeting of the Board of Scientific Counselors, NIA.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The meeting will be closed to the public as indicated below in accordance with the provisions set forth in section 552b(c)(6), Title 5 U.S.C., as amended for the review, discussion, and evaluation of individual intramural programs and projects conducted by the National Institute on Aging, including consideration of personnel qualifications and performance, and the competence of individual investigators, 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 a meeting of the Board of Scientific Counselors, NIAAA.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The meeting will be closed to the public as indicated below in accordance with the provisions set forth in section 552b(c)(6), Title 5 U.S.C., as amended for the review, discussion, and evaluation of individual intramural programs and projects conducted by the National Institute on Alcohol Abuse and Alcoholism, including consideration of personnel qualifications and performance, and the competence of individual investigators, 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 open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The portions of the meeting devoted to the review and evaluation of journals for potential indexing by the National Library of Medicine will be closed to the public in accordance with the provisions set forth in section 552b(c)(9)(B), Title 5 U.S.C., as amended. Premature disclosure of the titles of the journals as potential titles to be indexed by the National Library of Medicine, the discussions, and the presence of individuals associated with these publications could significantly frustrate the review and evaluation of individual journals.
Any interested person may file written comments with the Committee 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.
In the interest of security, NIH has instituted stringent procedures for entrance into the building by non-government employees. Persons without a government I.D. will need to show a photo I.D. and sign in at the security desk upon entering the building.
Office of Public and Indian Housing, HUD.
Notice of proposed information collection.
The proposed information collection requirement described below has been submitted to the Office of Management and Budget (OMB) for emergency review and approval, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
Public Housing Agencies (PHAs) must submit 5-year plans and annual plans for tenant-based assistance and public housing operating subsidies, including Deregulated and Streamlined Plans. Through these plans a PHA will advise HUD, its residents, and the public of the PHA's mission for serving the needs of low-income and very low-income families and the PHA's strategy for addressing those needs.
Interested persons are invited to submit comments regarding this proposal. Comments must be received within seven (7) days from the date of this Notice. Comments should refer to the proposal by name and should be sent to: HUD Desk Officer, Office of Management and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Washington, DC 20503.
Lillian Deitzer, Paperwork Reduction Act Compliance Officer, QDAM Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410; e-mail
This Notice informs the public that the U.S. Department of Housing and Urban Development (HUD) has submitted to OMB, for emergency processing, a proposed information collection requirement as described below. This Notice is soliciting comments from members of the public and affecting agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
This Notice also lists the following information:
The Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35, as amended.
Office of the Assistant Secretary for Housing—Federal Housing Commissioner, HUD.
Notice of upcoming meeting.
This notice sets forth the schedule and proposed agenda of an upcoming meeting of the Manufactured Housing Consensus Committee (the Committee). The meeting is open to the public and the site is accessible to individuals with disabilities.
Meetings will be held on Tuesday, May 22, 2007, 8 a.m. to 5 p.m., Wednesday, May 23, 2007, 8 a.m. to 5 p.m., and Thursday, May 24, 2007, 8 a.m. to 10 a.m. eastern standard time.
These meetings will be held at the Holiday Inn Arlington at Ballston, 4610 North Fairfax Drive, Arlington, Virginia 22203, telephone (703) 243-9800.
William W. Matchneer III, Associate Deputy Assistant Secretary for Regulatory Affairs and Manufactured Housing, Office of Manufactured Housing Programs, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410, telephone (202) 708-6409 (this is not a toll-free number). Persons who have difficulty hearing or speaking may access this number via TTY by calling the toll-free Federal Information Relay Service at (800) 877-8339.
Notice of this meeting is provided in accordance with section 10(a)(2) of the Federal Advisory Committee Act (5 U.S.C. App. 2) and 41 CFR 102-3.150. The Manufactured Housing Consensus Committee was established under section 604(a)(3) of the National Manufactured Housing Construction and Safety Standards Act of 1974, as amended by the Manufactured Housing Improvement Act of 2000, 42 U.S.C. 5403(a)(3). The Consensus Committee is charged with providing recommendations to the Secretary to adopt, revise, and interpret manufactured housing construction and
Office of the Secretary, Department of the Interior.
Notice of meeting.
This notice announces an upcoming meeting of the Delaware & Lehigh National Heritage Corridor Commission. Notice of this meeting is required under the Federal Advisory Committee Act (Pub. L. 92-463).
Friday, May 11, 2007—1:30 p.m. to 4 p.m.
F.M. Kirby Center, 71 Public Square, Wilkes-Barre, PA 18701.
The agenda for the meeting will focus on implementation of the Management Action Plan for the Delaware and Lehigh National Heritage Corridor and State Heritage Park. The Commission was established to assist the Commonwealth of Pennsylvania and its political subdivisions in planning and implementing an integrated strategy for protecting and promoting cultural, historic and natural resources. The Commission reports to the Secretary of the Interior and to Congress.
The Delaware & Lehigh National Heritage Corridor Commission was established by Public Law 100-692, November 18, 1988 and extended through Public Law 105-355, November 13, 1998.
C. Allen Sachse, Executive Director, Delaware & Lehigh National Heritage Corridor Commission, 2750 Hugh Moore Park Road, Easton, PA 18042, (610) 923-3548.
Fish and Wildlife Service, Interior.
Notice of intent to prepare a comprehensive conservation plan and environmental assessment and a step-down research management plan and environmental assessment; and announcement of a public open house meeting.
This notice advises the public that we the U.S. Fish and Wildlife Service (Service, we) intend to initiate a single planning process to consecutively develop a comprehensive conservation plan (CCP) and environmental assessment for the Palmyra Atoll National Wildlife Refuge (NWR), and a step-down research management plan (RMP) and environmental assessment for both Palmyra and Kingman Reef NWRs. This notice also announces a public open house meeting; see
Please provide written comments on these proposals by June 6, 2007. We will hold a public open house meeting on May 8, 2007, to begin the CCP and RMP planning process; see
Address comments, questions, and requests for further information to William Smith, Refuge Manager, Palmyra Atoll National Wildlife Refuge Complex, 300 Ala Moana Boulevard, Room 5-231, Box 50167, Honolulu, HI 96850. Comments may be faxed to the Refuge Complex office at (808) 792-9586, or e-mailed to
William Smith, (808) 792-9550.
With this notice, we initiate the process for development of a CCP for Palmyra Atoll NWR and a RMP for the Palmyra Atoll and Kingman Reef NWRs.
The National Wildlife Refuge System Administration Act of 1966 (Refuge Administration Act), as amended by the National Wildlife Refuge System Improvement Act of 1997 (16 U.S.C. 668dd-668ee), requires the Service to develop a comprehensive conservation plan for each national wildlife refuge. The purpose in developing a comprehensive conservation plan is to provide refuge managers with a 15-year strategy for achieving refuge purposes and contribute toward the mission of the National Wildlife Refuge System, consistent with sound principles of fish and wildlife management, conservation, legal mandates, and Service policies. In addition to outlining broad management direction on conserving wildlife and their habitats, plans identify wildlife-dependent recreational opportunities available to the public, including opportunities for hunting, fishing, wildlife observation, wildlife photography, and environmental education and interpretation.
A step-down RMP would address research goals, objectives, and strategies for research actions and include findings of appropriateness of a refuge use, and compatibility determinations for all research activities proposed for or occurring on Palmyra Atoll and Kingman Reef NWRs.
The Service will prepare separate environmental assessments for the CCP and RMP pursuant to the National Environmental Policy Act (NEPA) of 1969, as amended (42 U.S.C. 4321
We establish each unit of the National Wildlife Refuge System with specific purposes. We use these purposes to develop and prioritize management goals and objectives within the National Wildlife Refuge System mission, and to
We will conduct a planning process that will provide opportunity for Tribal, State, and local governments; agencies; organizations; and the public to participate in issue scoping and provide public comments. We request input for issues, concerns, ideas, and suggestions for the future management of the Palmyra Atoll and Kingman Reef NWRs. We will also give the public an opportunity to provide input at an open house to scope issues and concerns. All information provided voluntarily by mail, phone, or at public meetings becomes part of our official public record. We will handle requests for comments received in accordance with the Freedom of Information Act, NEPA, and Service and Departmental policies and procedures.
Palmyra Atoll and Kingman Reef are the northernmost atolls in the Line Islands Archipelago in the equatorial Pacific Ocean. Both are located approximately 1,000 miles south by west of Honolulu, Hawai'i, and are situated about 5 degrees north of the Equator. During WWII, the U.S. Navy stationed over 6,000 personnel at Palmyra Atoll. The military dredged a seaplane runway through the central lagoon and built a connective causeway that bisected the lagoon across the remaining reef flat. Relatively small, disconnected islets were joined together with dredge spoil, increasing both the elevation and terrestrial footprint of the emergent atoll. An extensive base and supporting infrastructure were built, including a 1-mile land-based airplane runway surfaced with crushed coral. The Palmyra Atoll NWR was established in 2001 through DOI Secretarial Order 3224. The Refuge boundary extends from the low water mark seaward to 12 nautical miles (515,232 acres) and includes 16,094 acres of coral reef habitat and 680 acres of horseshoe-shaped emergent lands encompassing a central lagoon. Palmyra's terrestrial habitats support one of the largest remaining stands of
Palmyra Atoll is managed cooperatively by the Service and The Nature Conservancy (TNC), which owns Cooper Island proper, within the NWR, including the airstrip. In a partnership with 10 academic institutions comprising the Palmyra Atoll Research Consortium (PARC), TNC owns and operates The Palmyra Atoll Research Station on Cooper Island. The PARC was established by TNC in 2003 to conduct integrative research and studies of biodiversity, ecosystem function, and environmental change at Palmyra Atoll and Kingman Reef NWRs. Proposed projects generally fall under one or more of three overarching themes: Marine Biodiversity, Terrestrial Interface, and Climate and Biogeochemistry.
Kingman Reef NWR lies 33 miles northwest of Palmyra. The first recorded western contact with Kingman Reef was by Captain Fanning, an American whaler, in 1798. The reef was also visited by its namesake, Captain W.E. Kingman, in the American ship Shooting Star, in 1853. In 1860, the United States Guano Company claimed Kingman Reef as a United States Territory under the Guano Islands Act of 1856, 48 U.S.C. 1411-1419. In 1934, President Franklin D. Roosevelt issued Executive Order No. 6935, which “reserved [and] set aside” Kingman Reef and placed it under the Secretary of the Navy's “control and jurisdiction.” In 1941, President Roosevelt issued a second executive order affecting Kingman Reef. Executive Order No. 8682 established and reserved several Naval Defense Sea Area and Naval Airspace Reservations over certain Pacific islands, including Kingman Reef. In 2000, the Navy identified its “control over and administrative jurisdiction of Kingman Reef” as “excess” to Department of Defense requirements, and transferred “custody and accountability for Kingman Reef” to the Department of the Interior. The Department of the Interior accepted this transfer, subject to the 1934 and 1941 Executive Orders, which remained in effect.
There are no terrestrial plants on Kingman Reef, which is frequently awash; however, its pristine coral reefs support abundant and diverse marine fauna and flora. Kingman Reef is one of the most pristine coral reef atoll ecosystems in the Pacific Ocean. In 2001, the waters surrounding the Reef out to 12 nautical miles were designated as the Kingman Reef National Wildlife Refuge. It is comprised of 486,699 submerged acres of crystal clear oceanic waters and vibrant coral reefs supporting a spectacular diversity of corals and other marine invertebrates, algae, fishes, marine mammals, sea turtles and migratory seabirds.
We have identified a number of preliminary issues, concerns, and opportunities, which may warrant addressing in the CCP. We have briefly summarized these issues below. During public scoping, we may identify additional issues.
During the CCP planning process the Service will analyze methods for protecting the resources of the Palmyra Atoll NWR in the long term, while providing quality opportunities for wildlife-dependent recreation.
At the Palmyra Atoll and Kingman Reef NWRs, the Service will specifically evaluate the extensive inventory, monitoring, and research needs of these NWRs through the development of a RMP. Research strategies and objectives will be evaluated within the context of Refuge needs and priorities, and in the wider context of regional, national, and international conservation priorities. We will determine methods for prioritizing and accomplishing research needs in a RMP. We will also identify and consider research alternatives, strategies, actions, and partnerships to facilitate valuable research, while protecting sensitive and irreplaceable wildlife, habitat, and cultural resources found within the NWRs.
A public open house meeting will be held on May 8, 2007, at 7:30 p.m. at the Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Road, Carlsbad, CA 92001, to provide information on a CCP and RMP, and receive public comments. Opportunities for additional public input will be announced throughout the planning process.
Fish and Wildlife Service, Interior.
Notice; call for applications.
The Director of the U.S. Fish and Wildlife Service announces the opportunity for State fish and wildlife agencies to apply to participate in a 3-year pilot program to issue electronic Federal Migratory Hunting and Conservation Stamps. The program is expected to enhance the ability of the public to obtain required Federal Duck Stamps through the use of electronic technology, enhancing public participation and increasing the number of stamps sold.
The deadline for submittal of applications is close of business, June 8, 2007. The project period for the pilot program will be from September 1, 2007, through September 1, 2010.
Please submit your application and supplemental information in Word or text format via e-mail to:
Laurie Shaffer, Federal Duck Stamp Office, 4501 North Fairfax Drive, Arlington, VA 22203; 703-358-2002 (phone). If you use a telecommunications device for the deaf (TDD), you may call the Federal Relay Service (FRS) at 1-800-877-8339.
Federal Migratory Bird Hunting and Conservation Stamps, commonly known as “Duck Stamps,” are pictorial stamps produced by the U.S. Postal Service for the U.S. Fish and Wildlife Service. Not valid for postage, the stamps originated in 1934 as the Federal license required for all hunters over 16 years of age who wished to hunt migratory birds. (For the history of the Federal Duck Stamp Program, please see 71 FR 18697, April 12, 2006). Federal Duck Stamps have a much larger purpose today, however. Federal Duck Stamps are a vital tool for wetland conservation. Ninety-eight cents out of every dollar generated by the sales of Federal Duck Stamps goes directly to purchase or lease wetland habitat for protection in the National Wildlife Refuge System.
The Director takes this action under the Electronic Duck Stamp Act of 2005 (Pub. L. 109-266), which requires that the Secretary of the Interior conduct a 3-year pilot program, under which up to 15 States authorized by the Secretary may issue electronic Federal Duck Stamps. The number of participating State agencies accepted under this program will depend upon the number of compliant applications received.
The Government Paperwork Elimination Act (GPEA) of 1998 (Pub. L.105-277) encourages us to undertake initiatives to improve our application processes. Enhancing the ability of individuals and entities to conduct business with us electronically is a major part of our response to these laws. Therefore, we are taking steps to adopt the Internet as our chief means of conducting transactions in order to improve services to our customers and to simplify and expedite our business processes.
There are currently 40 States that provide for sales of State hunting and fishing licenses by internet, point of sale, or telephone. The application process will lead to the selection of up to 15 eligible participants for this pilot program.
Eligible applicants are State fish and wildlife agencies that have an automated licensing system authorized under State law and are deemed by the Secretary as meeting the requirements of this application process. The proposed system for issuing the electronic Federal Duck Stamp must be compatible with the hunting licensing system of the State and described in the State application approved by the Secretary.
The application and the procedures and requirements for completing it are available through the U.S. Fish and Wildlife Service's Federal Duck Stamp Office web page at
Individuals with disabilities may obtain this document in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) on request to the program contact person listed under
Congress did not enact an appropriation for this program. The Service is inviting applications for this pilot program with this understanding.
Bureau of Indian Education, Interior.
Notice of proposed renewal of information collection.
The Bureau of Indian Education (BIE), in accordance with the Paperwork Reduction Act, is planning to renew the No Child Left Behind Regulations, 25 CFR parts 36 and 47, OMB Control Number 1076-0164.
Submit comments on or before July 6, 2007 for best consideration.
Please send comments to Mr. Thomas M. Dowd, Director, Bureau of Indian Education, 1849 C Street, NW., Mail Stop 3609-MIB, Washington, DC 20240, facsimile number (202) 208-3312.
Dr. James Martin, Chief, Division of Planning and Research, Bureau of Indian Education, 1849 C Street, NW., Mail Stop 3609-MIB, Washington, DC 20240, Telephone: (202) 208-6123, Facsimile: (202) 208-3312 or by e-mail at
Public Law 107-110, the No Child Left Behind
The Bureau of Indian Education requests your comments on this collection concerning:
(a) The necessity of this information collection for the proper performance of the functions of the agency, including whether the information will have practical utility;
(b) the accuracy of the agency's estimate of the burden (hours and cost) of the collection of information, including the validity of the methodology and assumptions used;
(c) ways we could enhance the quality, utility and clarity of the information to be collected; and
(d) ways we could minimize the burden of the collection of the information on the respondents, such as through the use of automated collection techniques or other forms of information technology.
Please note that an agency may not sponsor or request and an individual need not respond to a collection of information unless it has a valid OMB Control Number. It is our policy to make all comments available to the public for review at the location listed in the
Bureau of Indian Education, Interior.
Notice of proposed renewal of information collection.
The Bureau of Indian Education (BIE), in accordance with the Paperwork Reduction Act, is proposing to renew the No Child Left Behind Act Regulations, 25 CFR parts 30, 37, 39, 42, 44 and 47, OMB Control Number 1076-0163.
Submit comments on or before July 6, 2007 for best consideration.
Please send comments to Mr. Thomas M. Dowd, Director, Bureau of Indian Education, 1849 C Street, NW., Mail Stop 3609-MIB, Washington, DC 20240, facsimile number (202) 208-3312.
Dr. James Martin, Chief, Division of Planning and Research, Bureau of Indian Education, 1849 C Street, NW., Mail Stop 3609-MIB, Washington, DC 20240, Telephone: (202) 208-6123, Facsimile: (202) 208-3312 or by e-mail at
Public Law 107-110, the No Child Left Behind (NCLB) Act of January 8, 2001, requires all schools, including Bureau of Indian Education funded schools, to ensure that all children have a fair, equal, and significant opportunity to obtain a high-quality education and reach, at a minimum, proficiency on challenging academic achievement standards and assessments. The BIE is required to monitor programs, gather data, and complete reports for the U.S. Department of Education. To achieve these results, schools must prepare required documentation such as the Annual Report, the School Report Card, Section 1114 Plans, financial budgets, school improvement plans, compliance action plans as a result of monitoring, Title II, Part A reports on highly qualified staff, Title IV, Part A, Safe and Drug Free Schools and Communities reports, competitive sub-grant reports, Indian School Equalization Programs (ISEP) reports, the Native American Student Information System (NASIS) reports, and transportation reports.
The Bureau of Indian Education requests your comments on this collection concerning:
(a) The necessity of this information collection for the proper performance of the functions of the agency, including whether the information will have practical utility;
(b) The accuracy of the agency's estimate of the burden (hours and cost) of the collection of information, including the validity of the methodology and assumptions used;
(c) Ways we could enhance the quality, utility and clarity of the information to be collected; and
(d) Ways we could minimize the burden of the collection of the information on the respondents, such as through the use of automated collection techniques or other forms of information technology.
Please note that an agency may not sponsor or request and an individual need not respond to a collection of information unless it has a valid OMB Control Number. It is our policy to make all comments available to the public for review at the location listed in the
Respondents: Bureau-funded schools, tribal governing bodies and school boards are the respondents, and submission is mandatory.
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 lands for conveyance pursuant to the Alaska Native Claims Settlement Act will be issued to MTNT, Ltd., Successor in Interest to Chamai, Incorporated. The lands are in the vicinity of McGrath, Alaska, and are located in:
Containing 7,865.50 acres.
Containing 1,684.13 acres.
Containing 1,122.84 acres.
Aggregating 10,672.47 acres.
The subsurface estate in these lands will be conveyed to Doyon, Limited, when the surface estate is conveyed to MTNT, Ltd., Successor in Interest to Chamai, Incorporated. Notice of the decision will also be published four times in the Fairbanks Daily News-Miner.
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 June 6, 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 99513-7504.
The Bureau of Land Management by phone at 907-271-5960, or by e-mail at
National Park Service, Department of the Interior.
Notice of availability of a Plan of Operations, Environmental Assessment, and draft Wetlands Statement of Findings for a 30-day public review at Big Thicket National Preserve.
Notice is hereby given in accordance with Section 9.52(b) of Title 36 of the Code of Federal Regulations, Part 9, Subpart B, that the National Park Service (NPS) has received from Seismic Assistants, Ltd., a Plan of Operations to conduct the Knight Phase IV 3-D Seismic Survey within the Big Sandy Creek Corridor, Turkey Creek and Village Creek Corridor Units of Big Thicket National Preserve, in Hardin and Tyler Counties, Texas. The NPS has prepared an Environmental Assessment and a draft Wetlands Statement of Findings for this proposal.
The above documents are available for public review and comment through June 6, 2007.
The Plan of Operations, Environmental Assessment, and draft Wetlands Statement of Findings are available for public review and comment at
Mr. Haigler “Dusty” Pate, Oil and Gas Program Manager, Big Thicket National Preserve, 6044 FM 420, Kountze, Texas 77625, Telephone: 409 951-6822, e-mail at
If you wish to comment on the Plan of Operations, Environmental Assessment, and draft Wetlands Statement of Findings, you may mail comments to the name and address above or post
The National Park Service is terminating preparation of an Environmental Impact Statement (EIS) for the General Management Plan, Rosie the Riveter/World War II Home Front National Historical Park, Richmond, California. A Notice of Intent to prepare the EIS for the General Management Plan (GMP) was published in the
Pub. L. 106-352 requires the GMP to include a plan to preserve the historic setting of the Rosie the Riveter/World War II Home Front National Historical Park, which must be jointly developed and approved by the City of Richmond. Accordingly, the GMP will establish the overall direction for the park, setting a broad vision and management goals for managing this partnership park for the next 15 to 20 years. The plan was originally scoped as an EIS. No concerns or issues expressed during public scoping and preliminary development of the GMP convey either the potential for controversy or identify potential for significant impacts.
In the GMP effort to date the cooperating park partners and NPS planning team have developed three alternatives for the historical park. All three alternative visions support preserving the historic scene while providing different approaches for visitors to experience and learn about Rosie the Riveter and the American World War II Home Front. Initial analysis of the alternatives has revealed neither major effects nor significant or unacceptable impacts on the human environment, nor any potential for impairing park resources and values. Potential impacts as may arise from implementing any of the alternatives are expected to range from negligible to moderate in magnitude. All the GMP alternative visions provide for preserving the historic scene with the NPS providing technical assistance to help support the decisions and actions of the park partners. All uses expected to occur under any of the alternative visions are deemed to be appropriate. For these reasons the NPS determined the intensity of conservation planning and environmental impact analysis needed for the GMP is an EA.
The draft GMP and EA will be integrated; the combined document is expected to be distributed for a 60-day public review and comment period in the summer/fall of 2007. The NPS will notify the public by mail, Web site postings, local and regional media, and other means, to provide regularly updated information on where and how to obtain a copy of the EA, how to comment on the EA, and the confirmed dates for public meetings to be hosted in Richmond and Oakland during the 60-day public review period. For further information contact Martha Lee, Superintendent, Rosie the Riveter/World War II Home Front National Historical Park, 1401 Marina Way South, Richmond, CA 94804 (telephone: (510) 232-5050; e-mail:
A decision regarding selection of an alternative vision for the new GMP is expected to be made in the fall/winter of 2007. The official responsible for the final decision is the Regional Director, Pacific West Region, National Park Service. Subsequently the official responsible for implementing the new GMP is the Superintendent, Rosie the Riveter/World War II Home Front National Historical Park.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined to review in part the presiding administrative law judge's (“ALJ”) initial determination
Christal A. Sheppard, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 708-2301. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 205-2000. General information concerning the Commission may also be obtained by accessing its Internet server at
This investigation was instituted on February 7, 2006, based on a complaint filed by Solomon Technologies, Inc., of Tarpon Springs, Florida (“Solomon”). The complaint, as amended, alleged violations of Section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain combination motor and transmission systems and devices used therein, and products containing same by reason of infringement of claims 1-5, 7, 8, 10, and 12 of United States Patent No. 5,067,932 (“the '932 patent”). 71 FR 7574. Only claim 7 of the '932 patent was asserted against the respondents at the hearing. However, Solomon relied upon claim 1 of the patent-in-suit to meet the technical prong of the domestic industry requirement. The amended complaint named Toyota Motor Corporation of Japan; Toyota Motor Engineering & Manufacturing North America, Inc. of Erlanger, Kentucky; Toyota Motor Manufacturing Kentucky, Inc. of Georgetown, Kentucky; and Toyota Motor Sales, U.S.A., Inc., of Torrance, California as respondents.
On February 13, 2007, the ALJ issued an ID finding no violation of Section 337 with regard to respondents' products because he found claim 7 to be invalid and not infringed. Moreover, he found no domestic industry involving the asserted patent. Complainants and the Office of Unfair Import Investigations (“OUII”) each filed petitions for review on February 26, 2007. Respondents filed a joint reply on March 5, 2007. Also on March 5, 2007, OUII filed a response to Solomon's petition for review and Solomon filed a response to OUII's petition for review.
Having considered the petitions for review, the oppositions thereto, and the relevant portions of the record, the Commission has determined to review the ID in part. On review, the Commission has determined to take no position on the ALJ's findings concerning the economic prong of the domestic industry requirement. The remainder of the ID has become the Commission's final determination.
This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, and sections 210.42(c) and (h) of the Commission's Rules of Practice and Procedure, 19 CFR 210.42(c) and (h).
By order of the Commission.
On the basis of the record
The Commission instituted this review on December 1, 2006 (71 FR 69586) and determined on March 6, 2007 that it would conduct an expedited review (72 FR 13512, March 22, 2007).
The Commission transmitted its determination in this review to the Secretary of Commerce on April 30, 2007. The views of the Commission are contained in USITC Publication 3917 (April 2007), entitled
By order of the Commission.
U.S. International Trade Commission.
Institution of investigation pursuant to 19 U.S.C. 1337.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on April 2, 2007, under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, on behalf of Global Locate, Inc. of San Jose, California. A letter supplementing the complaint was filed on April 18, 2007. The complaint alleges violations of section 337 in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain GPS devices and products containing same by reason of infringement of certain claims of U.S. Patent Nos. 6,417,801, 6,606,346, 6,651,000, 6,704,651, 6,937,187, and 7,158,080. The complaint further alleges 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.
The complainant requests that the Commission institute an investigation and, after the investigation, issue a permanent exclusion order and permanent cease and desist orders.
The complaint and supplement, except for any confidential information contained therein, are available for inspection during official business hours (8:45 a.m. to 5:15 p.m.)
Vu Q. Bui, Esq., Office of Unfair Import Investigations, U.S. International Trade Commission, telephone (202) 205-2582.
The authority for institution of this investigation is contained in section 337 of the Tariff Act of 1930, as amended, and in section 210.10 of the Commission's Rules of Practice and Procedure, 19 CFR 210.10 (2006).
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain GPS devices or products containing same by reason of infringement of one or more of claims 1 and 17 of U.S. Patent No. 6,417,801; claims 1, 3-5, 8-17, 19-21, and 23 of U.S. Patent No. 6,606,346; claims 1-5, 9, 10, 11-14, 29-31, and 33 of U.S. Patent No. 6,651,000; claims 1 and 2 of U.S. Patent No. 6,704,651; claims 1 and 9 of U.S. Patent No. 6,937,187; and claims 1-3, 12, 15, 16, 19, 20, 22-24, 26, 28-31, and 33-35 of U.S. Patent No. 7,158,080, and whether an industry in the United States exists or is in the process of being established as required by subsection (a)(2) of section 337;
(2) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainant is—Global Locate, Inc., 3190 South Bascom Avenue, San Jose, Califonia 95124.
(b) The respondents are the following entities alleged to be in violation of section 337, and are the parties upon which the complaint is to be served:
(c) The Commission investigative attorney, party to this investigation, is Vu Q. Bui, Esq., Office of Unfair Import Investigations, U.S. International Trade Commission, 500 E Street, SW., Suite 401, Washington, DC 20436; and
(3) For the investigation so instituted, the Honorable Robert L. Barton, Jr. is designated as the presiding administrative law judge.
Responses to the complaint and the notice of investigation must be submitted by the named respondents in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(d) and 210.13(a), such responses will be considered by the Commission if received not later than 20 days after the date of service by the Commission of the complaint and the notice of investigation. Extensions of time for submitting responses to the complaint and the notice of investigation will not be granted unless good cause therefor is shown.
Failure of a respondent to file a timely response to each allegation in the complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the complaint and this notice, and to authorize the administrative law judge and the Commission, without further notice to the respondent, to find the facts to be as alleged in the complaint and this notice and to enter an initial determination and a final determination containing such findings, and may result in the issuance of a limited exclusion order or cease and desist order or both directed against the respondent.
By order of the Commission.
United States International Trade Commission.
Notice of remand proceedings.
The U.S. International Trade Commission (“Commission”) hereby gives notice of the court-ordered remand of its determination in the antidumping Investigation No. 731-TA-1089 concerning certain orange juice from Brazil. For further information concerning the conduct of this proceeding 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, subpart A (19 CFR part 207).
May 1, 2007.
Debra Baker, Office of Investigations, telephone 202-205-3180, or David Goldfine, Office of General Counsel, telephone 202-708-5452, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
All written submissions must conform with the provisions of section 201.8 of the Commission's rules; any submissions that contain BPI must also conform with the requirements of sections 201.6, 207.3, and 207.7 of the Commission's rules. The Commission's rules do not authorize filing of submissions with the Secretary by facsimile or electronic means, except to the extent permitted by section 201.8 of the Commission's rules, as amended, 67 FR 68036 (Nov. 8, 2002).
In accordance with sections 201.16(c) and 207.3 of the Commission's rules, each document filed by a party to the investigation must be served on all other parties to the investigation (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.
Parties are also advised to consult with the Commission's Rules of Practice and Procedure, part 201, subparts A through E (19 CFR part 201), and part 207, subpart A (19 CFR part 207) for provisions of general applicability concerning written submissions to the Commission.
By order of the Commission.
United States International Trade Commission.
Institution of investigation and scheduling of public hearing.
Following receipt of a request from the United States Trade Representative (USTR) on April 1, 2007, the Commission instituted investigation No. TA-2104-24,
April 1, 2007: Receipt of request.
May 24, 2007: Deadline for receipt of requests to appear at hearing.
May 24, 2007: Deadline for filing pre-hearing briefs and statements.
June 7, 2007, 9:30 a.m.: Public hearing.
June 21, 2007: Deadline for filing post-hearing briefs and statements and all other written submissions.
September 20, 2007: Anticipated date for transmitting report to USTR and the Congress.
All Commission offices, including the Commission's hearing rooms, are located in the United States International Trade Commission Building, 500 E Street, SW,, Washington, DC. All written submissions, including requests to appear at the hearing, statements, and briefs, should be addressed to the Secretary, United States International Trade Commission, 500 E Street, SW., Washington, DC 20436. The public record for this investigation may be viewed on the Commission's electronic docket (EDIS) at
Project Leader Nannette Christ (202-205-3263;
As requested by the USTR, the Commission will prepare a report as specified in section 2104(f)(2)-(3) of the Trade Act of 2002 assessing the likely impact of the U.S. FTA with Korea on the U.S. economy as a whole and on specific industry sectors, including the impact the agreement will have on the gross domestic product, exports, and imports; aggregate employment and employment opportunities; the production, employment, and competitive position of industries likely to be significantly affected by the agreement; and the interests of U.S. consumers. In preparing its assessment, the Commission will review available economic assessments regarding the agreement, including literature concerning any substantially equivalent proposed agreement. The Commission will provide a description of the analyses used and conclusions drawn in such literature, and a discussion of areas of consensus and divergence between the Commission's analyses and conclusions and other economic assessments reviewed.
Section 2104(f)(2) requires that the Commission submit its report to the President and the Congress not later than 90 days after the President enters into the agreement, which he can do 90 days after he notifies the Congress of his intent to do so. On April 1, 2007, the President notified the Congress of his intent to enter into a FTA with Korea. The USTR requested that the Commission provide the report as soon as possible after the FTA is signed.
All written submissions must conform with the provisions of section 201.8 of the Commission's Rules of Practice and Procedure (19 CFR 201.8). Section 201.8 of the rules requires that a signed original (or copy designated as an original) and fourteen (14) copies of each document be filed. In the event that confidential treatment of the document is requested, at least four (4) additional copies must be filed, in which the confidential business information must be deleted (see the following paragraph for further information regarding confidential business information). The Commission's rules do not authorize filing submissions with the Secretary by facsimile or electronic means, except to the extent permitted by section 201.8 of the rules (see Handbook for Electronic Filing Procedures,
Any submissions that contain confidential business information must also conform with the requirements of section 201.6 of the Commission's Rules of Practice and Procedure (19 CFR 201.6). Section 201.6 of the rules requires that the cover of the document and the individual pages be clearly marked as to whether they are the “confidential” or “nonconfidential” version, and that the confidential business information be clearly identified by means of brackets. All written submissions, except for confidential business information, will be made available in the Office of the Secretary to the Commission for inspection by interested parties.
The Commission intends to prepare only a public report in this investigation. The report that the Commission sends to the President and the Congress and makes available to the public will not contain confidential business information. Any confidential business information received by the Commission in this investigation and used in preparing the report will not be published in a manner that would reveal the operations of the firm supplying the information.
By order of the Commission.
United States International Trade Commission.
May 11, 2007 at 11 a.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. Nos. 731-TA-1111-1113 (Preliminary) (Glycine from India, Japan, and Korea)—briefing and vote. (The Commission is currently scheduled to transmit its determination to the Secretary of Commerce on or before May 14, 2007; Commissioners' opinions are currently scheduled to be transmitted to the Secretary of Commerce on or before May 21, 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.
Notice is hereby given that, on March 21, 2007, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and AAF Association, Inc. intends to file additional written notifications disclosing all changes in membership.
On March 28, 2000, AAF Association Inc. 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 December 21, 2006. A notice was published in the
Notice is hereby given that, on March 19, 2007, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Pursuant to Section 6(b) of the Act, the identifies of the parties to the venture are: Altarum, Ann Arbor, MI; American Tooling Center, Madison Heights, MI; Atlas Tool, Inc., Roseville, MI; Center for Automotive Research, Ann Arbor, MI; CogniTens, Wixom, MI; Ford Motor Company, Dearborn, MI; General Motors, Warren, MI; Riviera Tool Company, Grand Rapids, MI; UGS PLM Solutions, Southfield, MI. The general area of DBDS's planned activity is to develop a decision support system that combines optical metrology, a finite element based assembly simulation engine, and intelligent agent based problem solving technology to enable the implementation of a virtual functional build methodology where designers and vehicle launch teams will be able to identify problems in assembly builds and make better problem solving decisions faster and understand the quality, cost, and timing impacts of those decisions.
Notice is hereby given that, on March 21, 2007, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
No other changes have been made in either the membership or planned activity of the group research project, and GCEP intends to file additional written notification disclosing all changes in membership.
On March 12, 2003, GCEP filed the 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 April 24, 2006. A notice was published in the
Notice is hereby given that, on March 16, 2007, pursuant to Section 6(a) of the National Cooperative Research and Production Act o 1993, 15 U.S.C. 4301
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and IMS Global Learning Consortium, Inc. intends to file additional written notifications disclosing all changes in membership.
On April 7, 2000, IMS Global Learning Consortium, Inc. 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 December 26, 2006. A notice was published in the
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
Notice is hereby given that, on March 19, 2007, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and OSCI intends to file additional written notifications disclosing all changes in membership.
On October 9, 2001, OSCI 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 13, 2006. A notice was published in the
Notice is hereby given that, on April 5, 2007, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group remains open, and SwRI intends to file additional written notifications disclosing all changes in membership.
On June 10, 2005, SwRI 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 September 27, 2006. A notice was published in the
Notice is hereby given that, on March 27, 2007, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and SwRI v intends to file additional written notifications disclosing all changes in membership.
On April 6, 2004, SwRI Clean Diesel IV 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 June 28, 2005. A notice was published in the
30-Day Notice of Information Collection Under Review: Extension of a currently approved collection; Bureau of Justice Assistance Application Form:
The Department of Justice (DOJ), Office of Justice Programs (OJP) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed collection information is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
All comments, suggestions, or questions regarding additional information, to include obtaining a copy of the proposed information collection instrument with instructions, should be directed to M. Pressley, Bureau of Justice Assistance, Office of Justice Programs, Department of Justice, 810 7th Street, NW., Washington, DC 20531, 1-866-859-2687.
Written comments and/or suggestions regarding the items contained in this notice, especially the estimated public burden and associated response time, should be directed to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention Department of Justice Desk Officer, Washington, DC 20503. Additionally, comments may be submitted to OMB via facsimile to (202) 395-5806. Comments may also be submitted to M. Pressley, Bureau of Justice Assistance, Office of Justice Programs, U. S. Department of Justice, 810 7th Street, NW., Washington, DC., 20531 via facsimile to (202) 305-1367.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
Overview of this information collection:
(1)
(2)
(3)
(4)
(5)
(6)
If additional information is required, contact: Lynn Bryant, Department Clearance Officer, Policy and Planning Staff, Justice Management Division, Department of Justice, Patrick Henry Building, 601 D Street, NW., Suite 1600, Washington, DC 20530.
30-Day Notice of Information Collection Under Review: Extension of a currently approved collection; Bureau of Justice Assistance Application Form:
The Department of Justice (DOJ), Office of Justice Programs (OJP) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed collection information is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
Written comments and/or suggestions regarding the items contained in this notice, especially the estimated public burden and associated response time, should be directed to the Office of Management and Budget, Office of
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
Overview of this information collection:
(1)
(2)
(3)
(4)
(5)
(6)
If additional information is required, please contact, Lynn Bryant, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Patrick Henry Building, Suite 1600, 601 D Street, NW., Washington, DC 20530.
The twelfth meeting of the Federal Economic Statistics Advisory Committee will be held on June 8, 2007 in the Postal Square Building, 2 Massachusetts Avenue, NE., Washington, DC.
The Federal Economic Statistics Advisory Committee is a technical committee composed of economists, statisticians, and behavioral scientists who are recognized for their attainments and objectivity in their respective fields. Committee members are called upon to analyze issues involved in producing Federal economic statistics and recommend practices that will lead to optimum efficiency, effectiveness, and cooperation among the Department of Labor, Bureau of Labor Statistics and the Department of Commerce, Bureau of Economic Analysis and Bureau of the Census.
The meeting will be held in Meeting Rooms 1 and 2 of the Postal Square Building Conference Center. The schedule and agenda for the meeting are as follows:
The meeting is open to the public. Any questions concerning the meeting should be directed to Margaret Johnson, Federal Economic Statistics Advisory Committee, on Area Code (202) 691-5600. Individuals with disabilities, who need special accommodations, should contact Ms. Johnson at least two days prior to the meeting date.
Notice.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden conducts a pre-clearance 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 Mine Safety and Health Administration (MSHA) is soliciting comments concerning the extension of the information collection related to the compliance with standards (30 CFR 57.8520 and 57.8525). The ventilation system is the most vital life support system in underground mining and a properly operating ventilation system is essential for maintaining a safe and healthful working environment. A well planned mine ventilation system is necessary to assure a fresh air supply to miners at all working places, to control the amounts of harmful airborne
Submit comments on or before July 6, 2007.
Send comments to U.S. Department of Labor, Mine Safety and Health Administration, Debbie Ferraro, Management Services Division, 1100 Wilson Boulevard, Room 2171, Arlington, VA 22209-3939. Commenters are encouraged to send their comments on a computer disk, or via e-mail to
Contact the employee listed in the
Underground mines present harsh and hostile working environments. The ventilation system is the most vital life support system in underground mining and a properly operating ventilation system is essential for maintaining a safe and healthful working environment. Inadequate ventilation can be a primary factor for deaths caused by disease of the lungs (e.g. silicosis). In addition, poor working conditions from lack of adequate ventilation contribute to accidents resulting from heat stress, limited visibility, or impaired judgment from contaminants.
MSHA is particularly interested in comments that:
• 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,
A copy of the proposed information collection request can be obtained by contacting the employee listed in the
Currently, the Mine Safety and Health Administration (MSHA) is soliciting comments concerning the proposed extension of the information collection related to ventilation and main fan maintenance.
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 pre-clearance 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.
Submit comments on or before July 6, 2007.
Send comments to U.S. Department of Labor, Mine Safety and Health Administration, Debbie Ferraro, Management Services Division, 1100 Wilson Boulevard, Room 2171, Arlington, VA 22209-3939. Commenters are encouraged to send their comments on a computer disk or via e-mail to
Contact the employee listed in the
Section 103(g) of the Federal Mine Safety and Health Act of 1977 (Pub. L. 91-173, as amended by Pub. L. 95-164) (Mine Act), states that a representative of miners, or any individual miner where this is no miners representative, may submit a written or oral notification of alleged violation of the Mine Act or a mandatory standard or of an imminent danger. Such notification requires the Mine Safety and Health Administration (MSHA) to make an immediate inspection. A copy of the notice must be provided to the operator.
Title 30, Code of Federal Regulations (30 CFR), Part 43, implements Section 103(g) of the Mine Act. It provides the procedures for submitting notification of the alleged violation and the actions which MSHA must take after receiving the notice. Although the regulation contains a review procedure (required by Section 103(g)(2) of the Mine Act) whereby a miner or a representative of miners may in writing request a review if no citation or order is written as a result of the original notice, the option is so rarely used that it was not considered in the burden estimates.
MSHA is particularly interested in comments that:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including
• 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.
A copy of the proposed information collection request can be obtained by contacting the employee listed in the
Currently, MSHA is soliciting comments concerning the extension of the information collection requirements related to 30 CFR 43.4 (Requirements for giving notice) and 43.7 (Informal review upon written notice given to an inspector on the mine premises).
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.
In accordance with Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation announces the following meeting:
In accordance with Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation announces the following meeting:
The National Science Board, pursuant to NSF regulations (45 CFR part 614), the National Science Foundation Act, as amended (42 U.S.C. 1862n-5), and the Government in the Sunshine Act (5 U.S.C. 552b), hereby gives notice in regard to the scheduling of meetings for the transaction of National Science Board business and other matters specified, as follows:
National Science Board.
Monday, May 14, 2007, at 8 a.m. and Tuesday May 15, 2007 at 8:30 a.m.
National Science Foundation, 4201 Wilson Blvd., Room 1235, Arlington, VA 22230. All visitors must report to the NSF visitor desk at the 9th and N. Stuart Streets entrance to receive a visitor's badge.
Some portions open, some portions closed.
Dr. Robert E. Webber,
• Approval of March Minutes.
• SOPI Chairman's Remarks.
• OPP Director's Report.
• Measuring Ice Sheet Mass.
• A Circum-Arctic Observing Network.
• IceCube: Construction and Transition to Operations.
• Approval of March minutes.
• Subcommittee Chairman's Remarks.
• Review of Higher Education chapter: Chapter 2.
• Review of S&E Labor Force chapter: Chapter 3.
• Review of R&D: Funds and Technology Linkages chapter: Chapter 4.
• Review of Academic R&D chapter: Chapter 5.
• Review of Industry, Technology, and the Global Marketplace chapter: Chapter 6.
• Review of S&T: Public Attitudes and Understanding chapter: Chapter 7.
• Discussion of S&E Indicators 2010 Companion Piece Topics.
• Discussion of Key Findings and organization of Condensed Version (Digest) of Indicators.
• Chairman's summary.
• Approval of Minutes.
• Comments by the Task Force Chairman.
• Presentation on international accountability activities.
• Presentation on NSF Office of International Science and Engineering (OISE), activities.
• Approval of Minutes of March 30, 2007 Meeting.
• Committee Chairman's Opening Remarks.
• OIG Semiannual Report.
• Management Response to OIG Semiannual Report.
• FY2007 Financial Statement Audit Status.
• Chief Financial Officer's Update.
• Chairman's Closing Remarks.
• Pending Investigations.
• Approval of Minutes for November 2006.
• Executive Committee Chairman's Remarks.
• Annual Report of the Executive Committee.
• Updates or New Business from Committee Members.
• Approval of March 29, 2007 CPP Minutes.
• Committee Chairman's Remarks.
• Status Reports:
○ Task Force on Transformative Research.
○ Task Force on International Science.
○ Subcommittee on Polar Issues.
• ad hoc Task Group on Sustainable Energy.
• Continuing Discussion: Request for Information on Recompetition, Operations and Management Costs for NSF Contracts, Cooperative Agreements and Grants.
• Approval of March 29, 2007 CSB Minutes.
• Committee Chairman's Remarks.
• Discussion of CSB ad hoc Task Group on Cost-Sharing.
• Status of NSF Budget Request and Congressional Testimony.
• NSF Long Range Plan Overview.
• Preliminary Discussion of FY 2009 Budget.
• Approval of March 2007 Minutes.
• Committee Chairman's Remarks.
• Presentation on Report, Beyond Bias and Barriers.
• Discussion of the Board's Draft Action Plan for STEM Education.
• Subcommittee on Science and Engineering Indicators.
• NSF's Role in Supporting the Next Generation of High Ability Students.
• Executive Officer's Report.
• Approval of March 2007 Minutes.
• Election of Executive Committee Members.
• Approval of March 2007 Minutes.
• Closed Committee Reports.
• Approval of March 2007 Minutes.
• Resolution to Close August 2007 Meeting.
• Chairman's Report.
○ Calendar Year 2008 Board Meeting Dates.
• Director's Report.
○ NSF Congressional Update.
• Open Committee Reports.
U.S. Nuclear Regulatory Commission (NRC).
Notice of pending NRC action to submit an information collection request to OMB and solicitation of public comment.
The NRC is preparing a submittal to OMB for review of continued approval of information collections under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35).
Information pertaining to the requirement to be submitted:
1.
2.
3.
4.
5.
6.
7.
NRC Form 5 is used to record and report the results of individual monitoring for occupational radiation exposure during a one-year (calendar year) period to ensure regulatory compliance with annual radiation dose limits.
Submit, by July 6, 2007, comments that address the following questions:
1. Is the proposed collection of information necessary for the NRC to properly perform its functions? Does the information have practical utility?
2. Is the burden estimate accurate?
3. Is there a way to enhance the quality, utility, and clarity of the information to be collected?
4. How can the burden of the information collection be minimized, including the use of automated collection techniques or other forms of information technology?
A copy of the draft supporting statement may be viewed free of charge at the NRC Public Document Room, One White Flint North, 11555 Rockville Pike, Room O-1 F21, Rockville, MD 20852. OMB clearance requests are available at the NRC worldwide Web site:
Comments and questions about the information collection requirements may be directed to the NRC Clearance Officer, Margaret A. Janney (T-5 F52), U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, by telephone at 301-415-7245, or by Internet electronic mail to
For the Nuclear Regulatory Commission.
The U.S. Nuclear Regulatory Commission (the Commission) has granted the request of Entergy Nuclear Operations, Inc. (the licensee) to withdraw its July 10, 2006, application for proposed amendment to Facility Operating License No. DPR-26 for Indian Point Nuclear Generating Unit No. 2, located in Westchester County, New York.
The proposed amendment would have revised the Technical Specifications pertaining to spent fuel cask loading operations.
The Commission had previously issued a Notice of Consideration of Issuance of Amendment published in the
For further details with respect to this action, see the application for amendment dated July 10, 2006, and the licensee's letter dated April 11, 2007, which withdrew the application for license amendment. Documents may be examined, and/or copied for a fee, at the NRC's Public Document Room (PDR), located at One White Flint North, Public File Area O1 F21, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible electronically from the Agencywide Documents Access and Management System (ADAMS) Public Electronic Reading Room on the internet at the NRC Web site,
For the Nuclear Regulatory Commission.
TRC Engineers, Inc., formerly SITE-Blauvelt Engineering, Inc., formerly Site Engineers, Inc., is the holder of a byproduct materials License No. 29-27857-01 issued by the Nuclear Regulatory Commission (NRC or Commission) on July 11, 1986. The license was renewed on December 26, 2001 (Amendment 7) and expires on December 31, 2011. The license authorizes the Licensee to possess and use certain byproduct materials in accordance with the conditions specified therein.
An inspection of the Licensee's activities was completed on December 5, 2006 at the licensee's facility, as well as at a temporary job site in Monroe, Pennsylvania. The results of this inspection indicated that the Licensee had not conducted its activities in full compliance with NRC requirements. A written Notice of Violation and Proposed Imposition of Civil Penalty (Notice) was served upon the Licensee by letter dated January 30, 2007. The Notice states the nature of the violation, the provision of the NRC's requirements that the Licensee violated, and the amount of the civil penalty proposed for the violation. The Licensee responded to the Notice in a letter dated February 28, 2007. In its response, the Licensee disputed the violation and requested rescission of the civil penalty.
After consideration of the Licensee's response and the statements of fact, explanation, and argument for mitigation contained therein, the NRC staff has determined, the violation occurred as stated in the Notice and that the penalty proposed for the violation designated in the Notice should be imposed.
In view of the foregoing and pursuant to Section 234 of the Atomic Energy Act of 1954, as amended (Act), 42 U.S.C. 2282, and 10 CFR 2.205,
The Licensee pay a civil penalty in the amount of $ 3,250 within 30 days of the date of this Order, in accordance with NUREG/
The Licensee may request a hearing within 30 days of the date of this Order. Where good cause is shown, consideration will be given to extending the time to request a hearing. A request for extension of time must be made in writing to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, and include a statement of good cause for the extension. A request for a hearing should be clearly marked as a “Request for an Enforcement Hearing” and shall be submitted to the Secretary, U.S. Nuclear Regulatory Commission, ATTN: Rulemakings and Adjudications Staff, Washington, DC 20555-0001. Copies also shall be sent to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, to the Assistant General Counsel for Materials Litigation and Enforcement at the same address, and to the Regional Administrator, NRC Region I, 475 Allendale Rd., King of Prussia, PA 19406. If a hearing is requested, the Commission will issue an Order designating the time and place of the hearing. If the Licensee fails to request a hearing within 30 days of the date of this Order, or if written approval of an extension of time in which to request a hearing has not been granted, the provisions of this Order shall be effective without further proceedings. If payment has not been made by that time, the matter may be referred to the Attorney General, for collection.
In the event the Licensee requests a hearing as provided above, the issues to be considered at such hearing shall be:
(a) Whether the Licensee was in violation of the Commission's requirements as set forth in the Notice referenced in Section II above, and
(b) Whether, on the basis of such violation, this Order should be sustained.
For the Nuclear Regulatory Commission.
The 179th Advisory Committee on Nuclear Waste (ACNW) meeting scheduled to be held on May 16-17, 2007, Room T-2B3, Two White Flint North, 11545 Rockville Pike, Rockville, Maryland has been revised as noted below. Notice of this meeting was previously published in the
The discussion of the item on
The discussion of the topic on
For further information, contact Mr. Antonio L. Dias, (Telephone 301-415-6805), between 6:45 a.m. and 4:30 p.m., ET.
The Licensees identified in Attachment 1 to this Order hold licenses issued in accordance with the Atomic Energy Act (AEA) of 1954, as amended, by the U.S. Nuclear Regulatory Commission (NRC), authorizing them to possess radioactive materials. On August 8, 2005, the Energy Policy Act of 2005 (EPAct) was enacted. Section 652 of the EPAct, amended Section 149 of the AEA to require fingerprinting and a Federal Bureau of Investigation (FBI) identification and criminal history records check of any individual who is permitted unescorted access to radioactive material or other property subject to regulation by the Commission, and which the Commission determines to be of such significance to the public health and safety or the common defense and security as to warrant fingerprinting and background checks. Though a rulemaking to implement the fingerprinting provisions of the EPAct is currently underway, the NRC has decided to implement this particular requirement by Order, in part, prior to the completion of the rulemaking because a deliberate malevolent act by an individual with unescorted access to radioactive material or other property has a potential to result in significant adverse impacts to the public health and safety or the common defense and security.
Those exempted from fingerprinting requirements under 10 CFR 73.61 [72 FR 4945 (February 2, 2007)] are also exempt from the fingerprinting requirements under this Order. In addition, individuals who have had a favorably-decided U.S. Government criminal history records check within the last five (5) years, or individuals who have an active federal security clearance (provided in either case that they make available the appropriate documentation), have satisfied the EPAct fingerprinting requirement and need not be fingerprinted again. Also, individuals who have been fingerprinted and granted access to SGI by the reviewing official under the previous fingerprinting order, “Order Imposing Fingerprinting and Criminal History Check Requirements for Access to Safeguards Information,” do not need to be fingerprinted again.
Subsequent to the terrorist events of September 11, 2001, the NRC issued security Orders requiring certain entities to implement Additional Security Measures (ASMs) or Interim Compensatory Measures (ICMs) for certain radioactive material. The requirements imposed by these Orders and the measures licensees have developed to comply with that Order, were designated by the NRC as Safeguards Information (SGI) and were not released to the public. These Orders included a local criminal history records check to determine trustworthiness and reliability of individuals seeking unescorted access to
Accordingly, pursuant to Sections 53, 62, 63, 81, 147, 149, 161b, 161i, 161o, 182 and 186 of the AEA of 1954, as amended, and the Commission's regulations in 10 CFR 2.202, 10 CFR Part 40, 10 CFR Part 70 and 10 CFR Part 73,
A. All Licensee identified in Attachment 1 to this Order shall, within twenty (20) days of the date of this Order, establish and maintain a fingerprinting program that meets the requirements of Attachment 2 to this Order, for unescorted access to radioactive material or other property.
B. All Licensees identified in Attachment 1 to this Order shall, in writing, within twenty (20) days from the date of this Order, notify the Commission: (1) Of receipt and confirmation that compliance with the Order will be achieved, (2) if unable to comply with any of the requirements described in Attachment 2, or (3) if compliance with any of the requirements are unnecessary in its specific circumstances. The notification shall provide the Licensee's justification for seeking relief from, or variation of, any specific requirement.
C. In accordance with the NRC's “Order Imposing Fingerprinting and Criminal History Records Check Requirements for Access to Safeguards Information,” only an NRC-approved reviewing official shall review the results of a FBI criminal history records check. The reviewing official shall determine whether an individual may have, or continue to have, unescorted access to radioactive material or other property. Fingerprinting and the FBI identification and criminal history records check are not required for individuals that are exempted from fingerprinting requirements under 10 CFR 73.61 [72 FR 4945 (February 2, 2007)]. In addition, individuals who have had a favorably-decided U.S. Government criminal history records check within the last five (5) years, or have an active Federal security clearance (provided in each case that the appropriate documentation is made available to the Licensee's reviewing official), have satisfied the EPAct fingerprinting requirement and need not be fingerprinted again.
D. Fingerprints shall be submitted and reviewed in accordance with the procedures described in Attachment 2 to this Order. Individuals who have been fingerprinted and granted access to SGI by the reviewing official, under the NRC's “Order Imposing Fingerprinting and Criminal History Check Requirements for Access to Safeguards Information” do not need to be fingerprinted again for purposes of authorizing unescorted access. No person may have access to SGI or unescorted access to any radioactive material or property subject to regulation by the NRC if the NRC has determined, in accordance with its administrative review process based on fingerprinting and an FBI identification and criminal history records check, either that the person may not have access to SGI or that the person may not have unescorted access to radioactive material or property subject to regulation by the NRC.
E. The Licensee may allow any individual who currently has unescorted access to radioactive material or other property, in accordance with the ASM or ICM Security Orders, to continue to have unescorted access, pending a decision by the reviewing official (based on fingerprinting, an FBI criminal history records check and a trustworthiness and reliability determination) that the individual may continue to have unescorted access to radioactive material or other property. The Licensee shall complete implementation of the requirements of Attachment 2 to this Order within ninety (90) days from the date of issuance of this Order.
Licensee responses to Condition B. shall be submitted to the Director, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555. In addition, Licensee responses shall be marked as “Security-Related Information—withhold under 10 CRF 2.390”, or as “Official Use Only—Department of Energy,” as applicable.
The Director, Office of Nuclear Material Safety and Safeguards, may, in writing, relax or rescind any of the above conditions upon demonstration of good cause by the Licensee.
In accordance with 10 CFR 2.202, the Licensee must, and any other person adversely affected by this Order, may, submit an answer to this Order, and may request a hearing regarding this Order, within twenty (20) days from the date of this Order. Where good cause is shown, consideration will be given to extending the time to either submit an answer or request a hearing. A request for extension of time in which to submit an answer or request a hearing must be made in writing to the Director, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555, and include a statement of good cause for the extension. The answer may consent to this Order. Unless the answer consents to this Order, the answer shall, in writing and under oath or affirmation, specifically set forth the matters of fact and law for which the Licensee or other person adversely affected relies and the reasons as to why the Order should not have been issued. Any answer or request for a hearing shall be submitted to the Secretary, Office of the Secretary, U.S. Nuclear Regulatory Commission, ATTN: Rulemakings and Adjudications Staff, Washington, DC 20555. Copies shall also be sent to the Director, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555; to the Assistant General Counsel for Materials Litigation and Enforcement at the same address; and to the Licensee, if the answer or hearing request is by an individual other than the Licensee. Because of possible delays in delivery of mail to United States Government offices, it is requested that answers and requests for hearing be transmitted to the Secretary of the Commission, either by means of facsimile transmission to (301) 415-1101 or via e-mail to
If a hearing is requested by the Licensee or an individual whose interest is adversely affected, the Commission will issue an Order designating the time and place of a hearing. If a hearing is held, the issue to be considered at such hearing shall be whether this Order should be sustained.
Pursuant to 10 CFR 2.202(c)(2)(i), the Licensee may, in addition to demanding a hearing, at the time the answer is filed, or sooner, move that the presiding officer set aside the immediate effectiveness of the Order on the grounds that the Order, including the need for immediate effectiveness, is not based on adequate evidence, but on mere suspicion, unfounded allegations, or error.
In the absence of any request for hearing, or written approval of an extension of time in which to request a hearing, the provisions, as specified above in Section III, shall be final twenty (20) days from the date of this Order without further Order or proceedings.
If an extension of time for requesting a hearing has been approved, the provisions as specified above in Section III shall be final when the extension expires, if a hearing request has not been received. an answer or a request for a hearing shall not stay the immediate effectiveness of this order.
For the Nuclear Regulatory Commission.
Licensees shall comply with the following requirements of this Attachment.
1. Each Licensee subject to the provisions of this Attachment shall fingerprint each individual who is seeking or permitted unescorted access to radioactive material or other property. The Licensee shall review and use the information received from the Federal Bureau of Investigation (FBI) and ensure that the provisions contained in the subject Order and this Attachment are satisfied.
2. The Licensee shall notify each affected individual that the fingerprints will be used to secure a review of his/her criminal history record and inform the individual of the procedures for revising the record or including an explanation in the record, as specified in the “Right to Correct and Complete Information” section of this Attachment.
3. Fingerprints for unescorted access need not be taken if an employed individual (
4. All fingerprints obtained by the Licensee, pursuant to this Order, must be submitted to the Commission for transmission to the FBI.
5. The Licensee's Reviewing Official shall review the information received from the FBI and consider it, in conjunction with the trustworthiness and reliability requirements established by the previous ASM or ICM Security Orders, in making a determination whether to grant, or continue to allow, unescorted access to radioactive material or other property.
6. The Licensee shall use any information obtained as part of a criminal history records check solely for the purpose of determining an individual's suitability for unescorted access to the radioactive material or other property.
7. The Licensee shall document the basis for its determination whether to grant, or continue to allow, unescorted access to the radioactive material or other property.
A Licensee shall not base a final determination to deny an individual access to radioactive material or other property solely on information received from the FBI involving an arrest more than one (1) year old, for which there is no information as to disposition of the case, or an arrest that resulted in dismissal of the charge or an acquittal.
A Licensee shall not use information received from a criminal history records check obtained pursuant to this Order in a manner that would infringe upon the rights of any individual under the First Amendment to the Constitution of the United States, nor shall the Licensee use the information in any way which would discriminate among individuals on the basis of race, religion, national origin, sex, or age.
For the purpose of complying with this Order, Licensees shall, using an appropriate method listed in 10 CFR 73.4, submit to the Nuclear Regulatory Commission's (NRC's) Division of Facilities and Security, Mail Stop T-6E46, one completed, legible standard fingerprint card (Form FD-258, ORIMDNRCOOOZ) or, where practicable, other fingerprint records for each individual seeking unescorted access to radioactive material or other property, to the Director of the Division of Facilities and Security, marked for the attention of the Division's Criminal History Check Section. Copies of these forms may be obtained by writing the Office of Information Services, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, by calling (301) 415-5877, or via e-mail to
The NRC will review submitted fingerprint cards for completeness. Any Form FD-258 fingerprint record containing omissions or evident errors will be returned to the Licensee for corrections. The fee for processing fingerprint checks includes one resubmission if the initial submission is returned by the FBI because the fingerprint impressions cannot be classified. The one free re-submission must have the FBI Transaction Control Number reflected on the resubmission. If additional submissions are necessary, they will be treated as initial submittals and will require a second payment of the processing fee.
Fees for processing fingerprint checks are due upon application. Licensees shall submit payment with the application for processing fingerprints by corporate check, certified check, cashier's check, money order, or electronic payment, made payable to “U.S. NRC.” [For guidance on making electronic payments, contact the Facilities Security Branch, Division of Facilities and Security, at (301) 415-7404]. Combined payment for multiple applications is acceptable. The application fee (currently $27) is the sum of the user fee charged by the FBI for each fingerprint card or other fingerprint record submitted by the NRC on behalf of a Licensee, and an NRC processing fee, which covers administrative costs associated with NRC handling of Licensee fingerprint
The Commission will forward, to the submitting Licensee, all data received from the FBI as a result of the Licensee's application(s) for criminal history records checks, including the FBI fingerprint record.
Prior to any final adverse determination, the Licensee shall make available, to the individual, the contents of any criminal records obtained from the FBI for the purpose of assuring correct and complete information. Written confirmation by the individual of receipt of this notification must be maintained by the Licensee for a period of one (1) year from the date of the notification.
If, after reviewing the record, an individual believes that the record is incorrect or incomplete in any respect and wishes to change, correct, or update the alleged deficiency, or to explain any matter in the record, the individual may initiate challenge procedures. These procedures include either direct application by the individual challenging the record to the agency (i.e., law enforcement agency) that contributed the questioned information, or direct challenge as to the accuracy or completeness of any entry on the criminal history record to the Assistant Director, Federal Bureau of Investigation Identification Division, Washington, DC 20537-9700 (as set forth in 28 CFR 16.30 through 16.34). In the latter case, the FBI forwards the challenge to the agency that submitted the data and requests that agency to verify or correct the challenged entry. Upon receipt of an official communication directly from the agency that contributed the original information, the FBI Identification Division makes any changes necessary in accordance with the information supplied by that agency. The Licensee must allow at least ten (10) days for an individual to initiate an action challenging the results of an FBI criminal history records check after the record is made available for his/her review. The Licensee may make a final determination for unescorted access to radioactive material or other property based on the criminal history records check, only upon receipt of the FBI's ultimate confirmation or correction of the record. Upon a final adverse determination for unescorted access to radioactive material or other property, the Licensee shall provide the individual its documented basis for denial. During this review process for assuring correct and complete information, unescorted access to radioactive material or other property shall not be granted to an individual.
1. Each Licensee who obtains a criminal history records check for an individual, pursuant to this Order, shall establish and maintain a system of files and procedures for protecting the record and the personal information from unauthorized disclosure.
2. The Licensee may not disclose the record nor personal information collected and maintained to persons other than the subject individual, his/her representative, or to those who have a need to access the information in performing assigned duties in the process of determining unescorted access to the radioactive material or other property. No individual authorized to have access to the information may redisseminate the information to any other individual who does not have a need-to-know.
3. The personal information obtained on an individual from a criminal history records check may be transferred to another Licensee if the Licensee holding the criminal history record receives the individual's written request to redisseminate the information contained in his/her file, and the gaining Licensee verifies information such as the individual's name, date of birth, social security number, sex, and other applicable physical characteristics for identification purposes.
4. The Licensee shall make criminal history records, obtained under this section, available for examination by an authorized representative of the NRC to determine compliance with the regulations and laws.
5. The Licensee shall retain all fingerprint and criminal history records received from the FBI, or a copy, if the individual's file has been transferred, for three (3) years after termination of employment or denial to unescorted access to radioactive material or other property. After the required three (3) year period, these documents shall be destroyed by a method that will prevent reconstruction of the information in whole, or in part.
The Certificate Holders identified in Attachment 1 to this Order hold certificates issued in accordance with the Atomic Energy Act (AEA) of 1954, as amended, by the U.S. Nuclear Regulatory Commission (NRC), authorizing them to possess radioactive material. On August 8, 2005, the Energy Policy Act of 2005 (EPAct) was enacted. Section 652 of the EPAct amended Section 149 of the AEA to require fingerprinting and a Federal Bureau of Investigation (FBI) identification and criminal history records check of any individual who is permitted unescorted access to radioactive material or other property subject to regulation by the Commission, and which the Commission determines to be of such significance to the public health and safety or the common defense and security as to warrant fingerprinting and background checks. Though a rulemaking to implement the fingerprinting provisions of the EPAct is currently underway, the NRC has decided to implement this requirement, in part, prior to the completion of the rulemaking, because a deliberate malevolent act by an individual with unescorted access to radioactive material or other property has a potential to result in significant adverse impacts to the public health and safety or the common defense and security.
Those exempted from fingerprinting requirements under 10 CFR 73.61 [72
Subsequent to the terrorist events of September 11, 2001, the NRC issued security Orders requiring certain entities to implement Additional Security Measures (ASMs) or Interim Compensatory Measures (ICMs) for certain radioactive material. These Orders included a local criminal history records check to determine trustworthiness and reliability of individuals needing unescorted access to radioactive material or other property. “Access” means that an individual could exercise some physical control over the material or device. In accordance with Section 149 of the AEA, as amended by the EPAct, the Commission is imposing FBI criminal history records check requirements, for all individuals allowed unescorted access to protected areas, secure areas, and other areas, as applicable, as set forth in the Order, for the Certificate Holders identified in Attachment 1 to this Order. These requirements will remain in effect until the Commission determines otherwise. In addition, pursuant to 10 CFR 2.202, I find that in light of the common defense and security matters identified above, which warrant the issuance of this Order, the public health, safety, and interest require that this Order be effective immediately.
Accordingly, pursuant to Sections 53, 62, 63, 81, 147, 149, 161b, 161i, 161o, 182 and 186 of the AEA of 1954, as amended, and the Commission's regulations in 10 CFR 2.202, 10 CFR Part 73 and 10 CFR Part 76,
A. All Certificate Holders identified in Attachment 1 to this Order shall, within twenty (20) days of the date of this Order, establish and maintain a fingerprinting program that meets the requirements of Attachment 2 to this Order, for unescorted access to radioactive material or other property.
B. All Certificate Holders identified in Attachment 1 to this Order shall, within twenty (20) days of the date of this Order, submit the fingerprints of one (1) Individual who: (1) The Certificate Holder nominates as the “reviewing official” for determining unescorted access to radioactive material or other property by other individuals; and (2) has been determined to be trustworthy and reliable in accordance with the requirements described in Attachment 3 to this Order. The NRC will determine whether this individual (or any subsequent reviewing official) may have unescorted access to radioactive material or other property, and therefore, will be permitted to serve as the Certificate Holder's reviewing official.
C. All Certificate Holders identified in Attachment 1 to this Order shall, in writing, within twenty (20) days from the date of this Order, notify the Commission: (1) Of receipt and confirmation that compliance with the Order will be achieved, (2) if unable to comply with any of the requirements described in Attachment 2, or (3) if compliance with any of the requirements are unnecessary in its specific circumstances. The notification shall provide the Certificate Holder's justification for seeking relief from, or variation of, any specific requirement.
D. Only a NRC-approved reviewing official shall review the results of a FBI criminal history records check. The reviewing official shall determine whether an individual may have, or continue to have, unescorted access to radioactive material or other property. Fingerprinting and the FBI identification and criminal history records check are not required for individuals that are exempted from fingerprinting requirements under 10 CFR 73.61 [72 FR 4945 (February 2, 2007)]. In addition, individuals who have had a favorably-decided U.S. Government criminal history records check within the last five (5) years, or have an active Federal security clearance (provided in each case that the appropriate documentation is made available to the Certificate Holder's reviewing official), have satisfied the EPAct fingerprinting requirement and need not be fingerprinted again.
E. Fingerprints shall be submitted and the results of the FBI criminal history records check be reviewed in accordance with the procedures described in Attachment 2 to this Order. No person may have access to Safeguards Information or unescorted access to any radioactive material or property subject to regulation by the NRC if the NRC has determined, in accordance with its administrative review process based on fingerprinting and an FBI identification and criminal history records check, either that the person may not have access to Safeguards Information or that the person may not have unescorted access to radioactive material or property subject to regulation by NRC.
F. The Certificate Holder may allow any individual who currently has unescorted access to radioactive material or other property, in accordance with the ASM or ICM Security Orders, to continue to have unescorted access, pending a decision by the reviewing official (based on fingerprinting, an FBI criminal history records check and a trustworthiness and reliability determination) that the individual may continue to have unescorted access to radioactive material or other property. The Certificate Holder shall complete implementation of the requirements of Attachment 2 to this Order within ninety (90) days from the date of issuance of this Order.
Certificate Holder responses to Condition B. and C. shall be submitted to the Director, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555. In addition, Certificate Holder responses shall be marked as “Security-Related Information—Withhold Under 10 CFR 2.390.”
The Director, Office of Nuclear Material Safety and Safeguards, may, in writing, relax or rescind any of the above conditions upon demonstration of good cause by the Certificate Holder.
In accordance with 10 CFR 2.202, the Certificate Holder must, and any other person adversely affected by this Order, may submit an answer to this Order, and may request a hearing regarding this Order, within twenty (20) days from the date of this Order. Where good cause is shown, consideration will be given to extending the time to request a hearing. A request for an extension of time in which to submit an answer or request a hearing must be made in writing to the Director, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555, and include a statement of good cause for the extension. The answer may consent to this Order. Unless the answer consents to this Order, the answer shall, in writing and under oath or affirmation, specifically set forth the matters of fact and law for which the Certificate Holder or other person adversely affected relies and the reasons as to why the Order should not have been issued. Any answer or request for a hearing shall be submitted to the Secretary, Office of the Secretary, U.S. Nuclear Regulatory Commission, ATTN: Rulemakings and Adjudications Staff, Washington, DC 20555. Copies shall also be sent to the Director, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555; to the Assistant General Counsel for Materials Litigation and Enforcement at the same address; and to the Certificatee, if the answer or hearing request is by an individual other than the Certificatee. Because of possible delays in delivery of mail to United States Government offices, it is requested that answers and requests for hearing be transmitted to the Secretary of the Commission, either by means of facsimile transmission to (301) 415-1101, or via e-mail to
If a hearing is requested by the Certificate Holder or an individual whose interest is adversely affected, the
Pursuant to 10 CFR 2.202(c)(2)(i), the Certificate Holder may, in addition to demanding a hearing, at the time the answer is filed, or sooner, move that the presiding officer set aside the immediate effectiveness of the Order on the grounds that the Order, including the need for immediate effectiveness, is not based on adequate evidence, but on mere suspicion, unfounded allegations, or error.
In the absence of any request for hearing, or written approval of an extension of time in which to request a hearing, the provisions as specified above in Section III, shall be final twenty (20) days from the date of this Order without further Order or proceedings.
If an extension of time for requesting a hearing has been approved, the provisions, as specified above in Section III, shall be final when the extension expires, if a hearing request has not been received. An answer or a request for a hearing shall not stay the immediate effectiveness of this order.
For the Nuclear Regulatory Commission.
Licensees shall comply with the following requirements of this Attachment.
1. Each Licensee subject to the provisions of this Attachment shall fingerprint each individual who is seeking or permitted unescorted access to radioactive material or other property. The Licensee shall review and use the information received from the Federal Bureau of Investigation (FBI) and ensure that the provisions contained in the subject Order and this Attachment are satisfied.
2. The Licensee shall notify each affected individual that the fingerprints will be used to secure a review of his/her criminal history record and inform the individual of the procedures for revising the record or including an explanation in the record, as specified in the “Right to Correct and Complete Information” section of this Attachment.
3. Fingerprints for unescorted access need not be taken if an employed individual (e.g., a Licensee employee, contractor, manufacturer, or supplier) is relieved from the fingerprinting requirement by 10 CFR 73.61 for unescorted access, has had a favorably-decided U.S. Government criminal history records check within the last five (5) years, or has an active Federal security clearance. Written confirmation from the Agency/employer which granted the Federal security clearance or reviewed the criminal history records check must be provided. The Licensee must retain this documentation for a period of three (3) years from the date the individual no longer requires unescorted access to radioactive material or other property associated with the Licensee's activities.
4. All fingerprints obtained by the Licensee, pursuant to this Order, must be submitted to the Commission for transmission to the FBI.
5. The Licensee's Reviewing Official shall review the information received from the FBI and consider it, in conjunction with the trustworthiness and reliability requirements established by the previous ASM or ICM Security Orders, in making a determination whether to grant, or continue to allow, unescorted access to radioactive material or other property.
6. The Licensee shall use any information obtained as part of a criminal history records check solely for the purpose of determining an individual's suitability for unescorted access to the radioactive material or other property.
7. The Licensee shall document the basis for its determination whether to grant, or continue to allow, unescorted access to the radioactive material or other property.
A Licensee shall not base a final determination to deny an individual access to radioactive material or other property solely on information received from the FBI involving an arrest more than one (1) year old, for which there is no information as to disposition of the case, or an arrest that resulted in dismissal of the charge or an acquittal.
A Licensee shall not use information received from a criminal history records check obtained pursuant to this Order in a manner that would infringe upon the rights of any individual under the First Amendment to the Constitution of the United States, nor shall the Licensee use the information in any way which would discriminate among individuals on the basis of race, religion, national origin, sex, or age.
For the purpose of complying with this Order, Licensees shall, using an appropriate method listed in 10 CFR 73.4, submit to the Nuclear Regulatory Commission's (NRC's) Division of Facilities and Security, Mail Stop T-6E46, one completed, legible standard fingerprint card (Form FD-258, ORIMDNRCOOOZ) or, where practicable, other fingerprint records for each individual seeking unescorted access to radioactive material or other property, to the Director of the Division of Facilities and Security, marked for the attention of the Division's Criminal History Check Section. Copies of these forms may be obtained by writing the Office of Information Services, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, by calling (301) 415-5877, or via e-mail to
The NRC will review submitted fingerprint cards for completeness. Any Form FD-258 fingerprint record containing omissions or evident errors will be returned to the Licensee for corrections. The fee for processing fingerprint checks includes one resubmission if the initial submission is returned by the FBI because the fingerprint impressions cannot be classified. The one free re-submission must have the FBI Transaction Control Number reflected on the resubmission. If additional submissions are necessary, they will be treated as initial submittals and will require a second payment of the processing fee.
Fees for processing fingerprint checks are due upon application. Licensees shall submit payment with the application for processing fingerprints by corporate check, certified check, cashier's check, money order, or electronic payment, made payable to “U.S. NRC.” [For guidance on making electronic payments, contact the Facilities Security Branch, Division of Facilities and Security, at (301) 415-7404]. Combined payment for multiple applications is acceptable. The application fee (currently $27) is the sum of the user fee charged by the FBI for each fingerprint card or other fingerprint record submitted by the NRC on behalf of a Licensee, and an NRC processing fee, which covers administrative costs associated with NRC handling of Licensee fingerprint submissions. The Commission will directly notify Licensees who are subject to this regulation of any fee changes.
The Commission will forward, to the submitting Licensee, all data received from the FBI as a result of the Licensee's application(s) for criminal history records checks, including the FBI fingerprint record.
Prior to any final adverse determination, the Licensee shall make available, to the individual, the contents of any criminal records obtained from the FBI for the purpose of assuring correct and complete information. Written confirmation by the individual of receipt of this notification must be maintained by the Licensee for a period of one (1) year from the date of the notification.
If, after reviewing the record, an individual believes that the record is incorrect or incomplete in any respect and wishes to change, correct, or update the alleged deficiency, or to explain any matter in the record, the individual may initiate challenge procedures. These procedures include either direct application by the individual
1. Each Licensee who obtains a criminal history records check for an individual, pursuant to this Order, shall establish and maintain a system of files and procedures for protecting the record and the personal information from unauthorized disclosure.
2. The Licensee may not disclose the record nor personal information collected and maintained to persons other than the subject individual, his/her representative, or to those who have a need to access the information in performing assigned duties in the process of determining unescorted access to the radioactive material or other property. No individual authorized to have access to the information may redisseminate the information to any other individual who does not have a need-to-know.
3. The personal information obtained on an individual from a criminal history records check may be transferred to another Licensee if the Licensee holding the criminal history record receives the individual's written request to redisseminate the information contained in his/her file, and the gaining Licensee verifies information such as the individual's name, date of birth, social security number, sex, and other applicable physical characteristics for identification purposes.
4. The Licensee shall make criminal history records, obtained under this section, available for examination by an authorized representative of the NRC to determine compliance with the regulations and laws.
5. The Licensee shall retain all fingerprint and criminal history records received from the FBI, or a copy, if the individual's file has been transferred, for three (3) years after termination of employment or denial to unescorted access to radioactive material or other property. After the required three (3) year period, these documents shall be destroyed by a method that will prevent reconstruction of the information in whole, or in part.
In order to ensure the safe handling, use, and control radioactive material or other property, each licensee shall control and limit access to radioactive material or other property to those individuals who have established the need-to-know, and are considered to be trustworthy and reliable. Licensees shall document the basis for concluding that there is reasonable assurance that the individuals that are granted unescorted access to radioactive material or other property are trustworthy and reliable, and do not constitute an unreasonable risk for malevolent activities.
The Licensee shall comply with the requirements of this Attachment:
1. The trustworthiness and reliability of an individual shall be determined based on a background investigation:
(a) The background investigation shall address at least the past three (3) years, and, at a minimum, include verification of employment, education, and personal references. The licensee shall also, to the extent possible, obtain independent information to corroborate the information provided by the employee (i.e., seeking references not supplied by the individual).
(b) If an individual's employment has been less than the required three (3) year period, educational references may be used in lieu of employment history.
2. The licensee shall retain documentation regarding the trustworthiness and reliability of individual employees for three years after the individual's employment ends.
Securities and Exchange Commission (“Commission”).
Notice of an application for an order under section 12(d)(1)(J) of the Investment Company Act of 1940 (the “Act”) for exemption from sections 12(d)(1)(A) and (B) of the Act and under sections 6(c) and 17(b) of the Act for an exemption from section 17(a) of the Act.
The applicants request an order to permit certain management investment companies and unit investment trusts registered under the Act to acquire shares of certain open-end management investment companies registered under the Act that are outside the same group of investment companies.
First Trust Exchange-Traded Fund (“Initial Trust”), First Trust Exchange-Traded Fund II (“Trust II”), and First Trust Exchange-Traded AlphaDEX Fund (“AlphaDEX Trust”) (collectively, the “Existing Trusts”), First Trust Advisors L.P. (the “Advisor”) and First Trust Portfolios L.P. (the “Distributor”).
The application was filed on November 7, 2006, and amended on April 27, 2007.
An order granting the application will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on May 29, 2007, and should be accompanied by proof of service on applicants, in the form of an affidavit or, for lawyers, a certificate of service. Hearing requests should state the nature of the writer's interest, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary.
Secretary, U.S. Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090; Applicants, 1001 Warrenville Road, Lisle, Illinois 60532.
Barbara T. Heussler, Senior Counsel, at (202) 551-6990, or Mary Kay Frech, Branch Chief, at (202) 551-6821 (Division of Investment Management, Office of Investment Company Regulation).
The following is a summary of the application. The complete application may be obtained for a fee at the Public Reference Desk, U.S. Securities and Exchange Commission, 100 F Street, NE., Washington DC 20549-0102 (telephone (202) 551-5850).
1. The Existing Trusts, Massachusetts business trusts, are each an open-end
2. Applicants request relief to: (a) Permit management investment companies or series thereof (“Investing Management Companies”) and unit investment trusts or series thereof (“Investing Trusts” and, together with Investing Management Companies, “Investing Funds”) registered under the Act, that are not part of the same group of investment companies as an Index Fund within the meaning of section 12(d)(1)(G)(ii) of the Act, to acquire, and such Index Fund to sell, shares of such Index Fund beyond the limits of sections 12(d)(1)(A) and (B) of the Act; (b) permit principal underwriters, and any other brokers or dealers (“Brokers”) to sell shares of any Index Fund to an Investing Fund in excess of the limits prescribed by section 12(d)(1)(B) of the Act; and (c) exempt such transactions from section 17(a) of the Act.
3. Each Investing Management Company will be advised by an investment adviser within the meaning of section 2(a)(20)(A) of the Act (“Investing Fund Adviser”) and may be advised by one or more investment advisers within the meaning of section 2(a)(20)(B) of the Act (each an “Investing Fund Subadviser”). Any Investing Fund Adviser or Investing Fund Subadviser will be registered as an investment adviser under the Advisers Act. Each Investing Trust will be sponsored by a sponsor (“Sponsor”).
4. Applicants state that the Index Funds will offer the Investing Funds simple and efficient vehicles to achieve their asset allocation or diversification objectives. Applicants state that the Index Funds will also provide high quality and low cost professional investment program alternatives to Investing Funds that do not have sufficient assets to operate a comparable fund.
1. Section 12(d)(1)(A) of the Act, in relevant part, prohibits a registered investment company from acquiring shares of an investment company if the securities represent more than 3% of the total outstanding voting stock of the acquired company, more than 5% of the total assets of the acquiring company, or, together with the securities of any other investment companies, more than 10% of the total assets of the acquiring company. Section 12(d)(1)(B) of the Act prohibits a registered open-end investment company, its principal underwriter, and any broker or dealer from selling its shares to another investment company if the sale will cause the acquiring company to own more than 3% of the acquired company's voting stock, or if the sale will cause more than 10% of the acquired company's voting stock to be owned by investment companies generally.
2. Section 12(d)(1)(J) of the Act provides that the Commission may exempt any person, security, or transaction, or any class or classes of persons, securities or transactions, from any provision of section 12(d)(1) if the exemption is consistent with the public interest and the protection of investors. Applicants seek an exemption under section 12(d)(1)(J) of the Act to permit Investing Funds to acquire shares of the Index Funds in excess of the limits in section 12(d)(1)(A) of the Act, and an Index Fund, any principal underwriter for an Index Fund and any Broker to sell shares of an Index Fund to an Investing Fund in excess of the limits of section 12(d)(1)(B) of the Act.
3. Applicants state that the proposed arrangement and conditions will adequately address the policy concerns underlying sections 12(d)(1)(A) and (B) of the Act, which include concerns about large scale redemptions of the acquired fund's shares, excessive layering of fees, and overly complex fund structures. Accordingly, applicants believe that the requested exemption is consistent with the public interest and the protection of investors.
4. Applicants believe that neither the Investing Fund nor an Investing Fund Affiliate would be able to exert undue influence over the Index Funds.
5. Applicants do not believe that the proposed arrangement will involve excessive layering of fees. The board of directors or trustees of any Investing Management Company, including a majority of the directors or trustees who are not “interested persons” (within the meaning of section 2(a)(19) of the Act) (“Disinterested Trustees”), will find that the advisory fees charged under the advisory contract are based on services provided that will be in addition to, rather than duplicative of, the services provided under the advisory contract(s) of any Index Fund in which the Investing Management Company may invest. In addition, an Investing Fund Adviser, or trustee or Sponsor of an Investing Trust will waive fees otherwise payable to it by the Investing Management Company or Investing Trust in an amount at least equal to any compensation (including fees received pursuant to any plan adopted by an Index Fund under rule 12b-1 under the Act) received by the Investing Fund Adviser or trustee or Sponsor to the Investing Trust or an affiliated person of the Investing Fund Adviser, trustee or Sponsor from the Index Funds in connection with the investment by the Investment Management Company or Investing Trust in the Index Fund. Applicants state that any sales loads or service fees charged with respect to shares of the Investing Fund will not exceed the limits applicable to a fund of funds as set forth in Rule 2830 of the Conduct Rules of the NASD (“NASD Conduct Rules”).
6. Applicants submit that the proposed arrangement will not create an overly complex fund structure. Applicants note that no Index Fund will acquire securities of any other investment company or company relying on section 3(c)(1) or 3(c)(7) of the Act in excess of the limits contained in section 12(d)(1)(A) of the Act, except to the extent permitted by rule 12d1-1 under the Act or an exemptive order that allows the Index Fund to purchase shares of an affiliated money market fund for short-term cash management purposes. Before an Investing Fund invests in an Index Fund beyond the limits of section 12(d)(1)(A)(i) of the Act, a participation agreement will be entered into between the Index Fund and the Investing Fund (“Participation Agreement”). The Participation Agreement will require the Investing Fund to adhere to the terms and conditions of the requested order. The Participation Agreement will include an acknowledgment from the Investing Fund that it may rely on the requested order only to invest in the Index Funds and not in any other registered investment company. Applicants represent that each Investing Fund will represent in the Participation Agreement that if it exceeds the 5% or 10% limitation in section 12(d)(1)(A)(ii) and (iii) of the Act, it will disclose in its prospectus that it may invest in the Index Funds, and disclose in “plain English” in its prospectus the unique characteristics of doing so, including but not limited to, the expense structure and any additional expenses of investing in the Index Funds. Each Investing Fund will also be required to represent in the Participation Agreement that it will comply with the disclosure requirements set forth in Investment Company Act Release No. 27399 (June 20, 2006).
7. Applicants also note that an Index Fund may choose to reject a direct purchase by an Investing Fund. To the extent that an Investing Fund purchases shares of an Index Fund in the secondary market, the Index Fund would still retain its ability to reject purchases of its shares through its decision to enter into the Participation Agreement prior to any investment by an Investing Fund in excess of the limits of section 12(d)(1)(A)(i).
1. Section 17(a) of the Act generally prohibits sales or purchases of securities between a registered investment company and any affiliated person of the company. Section 2(a)(3) of the Act defines an “affiliated person” of another person to include any person 5% or more of whose outstanding voting securities are directly or indirectly owned, controlled, or held with power to vote by the other person.
2. Applicants seek relief from section 17(a) to permit an Index Fund that is an affiliated person of an Investing Fund because the Investing Fund holds 5% or more of the Index Fund's shares to sell its shares to and redeem its shares from an Investing Fund.
3. Section 17(b) of the Act authorizes the Commission to grant an order permitting a transaction otherwise prohibited by section 17(a) if it finds that: (i) The terms of the proposed transaction are fair and reasonable and do not involve overreaching on the part of any person concerned; (ii) the proposed transaction is consistent with the policies of each registered investment company involved; and (iii) the proposed transaction is consistent with the general purposes of the Act. Section 6(c) of the Act permits the Commission to exempt any person or transaction from any provision of the Act if such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act.
4. Applicants submit that the proposed transactions satisfy the standards for relief under sections 17(b) and 6(c) of the Act. Applicants state that the terms of the transactions are fair and reasonable and do not involve overreaching. Applicants note that any consideration paid by an Investing Fund for the purchase or redemption of shares directly from an Index Fund will be based on the net asset value of the Index Fund. Applicants state that the
Applicants agree that any order granting the requested relief will be subject to the following conditions:
1. The members of the Investing Fund Adviser/Sponsor Group will not control (individually or in the aggregate) an Index Fund within the meaning of section 2(a)(9) of the Act. The members of the Subadviser Group will not control (individually or in the aggregate) an Index Fund within the meaning of section 2(a)(9) of the Act. If, as a result of a decrease in the outstanding voting securities of an Index Fund, the Investing Fund Adviser/Sponsor Group or the Subadviser Group, each in the aggregate, becomes a holder of more than 25% of the outstanding voting securities of the Index Fund, it will vote its shares of the Index Fund in the same proportion as the vote of all other holders of the Index Fund's shares. This condition does not apply to the Subadviser Group with respect to an Index Fund for which the Investing Fund Subadviser or a person controlling, controlled by, or under common control with the Investing Fund Subadviser acts as the investment adviser within the meaning of section 2(a)(20)(A) of the Act.
2. No Investing Fund or Investing Fund Affiliate will cause any existing or potential investment by the Investing Fund in an Index Fund to influence the terms of any services or transactions between the Investing Fund or an Investing Fund Affiliate and the Index Fund or Index Fund Affiliate.
3. The board of directors or trustees of an Investing Management Company, including a majority of the Disinterested Trustees, will adopt procedures reasonably designed to assure that the Investing Fund Adviser and any Investing Fund Subadviser are conducting the investment program of the Investing Management Company without taking into account any consideration received by the Investing Management Company or an Investing Fund Affiliate from an Index Fund or an Index Fund Affiliate in connection with any services or transactions.
4. Once an investment by an Investing Fund in the securities of an Index Fund exceeds the limit in section 12(d)(1)(A)(i) of the Act, the board of trustees of the Index Fund, including a majority of the Disinterested Trustees, will determine that any consideration paid by the Index Fund to the Investing Fund or an Investing Fund Affiliate in connection with any services or transactions: (a) Is fair and reasonable in relation to the nature and quality of the services and benefits received by the Index Fund; (b) is within the range of consideration that the Index Fund would be required to pay to another unaffiliated entity in connection with the same services or transactions; and (c) does not involve overreaching on the part of any person concerned. This condition does not apply with respect to any services or transactions between an Index Fund and its investment adviser(s), or any person controlling, controlled by, or under common control with such investment adviser(s).
5. No Investing Fund or Investing Fund Affiliate (except to the extent it is acting in its capacity as an investment adviser to an Index Fund) will cause an Index Fund to purchase a security in any Affiliated Underwriting.
6. The board of trustees of the Index Fund, including a majority of the Disinterested Trustees, will adopt procedures reasonably designed to monitor any purchases of securities by an Index Fund in an Affiliated Underwriting once an investment by an Investing Fund in Shares of the Index Fund exceeds the limit in section 12(d)(1)(A)(i) of the Act, including any purchases made directly from an Underwriting Affiliate. The board will review these purchases periodically, but no less frequently than annually, to determine whether the purchases were influenced by the investment by the Investing Fund in the Index Fund. The board will consider, among other things: (i) Whether the purchases were consistent with the investment objectives and policies of the Index Fund; (ii) how the performance of securities purchased in an Affiliated Underwriting compares to the performance of comparable securities purchased during a comparable period of time in underwritings other than Affiliated Underwritings or to a benchmark such as a comparable market index; and (iii) whether the amount of securities purchased by the Index Fund in Affiliated Underwritings and the amount purchased directly from an Underwriting Affiliate have changed significantly from prior years. The board shall take any appropriate actions based on its review, including, if appropriate, the institution of procedures designed to assure that purchases of securities in Affiliated Underwritings are in the best interest of shareholders.
7. Each Index Fund shall maintain and preserve permanently in an easily accessible place a written copy of the procedures described in the preceding condition, and any modifications, and shall maintain and preserve for a period of not less than six years from the end of the fiscal year in which any purchase in an Affiliated Underwriting occurred, the first two years in an easily accessible place, a written record of each purchase of securities in Affiliated Underwritings once an investment by an Investing Fund in the Shares of the Index Fund exceeds the limit in section 12(d)(1)(A)(i) setting forth from whom the securities were acquired, the identity of the underwriting syndicate's members, the terms of the purchase, and the information or materials upon which the board's determinations were made.
8. Prior to investing in an Index Fund in excess of the limits in section 12(d)(1)(A)(i), each Investing Fund and the Index Fund will execute a Participation Agreement stating, without limitation, that their boards of directors/trustees and their investment advisers, or their Sponsors and trustees, as applicable, understand the terms and conditions of the order and agree to fulfill their responsibilities under the order. At the time of its investment in shares of an Index Fund in excess of the limit in section 12(d)(1)(A)(i), an Investing Fund will notify the Index Fund of the investment. At such time, the Investing Fund will also transmit to the Index Fund a list of the names of each Investing Fund Affiliate and Underwriting Affiliate. The Investing Fund will notify the Index Fund of any changes to the list of the names as soon as reasonably practicable after a change occurs. The Index Fund and the Investing Fund will maintain and preserve a copy of the order, the Participation Agreement, and the list with any updated information for the duration of the investment and for a period of not less than six years thereafter, the first two years in an easily accessible place.
9. Prior to approving any advisory contract under section 15 of the Act, the board of directors/trustees of each Investing Management Company, including a majority of the Disinterested Trustees, will find that the advisory fees charged under such advisory contract are based on services provided that will be in addition to, rather than duplicative of, the services provided under the advisory contract(s) of any Index Fund in which the Investing Management Company may invest. These findings and their basis will be recorded fully in the minute books of the appropriate Investing Management Company.
10. An Investing Fund Adviser, or trustee or Sponsor of an Investing Trust will waive fees otherwise payable to it
11. Any sales charges and/or service fees charged with respect to shares of an Investing Fund will not exceed the limits applicable to a fund of funds as set forth in Rule 2830 of the NASD Conduct Rules.
12. No Index Fund will acquire securities of any investment company or company relying on section 3(c)(1) or 3(c)(7) of the Act in excess of the limits contained in section 12(d)(1)(A) of the Act, except to the extent permitted by rule 12d1-1 under the Act or an exemptive order that allows the Index Fund to purchase shares of an affiliated money market fund for short-term cash management purposes.
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
Securities and Exchange Commission (“Commission”).
Notice of an application for an order under section 6(c) of the Investment Company Act of 1940 (the “Act”) for an exemption from sections 23(a), 23(b) and 63 of the Act, and under sections 57(a)(4) and 57(i) of the Act and rule 17d-1 under the Act authorizing certain joint transactions otherwise prohibited by section 57(a)(4) of the Act.
Applicant, Hercules Technology Growth Capital, Inc. (“HTGC”) requests an order to permit it to issue shares of its restricted common stock as part of the compensation packages for certain of its employees and directors, and certain employees of its wholly-owned consolidated subsidiaries.
The application was filed on July 7, 2006 and amended on April 4, 2007 and May 1, 2007.
An order granting the application will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving HTGC with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on May 22, 2007, and should be accompanied by proof of service on HTGC, in the form of an affidavit or, for lawyers, a certificate of service. Hearing requests should state the nature of the writer's interest, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary.
Secretary, U.S. Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090. HTGC, c/o Manuel A. Henriquez, Chairman of the Board and Chief Executive Officer, HTGC, 400 Hamilton Avenue, Suite 310, Palo Alto, California 94301.
Laura J. Riegel, Senior Counsel, at (202) 551-6873, or Nadya B. Roytblat, Assistant Director, at (202) 551-6821, (Division of Investment Management, Office of Investment Company Regulation).
The following is a summary of the application. The complete application may be obtained for a fee at the Commission's Public Reference Desk, 100 F Street, NE., Washington, DC 20549-0102 (tel. 202-551-5850).
1. HTGC, a Maryland corporation, is an internally managed, non-diversified, closed-end investment company that has elected to be regulated as a business development company (“BDC”) under the Act.
2. HTGC currently has a four member board of directors (“Board”) of whom one is considered to be an “interested person” of HTGC within the meaning of section 2(a)(19) of the Act and three are not-interested persons (“Non-interested Directors”). HTGC has three directors who are not officers of employees of HTGC (the “Non-employee Directors”). Currently, HTGC's Non-employee Directors are all Non-interested Directors, but it is possible that HTGC may have Non-employee Directors in the future who are interested persons of HTGC.
3. In May, 2006, HTGC adopted the 2006 Non-employee Director Plan (the “2006 Plan”) for the purpose of advancing the interests of HTGC by providing for the grant of awards under the 2006 Plan to eligible directors of HTGC who are Non-employee Directors.
4. In May, 2006, HTGC adopted the Amended and Restated 2004 Equity Incentive Plan (the “2004 Plan”) for the purpose of attracting and retaining the services of executive officers, employee directors, and other key employees. HTGC proposes to amend and restate the 2004 Plan to permit the issuance of shares of Restricted Stock to its employees and the employees of its wholly-owned consolidated subsidiaries (the “Amended and Restated 2004 Plan”; each of the Amended and Restated 2004 Plan and the Amended and Restated 2006 Plan is an “Amended and Restated Plan” and together, the “Amended and Restated Plans”).
5. HTGC requests an order to permit it to issue shares of Restricted Stock to its Non-employee Directors and employees, and the employees of its wholly-owned consolidated subsidiaries (collectively, the “Restricted Stock Participants” and each, a “Restricted Stock Participant”).
6. The Amended and Restated Plans will authorize the issuance of shares of Restricted Stock subject to certain forfeiture restrictions. These restrictions may relate to continued employment or service on the Board, as the case may be (lapsing either on an annual or other periodic basis or on a “cliff” basis,
7. The maximum amount of shares that may be issued under the Amended and Restated Plan will be 10% of the outstanding shares of common stock of HTGC on the effective date of the Amended and Restated Plans plus 10% of the outstanding number of shares of HTGC's common stock issued or delivered by HTGC (other than pursuant to compensation plans) during the term of the Amended and Restated Plans.
8. Subject to HTGC's stockholders' approval of the Amended and Restated 2006 Plan and issuance of the order, the Amended and Restated 2006 Plan will provide for the grant of 3,333 shares of Restricted Stock to Non-employee Directors upon their initial election to the Board, for which forfeiture restrictions would lapse as to one-half of such shares on the anniversary of the grant for each of the first two years of service, and an additional grant of 5,000 shares of Restricted Stock at the time of such Non-employee Directors' re-election to the Board, for which forfeiture restrictions would lapse as to one-third of such shares on the anniversary of such grant over three years. Subject to HTGC's stockholders' approval of the Amended and Restated 2006 Plan, Non-employee Directors who hold office on the date of the order will receive a grant at the 2007 annual meeting of HTGC's stockholders equal to the pro rata portion of such grant of 5,000 shares of Restricted Stock based on the length of the Non-employee Directors' remaining current term, for which forfeiture restrictions would lapse as to one-third of such shares on the anniversary of the grant over three years. The grants of Restricted Stock to Non-employee Directors under the Amended and Restated 2006 Plan will be automatic and will not be changed without Commission approval.
9. Each issuance of Restricted Stock under the Amended and Restated 2004 Plan will be approved by the required majority, as defined in Section 57(o) of the Act,
1. Under section 63 of the Act, the provisions of section 23(a) of the Act generally prohibiting a registered closed-end investment company from issuing securities for services or for property other than cash or securities are made applicable to BDCs. This provision would prohibit the issuance of Restricted Stock as a part of the Amended and Restated Plans.
2. Section 23(b) generally prohibits a closed-end management investment company from selling its common stock at a price below its current net asset value (“NAV”). Section 63(2) makes section 23(b) applicable to BDCs unless certain conditions are met. Because Restricted Stock that would be granted under the Amended and Restated Plans would not meet the terms of section 63(2), sections 23(b) and 63 prohibit the issuance of the Restricted Stock.
3. Section 6(c) provides, in part, that the Commission may, by order upon application, conditionally or unconditionally exempt any person, security, or transaction, or any class or classes thereof, from any provision of the Act, if and to the extent that the exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act.
4. HTGC requests an order pursuant to section 6(c) of the Act granting an exemption from the provisions of sections 23(a) and (b) and section 63 of the Act. HTGC states that the concerns underlying those sections include: (i) Preferential treatment of investment company insiders and the use of options and other rights by insiders to obtain control of the investment company; (ii) complication of the investment company's structure that makes it difficult to determine the value of the company's shares; and (iii) dilution of stockholders' equity in the investment company. HTGC states that the Amended and Restated Plans do not raise the concern about preferential treatment of HTGC's insiders because the Amended and Restated Plans are bona fide compensation plans of the type that are common among corporations generally. In addition, section 61(a)(3) of the Act permits a BDC to issue to its officers, directors and employees, pursuant to an executive compensation plan, warrants, options and rights to purchase the BDC's voting securities, subject to certain requirements. HTGC states that, for reasons that are unclear, section 61 and its legislative history do not address the issuance by a BDC of restricted stock as incentive compensation. HTGC states, however, that the issuance of Restricted Stock is substantially similar, for purposes of investor protection under the Act, to the issuance of warrants, options, and rights as contemplated by section 61. HTGC also asserts that the Amended and Restated Plans would not become a means for insiders to obtain control of HTGC because the maximum number of HTGC's voting securities that are represented by shares of Restricted Stock and that may be issued to an individual Restricted Stock Participant will be limited as set forth in the conditions to the order.
5. HTGC further states that the Amended and Restated Plans will not unduly complicate HTGC's structure because equity-based employee compensation arrangements are widely used among corporations and commonly known to investors. HTGC notes that the Amended and Restated Plans will be submitted to HTGC's stockholders for their approval. HTGC represents that a concise, “plain English” description of the Amended and Restated Plans, including their potential dilutive effect, will be provided in the proxy materials that will be submitted to HTGC's stockholders. HTGC also states that it will comply with the proxy disclosure requirements in Item 10 of Schedule 14A under the Securities Exchange Act of 1934. HTGC further notes that the Amended and Restated Plans will be disclosed to investors in accordance with the requirements of the Form N-2 registration statements for closed-end investment companies, and pursuant to the standards and guidelines adopted by the Financial Accounting Standards Board for operating companies. In addition, HTGC is subject to the same executive disclosure requirements that the Commission has adopted for operating companies.
6. HTGC acknowledges that, while awards granted under the Amended and Restated Plans would have a dilutive effect on the stockholders' equity in HTGC, that effect would be outweighed by the anticipated benefits of the Amended and Restated Plans to HTGC and its stockholders. HTGC asserts that it needs the flexibility to provide the requested equity-based employee compensation in order to be able to compete effectively with other financial services firms for talented professionals. These professionals, HTGC suggests, in turn are likely to increase HTGC's performance and stockholder value. HTGC also asserts that equity-based compensation would more closely align the interests of the Non-employee Directors and HTGC's employees with those of HTGC's stockholders. HTGC believes that the granting of shares of Restricted Stock to Non-employee Directors under the Amended and Restated 2006 Plan is fair and reasonable because of the skills and experience that such directors provide to HTGC. Such skills and experience are necessary for the management and oversight of HTGC's investments and operations. HTGC believes that granting the shares of Restricted Stock will provide significant incentives for Non-employee Directors to remain on the Board and to devote their best efforts to the success of HTGC's business in the future, as they have done in the past. The issuance of shares of Restricted Stock will also provide a means for HTGC's Non-employee Directors to increase their ownership interest in HTGC, thereby helping to ensure a close identification of their interests with those of HTGC and its stockholders.
7. Section 57(a) proscribes certain transactions between a BDC and persons related to the BDC in the manner described in section 57(b) (“57(b) persons”), absent a Commission order. Section 57(a)(4) generally prohibits a 57(b) person from effecting a transaction in which the BDC is a joint participant absent such an order. Rule 17d-1, made applicable to BDCs by section 57(i), proscribes participation in a “joint enterprise or other joint arrangement or profit-sharing plan,” which includes a stock option or purchase plan. Employees and directors of a BDC are 57(b) persons. Thus, the issuance of shares of Restricted Stock could be deemed to involve a joint transaction involving a BDC and a 57(b) person in contravention of section 57(a)(4). Rule 17d-1(b) provides that, in considering relief pursuant to the rule, the Commission will consider (i) whether the participation of the company in a joint enterprise is consistent with the Act's policies and purposes and (ii) the extent to which that participation is on a basis different from or less advantageous than that of other participants.
8. HTGC requests an order pursuant to section 57(a)(4) and rule 17d-1 to permit the Amended and Restated Plans. HTGC states that the Amended and Restated Plans, although benefiting the Restricted Stock Participants and HTGC in different ways, are in the interests of HTGC's stockholders because the Amended and Restated Plans will help HTGC attract and retain talented professionals, help align the interests of HTGC's employees with those of its stockholders, and in turn help produce a better return to HTGC's stockholders.
HTGC agrees that the order granting the requested relief will be subject to the following conditions:
1. The Amended and Restated Plans will be authorized by HTGC's stockholders.
2. Each issuance of Restricted Stock to an employee will be approved by the required majority, as defined in Section
3. The amount of voting securities that would result from the exercise of all of HTGC's outstanding warrants, options, and rights, together with any Restricted Stock issued pursuant to the Amended and Restated Plans, at the time of issuance shall not exceed 25% of the outstanding voting securities of HTGC, except that if the amount of voting securities that would result from the exercise of all of HTGC's outstanding warrants, options, and rights issued to HTGC's directors, officers, and employees, together with any Restricted Stock issued pursuant to the Amended and Restated Plans, would exceed 15% of the outstanding voting securities of HTGC, then the total amount of voting securities that would result from the exercise of all outstanding warrants, options, and rights, together with any Restricted Stock issued pursuant to the Amended and Restated Plans, at the time of issuance shall not exceed 20% of the outstanding voting securities of HTGC.
4. The maximum amount of shares of Restricted Stock that may be issued under the Amended and Restated Plans will be 10% of the outstanding shares of common stock of HTGC on the effective date of the Amended and Restated Plans plus 10% of the number of shares of HTGC's common stock issued or delivered by HTGC (other than pursuant to compensation plans) during the term of the Amended and Restated Plans.
5. The Board will review the Amended and Restated Plans at least annually. In addition, the Board will review periodically the potential impact that the issuance of Restricted Stock under the Amended and Restated Plans could have on HTGC's earnings and NAV per share, such review to take place prior to any decisions to grant Restricted Stock under the Amended and Restated Plans, but in no event less frequently than annually. Adequate procedures and records will be maintained to permit such review. The Board will be authorized to take appropriate steps to ensure that the grant of Restricted Stock under the Amended and Restated Plans would not have an effect contrary to the interests of HTGC's stockholders. This authority will include the authority to prevent or limit the granting of additional Restricted Stock under the Amended and Restated Plans. All records maintained pursuant to this condition will be subject to examination by the Commission and its staff.
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
Securities and Exchange Commission (“Commission”).
Notice of an application for an order under section 6(c) of the Investment Company Act of 1940 (the “Act”) for an exemption from sections 2(a)(32), 5(a)(1), 22(d), 22(e) and 24(d) of the Act and rule 22c-1 under the Act, and under sections 6(c) and 17(b) of the Act for an exemption from sections 17(a)(1) and (a)(2) of the Act.
Applicants request an order that would permit (a) series of open-end management investment companies, whose portfolios will consist of the component securities of certain foreign equity securities indexes or fixed income securities indexes, to issue shares (“Fund Shares”) that can be purchased from the investment companies and redeemed only in large aggregations (“Creation Units”); (b) secondary market transactions in Fund Shares to occur at negotiated prices on a national securities exchange; (c) dealers to sell Fund Shares to purchasers in the secondary market unaccompanied by a prospectus, when prospectus delivery is not required by the Securities Act of 1933 (the “Securities Act”); (d) certain affiliated persons of the series to deposit securities into, and receive securities from, the series in connection with the purchase and redemption of Creation Units; and (e) the series to pay redemption proceeds, under certain circumstances, more than seven days after the tender of a Creation Unit for redemption. In addition, the order would delete a condition related to future relief and expand the scope of future relief in a prior order.
PowerShares Exchange-Traded Fund Trust (the “Initial Trust”), PowerShares Global Exchange-Traded Fund Trust (the “New Trust,” and together with the Initial Trust, the “Trusts”), PowerShares Capital Management LLC (the “Adviser”), and AIM Distributors, Inc. (the “Distributor”).
The application was filed on October 19, 2006 and amended on March 29, 2007 and April 26, 2007. Applicants have agreed to file an amendment during the notice period, the substance of which is contained in this notice.
An order granting the application will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on May 24, 2007, and should be accompanied by proof of service on applicants, in the form of an affidavit, or for lawyers, a certificate of service. Hearing requests should state the nature of the writer's interest, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary.
Secretary, Securities and Exchange Commission, 100 F Street, NE, Washington, DC 20549-1090. The Trusts and the Adviser: 301 West Roosevelt Road, Wheaton, IL 60187; the Distributor: 11 Greenway Plaza, Suite 100, Houston, TX 77046-1173.
Marilyn Mann, Senior Counsel, at (202) 551-6813, or Mary Kay Frech, Branch Chief, at (202) 551-6821 (Division of Investment Management, Office of Investment Company Regulation).
The following is a summary of the application. The complete application may be obtained for a fee at the Commission's Public Reference Branch, 100 F Street, NE., Washington, DC 20549-0102 (telephone (202) 551-5850).
1. The Trusts are open-end management investment companies registered under the Act and organized as Massachusetts business trusts. The Trusts are organized as series funds (each such series, an “Index Fund”). The Initial Trust currently offers and sells certain Index Funds. The Initial Trust intends to offer nine new Index Funds and the New Trust intends to offer 37 new Index Funds (each, a “New Fund”). The Adviser is registered as an
2. Each New Fund will invest in a portfolio of securities (“Portfolio Securities”) generally consisting of the component securities (“Component Securities”) of a specified securities index (the “Underlying Indexes”). In the case of the New Funds offered by Initial Trust, the Underlying Indexes will be composed of fixed-income securities (each, a “Fixed Income Index”) and in the case of the New Funds offered by the New Trust, the Underlying Indexes will be composed of foreign securities (each, a “Foreign Index”). Each New Fund based on a Fixed Income Index is referred to as a “Fixed Income Fund.”
3. The investment objective of each New Fund will be to provide investment results that generally correspond, before fees and expenses, to the total return of the relevant Underlying Index. A Foreign Fund will invest at least 90% of its assets in the Component Securities of its Foreign Index and in Depositary Receipts (as defined below) representing such Component Securities. A Foreign Fund may invest up to 10% of its assets in certain stock index futures, stock options, options on stock index futures, and swap contracts, in each case related to its respective Foreign Index and its Component Securities, as well as cash and cash equivalents. Each Fixed Income Fund generally will invest at least 90% of its assets in Component Securities of its respective Fixed Income Index (except with respect to the PowerShares Domestic Aggregate Bond Portfolio and the PowerShares Mortgage-Backed Securities Portfolio, as set forth below). However, each Fixed Income Fund may at times invest up to 20% of its assets in certain futures, options and swap contracts, cash and cash equivalents, as well as in bonds not included in its Fixed Income Index, but which the Adviser or Sub-Adviser believes will help the Fixed Income Fund track its Fixed Income Index.
4. The PowerShares Domestic Aggregate Bond Portfolio will seek to track that portion of the Merrill Lynch U.S. Domestic Index devoted to government mortgage-backed securities (“MBS”) by investing a corresponding percentage of its assets either in MBS included in the index or in to-be-announced (“TBA”) transactions on MBS. The PowerShares Mortgage-Backed Securities Portfolio will invest at least 90% of its assets in MBS included in the DB U.S. Agency Mortgage TBA Index or in TBA transactions on MBS. A “TBA transaction” essentially is a purchase or sale of a pass-through security for future settlement at an agreed-upon date. Applicants state that most mortgage pass-through securities trades are executed as TBA transactions. Applicants state that TBA transactions increase the liquidity and pricing efficiency of transactions in MBS because they permit similar MBS to be traded interchangeably pursuant to commonly observed settlement and delivery requirements.
5. Each Foreign Fund will utilize as an investment approach either a replication strategy or a representative sampling strategy, and each Fixed Income Fund will use a representative sampling strategy. A Foreign Fund using a replication strategy generally will hold most of the Component Securities of the Foreign Index in the same approximate proportions as the Foreign Index, but may not hold all of the securities that comprise the Foreign Index in certain instances. A New Fund using a representative sampling strategy will seek to hold a representative sample of the Component Securities of the Underlying Index and will invest in some but not all of the Component Securities of its Underlying Index. Applicants anticipate that a New Fund that utilizes a representative sampling strategy will not track its Underlying Index with the same degree of accuracy as an investment vehicle that invested in every Component Security of the Underlying Index with the same weighting as the Underlying Index. Applicants expect that each New Fund will have a tracking error relative to the performance of its respective Underlying Index of less than 5 percent.
6. Any Depositary Receipts held by a Foreign Fund will be negotiable securities that represent ownership of a non-U.S. company's publicly traded stock. Depositary Receipts will typically be American Depositary Receipts (“ADRs”), but may include Global Depositary Receipts (“GDRs”) and Euro Depositary Receipts (“EDRs”). ADRs, GDRs and EDRs are collectively referred to herein as “Depositary Receipts.” Applicants believe that, in certain cases, holding one or more Depositary Receipts rather than Component Securities of the relevant Foreign Index, will improve the liquidity, tradability and settlement of a Foreign Fund's then current Fund Deposit (as defined below) (thereby improving the efficiency of the creation and redemption process and facilitating efficient arbitrage activity), while at the same time permitting a Foreign Fund to maintain direct
7. Creation Units will consist of either 50,000 or 100,000 Shares, as specified in the relevant prospectus (“Prospectus”). The price of a Creation Unit will range from $1,000,000 to $5,000,000. Creation Units may be purchased only by or through a party that has entered into an agreement with the Distributor regarding creations and redemptions of Creation Units (an “Authorized Participant”). An Authorized Participant must be either (a) a broker-dealer or other participant in the continuous net settlement system of the National Securities Clearing Corporation, a clearing agency that is registered with the Commission, or (b) a participant in the Depository Trust Company (“DTC”) system. Creation Units generally will be issued in exchange for an in-kind deposit of securities and cash. A New Fund also may sell Creation Units on a cash-only basis in limited circumstances.
8. Orders to purchase Creation Units of a New Fund will be placed with the Distributor who will be responsible for transmitting each order to each New Fund. The Distributor will issue, and maintain records of, confirmations of acceptance to purchasers of Creation Units and delivery instructions to the Trusts (to implement the delivery of Creation Units). The Distributor will also be responsible for delivering Prospectuses to purchasers of Creation Units.
9. Persons purchasing Creation Units from a New Fund may hold the Fund Shares or sell some or all of them in the secondary market. Shares of the New Funds will be listed on a national securities exchange, as defined in section 2(a)(26) of the Act (an “Exchange”), and traded in the secondary market in the same manner as other equity securities. An Exchange specialist (“Specialist”) will be assigned to make a market in Shares. If The NASDAQ Stock Market, Inc. (“NASDAQ”) is the listing Exchange, one or more member firms of NASDAQ will act as a market maker (“Market Maker”) and maintain a market on NASDAQ for Fund Shares trading on NASDAQ. The price of Fund Shares traded on an Exchange will be based on a current bid/offer market. Each Fund Share is currently expected to have a market value of between $20 and $50. Transactions involving the sale of Fund Shares in the secondary market will be subject to customary brokerage commissions and charges.
10. Applicants expect that purchasers of Creation Units will include institutional investors and arbitrageurs (which could include institutional investors). The Specialist or Market Maker, in providing for a fair and orderly secondary market for Fund Shares, also may purchase Creation Units for use in its market-making activities. Applicants expect that secondary market purchasers of Fund Shares will include both institutional and retail investors.
11. Fund Shares will not be individually redeemable. Fund Shares will only be redeemable in Creation Units through a New Fund. To redeem, an investor will have to accumulate enough Fund Shares to constitute a Creation Unit. An investor redeeming a Creation Unit generally will receive (a) the Portfolio Securities designated to be delivered for Creation Unit redemptions on the date the request for redemption is made (“Fund Securities”),
12. A redeeming investor will pay a Transaction Fee to offset transaction costs, whether the redemption proceeds are in kind or cash. When an investor redeems for cash rather than in kind, the investor may pay a higher Transaction Fee. Such Transaction Fee will be calculated in the same manner as a Transaction Fee payable in connection with the purchase of a Creation Unit.
13. Applicants state that neither the Trusts nor any New Fund will be marketed or otherwise held out as a “mutual fund.” Rather, applicants state that each New Fund will be marketed as an “exchange-traded fund.” No New Fund marketing materials (other than as required in the Prospectus) will refer to a New Fund as an “open-end” or “mutual fund,” except to contrast a New Fund with a conventional open-end management investment company. In all marketing materials where the method of obtaining, buying, or selling Fund Shares is described, applicants will include a statement to the effect that Fund Shares are not redeemable through a New Fund except in Creation Units. The same type of disclosure will be provided in each New Fund's Prospectus, SAI, advertising materials, and all reports to shareholders. The New Funds will provide copies of their annual and semi-annual shareholder reports to DTC participants for distribution to beneficial holders of Fund Shares.
14. Applicants also seek to amend the Prior Order to modify the terms under which the Initial Trust may offer additional series in the future. The Prior Order is currently subject to a condition that does not permit applicants to register any series by means of filing a post-effective amendment to the Initial Trust's registration statement or by any other means, unless (a) applicants have requested and received with respect to such series, either exemptive relief from the Commission or a no-action letter from the Division of Investment Management of the Commission, or (b) the series will be listed on a national securities exchange without the need for filing pursuant to rule 19b-4 under the Exchange Act. The order would amend the Prior Order to delete this condition. In addition, the order would expand the relief under the Prior Order to include registered investment companies other than the Initial Trust. As amended, the Prior Order would permit the introduction of series of the Initial Trust and series of other open-end management investment companies (collectively, “Future Index Funds”) that (a) are advised by the Adviser or an entity controlling, controlled by or under common control with the Adviser; (b) track Underlying Indices comprised of equity securities issued by domestic issuers that are created, compiled, sponsored or maintained by an entity that is not an affiliated person, as defined in section 2(a)(3) of the Act, or an affiliated person of an affiliated person, of the Adviser, the Distributor, the Initial Trust, the New Trust or any sub-advisor or promoter of an Index Fund, and (c) comply with the respective terms and conditions of the Prior Order, as amended by the order.
15. Applicants believe that the modification of the future relief available under the Prior Order would be consistent with section 6(c) and 17(b) of the Act and that granting the requested relief will facilitate the timely creation of Future Index Funds and the commencement of secondary market trading of such Future Index Funds by removing the need to seek additional exemptive relief. Applicants submit that the terms and conditions of the Prior Order have been appropriate for the exchange-traded funds advised by the Adviser and would remain appropriate for Future Index Funds. Applicants also submit that tying exemptive relief under the Act to the ability of a Future Index Fund to be listed on an Exchange without the need for a rule 19b-4 filing under the Exchange Act is not necessary to meet the standards under section 6(c) and 17(b) of the Act.
1. Applicants request an order under section 6(c) of the Act granting an exemption from sections 2(a)(32), 5(a)(1), 22(d), 22(e) and 24(d) of the Act and rule 22c-1 under the Act; and under sections 6(c) and 17(b) of the Act granting an exemption from sections 17(a)(1) and (a)(2) of the Act.
2. Section 6(c) of the Act provides that the Commission may exempt any person, security or transaction, or any class of persons, securities or transactions, from any provision of the Act, if and to the extent that such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act.
3. Section 5(a)(1) of the Act defines an “open-end company” as a management investment company that is offering for sale or has outstanding any redeemable security of which it is the issuer. Section 2(a)(32) of the Act defines a redeemable security as any security, other than short-term paper, under the terms of which the holder, upon its presentation to the issuer, is entitled to receive approximately his proportionate share of the issuer's current net assets, or the cash equivalent. Because Fund Shares will not be individually redeemable, applicants request an order that would permit each New Fund, as a series of an open-end management investment company, to issue Fund Shares that are redeemable in Creation Units only. Applicants state that investors may purchase Fund Shares in Creation Units from each New Fund and redeem Creation Units. Applicants further state that because the market price of Fund Shares will be disciplined by arbitrage opportunities, investors should be able to sell Fund Shares in the secondary market at prices that do not vary substantially from their NAV.
4. Section 22(d) of the Act, among other things, prohibits a dealer from selling a redeemable security, which is currently being offered to the public by or through a principal underwriter, except at a current public offering price described in the prospectus. Rule 22c-1 under the Act generally requires that a dealer selling, redeeming, or repurchasing a redeemable security do so only at a price based on its NAV. Applicants state that secondary market trading in Fund Shares will take place at negotiated prices, not at a current offering price described in the prospectus, and not at a price based on NAV. Thus, purchases and sales of Fund Shares in the secondary market will not comply with section 22(d) of the Act and rule 22c-1 under the Act. Applicants request an exemption under section 6(c) from these provisions.
5. Applicants assert that the concerns sought to be addressed by section 22(d) of the Act and rule 22c-1 under the Act with respect to pricing are equally satisfied by the proposed method of pricing Fund Shares. Applicants maintain that while there is little legislative history regarding section 22(d), its provisions, as well as those of rule 22c-1, appear to have been designed to (a) prevent dilution caused by certain riskless-trading schemes by principal underwriters and contract dealers, (b) prevent unjust discrimination or preferential treatment among buyers resulting from sales at different prices, and (c) assure an orderly distribution of investment company shares by eliminating price competition from dealers offering shares at less than the published sales price and repurchasing shares at more than the published redemption price.
6. Applicants believe that none of these purposes will be thwarted by permitting Fund Shares to trade in the secondary market at negotiated prices. Applicants state that (a) secondary market trading in Fund Shares does not involve the New Funds as parties and cannot result in dilution of an investment in Fund Shares, and (b) to the extent different prices exist during a given trading day, or from day to day, such variances occur as a result of third-party market forces, such as supply and demand. Therefore, applicants assert that secondary market transactions in Fund Shares will not lead to discrimination or preferential treatment among purchasers. Finally, applicants contend that the proposed distribution system will be orderly because arbitrage activity will ensure that the difference between the market price of Fund Shares and their NAV remains narrow.
7. Section 22(e) generally prohibits a registered investment company from suspending the right of redemption or postponing the date of payment of redemption proceeds for more than seven days after the tender of a security for redemption. The principal reason for the requested exemption is that settlement of redemptions for the Foreign Funds is contingent not only on the settlement cycle of the United States market, but also on currently practicable delivery cycles in local markets for underlying foreign securities held by the Foreign Funds. Applicants state that local market delivery cycles for transferring certain foreign securities to investors redeeming Creation Units, together with local market holiday schedules, will under certain circumstances require a delivery process in excess of seven calendar days for the Foreign Funds. Applicants request relief under section 6(c) of the Act from section 22(e) to allow the Foreign Funds to pay redemption proceeds more than seven days after the tender of Fund Shares for redemption. Applicants anticipate that the delivery of redemption proceeds would be made at the latest within 14 calendar days after the redemption request except to the extent that a redemption delivery is delayed due to the proclamation of new or special holidays, the treatment by market participants of certain days as “informal holidays,” the elimination of existing holidays or changes in local securities delivery practices. At all other times and except as disclosed in the relevant Prospectus, product description (“Product Description”) and/or SAI, applicants expect that each Foreign Fund will be able to deliver redemption proceeds within seven days.
8. Section 24(d) of the Act provides, in relevant part, that the prospectus delivery exemption provided to dealer transactions by section 4(3) of the Securities Act does not apply to any transaction in a redeemable security issued by an open-end investment company. Applicants request an exemption from section 24(d) to permit dealers selling Fund Shares to rely on the prospectus delivery exemption provided by section 4(3) of the Securities Act.
9. Applicants state that Fund Shares will be listed on an Exchange and will be traded in a manner similar to other equity securities, including the shares of closed-end investment companies. Applicants note that dealers selling shares of closed-end investment companies in the secondary market generally are not required to deliver a prospectus to the purchaser. Applicants contend that Fund Shares, as a listed security, merit a reduction in the compliance costs and regulatory burdens resulting from the imposition of prospectus delivery obligations in the secondary market. Because Fund Shares will be exchange-listed, prospective investors will have access to several types of market information about Fund Shares. Applicants state that information regarding market price and volume will be continually available on a real-time basis throughout the day on brokers' computer screens and other electronic services. The previous day's closing price and volume information for Fund Shares also will be published daily in the financial section of newspapers. The website maintained for the Trusts will include, for each New Fund, the prior business day's NAV, the mid-point of the bid-ask spread at the time of calculation of NAV (“Bid/Ask Price”) and calculation of the premium or discount of the Bid/Ask Price at the time of calculation of the NAV against such NAV, and data in chart format displaying the frequency distribution of
10. Investors also will receive a Product Description describing a New Fund and its Fund Shares. Applicants state that, while not intended as a substitute for a Prospectus, the Product Description will contain information about Fund Shares that is tailored to meet the needs of investors purchasing Fund Shares in the secondary market.
11. Section 17(a)(1) and (2) of the Act generally prohibit an affiliated person of a registered investment company, or an affiliated person of such a person (“second tier affiliate”), from selling any security to or purchasing any security from the company. Section 2(a)(3) of the Act defines “affiliated person” to include any person directly or indirectly owning, controlling, or holding with power to vote 5% or more of the outstanding voting securities of the other person and any person directly or indirectly controlling, controlled by, or under common control with, the other person. Section 2(a)(9) of the Act provides that a control relationship will be presumed where one person owns more than 25% of another person's voting securities. The New Funds may be deemed to be controlled by the Adviser or an entity controlling, controlled by or under common control with the Adviser and hence affiliated persons of each other. In addition, the New Funds may be deemed to be under common control with any other registered investment company (or series thereof) advised by the Adviser or an entity controlling, controlled by or under common control with the Adviser (an “Affiliated Fund”). Applicants state that because the definition of “affiliated person” includes any person owning 5% or more of an issuer's outstanding voting securities, every purchaser of a Creation Unit will be affiliated with the New Fund so long as fewer than twenty Creation Units are in existence, and any purchaser that owns more than 25% of a New Fund's outstanding Fund Shares will be affiliated with a New Fund. Applicants request an exemption from section 17(a) under sections 6(c) and 17(b), to permit in-kind purchases and redemptions by persons that are affiliated persons or second tier affiliates of the New Funds solely by virtue of one or more of the following: (1) Holding 5% or more, or more than 25%, of the outstanding Fund Shares of either Trust or one or more New Funds; (2) an affiliation with a person with an ownership interest described in (1); or (3) holding 5% or more, or more than 25%, of the shares of one or more Affiliated Funds.
12. Section 17(b) of the Act authorizes the Commission to exempt a proposed transaction from section 17(a) of the Act if evidence establishes that the terms of the transaction, including the consideration to be paid or received, are reasonable and fair and do not involve overreaching on the part of any person concerned, and the proposed transaction is consistent with the policies of the registered investment company and the general provisions of the Act. Applicants contend that no useful purpose would be served by prohibiting affiliated persons or second tier affiliates of a New Fund from purchasing or redeeming Creation Units through “in-kind” transactions. The deposit procedure for in-kind purchases and the redemption procedure for in-kind redemptions will be the same for all purchases and redemptions. Deposit Securities and Fund Securities will be valued under the same objective standards applied to valuing Portfolio Securities. Therefore, applicants state that in-kind purchases and redemptions will afford no opportunity for the affiliated persons and second tier affiliates described above to effect a transaction detrimental to the other holders of Fund Shares. Applicants also believe that in-kind purchases and redemptions will not result in abusive self-dealing or overreaching by these persons of the New Fund.
Applicants agree that the Prior Order will continue to be subject to the same conditions, except that condition 1 will be deleted. With respect to the New Funds, applicants agree that any order granting the requested relief will be subject to the following conditions:
1. Each New Fund's Prospectus and Product Description will clearly disclose that, for purposes of the Act, the Fund Shares are issued by a registered investment company, and the acquisition of Fund Shares by investment companies is subject to the restrictions of section 12(d)(1) of the Act, except as permitted by an exemptive order that permits registered investment companies to invest in a New Fund beyond the limits in section 12(d)(1), subject to certain terms and conditions, including that the registered investment company enter into an agreement with the New Fund regarding the terms of the investment.
2. As long as a Trust operates in reliance on the requested order, its Fund Shares will be listed on an Exchange.
3. Neither the Trusts nor any of the New Funds will be advertised or marketed as an open-end fund or a mutual fund. Each New Fund's Prospectus will prominently disclose that Fund Shares are not individually redeemable shares and will disclose that the owners of Fund Shares may acquire those Fund Shares from the New Fund and tender those Fund Shares for redemption to such New Fund in Creation Units only. Any advertising material that describes the purchase or sale of Creation Units or refers to redeemability will prominently disclose that Fund Shares are not individually redeemable and that owners of Fund Shares may acquire those Fund Shares from the New Fund and tender those Fund Shares for redemption to the New Fund in Creation Units only.
4. The Web site maintained for the Trusts, which is and will be publicly accessible at no charge, will contain the following information, on a per Fund Share basis, for each New Fund: (a) the prior business day's NAV and the Bid/Ask Price, and a calculation of the premium or discount of the Bid/Ask Price at the time of calculation of the NAV against such NAV; and (b) data in chart format displaying the frequency distribution of discounts and premiums of the daily Bid/Ask Price against the NAV, within appropriate ranges, for each of the four previous calendar quarters. In addition, the Product Description for each New Fund will state that the website for the New Fund has information about the premiums and discounts at which the Fund Shares have traded.
5. Each New Fund's Prospectus and annual report will also include: (a) the information listed in condition 4(b), (i) in the case of the Prospectus, for the most recently completed year (and the most recently completed quarter or quarters, as applicable) and (ii) in the case of the annual report, for the immediately preceding five years, as applicable; and (b) the following data, calculated on a per Fund Share basis for one, five and ten year periods (or life of the New Fund), (i) the cumulative total return and the average annual total return based on NAV and Bid/Ask Price, and (ii) the cumulative total return of the applicable Underlying Index.
6. Before a New Fund may rely on the order, the Commission will have approved, pursuant to rule 19b-4 under the Exchange Act, an Exchange rule requiring Exchange members and
For the Commission, by the Division of Investment Management, under delegated authority.
Securities and Exchange Commission (“Commission”).
Notice of application to amend a prior order under section 6(c) of the Investment Company Act of 1940 (“Act”) for an exemption from sections 2(a)(32), 5(a)(1), 22(d), 22(e) and 24(d) of the Act and rule 22c-1 under the Act, and under sections 6(c) and 17(b) of the Act for an exemption from sections 17(a)(1) and (a)(2) of the Act.
Applicants request an order to amend a prior order that permits: (a) Open-end management investment companies, whose series are based on certain equity securities indices, to issue shares of limited redeemability; (b) secondary market transactions in the shares of the series to occur at negotiated prices; (c) dealers to sell shares to purchasers in the secondary market unaccompanied by a prospectus when prospectus delivery is not required by the Securities Act of 1933 (“Securities Act”); (d) certain affiliated persons of the series to deposit securities into, and receive securities from, the series in connection with the purchase and redemption of aggregations of the series' shares; and (e) under certain circumstances, the series that track certain foreign equity securities indices to pay redemption proceeds more than seven days after the tender of shares (the “Prior Order”).
SSgA Funds Management, Inc. (“Adviser”), State Street Global Markets LLC (“Distributor”), streetTRACKS® Series Trust, and streetTRACKS® Index Shares Funds (each, a “Trust” and together, the “Trusts”).
The application was filed on January 5, 2007 and amended on April 23, 2007.
An order granting the requested relief will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on May 24, 2007, and should be accompanied by proof of service on applicants, in the form of an affidavit or, for lawyers, a certificate of service. Hearing requests should state the nature of the writer's interest, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary.
Secretary, U.S. Securities and Exchange Commission, 100 F Street, NE, Washington, DC 20549-1090. Applicants: Scott M. Zoltowski, Esq., State Street Global Advisors, One Lincoln Street, Boston Massachusetts 02111; Vincent Manzi, State Street Global Markets LLC, One Lincoln Street, Boston, Massachusetts 02111; and W. John McGuire, Esq., Morgan, Lewis & Bockius LLP, 1111 Pennsylvania Avenue, NW, Washington, DC 20004.
Emerson S. Davis, Sr., Senior Counsel, at (202) 551-6868, or Mary Kay Frech, Branch Chief, at (202) 551-6821 (Division of Investment Management, Office of Investment Company Regulation).
The following is a summary of the application. The complete application may be obtained for a fee at the Commission's Public Reference Branch, 100 F Street, NE, Washington, DC 20549-0102 (tel. 202-551-5850).
1. Each Trust is an open-end management investment company registered under the Act and organized as a Massachusetts business trust. The Trusts are organized as series funds with multiple series. The Adviser, an investment adviser registered under the Investment Advisers Act of 1940, will serve as investment adviser to the New Funds. The Adviser may retain sub-advisers (“Sub-Advisers”) to manage the assets of a New Fund. Any Sub-Adviser will be registered under the Advisers Act. The Distributor, a broker-dealer registered under the Securities Exchange Act of 1934 (“Exchange Act”), will serve as the principal underwriter of the New Funds” shares.
2. Each Trust is currently permitted to offer series based on equity securities indices in reliance on the Prior Order. Applicants seek to amend the Prior Order to permit the Trusts to offer the New Funds that, except as described in the application, would operate in a manner identical to the existing series of the Trusts that are subject to the Prior Order.
3. The New Funds will invest in portfolios of securities generally consisting of the component securities of the Lehman Brothers 1-3 Year U.S. Treasury Index, Lehman Brothers Intermediate U.S. Treasury Index, Lehman Brothers Long U.S. Treasury Index, Lehman Brothers U.S. Aggregate Index, Lehman Brothers 1-3 Year U.S. Corporate Investment Grade Index, Lehman Brothers U.S. Intermediate Corporate Grade Index, and Lehman Brothers U.S. Long Corporate Investment Grade Index (the “Underlying Indexes”). No entity that creates, compiles, sponsors, or maintains an Underlying Index is or will be an affiliated person, as defined in section 2(a)(3) of the Act, or an affiliated person of an affiliated person, of the Trusts, the Adviser, any Sub-Adviser, the Distributor, or a promoter of a New Fund.
4. The investment objective of each New Fund will be to provide investment results that correspond generally to the price and yield performance of the relevant Underlying Index. The Adviser may fully replicate a New Fund's relevant Underlying Index or use a representative sampling strategy where the New Fund will seek to hold a representative sample of the component securities of the Underlying Index. Each New Fund generally will invest at least 80% or 90% of its total assets, as disclosed in the relevant prospectus, in the securities that comprise the relevant Underlying Index, but at times may invest up to 20% of its total assets in certain futures, options, and swap contracts, cash and cash equivalents, as well as securities not included in its Underlying Index which the Adviser believes will help the New Fund track the Underlying Index. At all times, a New Fund will hold, in the aggregate, at
5. Applicants state that a New Fund will comply with the federal securities laws in accepting a deposit of a portfolio of securities designated by the Adviser to correspond generally to the price and yield of the New Fund's Underlying Index (“Deposit Securities”)
6. Applicants state that the New Funds will operate in a manner identical to the operation of the existing series of the Trusts in the Prior Order, except as specifically noted by applicants (and summarized in this notice), and will comply with all of the terms, provisions and conditions of the Prior Order, as amended by the present application. Applicants believe that the requested relief continues to meet the necessary exemptive standards.
7. Applicants also seek to amend the Prior Order to modify the terms under which the Trusts may offer additional series in the future based on other securities indices (“Future Funds”). The Prior Order is currently subject to a condition that does not permit applicants to register the shares of any Future Fund by means of filing a post-effective amendment to a Trust's registration statement or by any other means, unless applicants have requested and received with respect to such Future Fund, either exemptive relief from the Commission or a no-action letter from the Division of Investment Management of the Commission, or if the Future Fund could be listed on a national securities exchange (“Exchange”) without the need for a filing pursuant to rule 19b-4 under the Exchange Act.
8. The order would amend the Prior Order to delete this condition. Any Future Funds will (a) be advised by the Adviser or an entity controlled by or under common control with the Adviser; (b) track Underlying Indices that are created, compiled, sponsored or maintained by an entity that is not an affiliated person, as defined in section 2(a)(3) of the Act, or an affiliated person of an affiliated person, of the Adviser, the Distributor, the Trusts or any Sub-Adviser or promoter of a Future Fund, and (c) comply with the respective terms and conditions of the Prior Order, as amended by the present application.
9. Applicants believe that the modification of the future relief available under the Prior Order would be consistent with sections 6(c) and 17(b) of the Act and that granting the requested relief will facilitate the timely creation of Future Funds and the commencement of secondary market trading of such Future Funds by removing the need to seek additional exemptive relief. Applicants submit that the terms and conditions of the Prior Order have been appropriate for the existing series of the Trusts and would remain appropriate for Future Funds. Applicants also submit that tying exemptive relief under the Act to the ability of a Future Fund to be listed on an Exchange without the need for a rule 19b-4 filing under the Exchange Act is not necessary to meet the standards under sections 6(c) and 17(b) of the Act.
Applicants agree that any amended order granting the requested relief will be subject to the same conditions as those imposed by the Prior Order, except for condition 1 to the Prior Order, which will be deleted.
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
[To be Published].
Closed meeting.
100 F Street, NE., Washington, DC.
Tuesday, May 8, 2007 at 2 p.m.
Time change.
The closed meeting scheduled for Tuesday, May 8, 2007 at 2 p.m. has been changed to Tuesday, May 8, 2007 at 12:30 p.m.
At times, changes in Commission priorities require alterations in the scheduling of meeting items. For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact the Office of the Secretary at (202) 551-5400.
The Commission collects fees under various provisions of the securities laws. Section 6(b) of the Securities Act of 1933 (“Securities Act”) requires the Commission to collect fees from issuers on the registration of securities.
The Investor and Capital Markets Fee Relief Act (“Fee Relief Act”)
Section 6(b)(5) of the Securities Act requires the Commission to make an annual adjustment to the fee rate applicable under Section 6(b) of the Securities Act in each of the fiscal years 2003 through 2011.
Section 6(b)(5) sets forth the method for determining the annual adjustment to the fee rate under Section 6(b) for fiscal year 2008. Specifically, the Commission must adjust the fee rate under Section 6(b) to a “rate that, when applied to the baseline estimate of the aggregate maximum offering prices for [fiscal year 2008], is reasonably likely to produce aggregate fee collections under [Section 6(b)] that are equal to the target offsetting collection amount for [fiscal year 2008].” That is, the adjusted rate is determined by dividing the “target offsetting collection amount” for fiscal year 2008 by the “baseline estimate of the aggregate maximum offering prices” for fiscal year 2008.
Section 6(b)(11)(A) specifies that the “target offsetting collection amount” for fiscal year 2008 is $234,000,000.
To make the baseline estimate of the aggregate maximum offering price for fiscal year 2008, the Commission is using the same methodology it developed in consultation with the Congressional Budget Office (“CBO”) and Office of Management and Budget (“OMB”) to project aggregate offering price for purposes of the fiscal year 2007 annual adjustment. Using this methodology, the Commission determines the “baseline estimate of the aggregate maximum offering price” for fiscal year 2008 to be $5,959,775,433,491.
Section 31(b) of the Exchange Act requires each national securities exchange to pay the Commission a fee at a rate, as adjusted by our order pursuant to Section 31(j)(2),
Section 31(j)(1) specifies the method for determining the annual adjustment for fiscal year 2008. Specifically, the Commission must adjust the rates under Sections 31(b) and (c) to a “uniform adjusted rate that, when applied to the baseline estimate of the aggregate dollar amount of sales for [fiscal year 2008], is reasonably likely to produce aggregate fee collections under [Section 31] (including assessments collected under [Section 31(d)]) that are equal to the target offsetting collection amount for [fiscal year 2008].”
Section 31(
To make the baseline estimate of the aggregate dollar amount of sales for fiscal year 2008, the Commission is using the same methodology it developed in consultation with the CBO and OMB to project dollar volume for purposes of prior fee adjustments.
Section 6(b)(8)(A) of the Securities Act provides that the fiscal year 2008 annual adjustment to the fee rate applicable under Section 6(b) of the Securities Act shall take effect on the later of October 1, 2007, or five days after the date on which a regular appropriation to the Commission for fiscal year 2008 is enacted.
Section 31(j)(4)(A) of the Exchange Act provides that the fiscal year 2008 annual adjustments to the fee rates applicable under Sections 31(b) and (c) of the Exchange Act shall take effect on the later of October 1, 2007, or 30 days after the date on which a regular appropriation to the Commission for fiscal year 2008 is enacted.
Accordingly, pursuant to Section 6(b) of the Securities Act and Sections 13(e), 14(g), and 31 of the Exchange Act,
By the Commission.
With the passage of the Investor and Capital Markets Relief Act, Congress has, among other things, established a target amount of monies to be collected from fees charged to issuers based on the value of their registrations. This appendix provides the formula for determining such fees, which the Commission adjusts annually. Congress has mandated that the Commission determine these fees based on the “aggregate maximum offering prices,” which measures the aggregate dollar amount of securities registered with the Commission over the course of the year. In order to maximize the likelihood that the amount of monies targeted by Congress will be collected, the fee rate must be set to reflect projected aggregate maximum offering prices. As a percentage, the fee rate equals the ratio of the target amounts of monies to the projected aggregate maximum offering prices.
For 2008, the Commission has estimated the aggregate maximum offering prices by projecting forward the trend established in the previous decade. More specifically, an ARIMA model was used to forecast the value of the aggregate maximum offering prices for months subsequent to March 2007, the last month for which the Commission has data on the aggregate maximum offering prices.
The following sections describe this process in detail.
First, calculate the aggregate maximum offering prices (AMOP) for each month in the sample (March 1997-March 2007). Next, calculate the percentage change in the AMOP from month to month.
Model the monthly percentage change in AMOP as a first order moving average process. The moving average approach allows one to model the effect that an exceptionally high (or low) observation of AMOP tends to be followed by a more “typical” value of AMOP.
Use the estimated moving average model to forecast the monthly percent change in AMOP. These percent changes can then be applied to obtain forecasts of the total dollar value of registrations. The following is a more formal (mathematical) description of the procedure:
1. Begin with the monthly data for AMOP. The sample spans ten years, from March 1997 to March 2007.
2. Divide each month's AMOP (column C) by the number of trading days in that month (column B) to obtain the average daily AMOP (AAMOP, column D).
3. For each month t, the natural logarithm of AAMOP is reported in column E.
4. Calculate the change in log(AAMOP) from the previous month as Δ
5. Estimate the first order moving average model Δ
6. For the month of April 2007 forecast Δ
7. Calculate forecasts of log(AAMOP). For example, the forecast of log(AAMOP) for June 2007 is given by FLAAMOP
8. Under the assumption that e
9. For June 2007, this gives a forecast AAMOP of $21.2 Billion (Column I), and a forecast AMOP of $444.9 Billion (Column J).
10. Iterate this process through September 2008 to obtain a baseline estimate of the aggregate maximum offering prices for fiscal year 2008 of $5,959,775,433,491.
1. Using the data from Table A, estimate the aggregate maximum offering prices between 10/1/07 and 9/30/08 to be $5,959,775,433,491.
2. The rate necessary to collect the target $234,000,000 in fee revenues set by Congress is then calculated as: $234,000,000 ÷ $5,959,775,433,491 = 0.00003926 (or $39.30 per million.).
With the passage of the Investor and Capital Markets Relief Act, Congress has, among other things, established a target amount of monies to be collected from fees charged to investors based on the value of their transactions. This appendix provides the formula for determining such fees, which the Commission adjusts annually, and may adjust semi-annually.
For 2008, the Commission has estimated dollar transaction volume by projecting forward the trend established in the previous decade. More specifically, dollar transaction volume was forecasted for months subsequent to March 2007, the last month for which the Commission has data on transaction volume.
The following sections describe this process in detail.
First, calculate the average daily dollar amount of sales (ADS) for each month in the sample (March 1997-March 2007). The monthly aggregate dollar amount of sales (exchange plus certain over-the-counter markets) is presented in column C of Table B.
Next, calculate the change in the natural logarithm of ADS from month to month. The average monthly percentage growth of ADS over the entire sample is 0.014 and the standard deviation 0.115. Assuming the monthly percentage change in ADS follows a random walk, calculating the expected monthly percentage growth rate for the full sample is straightforward. The expected monthly percentage growth rate of ADS is 2.1%.
Now, use the expected monthly percentage growth rate to forecast total dollar volume. For example, one can use the ADS for March 2007 ($238,343,650,750) to forecast ADS for April 2007 ($243,433,544,609 = $238,343,650,750 × 1.021).
The forecasts for total dollar volume are in column G of Table B. The following is a more formal (mathematical) description of the procedure:
1. Divide each month's total dollar volume (column C) by the number of trading days in that month (column B) to obtain the average daily dollar volume (ADS, column D).
2. For each month t, calculate the change in ADS from the previous month as Δ
3. Calculate the mean and standard deviation of the series {Δ
4. Assume that the natural logarithm of ADS follows a random walk, so that Δ
5. Under the assumption that Δ
6. For April 2007, this gives a forecast ADS of 1.021 × $238,343,650,750 = $243,433,544,609. Multiply this figure by the 20 trading days in April 2007 to obtain a total dollar volume forecast of $4,868,670,892,189.
7. For May 2007, multiply the April 2007 ADS forecast by 1.021 to obtain a forecast ADS of $248,632,134,545. Multiply this figure by the 22 trading days in May 2007 to obtain a total dollar volume forecast of $5,469,906,959,979.
8. Repeat this procedure for subsequent months.
1. Use Table B to estimate fees collected for the period 10/1/07 through 10/31/07. The projected aggregate dollar amount of sales for this period is $6,355,786,096,164. Projected fee collections at the current fee rate of 0.0000153 are $97,243,527.
2. Estimate the amount of assessments on securities futures products collected during 10/1/07 and 9/30/08 to be $18,017 by projecting a 2.1% monthly increase from a base of $1,150 in March 2007.
3. Subtract the amounts $97,243,527 and $18,017 from the target offsetting collection amount set by Congress of $892,000,000 leaving $794,738,456 to be collected on dollar volume for the period 11/1/07 through 9/30/08.
4. Use Table B to estimate dollar volume for the period 11/1/07 through 9/30/08. The estimate is $72,376,366,463,293. Finally, compute the fee rate required to produce the additional $794,738,456 in revenue. This rate is $794,738,456 divided by $72,376,366,463,293 or 0.0000109806.
5. Round the result to the seventh decimal point, yielding a rate of .0000110 (or $11.00 per million).
On December 13, 2006, the International Securities Exchange, LLC (“ISE” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange currently offers a Block Mechanism for the execution of single-sided, block-sized orders.
After careful review of the proposal, the Commission finds that the proposed rule change, as modified by Amendment No. 1, is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Nasdaq proposes to increase the monthly trading rights fee paid by Nasdaq members. Nasdaq will implement this proposed rule change on May 1, 2007. The text of the proposed rule change is available at Nasdaq,
In its filing with the Commission, Nasdaq 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. Nasdaq has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
Nasdaq is increasing its monthly trading rights fee, which is assessed on all Nasdaq members, from $200 to $500 per month. The fee had initially been set at a level to ease the transition of the Nasdaq Market Center's status as a facility of the NASD to a facility of a new self-regulatory organization (“SRO”). Now that Nasdaq has an established membership base, Nasdaq believes that the fee increase is
Nasdaq is also deleting language from Rule 7001 that waived the application fee for NASD members applying for Nasdaq membership prior to August 1, 2006.
Nasdaq believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
Nasdaq does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended.
Written comments were neither solicited nor received.
The foregoing proposed rule change has become effective upon filing with the Commission pursuant to Section 19(b)(3)(A)(ii) of the Act
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an 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. All submissions should refer to File Number SR-NASDAQ-2007-044. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-NASDAQ-2007-044 and should be submitted on or before May 29, 2007.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
On March 9, 2007, the New York Stock Exchange LLC (“NYSE” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
As explained more fully in the Notice, the Exchange proposes to add new Section 703.22 to its Listed Company Manual (the “Manual”) to provide generic listing standards to permit the listing and trading of Index-Linked Securities pursuant to Rule 19b-4(e) under the Act.
Index-Linked Securities are designed for investors who desire to participate in a specific market segment by providing exposure to one or more identifiable underlying securities, commodities, currencies, derivative instruments, or market indexes of the foregoing (the “Underlying Index” or “Underlying Indexes”). Index-Linked Securities are the non-convertible debt of an issuer that have a term of at least one year, but not greater than thirty years, and are tied to the performance of the Underlying Index. Index-Linked Securities may or may not make interest payments based on dividends or other cash distributions paid on the securities comprising the Underlying Index or Indexes to the holder during their term. Despite the fact that Index-Linked Securities are linked to an Underlying Index, each will trade as a single, exchange-listed security.
The proposed generic listing standards will not be applicable to Index-Linked Securities with respect to which the payment at maturity is based on a multiple of the negative performance of an Underlying Index or Indexes. An Index-Linked Security may or may not provide “principal protection,”
The Exchange will apply the following requirements to all issuers of Index-Linked Securities:
• If the issuer is a NYSE-listed company, the entity must be a company in good standing (
• The issuer will be expected to have a minimum tangible net worth
• The issuer must be in compliance with Rule 10A-3 under the Act.
In addition, the Exchange will apply the following requirements to each issue of Index-Linked Securities:
• The issue must have a minimum public distribution of at least 1 million units and a minimum of 400 holders, except if traded on the NYSE Bonds system and the applicable NYSE Bonds listing and trading standards are satisfied;
• The issue must have a principal amount/aggregate market value of not less than $4 million;
• The issue must have a term of at least one year, but not greater than thirty years;
• The issue must be the non-convertible debt of the issuer; and
• The issue must not base its payment at maturity on a multiple of the negative performance of an Underlying Index or Indexes, although the payment at maturity may or may not provide for a multiple of the positive performance of an Underlying Index or Indexes.
Equity Index-Linked Securities would be subject to the criteria in proposed Section 703.22(B)(I) of the Manual for initial and continued listing. For an Underlying Index to be appropriate for the initial listing of an Equity Index-Linked Security, such Underlying Index must comprise at least ten component securities of different issuers. The Underlying Index must also either: (i) Be approved for the trading of options or other derivative securities by the Commission under Section 19(b)(2) of the Act
In connection with an Equity Index-Linked Security, the Exchange would commence delisting or removal proceedings if any of the standards set forth in the initial eligibility criteria are not continuously maintained
Commodity-Linked and Currency-Linked Securities would be subject to the criteria in proposed Sections 703.22(B)(II) and 703.22(B)(III) of the Manual, respectively, for initial and continued listing. Each issue of Commodity-Linked or Currency-Linked Securities must meet either of the following initial listing standards:
• The Commodity Reference Asset
• The pricing information for each component of a Commodity Reference Asset or Currency Reference Asset, as the case may be, must be derived from certain required sources.
With respect to each of the Commodity-Linked and Currency-Linked Securities, the value of the Commodity Reference Asset or Currency Reference Asset, as the case may be, must be calculated and widely disseminated on at least a 15-second basis during the time the corresponding Commodity-Linked or Currency-Linked Securities trade on the Exchange. In addition, if the Commodity-Linked or Currency-Linked Securities are periodically redeemable, the indicative value of the subject Commodity-Linked or Currency-Linked Securities, as the case may be, must be calculated and widely disseminated by one or more major market data vendors on at least a 15-second basis during the time such securities trade on the Exchange.
The Exchange would commence delisting or removal proceedings if any of the initial listing criteria described above for each of the Commodity-Linked or Currency-Linked Securities, as applicable, is not continuously maintained. Notwithstanding the foregoing, an issue of Commodity-Linked or Currency-Linked Securities would not be delisted for a failure to have in place comprehensive surveillance sharing agreements if the Commodity Reference Asset or Currency Reference Asset, as the case may be, has at least 10 components, and the Exchange has comprehensive surveillance sharing agreements with respect to at least 90% of the dollar weight of such Commodity Reference Asset or Currency Reference Asset. The Exchange would also commence delisting or removal proceedings if: (1) The aggregate market value or the principal amount of the Commodity-Linked or Currency-Linked Securities publicly held is less than $400,000; (2) the value of the Commodity Reference Asset or Currency Reference Asset, as the case may be, is no longer calculated or available and a new corresponding Commodity or Currency Reference Asset is substituted, unless the new corresponding Commodity or Currency Reference Asset meets the requirements of proposed Section 703.22; or (3) such other event occurs or condition exists which, in the opinion of the Exchange, makes further dealings on the Exchange inadvisable.
Index-Linked Securities traded on the Exchange's equity trading floor will be subject to all Exchange rules governing the trading of equity securities. The Exchange's equity margin rules and the Exchange's regular trading hours (9:30 a.m. to 4 p.m. Eastern Time) will apply to transactions in Index-Linked Securities. However, Index-Linked Securities traded on the NYSE Bonds system will be subject to the rules applicable to such securities traded on that system.
The Exchange represents that it will prepare and distribute, if appropriate,
The Exchange represents that it will closely monitor activity in Index-Linked Securities to identify and deter any potential improper trading activity in such securities. Additionally, the Exchange states that its surveillance procedures are adequate to properly monitor the trading of Index-Linked Securities. Specifically, the Exchange will rely on its existing surveillance procedures governing equities, options, and exchange-traded funds. The Exchange represents that it has developed procedures to closely monitor activity in Index-Linked Securities and the Underlying Indexes and their components to identify and deter potential improper trading activity. To the extent applicable, the Exchange will be able to obtain trading and beneficial holder information from the primary trading markets for the components of the Underlying Indexes in relation to Index-Linked Securities, either pursuant to bilateral information sharing agreements with those markets or because those markets are full or affiliate members of ISG.
For Index-Linked Securities where the Underlying Index is maintained by a broker-dealer, the broker-dealer will be required to erect a “firewall” around the personnel responsible for the maintenance of the Underlying Index or who have access to information concerning changes and adjustments to the Underlying Index, and the Underlying Index will be calculated by a third party who is not a broker-dealer. Any advisory committee, supervisory board, or similar entity that advises an Index Licensor or Administrator (each as defined in NYSE Rule 1100, Supplementary Material .10) or that makes decisions regarding the Underlying Index or portfolio composition, methodology, and related matters would be required to implement and maintain, or be subject to, procedures designed to prevent the use and dissemination of material, non-public information regarding the applicable Underlying Index or portfolio.
In the case of Commodity-Linked or Currency-Linked Securities, if the indicative value or the Commodity Reference Asset value or Currency Reference Asset value, as the case may be, applicable to a corresponding series of such securities is not being disseminated as required, or, in the case of Equity Index-Linked Securities, if the value of the Underlying Index is not being disseminated as required, the Exchange may halt trading during the day on which such interruption first occurs. If such interruption persists past the trading day in which it occurred, the Exchange will halt trading no later than the beginning of the trading day following the interruption.
After careful consideration, the Commission finds that the proposed rule change, as amended, is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
To list and trade Index-Linked Securities, the Exchange currently must file a proposed rule change with the Commission pursuant to Section 19(b)(1) of the Act
The Exchange's ability to rely on Rule 19b-4(e) to list and trade Index-Linked Securities that meet the requirements of proposed Section 703.22 of the Manual should reduce the time frame for bringing these securities to the market and thereby reduce the burdens on issuers and other market participants, while also promoting competition and making Index-Linked Securities available to investors more quickly.
The Commission has previously approved generic listing standards pursuant to Rule 19b-4(e) for Index-Linked Securities based on indexes that consist of domestic, and to a certain extent, foreign, equity securities.
Taken together, the Commission finds that the NYSE proposal contains adequate rules and procedures to govern the listing and trading of Index-Linked Securities listed pursuant to Rule 19b-4(e) on the Exchange. All Index-Linked Security products listed under the proposed generic standards will be subject to the full panoply of NYSE rules and procedures that currently govern the trading of equity securities on the Exchange.
As set forth more fully above, NYSE has proposed size, earnings, and minimum tangible net worth requirements for each Index-Linked Security issuer, as well as minimum distribution and holder, principal amount/market value, and minimum term thresholds for each issuance of Index-Linked Securities. The Exchange's proposed listing criteria include minimum market capitalization, monthly trading volume, and relative weighting requirements for each Equity Index-Linked Security and the components underlying each such security. For Commodity-Linked and Currency-Linked Securities, the assets (or their derivatives) to which they are linked must either have been reviewed and approved for trading by the Commission or their pricing information must be derived from certain required sources.
The Commission also finds that, in the case of Commodity-Linked and Currency-Linked Securities with at least 10 components, the requirement that at least 90% of the dollar weight of the corresponding Commodity Reference Asset or Currency Reference Asset, as the case may be, must have comprehensive surveillance sharing agreements with the Exchange should permit the Exchange to identify potential trading and other violations of its rules. In the case of Equity Index-Linked Securities, each component security (other than foreign country securities and ADRs) must be issued by a reporting company under the Act, listed on a national securities exchange, and be an “NMS stock,” as such term is defined in Rule 600 of Regulation NMS.
The Exchange has also developed delisting criteria that will permit it to suspend trading of an Index-Linked Security in circumstances that make further dealings in the product inadvisable. The Commission believes that the delisting criteria should help ensure that a minimum level of liquidity exists for each Index-Linked Security to allow for the maintenance of fair and orderly markets. Also, in the event that the value of the Underlying Index or, in the case of Commodity-Linked and Currency-Linked Securities that are periodically redeemable, the indicative value, is no longer calculated and widely disseminated on at least a 15-second basis, the Exchange may halt trading during the day on which the interruption first occurs; however, if the interruption persists past the trading day on which it occurred, the Exchange will halt trading no later than the beginning of the trading day following the interruption and will commence delisting proceedings.
The Commission notes that any Index-Linked Securities approved for listing and trading would be subject to the Exchange's existing surveillance procedures governing equities, options, and exchange-traded funds, as well as procedures the Exchange represents it has developed to closely monitor activity in Index-Linked Securities and the Underlying Indexes and their components. The Exchange has represented that its surveillance procedures are adequate to properly monitor the trading of Index-Linked Securities listed pursuant to these proposed generic listing standards. In addition, the Commission notes that the Exchange has represented that it will be able to obtain trading and beneficial holder information from the primary trading markets for the components of the Underlying Indexes in relation to Index-Linked Securities, either pursuant
The Exchange has represented that it will distribute, as appropriate, an Information Memorandum to members describing the product, the structure of the product, and the corresponding risks of the Index-Linked Security. In addition, the Information Memorandum will set forth the Exchange's suitability requirements with respect to recommendations in transactions in Index-Linked Securities to customers and the prospectus delivery requirements. The Memorandum will also identify and describe the Exchange's trading rules governing the Index-Linked Securities.
The Exchange has further represented that, if the Underlying Index is maintained by a broker-dealer, such broker-dealer will establish a “firewall” around personnel responsible for the maintenance of the Underlying Index. As an added measure, a third-party who is not a broker-dealer will calculate the Underlying Index. In addition, the Exchange has stated that any person, committee, board, or similar entity that advises the Index Licensor or Administrator (each as defined in NYSE Rule 1100, Supplementary Material .10) or that makes decisions regarding the composition and methodology of the Underlying Index, will be subject to policies and procedures designed to prevent the use and dissemination of material, non-public information. With respect to trading on NYSE, the Exchange has stated that, with respect to any issue of Index-Linked Securities, specialists will be restricted from making markets in and trading components of the Underlying Securities or any derivative instruments thereof.
The Commission finds good cause for approving the proposed rule change, as modified by Amendments No. 1, 2, and 3 thereto, before the 30th day after the date of publication of notice of filing thereof in the
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether Amendment No. 3 is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, Station Place, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
U.S. Small Business Administration.
Notice.
This is a notice of an Economic Injury Disaster Loan (EIDL) declaration for the State of Iowa, dated 04/27/2007.
04/27/2007.
Submit completed loan applications to: U.S. Small Business Administration, Processing And Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration,
Notice is hereby given that as a result of the Administrator's EIDL declaration, applications for economic injury disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The number assigned to this disaster for economic injury is 108540.
The States which received an EIDL Declaration # are Iowa, Illinois and Minnesota.
Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for the State of New Hampshire (FEMA-1695-DR), dated 04/27/2007.
04/27/2007.
Submit completed loan applications to: U.S. Small Business Administration, Processing And Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
Notice is hereby given that as a result of the President's major disaster declaration on 04/27/2007, applications for disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The number assigned to this disaster for physical damage is 108576 and for economic injury is 108580.
U.S. Small Business Administration.
Amendment 1.
This is an amendment of the Presidential declaration of a major disaster for the State of New Jersey (FEMA-1694-DR), dated 04/26/2007.
04/27/2007.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
The notice of the Presidential disaster declaration for the State of NEW JERSEY, dated 04/26/2007 is hereby amended to include the following areas as adversely affected by the disaster:
All other information in the original declaration remains unchanged.
Department of State.
Amendment to original RFGP.
The United States Department of State, Bureau of Educational and
IV.3e.1. Applicants must provide a detailed budget for administrative expenses only. Administrative costs are those costs that include applicant's staff salaries, benefits, telephone, fax, printing, office supplies, etc. All overhead costs associated with the program (for supervision, financial management, and other overhead expenses) are to be included in the proposal and should be controlled, reduced, or shared. The costs of support/central office in any parent agency (whether covered through an indirect costs' rate or as a direct cost) should be limited or cost shared to the extent possible. Concrete plans to streamline operations covered by overhead and non-program staff functions should be described in proposal submissions. (See Budget Guidelines in the PSI document.)
Interested organizations should contact Michelle Lampher, Chief, Community Resources Division, Office of International Visitors, Bureau of Educational and Cultural Affairs, U.S. Department of State, ECA/PE/V/C SA-44, Rm 247, 301 4th Street, SW., Washington, DC 20547, prior to Tuesday, June 12, 2007.
The Annual Meeting of the U.S. National Commission for the United Nations Educational, Scientific, and Cultural Organization (UNESCO) will take place on Monday, May 21, 2007 and Tuesday, May 22, 2007, at the Marriott Georgetown University Conference Hotel, Washington, DC (3800 Reservoir Road, NW.). The theme of this year's Annual Meeting is “UNESCO as a Capacity Builder: Pursuing its mandate through Education, the Sciences, Culture, and Communications.” On Monday, May 21 from 9 a.m. to 12 p.m. and from 2:15 p.m. to 5 p.m. and on Tuesday, May 22 from 9 a.m. to 12 p.m., the Commission will hold a series of informational plenary sessions and subject-specific committee breakout sessions, which will be open to the public. On Tuesday, May 22, 2007, the Commission will meet from 1:45 p.m. until 4 p.m. to discuss recommendations on the meeting's theme and other UNESCO-related issues. Members of the public who wish to attend any of these meetings should contact the U.S. National Commission for UNESCO no later than Wednesday, May 16th for further information about admission, as seating is limited. Those who wish to make oral comments during the public comment section held during the concluding session Tuesday afternoon should request to be scheduled by Wednesday, May 16th. Each individual will be limited to five minutes, with the total oral comment period not exceeding thirty minutes. Written comments should be submitted by Monday, May 14th to allow time for distribution to the Commission members prior to the meeting. The National Commission may be contacted via e-mail at
Federal Aviation Administration, DOT.
Notice.
The Federal Aviation Administration (FAA) Atlanta Airports District Office on March 27, 2007, issued a Finding of No Significant Impact for proposed construction of a replacement airport at St. Marys, Georgia. Copies of the FONSI are available for review by the public for thirty (30) days at the following location: Federal Aviation Administration, Atlanta Airports District Office, 1701 Columbia Ave., Campus Building 2-260, College Park, Georgia 30337.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition.
FMCSA announces its decision to exempt 21 individuals from the vision requirement in the Federal Motor Carrier Safety Regulations (FMCSRs). The exemptions will enable these individuals to operate commercial motor vehicles (CMVs) in interstate commerce without meeting the prescribed vision standard. The Agency has concluded that granting these exemptions will provide a level of safety that is equivalent to, or greater than, the level of safety maintained without the exemptions for these CMV drivers.
The exemptions are effective May 7, 2007. The exemptions expire on May 7, 2009.
Dr. Mary D. Gunnels, Chief, Physical Qualifications Division, (202) 366-4001,
You may see all the comments online through the Document Management System (DMS) at
On March 16, 2007, FMCSA published a notice of receipt of exemption applications from certain individuals, and requested comments from the public (72 FR 12666). That notice listed 21 applicants' case histories. The 21 individuals applied for exemptions from the vision requirement in 49 CFR 391.41(b)(10), for drivers who operate CMVs in interstate commerce.
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption for a 2-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption.” The statute also allows the Agency to renew exemptions at the end of the 2-year period. Accordingly, FMCSA has evaluated the 21 applications on their merits and made a determination to grant exemptions to 21 of them. The comment period closed on April 16, 2007.
The vision requirement in the FMCSRs provides:
A person is physically qualified to drive a commercial motor vehicle if that person has distant visual acuity of at least 20/40 (Snellen) in each eye without corrective lenses or visual acuity separately corrected to 20/40 (Snellen) or better with corrective lenses, distant binocular acuity of a least 20/40 (Snellen) in both eyes with or without corrective lenses, field of vision of at least 70° in the horizontal meridian in each eye, and the ability to recognize the colors of traffic signals and devices showing standard red, green, and amber (49 CFR 391.41(b)(10)).
FMCSA recognizes that some drivers do not meet the vision standard, but have adapted their driving to accommodate their vision limitation and demonstrated their ability to drive safely. The 21 exemption applicants listed in this notice are in this category. They are unable to meet the vision standard in one eye for various reasons, including amblyopia, macular scar, retinal detachment, prosthesis, corneal opacity, optic nerve injury, histoplasmosis syndrome, choroidal rupture and loss of vision due to trauma. In most cases, their eye conditions were not recently developed. All but five of the applicants were either born with their vision impairments or have had them since childhood. The five individuals who sustained their vision conditions as adults have had them for periods ranging from 6 to 36 years.
Although each applicant has one eye which does not meet the vision standard in 49 CFR 391.41(b)(10), each has at least 20/40 corrected vision in the other eye, and in a doctor's opinion, has sufficient vision to perform all the tasks necessary to operate a CMV. Doctors' opinions are supported by the applicants' possession of valid commercial driver's licenses (CDLs) or non-CDLs to operate CMVs. Before issuing CDLs, States subject drivers to knowledge and skills tests designed to evaluate their qualifications to operate a CMV. All these applicants satisfied the testing standards for their State of residence. By meeting State licensing requirements, the applicants demonstrated their ability to operate a commercial vehicle, with their limited vision, to the satisfaction of the State.
While possessing a valid CDL or non-CDL, these 21 drivers have been authorized to drive a CMV in intrastate commerce, even though their vision disqualified them from driving in interstate commerce. They have driven CMVs with their limited vision for careers ranging from 6 to 36 years. In the past 3 years, two of the drivers have had convictions for traffic violations and none of them were involved in crashes.
The qualifications, experience, and medical condition of each applicant were stated and discussed in detail in the March 16, 2007 notice (72 FR 12666).
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the vision standard in 49 CFR 391.41(b)(10) if the exemption is likely to achieve an equivalent or greater level of safety than would be achieved without the exemption. Without the exemption, applicants will continue to be restricted to intrastate driving. With the exemption, applicants can drive in interstate commerce. Thus, our analysis focuses on whether an equal or greater level of safety is likely to be achieved by permitting each of these drivers to drive in interstate commerce as opposed to restricting him or her to driving in intrastate commerce.
To evaluate the effect of these exemptions on safety, FMCSA considered not only the medical reports about the applicants' vision, but also their driving records and experience with the vision deficiency. To qualify for an exemption from the vision standard, FMCSA requires a person to present verifiable evidence that he/she has driven a commercial vehicle safely with the vision deficiency for the past 3 years. Recent driving performance is especially important in evaluating future safety, according to several research studies designed to correlate past and future driving performance. Results of these studies support the principle that the best predictor of future performance by a driver is his/her past record of crashes and traffic violations. Copies of the studies may be found at docket number FMCSA-98-3637.
We believe we can properly apply the principle to monocular drivers, because data from the Federal Highway Administration's (FHWA) former waiver study program clearly demonstrate the driving performance of experienced monocular drivers in the program is better than that of all CMV drivers collectively. (See 61 FR 13338, 13345, March 26, 1996). The fact that experienced monocular drivers demonstrated safe driving records in the waiver program supports a conclusion that other monocular drivers, meeting the same qualifying conditions as those required by the waiver program, are also likely to have adapted to their vision deficiency and will continue to operate safely.
The first major research correlating past and future performance was done in England by Greenwood and Yule in 1920. Subsequent studies, building on that model, concluded that crash rates for the same individual exposed to certain risks for two different time periods vary only slightly. (See Bates and Neyman, University of California Publications in Statistics, April 1952.) Other studies demonstrated theories of predicting crash proneness from crash history coupled with other factors. These factors—such as age, sex, geographic location, mileage driven and conviction history—are used every day by insurance companies and motor vehicle bureaus to predict the probability of an individual experiencing future crashes. (See Weber, Donald C., “Accident Rate Potential: An Application of Multiple Regression Analysis of a Poisson Process,” Journal of American Statistical Association, June 1971) A 1964 California Driver Record Study prepared by the California Department of Motor Vehicles concluded that the best overall crash predictor for both concurrent and nonconcurrent events is the number of single convictions. This study used 3 consecutive years of data, comparing the experiences of drivers in the first 2 years with their experiences in the final year.
Applying principles from these studies to the past 3-year record of the 21 applicants, two of the applicants had traffic violations for speeding. The applicants achieved this record of safety while driving with their vision impairment, demonstrating the likelihood that they have adapted their driving skills to accommodate their condition. As the applicants' ample driving histories with their vision deficiencies are good predictors of future performance, FMCSA concludes their ability to drive safely can be projected into the future.
We believe the applicants' intrastate driving experience and history provide an adequate basis for predicting their ability to drive safely in interstate commerce. Intrastate driving, like interstate operations, involves substantial driving on highways on the interstate system and on other roads built to interstate standards. Moreover, driving in congested urban areas exposes the driver to more pedestrian and vehicular traffic than exists on interstate highways. Faster reaction to traffic and traffic signals is generally required because distances between them are more compact. These conditions tax visual capacity and driver response just as intensely as interstate driving conditions. The veteran drivers in this proceeding have operated CMVs safely under those conditions for at least 3 years, most for much longer. Their experience and driving records lead us to believe that each applicant is capable of operating in interstate commerce as safely as he/she has been performing in intrastate commerce. Consequently, FMCSA finds that exempting these applicants from the vision standard in 49 CFR 391.41(b)(10) is likely to achieve a level of safety equal to that existing without the exemption. For this reason, the Agency is granting the exemptions for the 2-year period allowed by 49 U.S.C. 31136(e) and 31315 to 21 of the applicants listed in the notice of March 16, 2007 (72 FR 12666).
We recognize that the vision of an applicant may change and affect his/her ability to operate a CMV as safely as in the past. As a condition of the exemption, therefore, FMCSA will impose requirements on the 21 individuals consistent with the grandfathering provisions applied to drivers who participated in the Agency's vision waiver program.
Those requirements are found at 49 CFR 391.64(b) and include the following: (1) That each individual be physically examined every year (a) by an ophthalmologist or optometrist who attests that the vision in the better eye continues to meet the standard in 49 CFR 391.41(b)(10), and (b) by a medical examiner who attests that the individual is otherwise physically qualified under 49 CFR 391.41; (2) that each individual provide a copy of the ophthalmologist's or optometrist's report to the medical examiner at the time of the annual medical examination; and (3) that each individual provide a copy of the annual medical certification to the employer for retention in the driver's qualification file, or keep a copy in his/her driver's qualification file if he/she is self-employed. The driver must also have a copy of the certification when driving, for presentation to a duly authorized Federal, State, or local enforcement official.
FMCSA received no comments in this proceeding.
Based upon its evaluation of the 21 exemption applications, FMCSA exempts Rex A. Botsford, Robert A. Casson, Gregory L. Cooper, Kenneth D. Craig, Thomas H. Davenport, Sr., Christopher A. Deadman, Heather M.B. Gordon, William K. Gullett, George Harris, Kenneth C. Keil, Robert K. Kimbel, Melvin A. Kleman, Roosevelt Lawson, Jr., David H. Luckadoo, Emanuel N. Malone, Robert E. Martinez, Richard W. Mullenix, Steven A. Proctor, George K. Sizemore, Robert N. Taylor, and Manuel A. Vargas from the vision requirement in 49 CFR 391.41(b)(10), subject to the requirements cited above (49 CFR 391.64(b)).
In accordance with 49 U.S.C. 31136(e) and 31315, each exemption will be valid for 2 years unless revoked earlier by FMCSA. The exemption will be revoked if: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136 and 31315.
If the exemption is still effective at the end of the 2-year period, the person may apply to FMCSA for a renewal under procedures in effect at that time.
Baby Trend Inc. (Baby Trend) has determined that certain infant car seats that it produced in 2006 do not comply with paragraph S5.6.1.7(i) of 49 CFR 571.213, Federal Motor Vehicle Safety Standard (FMVSS) No. 213,
Affected are a total of approximately 30,450 infant car seats produced by Baby Trend between June 21, 2006 and November 30, 2006. Specifically, paragraph S5.6.1.7(i) of FMVSS No. 213 addresses the use of the following statement on child restraints:
For recall information, call the U.S. Government's Vehicle Safety Hotline at 1-888-327-4236 (TTY: 1-800-424-9153), or go to
The infant car seats do not have the markings most recently required by paragraph S5.6.1.7. Baby Trend has corrected the problem that caused these errors so that they will not be repeated in future production.
Baby Trend argued that the noncompliance is inconsequential to motor vehicle safety and that no corrective action is warranted. Baby Trend stated that the child restraint seats comply with the stringent dynamic performance requirements of FMVSS No. 213. Baby Trend also asserted that no safety consequence exists for the technical labeling non-compliance. Further, they believe that given the existing lag time, the use of the older version of the information remains a viable means for contacting the NHTSA. Although telephone exchanges have changed, NHTSA still forwards calls in an integrated manner to provide
NHTSA specifies that child seat manufacturers must provide the telephone number for the Vehicle Safety Hotline so that consumers concerned about safety recalls or potential safety related defects could contact the agency. That telephone number has been changed. A final rule published on June 21, 2005, in the
Although the Hotline number included in the printed instructions for the Baby Trend infant car seats is not the correct number for the Hotline, it is an active number which currently provides callers with a referral to the new Hotline number. This referral from the old number will be active for the foreseeable future. Inclusion of the NHTSA Web site address in the printed instructions for proper use is optional and its absence on the printed instructions for the subject infant child seats does not constitute a noncompliance of FMVSS No. 213. NHTSA therefore agrees with Baby Trend that there is no safety consequence because consumers will still have ready access to the new Hotline number by calling the old Hotline number provided by Baby Trend.
NHTSA agrees that the noncompliance is inconsequential to motor vehicle safety. The use of the outdated telephone number should not prevent the owners of the child seats from being able to readily access recall information.
In consideration of the foregoing, NHTSA has decided that Baby Trend has met its burden of persuasion that the noncompliance described is inconsequential to motor vehicle safety. Accordingly, Baby Trend's petition is granted and the petitioner is exempted from the obligation of providing notification of, and a remedy for, the noncompliance.
49 U.S.C. 30118, 30120; delegations of authority at 49 CFR 1.50 and 501.8.
On April 18, 2007,
The purpose of the joint relocation project is to accommodate a new public roadway, Davis-Helberg Drive (also referred to as Helberg Drive), being constructed as part of a Port of Duluth improvement project.
The project consists of the following transactions:
(1) BNSF will grant CPR non-exclusive overhead trackage rights to operate its trains, locomotives, cars and equipment with its own crews over trackage owned and operated by BNSF located between Points C and D, a distance of approximately 825 feet. Point C is currently located at BNSF milepost 1.46 (CPR milepost 288.25) and, after construction, because of changes to the overall track configuration within the CPR track system, Point C will be designated CPR milepost 288.24. Point D is currently located at BNSF milepost 1.49 and, after construction, Point D will be designated as CPR milepost 287.91. These trackage rights are intended to enable CPR a direct run-through to bypass switches at Cargill (or its successor). BNSF will continue to operate over this segment.
(2) CPR will grant BNSF non-exclusive overhead trackage rights to operate its trains, locomotives, cars and equipment with its own crews over trackage owned and operated by CPR located between Points E and I, a distance of approximately 350 feet. After construction, Point E will be on new trackage to be designated as CPR milepost 287.75. Point I is located on crossover yard track between BNSF and CPR. There is no milepost designation for this yard track, but the end point of the trackage rights (Point I), is approximately 350 feet south of Point E. These trackage rights are intended to enable BNSF to continue to connect with the Duluth Seaway Port Authority, which includes serving AG Processing, Inc. (or its successor), Azcon (or its successor), and the Garfield Industrial area. CPR will continue to operate over this segment.
(3) BNSF will grant CPR a freight easement on BNSF's property for the purchase, relocation and reconstruction of a portion of CPR's line between Points A and B (Point A being the westerly BNSF right-of-way near Point C) (easement), a distance of approximately 2,500 feet. Point A is currently located at BNSF milepost 1.61. After construction, Point A will be located on new trackage designated as CPR milepost 288.10, and Point B will be located on new trackage to be designated as CPR milepost 287.64.
Applicants state that the proposed project will not disrupt service to shippers, as applicants will continue to have access to the Port. Additionally, applicants state that the relocated line and trackage rights will not involve an expansion of service by BNSF or CPR into new territory, or alter the existing competitive situation.
The Board will exercise jurisdiction over the abandonment or construction components of a relocation project, and require separate approval or exemption, only where the removal of track affects service to shippers or the construction of new track involves expansion into new territory.
As a condition to this exemption, any employees affected by the trackage rights will be protected by the conditions imposed in
The earliest this transaction may be consummated is the May 18, 2007 effective date of the exemption (30 days after the exemption was filed).
If the verified notice contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to STB Finance Docket No. 35003, must be filed with the Surface Transportation Board, 395 E Street, SW., Washington, DC 20423-0001. In addition, a copy of each pleading must be served on applicants' representatives: Sidney L. Strickland, Jr., 3050 K Street, NW., Suite 101, Washington, DC 20007, and Leigh Currie, 150 South Fifth Street, Suite 2300, Minneapolis, MN 55402.
Board decisions and notices are available on our Web site at
By the Board, David M. Konschnik, Director, Office of Proceedings.
Office of Foreign Assets Control, Treasury.
Notice.
The Treasury Department's Office of Foreign Assets Control (“OFAC”) is publishing the names of three newly-designated entities whose property and interests in property are blocked pursuant to Executive Order 13382 of June 28, 2005, “Blocking Property of Weapons of Mass Destruction Proliferators and Their Supporters.”
The designation by the Secretary of the Treasury of the three entities identified in this notice pursuant to Executive Order 13382 is effective on February 16, 2007.
Assistant Director, Compliance Outreach & Implementation, Office of Foreign Assets Control, Department of the Treasury, Washington, DC 20220, tel.: 202/622-2490.
This document and additional information concerning OFAC are available from OFAC's Web site (
On June 28, 2005, the President, invoking the authority,
Section 1 of the Order blocks, with certain exceptions, all property and interests in property that are in the United States, or that hereafter come within the United States or that are or hereafter come within the possession or control of United States persons, of: (1) The persons listed in an Annex to the Order; (2) any foreign person determined by the Secretary of State, in consultation with the Secretary of the Treasury, the Attorney General, and other relevant agencies, to have engaged, or attempted to engage, in activities or transactions that have materially contributed to, or pose a risk of materially contributing to, the proliferation of weapons of mass destruction or their means of delivery (including missiles capable of delivering such weapons), including any efforts to manufacture, acquire, possess, develop, transport, transfer or use such items, by any person or foreign country of proliferation concern; (3) any person determined by the Secretary of the Treasury, in consultation with the Secretary of State, the Attorney General, and other relevant agencies, to have provided, or attempted to provide, financial, material, technological or other support for, or goods or services in support of, any activity or transaction described in clause (2) above or any person whose property and interests in property are blocked pursuant to the Order; and (4) any person determined by the Secretary of the Treasury, in consultation with the Secretary of State, the Attorney General, and other relevant agencies, to be owned or controlled by, or acting or purporting to act for or on behalf of, directly or indirectly, any person whose property and interests in property are blocked pursuant to the Order.
On February 16, 2007, the Secretary of the Treasury, in consultation with the Secretary of State, the Attorney General, and other relevant agencies, designated three entities whose property and interests in property are blocked pursuant to Executive Order 13382.
The list of additional designees follows:
1. KALAYE ELECTRIC COMPANY (a.k.a. KALA ELECTRIC COMPANY), 33 Fifteenth (15th) Street, Seyed-Jamal-Eddin-Assad Abadi Avenue, Tehran, (Iran) [NPWMD]
2. KAVOSHYAR COMPANY, (a.k.a. KAAVOSH YAAR; a.k.a. KAVOSHYAR), P.O. Box 19395-1834, Tehran (Iran); Vanaq Square, Corner of Shiraz Across No. 71, Molla Sadra Ave., Tehran, (Iran); No. 86, 20th St., North Karegar Ave., Tehran (Iran) [NPWMD]
3. PIONEER ENERGY INDUSTRIES COMPANY (a.k.a. PISHGAM ENERGY INDUSTRIES DEVELOPMENT; a.k.a. “PEI”), P.O. Box 81465-361, Isfahan (Iran) [NPWMD]
Department of Energy.
Notice and opportunity for written and oral comment.
Having issued the first National Electric Transmission Congestion Study under section 216 of the Federal Power Act (FPA), and having evaluated public comments on the Study, the Department of Energy (Department or DOE) today begins two proceedings that may lead to one or more orders designating one or more national interest electric transmission corridors (National Corridors). The Department believes that, although the FPA does not require it, allowing an opportunity for comment on draft National Corridor designations prior to the Department issuing its FPA section 216(a) report will aid both the public and the Department. Interested persons may file written comments in one or both of these proceedings in the manner indicated in the
Written comments on the draft National Corridors must be received on or before July 6, 2007.
The Department has scheduled public meetings on Docket No. 2007-OE-01 (the draft Mid-Atlantic Area National Corridor) for the following dates:
May 15, 2007, 10 a.m. to 3:30 p.m., Arlington, VA; and
May 23, 2007, 10 a.m. to 3:30 p.m., New York, NY.
The Department has scheduled a public meeting on Docket No. 2007-OE-02 (the draft Southwest Area National Corridor) for May 17, 2007, 10 a.m. to 3:30 p.m., San Diego, CA.
Color versions of the figures included in today's notice as well as other supporting documents are available at
You may submit written comments on one or both of the draft National Corridors electronically at
Delivery of U.S. Postal Service mail to DOE continues to be delayed by several weeks due to security screening. DOE therefore encourages commenters to submit comments electronically by e-mail. If comments are submitted by mail, the Department requests that they be accompanied by a CD or diskette containing the electronic files of the submission.
The locations for the public meetings are:
If you are interested in speaking at one of these meetings, please sign up at
For technical information, David Meyer, DOE Office of Electricity Delivery and Energy Reliability, (202) 586-1411.
Section 1221(a) of the Energy Policy Act of 2005 (Pub. L. 109-58) (EPAct) added a new section 216 to the Federal Power Act (16 U.S.C. 824p) (FPA). New FPA section 216(a) requires the Secretary of Energy (Secretary)
(A) the economic vitality and development of the corridor, or the end markets served by the corridor, may be constrained by lack of adequate or reasonably priced electricity;
(B)(i) economic growth in the corridor, or the end markets served by the corridor, may be jeopardized by reliance on limited sources of energy; and (ii) a diversification of supply is warranted;
(C) the energy independence of the United States would be served by the designation;
(D) the designation would be in the interest of national energy policy; and
(E) the designation would enhance national defense and homeland security.
The effect of a National Corridor designation is to delineate geographic areas within which, under certain circumstances, the Federal Energy Regulatory Commission (FERC) may authorize “the construction or modification of electric transmission facilities.” FPA section 216(b); 16 U.S.C. 824p(b). The statute imposes several conditions on the exercise of FERC's
Under FPA section 216(b)(1), FERC jurisdiction is triggered only when either: the State does not have authority to site the project; the State lacks the authority to consider the interstate benefits of the project; the applicant does not qualify for a State permit because it does not serve end-use customers in the State; the State has withheld approval for more than one year; or the State has conditioned its approval in such a manner that the project will not significantly reduce congestion or is not economically feasible. 16 U.S.C. 824p(b)(1).
Under FPA section 216(b)(2)-(6), FERC may issue a permit only if all of the following conditions are met: the facilities will be used for the transmission of electric energy in interstate commerce; the project is consistent with the public interest; the project will significantly reduce congestion and protect or benefit consumers; the project is consistent with national energy policy and will enhance energy independence; and the project maximizes, to the extent reasonable and economical, the transmission capabilities of existing towers or structures. 16 U.S.C. 824p(b)(2)-(6).
Accordingly, a National Corridor designation itself does not preempt State authority or any State actions. A National Corridor designation is not a determination that transmission must, or even should, be built; it is not a proposal to build a transmission facility and it does not direct anyone to make a proposal. Transmission expansion is but one possible solution to a congestion or constraint problem; increased demand response, improved energy efficiency, and conservation, as well as siting of additional generation close to load centers are also potential solutions. Whether a particular transmission project, some other transmission project, or a non-transmission project is an appropriate solution to a congestion or constraint problem identified by a National Corridor designation is a matter that market participants, applicable regional planning entities, and State authorities, among others, will consider and decide before any project is built. In the event that FERC jurisdiction under FPA section 216(b) is triggered, the designation of a National Corridor by the Secretary does not control FERC's substantive decision on the merits as to whether to grant or deny a permit application, specifically where any facilities covered by a permit should be located, or what conditions should be placed on a permit.
A National Corridor designation is not a siting decision; it does not dictate the route of any transmission project. If a transmission project is proposed in a National Corridor, it will be the State siting authorities, and potentially FERC if certain conditions are met, that will determine the specific route of that project.
Thus, FPA section 216(a) does not shift to the Department any of the traditional roles of transmission planners and siting authorities in evaluating solutions to congestion and constraint problems and designing routes for transmission facilities. Instead, FPA section 216(a) assigns to the Department the role of identifying transmission congestion and constraint problems, and the geographic areas in which these problems exist.
On August 8, 2006, DOE issued its initial congestion study (the Congestion Study) for comment by interested members of the public and affected States (71 FR 45,047 (Aug. 8, 2006)). The Congestion Study gathered historical congestion data obtained from existing studies prepared by the regional reliability councils, regional transmission organizations (RTOs) and independent system operators (ISOs),
Based on the historical data and the modeling results, the Congestion Study classified the most significant congestion areas in the country. Two “Critical Congestion Areas” (
DOE has received over 400 comments on the Congestion Study. DOE has made all of these comments available at
This notice summarizes and responds to the comments received in response to the Congestion Study that are relevant to the designation of National Corridors. This notice also issues and solicits comment on draft National Corridor designations for the two Critical Congestion Areas identified in the Congestion Study: the draft Mid-Atlantic Area National Corridor; and the draft Southwest Area National Corridor. See Figure I-1 for the location of these draft National Corridors.
This notice is also intended to notify interested persons how to obtain party status for the proceeding in Docket No. 2007-OE-01 or the proceeding in Docket No. 2007-OE-02. Review of any final order designating a National Corridor in one of these proceedings will be governed by section 313 of the FPA (16 U.S.C. 8251). Thus, only those
The proceedings being started today focus on the two geographic areas of the Nation experiencing the most acute and urgent electric transmission congestion problems. This notice takes no action with regard to the other geographic areas discussed in the Congestion Study. Thus, today's notice does not address comments received on the Congestion Study that relate solely to areas outside the two Critical Congestion Areas. Also, today's notice does not address those comments that relate to the conduct of future congestion studies. The Department will address the subject of how it intends to conduct future congestion studies in a later notice.
The Congestion Study solicited comment on the criteria the Secretary should use when determining when a National Corridor designation is warranted. In this section, the Department summarizes and responds to these comments.
The Department received numerous comments that relate to the general scope of the Secretary's authority to designate National Corridors, including comments on the meaning of key terms used in FPA section 216(a). The Department received a few comments on the appropriate definition of “congestion” and “constraint.” FirstEnergy Service Company (FirstEnergy) supported the definition of “congestion” used in the Congestion Study. National Grid USA (National Grid) argued that the Congestion Study's definition of “constraint” should be expanded to include not just limitations due to a piece of equipment, but also due to the absence of equipment between two or more nodes. Similarly, the California Energy Commission (CEC) argued that the focus of the Congestion Study is too narrow to accommodate State laws and policies on renewable portfolio standards. The CEC stated that the Department's criteria for identifying congestion should incorporate consideration of constraints that pose obstacles to reasonably priced power, diversity of supply, and energy independence, regardless of whether those constraints currently produce congestion.
The Department received comments on the level of adverse effects on consumers needed to justify a National Corridor designation. The Pennsylvania Public Utility Commission (PAPUC) argued that National Corridors should be designated only where it is demonstrated that there is chronic physical congestion that has potential for substantially impairing existing or future grid reliability. The Attorney General for the State of Connecticut (Connecticut Attorney General) argued that the Department has no authority to designate a corridor in an area that the Congestion Study acknowledges does not rise to the level of a Critical Congestion Area. The Connecticut Attorney General argued that the statute was not intended to empower the Department to “act as a sort of roving commission that oversees transmission planning and construction nationwide,” and thus designations should be limited to “those limited and extraordinary circumstances in which transmission constraints so severely impact the national interest that Federal intervention” may be warranted.
On the other hand, LS Power Development, LLC (LS Power) argued that the statutory standard for designating a corridor “appears to be relatively low” and that this is understandable given the limited purpose of a National Corridor designation. LS Power further argued that the Department should apply the standard for designation liberally, instead of ranking different areas of congestion and only addressing some of those areas. LS Power asserted that if an area is congested, consumers are therefore adversely affected by higher costs, and consumers should be afforded the potential relief available through a National Corridor designation. Similarly, the Edison Electric Institute (EEI) argued that the Department should not wait until a major problem emerges before designating a National Corridor, given the long-term, capital-intensive nature of electricity infrastructure development. EEI urged the Department to maintain a high-level view and not dwell on the unachievable goal of technical precision in the congestion study process before making designations. The Electric Power Supply Association (EPSA) argued that National Corridor designation is warranted wherever the grid is constrained to the point of only being available to accommodate power flows of incumbent utilities to serve their native load, because in all such circumstances consumers are adversely affected by the existence of a barrier to entry of potentially lower-cost competitors.
The Department received comments on the use of projections of future congestion to support a National Corridor designation. The Organization of MISO States (OMS) argued that the statute makes clear that designations may only be made for areas actually experiencing congestion adversely affecting consumers, and does not provide for designations in areas that
Some commenters called for clarification of the criteria the Department would use in deciding whether to designate a National Corridor and made recommendations about criteria they considered most important. For example, the Committee on Regional Electric Power Cooperation (CREPC) stated that the Department should develop metrics for the criteria used to designate National Corridors and document how it has applied the criteria. CREPC argued that priority should be given to designating National Corridors that enable the achievement of State energy policy objectives or that address location-constrained generation resource areas; low priority should be given to areas with contractual congestion but little physical congestion, or areas where findings of congestion are based on studies with a high level of uncertainty. The American Public Power Association (APPA) suggested that the Department focus on the effect that a designation will have on the plans of load-serving entities to meet their long-term service obligations to their retail customers; in particular, the effect on deliverability of new base-load and renewable resources to the load-serving entities that intend to purchase power from those resources. The Midwest Independent Transmission System Operator, Inc. (Midwest ISO)
FPA section 216(a)(2) gives the Secretary the discretion to designate as a National Corridor “any geographic area experiencing electric energy transmission capacity constraints or congestion that adversely affects consumers.” The statute does not define any of the terms in this phrase.
The Congestion Study defined “congestion” as the condition that occurs when transmission capacity is not sufficient to enable safe delivery of all scheduled or desired wholesale electricity transfers simultaneously. This definition generated little debate among commenters.
In contrast, there is no generally accepted understanding of what constitutes “constraints or congestion that adversely affects consumers,” as the debate among the commenters amply demonstrates. The term is ambiguous, and the statute attaches no modifiers to the term to specify the particular type or magnitude of adverse effect intended. While the Congestion Study identified and applied various metrics “related to the magnitude and impact of congestion,” the Congestion Study did not attempt to define when constraints or congestion “adversely affects consumers.” In the following discussion, the Department will first address congestion that adversely affects consumers and then constraints that adversely affect consumers.
With regard to congestion that adversely affects consumers, the Department notes that any congestion, by definition, thwarts customer choice, because it prevents users of the transmission grid from completing their preferred power transactions. These users include wholesale industrial consumers of power as well as load-serving entities buying power on behalf of retail consumers, all of whom are prevented by congestion from obtaining delivery of desired quantities of electricity from desired sources. In other words, any congestion on a line necessarily interferes with the choices of those who wish to use that line on their own or their customers' behalf. Whenever there is congestion on a transmission path, there simply is not enough transmission capacity to accommodate all the desired power transactions, and some sort of rationing of available capacity is needed. In areas with organized electricity markets, this rationing generally occurs through a pre-established economic mechanism, such as a congestion management system based on locational marginal prices (LMPs),
Moreover, electricity buyers generally seek power from the most economic source. Arranging for delivery of power from less preferred sources is referred to as “redispatching” power. When congestion occurs, resulting in the need
Therefore, any congestion can adversely affect at least some consumers. Nevertheless, congestion remedies are not free; therefore, not all congestion is worth fixing. Under certain circumstances, congestion can arise on any transmission path. But the appearance of isolated or transient instances of congestion usually does not warrant consideration of transmission expansion. While the Department is not attempting in this notice to define the complete scope of the term “congestion that adversely affects consumers” as used in FPA section 216(a)(2), the Department concludes that the term includes congestion that is persistent. Thus, the Department believes that FPA section 216(a) gives the Secretary the discretion to designate a National Corridor upon a showing of the existence of persistent congestion, without any additional demonstration of adverse effects on consumers. However, as discussed below, whether the Secretary should exercise his discretion to designate a National Corridor in a given instance of congestion is a separate question.
With regard to constraints that adversely affect consumers, one way in which a constraint can adversely affect consumers is by causing persistent congestion that in turn, as discussed above, adversely affects consumers. However, the Department agrees with those commenters who argue that the Secretary's authority is not limited to areas where congestion presently exists. If Congress had intended to limit the Secretary's designation authority over constraints to cases where constraints are currently causing congestion, then there would have been no need for the statutory language to refer to “any geographic area experiencing electric energy transmission constraints
Constraints limit access to power sources. Further, the existence of a constraint can hinder the development of new power sources, since project sponsors may not be able to obtain the financing they need if there is uncertainty over the degree to which their electricity could be delivered to consumers. Again, the Department is not attempting in this notice to define the complete scope of the term “constraints that adversely affect consumers” as used in FPA section 216(a)(2). However, the Department concludes that the term includes not only constraints that cause persistent congestion, but also constraints that hinder the development or delivery of a generation source that is in the public interest. Thus, the Department believes that FPA section 216(a) gives the Secretary the discretion to designate a National Corridor upon a showing of the existence of a constraint, including the total absence of a transmission line, that is hindering the development or delivery of one or more generation sources that is in the public interest, regardless of whether there is congestion and without the need for any additional demonstration of adverse effects on consumers.
Additionally, this interpretation of the statute answers the concerns of those commenters who question whether the statute authorizes designation of National Corridors in the Conditional Areas of Concern based solely on projections of future congestion. The Congestion Study identified several Conditional Areas of Concern “where future congestion would result if large amounts of new generation were to be developed without simultaneous development of associated transmission capacity.” The Secretary is taking no action with respect to those areas at this time. Nevertheless, were the Secretary to designate a National Corridor for one of those areas, the Secretary would need only to demonstrate the existence of a constraint that was hindering the development or delivery of a generation source that is in the public interest, and would not need to rely on demonstrations of future, or even present, congestion.
The Department's interpretation of the scope of the Secretary's authority is consistent with the objective and structure of the statute. FPA section 216(a), as well as other provisions of EPAct,
While the Department concludes that the Secretary has broad authority to designate National Corridors, FPA
Finally, the Department does not believe it is necessary to develop a specific and finite set of criteria to guide the exercise of the Secretary's discretion. Instead, the most reasonable interpretation of FPA section 216 is that the Secretary may make National Corridor designations based on the totality of the information developed, taking into account relevant considerations, including the considerations identified in FPA section 216(a)(4), as appropriate.
The Department received comments on whether a National Corridor designation should be based on an analysis of potential solutions to an identified congestion problem. Many commenters, including the National Association of Regulatory Utility Commissioners (NARUC), the New York Public Service Commission (NYPSC), and the New Jersey Board of Public Utilities (NJBPU), argued that the Department should conduct a cost/benefit analysis of transmission solutions as well as non-transmission solutions to relieving congestion before designating a National Corridor; otherwise, they contend, the designation would unfairly skew the playing field in favor of transmission solutions.
On the other hand, numerous commenters argued that the Department should not engage in analysis of possible solutions to congestion. These commenters noted that the Department's role is to identify areas where congestion and constraints exist, whereas other entities, including State siting authorities, regional planning entities, market participants, and under some circumstances FERC will consider the relevant solutions. These commenters cautioned that any such analysis by the Department would unnecessarily delay the designation process.
The Department disagrees with those commenters who argue that a National Corridor designation is warranted only if the Department has demonstrated that transmission is the best, or at least a cost-effective, solution to an identified congestion problem. Nothing in FPA section 216 requires or envisions that the Department make such a demonstration. In fact, the preparation of a transmission cost-benefit analysis by the Department would be inconsistent with the very role that the statute assigns to the Department. As discussed in Section I.A above, the Department's role under FPA section 216 is to identify constraint or congestion problems and their geographic locations; the statute does not call for the Department to analyze and decide upon solutions. While FPA section 216(a)(2) does call for the Secretary to consider “alternatives and recommendations from interested parties” before making a National Corridor designation, the reference to “alternatives and recommendations from interested parties” in this provision is ambiguous. In light of the statutory framework, the Department concludes that the term “alternatives and recommendations from interested parties” is intended to refer to comments suggesting National Corridor designations for different congestion or constraint problems, comments suggesting alternative boundaries for specific National Corridors, as well as comments suggesting that the Department refrain from designating a National Corridor.
The Department acknowledges that transmission expansion is but one possible solution to a congestion or constraint problem; increased demand response, improved energy efficiency, and conservation, as well as siting of additional generation close to load centers are also potential solutions. However, given the effect of a National Corridor designation and the existing obligations of State and Federal siting authorities as discussed in Section I.A above, there is no need for the Department to undertake an analysis of transmission solutions and non-transmission solutions or to speculate about any theoretical indirect effects a National Corridor designation would have on the market. Indeed, the Department believes that expanding its role to include making findings on the optimal remedy for congestion could supplant or otherwise duplicate the traditional roles of States and other entities.
The Congestion Study solicited comment on how the costs of proposed transmission should be allocated. A few commenters argued that the Department
The Department agrees with those commenters who argue that the analysis of whether to designate a National Corridor should not include consideration of how the costs for new transmission facilities will be allocated. While cost allocation issues can be critically important to determining whether, when, and where specific transmission projects are developed, those issues are not relevant to the Secretary's role under FPA section 216(a) of identifying geographic areas where congestion or constraints are adversely affecting consumers.
The Department received comments on the relevance of regional planning processes to National Corridor designation. FirstEnergy argued that in general, in RTO regions, National Corridors should be designated when a transmission facility would relieve congestion in an identified congestion area and the facility has been recognized as needed for reliability in an RTO's transmission planning and expansion process. The Midwest ISO argued that the Department should wait to designate a National Corridor until a suitable planning solution is proposed within an identified congestion area. NARUC argued that the Department should grant deference to the results of adequate regional planning processes. Other commenters, for example NYPSC, also recommended that the Department should coordinate its designations with regional planning processes.
On the other hand, some commenters expressed concern about the Department relying too much on RTO input regarding designation of National Corridors. For example, ODEC argued that while RTOs provide a forum within which public and well-vetted transmission planning
OMS argued that any designation must be based on the existence of siting barriers. For example, OMS asserted that if needed transmission is not being constructed due to cost recovery or other non-siting uncertainties, then a designation is inappropriate. According to OMS, designation is only appropriate when a National Corridor is truly necessary to solve a congestion problem of national significance, when the congestion problem is persistent, and when the prior failure to develop a solution is the result of siting problems. The Public Utilities Commission of the State of California (CPUC) argued that designation is unwarranted unless there is evidence that State and regional processes are not addressing the problem in a timely manner. CPUC argued that it is, first of all, up to the States and the regions to solve their transmission planning and siting problems, and Federal agencies should not intervene unless and until there is a demonstrated need for them to do so. CPUC further asserted that designation of a National Corridor in connection with any large multi-state project is likely to delay project siting, because of litigation and conflict it would produce. CEC commented that Federal back-stop siting would be beneficial where the State has been unable to make progress in approving vital transmission projects.
PAPUC argued that the Department should not make any designation that does not clearly identify the national interests requiring protection and without making findings of fact that those interests are better served by a National Corridor designation than by another approach that would be less intrusive of State laws and policies. NYISO urged the Department to designate National Corridors with care so as not to usurp arbitrarily State siting authority. On the other hand, the Midwest ISO argued that the Department should not wait until local siting has become problematic, given the effect of a National Corridor designation.
The Department disagrees with those commenters who suggest that the Department defer making a National Corridor designation either until siting problems have already manifested themselves or until a regional planning process proposes a solution to the congestion or constraint problem. Nothing in FPA section 216 requires or envisions that the Department adopt a wait-and-see approach to National Corridor designation. FPA section 216 empowers the Department to make designations when it finds constraints or congestion adversely affecting consumers, a finding that is not dependent on actions that others (
Moreover, the statute provides a specific mechanism by which States can insulate themselves from the FERC permitting provisions of FPA section 216(b). FPA section 216(i)(1) provides that three or more contiguous States may enter into interstate compacts establishing regional transmission siting agencies. 16 U.S.C. 824p(i)(1). Such regional transmission siting agencies would then have authority to site transmission facilities in National Corridors. FPA section 216(i)(3); 16 U.S.C. 824p(i)(3). Further, FERC would have no authority to issue a transmission permit within a State that is party to such a compact unless the members of the compact were in disagreement and the Secretary, after notice and opportunity for hearing, made a finding that the conditions of FPA section 216(b)(1)(C) were met. FPA section 216(i)(4); 16 U.S.C. 824p(i)(4). In light of this mechanism, as well as the other statutory limitations on FERC's permitting authority discussed in Section I.A above, the Department concludes it would be inappropriate for it to limit itself to designating National Corridors where States have either
The Department supports and encourages regional planning efforts. A National Corridor designation neither dictates nor bars any solution that might be considered in a regional planning process. The Department intends to draw the boundaries of any National Corridor so as to encompass a range of potential transmission solutions. In the event that a regional planning process concludes that a modification to an existing National Corridor designation is needed, the Department will consider such a request.
In the Congestion Study, the Department solicited comment on how, where, and on what basis to establish the boundaries of a National Corridor. One approach identified in the Congestion Study would use specific transmission projects to define National Corridor boundaries. Under this approach, a proponent of a National Corridor would identify a specific project that could serve as a solution to the underlying congestion or constraint problem, an approximate centerline for the project would be identified, and the National Corridor boundary would be banded around that centerline. A number of commenters, including EEI, AEP, and Allegheny Power (Allegheny), supported this approach.
Some commenters supported a project-based approach provided that there was some sort of independent review of the project. For example, ODEC argued that an open stakeholder process should first identify and vet conceptual projects and then make National Corridor boundary recommendations to the Department for those projects. Southern California Edison Company (SCE) argued that National Corridor boundaries should be tailored to aid in the construction of specific viable transmission projects approved through a regional planning process. CREPC stated that the delineation of National Corridor boundaries should be informed by a detailed analysis of congestion mitigation options.
Several commenters raised the possibility of an incremental process for setting National Corridor boundaries, under which the Secretary would first make a designation of a broad area, and then as specific transmission proposals are developed and presented for review by appropriate authorities, the Secretary would narrow the boundaries.
On the other hand, some commenters opposed the project-centerline approach to developing National Corridor boundaries. For example, PAPUC argued that such an approach would involve the Secretary in siting decisions of the sort that Congress did not intend and for which the Department lacks expertise. OMS opposed National Corridor designation for particular projects. A number of commenters supported use of a non-project-based approach either instead of or in addition to a project-based approach. FirstEnergy suggested that in the absence of a specific project, a National Corridor could be drawn by means of a radius around the congested area. However, most commenters who supported a non-project-based approach recommended that the Department use a source-and-sink approach to setting National Corridor boundaries, in which the Department would identify a sink (the congested or constrained load area) and a source (an area of potential supply), and then draw a National Corridor connecting these two areas.
Several commenters supported the specification of precise boundaries for National Corridors. For example, Allegheny argued that specific boundaries are needed so that the project sponsor would know whether its project is encompassed within a National Corridor, FERC could readily determine the geographic scope of its potential jurisdiction, and land owners would know whether their property may be subject to the Federal exercise of eminent domain. However, OMS argued that instead of setting specific perimeter boundaries, the Department should identify source and sink areas, define the goal of the National Corridor, and then limit the National Corridor designation to those projects that further that goal. OMS expressed concern that delineation of specific boundaries could have the effect of establishing Federal transmission line corridors within States, and notes that just because a proposed project is located within a National Corridor it should not be assumed to address the concerns that lead to the designation of the National Corridor.
With regard to drawing the specific perimeters of a National Corridor, Allegheny argued for using existing or proposed originating, intermediate, and terminating substations for proposed lines identified by planning studies. Numerous commenters argued that the Secretary should draw National Corridor boundaries to exclude parks and other environmentally protected areas.
Several commenters emphasized the need to make the area covered by a National Corridor broad, to ensure adequate flexibility of transmission planners and siting authorities to consider alternatives.
On the other hand, some commenters acknowledged the need for flexibility to consider alternatives but cautioned against drawing the National Corridor boundaries too broadly. For example, the City of New York stated that an overbroad interpretation of “corridor” is both inconsistent with the plain meaning of the word and may be too amorphous to provide adequate guidance for beneficial transmission planning. The PAPUC argued that National Corridors should be set so as to minimize the intrusion into State siting jurisdiction and to guarantee that any transmission projects claiming the benefits of the National Corridor designation will actually address the problem Congress intended to address. PAPUC further argued that the Department should require a project claiming the benefits of the National Corridor designation to show that its project would substantially alleviate the specific directional congestion on which the National Corridor was based and that the project would not conflict with any other transmission solutions being planned in the applicable regional planning process. Long Island Power Authority (LIPA) argued that an overbroad National Corridor would dilute the effectiveness of FPA section 216 and would discourage non-transmission solutions.
The statute provides little direction on how the Department should draw the boundaries of a National Corridor. FPA section 216(a) uses the term “geographic area” and lists several considerations the Secretary may take into account when making a National Corridor designation. However, the statute does not define the term “corridor.” While this term is commonly understood to refer generally to some sort of path between different areas, the specific meaning of the term in this context is ambiguous. After careful consideration of the overall purpose and effect of this statutory provision, as well as the comments received, the Department has concluded that, while there may be circumstances where a project-based approach would be appropriate, in general the Department will use a source-and-sink approach to defining National Corridor boundaries.
As discussed in Section I.A above, the National Corridor designation process is intended as a process to identify congestion and constraint problems, and the geographic areas in which these problems exist, rather than as a process to identify solutions to those problems. Just as the determination of whether to designate a National Corridor need not await or rely on the existence or analysis of specific transmission proposals, neither does the determination of the boundaries of that National Corridor. Setting National Corridor boundaries through a source-and-sink approach is consistent with the problem-identification purpose of National Corridor designations under FPA section 216(a), because it is not focused on any particular transmission projects, or set of transmission projects.
The Department recognizes that when it designates a National Corridor, there may be specific projects that have already been proposed within the boundaries of that National Corridor. Such is the case with the draft National Corridors designations in this notice. This result is not surprising, because these draft National Corridors encompass well-known constraints that have adverse effects on millions of consumers. However, the Department emphasizes that it is neither endorsing nor recommending any specific projects when it designates a National Corridor based on a source-and-sink analysis.
There was broad consensus among the commenters that if a project-based approach were not used to set National Corridor boundaries, then a source-and-sink approach should be used. Such an approach is consistent with the common usage of “corridor” as an area linking two other areas. Such an approach also is consistent with the physical properties of the electrical grid, because a transmission line into a congested or constrained load area will not benefit that load unless the line connects with a source of power that could help to serve the load.
While the comments support the use of a source-and-sink approach to setting National Corridor boundaries, they provide little clarification about how such an approach should actually be implemented. The details of how the Department will draw the boundaries of a National Corridor will depend on the specific circumstances. However, in general terms, the geographic extent of the sink area in a National Corridor is determined by the geographic distribution of the consumers adversely affected by the congestion or constraints—in other words, the location of load downstream of the limiting transmission constraints.
With regard to the source area, where the decision to designate a National Corridor is based on the existence of a constraint that is hindering the development or delivery of a particular generation source that is in the public interest,
Given the long lead time involved in planning, obtaining regulatory approvals for, and constructing transmission projects, areas without a current surplus of generation could well develop additional power sources by the time a transmission project is completed. Therefore, depending on the circumstances, the Department may consider as potential source areas not only those areas with existing surplus generation, but also areas with projected surplus generation, or areas with available fuel supply for additional generation.
Once the Department has identified the range of potential source areas, it must then decide which of those potential source areas it will use to set the boundaries of a National Corridor. The Department observes that the considerations identified in FPA section 216(a)(4) provide guidance on some of the possible bases for making this decision. FPA section 216(a)(4)(A)-(E) authorizes the Secretary when making a National Corridor designation to consider lack of adequate or reasonably priced electricity, diversification of supply, energy independence, national energy policy, and national defense and homeland security. Each of these considerations potentially has relevance to the selection of source areas. For example, certain potential source areas may provide greater diversity of supply than others, or may be more consistent with national energy policy. Therefore, when there are multiple potential source areas, the Secretary will use his
After the Department has identified the sink and source areas, it must then delineate the specific boundaries of a National Corridor linking those areas. The Department agrees with the majority of commenters that National Corridor designations should specify precise geographic boundaries. Such an approach is not only consistent with the plain meaning of the statutory term “geographic area,” it also provides greater clarity and ease of administration to those entities concerned with whether a particular project or land area would be encompassed within a National Corridor.
The Department acknowledges that determining the exact perimeters for a National Corridor under a source-and-sink approach is more an art than a science, and there will rarely be a dispositive reason to draw a boundary in one place as opposed to some number of miles to the left or right. The drawing of the boundary is ultimately a judgment the Secretary must make, based on all relevant considerations, including the considerations identified in FPA section 216(a)(4), as appropriate, and available, relevant data. There is no single boundary line that can be determined based solely upon analysis of the data. The Department notes that the drawing of the boundary lines of a National Corridor does not finally determine or fix the substantive rights of anyone. A National Corridor designation simply provides developers proposing certain projects within its boundaries an additional procedural option in the form of a potential Federal siting venue that is not available to transmission projects outside a National Corridor.
Therefore, the Department agrees with those commenters who emphasize the need for the Department to draw National Corridor boundaries so that they could encompass a range of potential projects and a range of potential routes.
The Department recognizes that some States are concerned that specification of broad boundaries could result in unintended expansion of Federal siting authority to include proposed transmission projects that happen to be located within a National Corridor but are unrelated to the problem that prompted the National Corridor designation. Sometimes the approach described above could produce very large corridors; sometimes it could produce smaller corridors. The breadth of a corridor would be driven by the geographic expanse of the adversely affected load, the number and geographic dimensions of source areas, and the distance between the source and sink areas. FPA section 216(b) itself specifies the scope of FERC jurisdiction over projects proposed to be built in National Corridors, including a requirement that the project will “significantly reduce transmission congestion and protects or benefits consumers.”
Finally, in the event that an affected party concludes at some later stage that a modification to the boundaries of an existing National Corridor is needed, the Department will consider such a request.
Some commenters argued that it would be premature to designate any National Corridors without a full disclosure of the data and analysis underlying the conclusions in the Congestion Study. NYPSC, the Maine Public Utilities Commission (Maine PUC), and NARUC argued that the Department must perform a more granular analysis of congestion before designating a National Corridor; according to these commenters, the Congestion Study alone does not provide an adequate record of how the conclusions about congestion were reached. PAPUC stated that while the Congestion Study is a good initial assessment of congestion at the national level, designation of specific National Corridors cannot be based on the preliminary analysis contained in the Congestion Study; according to PAPUC, more specific and focused regional studies must be conducted prior to any designation. A number of commenters argued that the Congestion Study fails to provide adequate notice of a National Corridor designation under the Administrative Procedure Act, 5 U.S.C. 551.
The Department notes that as of September 27, 2006, it made available on its Web site non-proprietary data relied on in the Congestion Study. Moreover, as discussed further below, the Department in this notice is identifying the specific data on which it is relying to establish the existence of congestion or constraints adversely affecting consumers, to explain the reasons the Secretary is considering exercising his discretion to designate a National Corridor, and to explain how
A number of commenters raised concerns about the level of consultation with States. Several commenters asserted that the Department failed to consult with the States in New England in the preparation of the Congestion Study.
FPA section 216(a)(1) requires that the Department conduct its congestion studies “in consultation with affected States.” FPA section 216(a)(2) then states that “[a]fter considering alternatives and recommendations from interested parties (including an opportunity for comment from affected States), the Secretary shall issue a report, based on the study, which may designate * * * [National Corridors].” The Department is committed to fulfilling its obligation to consult with States in this process. At the same time, the Department notes that there are practical difficulties in conducting the level of consultation that some may prefer in the context of a study of this magnitude, which examines congestion over 150,000 miles of transmission lines throughout 47 States and the District of Columbia, within statutorily mandated deadlines. Moreover, the statute refers to conducting the congestion study in consultation with “affected States.” It is difficult to know which States are “affected” until the conclusions of the congestion study are known.
The Department has provided States with numerous opportunities for input and has held meetings with officials representing individual States and groups of States. The Department initiated a series of conference calls in December 2005 and January 2006 with States to describe the Department's study plan and request information and suggestions. On February 2, 2006, the Department published a Notice of Inquiry explaining the Department's intended approach for the Congestion Study and inviting comment. On March 29, 2006, the Department held a public technical conference in Chicago, Illinois to address the questions presented in the Notice of Inquiry. The Congestion Study itself was made available for comment on August 8, 2006. In addition, the Department held numerous meetings with State officials to discuss the Congestion Study and made presentations at several State conferences and events.
As indicated by its outreach efforts in connection with the Congestion Study, the Department recognizes the importance of State consultation. The Department further recognizes that the most significant stage of the entire process under FPA section 216(a) is the National Corridor designation stage. Therefore, in addition to making the draft National Corridor designations described in this notice available for comment, the Secretary is simultaneously contacting the Governors of each State in which the draft National Corridors would be located to arrange consultation meetings.
The Department received several comments proposing that the Department prepare a Programmatic Environmental Impact Statement (PEIS), pursuant to the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4347) (NEPA), before designating any National Corridors. Specifically, some commenters state that designating a National Corridor is equivalent to establishing a plan for routing transmission lines and, therefore, must be evaluated in a PEIS.
Several commenters also asserted that the designation of a National Corridor selects a transmission-based solution to congestion rather than alternative energy solutions such as siting local generation or increased demand response. These commenters argue that DOE should conduct a PEIS that considers alternatives to transmission-based solutions to congestion prior to designating a National Corridor.
Other commenters note that the Council on Environmental Quality's regulations implementing the procedural provisions of NEPA (40 CFR 1500-1508) require that NEPA be applied at the earliest possible time in the planning process and contend that, therefore, DOE should prepare a PEIS prior to any designation of a National Corridor.
The Department also received comments that it should conduct other environmental and cultural analyses, such as a review under the National Historic Preservation Act (16 U.S.C. 470) (NHPA), before designating National Corridors.
Section 102(2)(C) of NEPA requires that all Federal agencies include an environmental impact statement in
While NEPA review is not required at this time, all proposals for Federal siting permits will be subject to, as appropriate, project-specific NEPA review. In addition to NEPA, proposals for such permits will also be subject to other environmental and cultural reviews, including, but not limited to, review under the NHPA.
The Congestion Study solicited comment on whether National Corridor designations should be permanent or whether the Department should set an expiration date. Most commenters did not address this question. Most of those who did said that DOE should not set a standard duration period for National Corridor designations. SCE, for example, said that relevant conditions would vary too much from case to case, and that DOE should establish a period suitable to a given National Corridor and then work with affected parties to determine when or if the designation should be terminated. APS emphasized that the development of transmission facilities is often a protracted process; that the initial designation should be for a considerable period; and that thereafter DOE should ensure that a designation does not expire in a manner that would disadvantage existing efforts to relieve congestion problems. EEI said that designations should not have any fixed duration; rather, they should simply remain in force until rescinded by DOE. EEI argued that DOE should stipulate in its designations that it reserves the right to rescind a designation if it finds that the designation is no longer needed, and that it would revisit the need for existing designations in its periodic studies and reports. EEI also emphasized the need for DOE to ensure that it did not rescind a designation prematurely.
Wilderness noted that DOE is to update its congestion study every three years, and suggested that DOE should reassess the need for existing National Corridors as part of each three-year study. Similarly, the York County Planning Commission said that designations should be for three-year terms, subject to renewal or rescission based on the findings in the updated congestion analyses.
PJM Interconnection, LLC, (PJM)
DOE appreciates the need to be responsive to the broad range of factors and considerations pertaining to the duration of National Corridor designations. It also recognizes that designations, once made, should be in place for a considerable period of years, with the possibility of either rescission or renewal for cause. Accordingly, DOE intends to adopt a default approach, under which an initial designation would be for a period of 12 years unless it finds reason in a particular case to set some other initial term. Notwithstanding this approach, the Department recognizes the disruptive effect that regulatory uncertainty can have on transmission investment. Therefore, the Department does not intend to terminate any National Corridor designations while an accepted permit application in that National Corridor is pending at FERC, or, once FERC has granted a permit, during the period in which the approved facilities are being constructed. The Department will stipulate in any National Corridor designation order that the designation may be modified, rescinded, or renewed for cause at any time, after a period of public notice and comment and consideration of the comments.
In this section, the Department summarizes and responds to technical comments it received on the Congestion Study that are relevant to today's draft National Corridor designations. Specifically, the Department first summarizes and responds to those comments on the data and methodology used in the Congestion Study that have general relevance to any National Corridor designation. Then, the Department summarizes and responds to comments on the Congestion Study that have particular relevance to the draft National Corridor designations in this notice. As mentioned above, today's notice does not address comments received on the Congestion Study that relate solely to areas outside the two Critical Congestion Areas or that relate to the conduct of future congestion studies.
Several commenters commended DOE for its efforts in completing the first national electric transmission congestion study and advancing the discussion on transmission congestion. NARUC stated, “The DOE's successful development of a base case electric load flow model in a single year for the entire Eastern Interconnection is a significant achievement.” First Energy commented that “DOE seems to have relied on appropriate information to support its conclusions in the Congestion Study. DOE seems to have made reasonable assumptions about the electric infrastructure that will be in use and seems to have relied upon reasonable modeling methods with respect to identifying potential future transmission constraints.”
The Midwest ISO remarked:
The classification of congested areas into Critical Congestion Areas, Congestion Areas of Concern, or Conditional Congestion Areas is an appropriate means to distinguish between varying characteristics of these congested areas * * *. Overall, the method employed to identify congested areas is an appropriate combination of available historical data, transmission studies by planning organizations, and simulation of future congestion.
EEI applauded the Department for the timely completion of the Congestion Study, stating, “In light of the strong emphasis on electric infrastructure made by the Congress in enacting EPAct, the congestion study identifies a broad range of critical geographic areas throughout the nation that face potentially serious challenges for ensuring reliable and cost-effective electricity delivery.”
International Transmission Company stated that as a general matter, “the Congestion Study did a commendable job of identifying areas of the United States in which congestion represents an economic problem, i.e., where densely populated, economically significant regions of the country face limited access to economic sources of electricity as the result of transmission congestion.” However, the Department also received comments expressing concern about several general aspects of the Congestion Study, as discussed below.
Other commenters argued that congestion rent has limited relevance outside of organized markets, and thus the Congestion Study significantly underestimated congestion and constraints in the areas of the country without such markets. Several commenters from the Southeast, for example the Public Works Commission of the City of Fayetteville, North Carolina, expressed concern that the Study had missed significant congestion problems and urged the Department to consider other types of information, such as lack of long-term firm transmission capacity. NRECA and NEC also argued for use of alternative metrics, including available transfer capacity. Western commenters, including NWPUD and SCL, noted that the need to look at alternative metrics, such as withdrawn or declined transmission requests, limits on scheduling rights, or real-time schedule curtailments, is particularly important in the Northwest, given that power there is obtained solely through bilateral markets. NWPUD and SCL assert that modeling congestion using production cost simulations may be misleading since most of the Western Interconnection uses contract path methods for acquiring, reserving, and scheduling transmission service. Duke noted that because areas without formal markets are generally served by vertically integrated utilities, the type of LMP-based congestion data typically provided by RTOs and ISOs are often not available. PSEG asserted that the Congestion Study is biased towards regions that use LMP because the Study is only capable of measuring congestion in LMP-type markets. PSEG concluded that this inherent bias is not properly recognized or addressed in the Study, as is evidenced by the fact that the Congestion Study contains no significant congestion findings for areas without organized markets. NCEP asserted that lack of data for the Southeast and parts of the West, where organized markets do not exist, presents a significant gap in the knowledge available to the Department to determine the need for National Corridors in those regions. NCEP further asserted that the fact that data from these areas are not available does not mean that congestion does not exist.
Nevertheless, congestion rents are an indicator of the existence of congestion, since if there is no congestion, there are no rents, and whenever there is congestion, congestion rents can be calculated. The Congestion Study modeled congestion rents for areas with
With regard to the recommendation that the Department use changes in bid production cost instead of congestion rent to measure congestion, the Department concludes that use of bid production cost in the context of FPA section 216(a) congestion studies is not required. Bid production cost analysis compares a base case against different scenarios in which action is taken to alleviate congestion or constraints. By contrast, the Department is specifically
While the Department believes that congestion rent, when correctly understood, is a useful indicator of the persistence and pervasiveness of congestion within a transmission system, congestion rent was only one of the metrics used in the Congestion Study. Further, as discussed in Section II.A above, while FPA section 216(a) requires a National Corridor designation to be based on the existence of constraints or congestion that adversely affects consumers, once the Department has demonstrated the existence of persistent congestion, no additional demonstration, let alone monetization, of the adverse effects on consumers is required. Thus, in the draft National Corridor designations detailed below, the Department relies on historical binding hours and a range of other indicators to support its conclusion that the areas are experiencing persistent congestion and that National Corridor designation is appropriate. For the purposes of future congestion studies, the Department is considering whether other metrics, in addition to or instead of congestion rents, are appropriate, particularly in those areas without organized markets.
Contrary to the assertion of ConEd and PEC, natural gas and oil prices were assumed to drop in the base case of the Congestion Study over the time period of 2006 through 2015, thus narrowing the price spread between coal-fired generation and natural-gas- and oil-fired generation. What is more important is that the analysis considered three distinct fuel price scenarios which offer dramatically different relationships between the prices of natural gas and coal. At the same time, transmission problems identified in the Congestion Study as persistent are those that appear under all fuel price scenarios.
PEC noted differences between the load data used in the Congestion Study and the PJM Load Forecast Report 2006 and suggested that a detailed review and validation of the data is warranted. PEC, ConEd, and LIPA argued that the Department should revise the Congestion Study to reflect the data in NYISO's final 2006 Comprehensive Reliability Plan.
When preparing the Congestion Study, the Department made every effort to include the most current and best available data. The specific reports cited above were not available at that time, and the Department therefore relied on 2005 data. Nevertheless, the Department has reviewed the information cited by commenters and concludes that it does not alter the analysis set forth below concerning the draft designation of National Corridors.
National Grid suggested that the geographic area from Albany and Utica to New York City should be included within the Mid-Atlantic Critical Congestion Area.
The Department agrees that it is appropriate to include this area within the Mid-Atlantic Critical Congestion Area, and as discussed below, the Department has included this area in the draft Mid-Atlantic Area National Corridor.
PSEG believed that the Mid-Atlantic Critical Congestion Area identified by the Congestion Study is too broad. PSEG
DOE agrees that this broad area is not homogeneous and that congestion is not uniformly distributed. Nevertheless, as the entire region is downstream of significant constraints, congestion occurs to one degree or another across the entire area.
PSEG noted that the Congestion Study says (p. 41) that transmission congestion problems are worsening in southeastern New York, in New York State as a whole, in New Jersey, and in the Delaware River Path. PSEG added that the Study does not provide data applicable to PJM to support these assertions. Further, PSEG cited PJM's 2005 State of the Market Report as showing that although total gross congestion was rising in the PJM footprint over the 6-year period between 1999 and 2005, this was occurring as the geographic size of PJM's market was growing, and the level of gross congestion, as a percentage of total PJM billings, remained relatively consistent at about 8 percent (plus or minus 2 percent) per year.
DOE believes that the information it cites on pp. 42-43 of the Congestion Study strongly supports the assertions made on p. 41. Concerning congestion and PJM's expansion, DOE notes that from 1999 through 2005, PJM was expanding into relatively uncongested areas, while congestion was rising sharply in PJM's original, “classic,” footprint. Thus, although total congestion for PJM's footprint remained relatively consistent as a percentage of total PJM billing is true, that is not particularly relevant. The rapid increase in congestion in the eastern portion of PJM's footprint can be demonstrated in two ways. One way is to compare total annual congestion costs in the PJM footprint with total transmission revenue requirements (adjusting the latter figure as appropriate to take PJM's broadening footprint into account). As shown in Table VII-1, congestion costs rose from 7.4 percent of transmission revenue requirements in 1999 to 107.9 percent of these requirements in 2005. These figures suggest that the demands on the transmission system in PJM's footprint were increasingly intensive over this period.
Another way to see that congestion was growing rapidly in the eastern portion of PJM's footprint during this period is to compare historical changes in LMPs for the utilities in “classic PJM.” As shown in Figure VII-1, the LMPs for the eastern utilities in “classic PJM” were generally increasing between 2002 and 2005 or 2006, as compared to the LMP for Penelec, which is in “classic PJM” but located west of most of PJM's major constraints.
NYPSC and NYISO expressed concern about the accuracy of the data underlying the Congestion Study, noting that the modeling results indicated, contrary to NYISO's 2005 State of the Market Report, that the amount of congestion in upstate New York is relatively high compared to the amount of congestion in southeastern New York.
NYISO market data on congestion are not directly comparable to the Congestion Study's simulation results for several reasons. First, NYISO's 2005 State of the Market Report relies on real-time congestion data. The Congestion Study simulations reflect forward-looking unit commitment in response to predictable loads and therefore should be compared to day-ahead data.
Second, the Congestion Study simulations reflect “planning” interface definitions and limits published by NYISO whereas NYISO's 2005 State of the Market Report is based on operational interface limits. Table VII-3 presents a comparison of planning limits and operating limits. For the upstate system, the planning limits are more stringent than the operating limits. For example, the planning limit reported by NYISO for Moses South used in the Congestion Study ranges between 1300 MW and 1700 MW. However, the operating limit for that interface used in NYISO operations ranges between 2550 MW and 2875 MW. On the other hand, for the downstate system, the planning limits are less stringent than the operating limits. For example, the planning limit reported by NYISO for UPNY-ConEd used in the Congestion Study ranges between 4850 MW and 5750 MW, whereas the operating limit for that interface used in NYISO operations ranges between 3300 MW and 3950 MW. The combination of looser upstate operational limits and tighter downstate operational limits compared with the planning limits employed in the Congestion Study results in a shift in congestion in the Congestion Study's modeling from downstate to upstate New York.
Third, NYISO monitors only open interfaces (except for Total East). The Congestion Study simulations followed NYISO planning documents and modeled both open and closed interfaces.
Finally, historical congestion data referenced in NYISO's 2005 State of the Market Report do not reflect 1000 MW of new generation capacity added in Zone J in 2006. The Congestion Study simulations reflect these and other future capacity additions.
NYPSC claimed that Appendix I and Section 12B of the memorandum entitled “GE-MAPS Input Assumptions: Eastern Interconnect” (GE-MAPS Assumptions Memo) appear to misrepresent NYISO's 118 percent installed capacity (ICAP) requirement by applying that requirement only to upstate load instead of to State-wide load.
This is a reporting error and the capacity balance for NYISO as a whole provided in the referenced memorandum is incorrect. Nonetheless, ICAP requirements do not explicitly affect system simulations; they affect the timing of the need for new capacity additions. The NYISO system as modeled in the Congestion System is balanced. Thus, this reporting error did not affect the analysis and findings of the Congestion Study.
NYPSC commented that Section 7 (Capacity Additions and Retirements) of the GE-MAPS Assumptions Memo employs a $65/kW-year cost for gas turbines, which appears to be very low.
The Department agrees that this estimate seems low, especially in light of a recent increase in costs. However, $65/kW-yr was used as a generic carrying charge for new peaking capacity. With $10/kW-yr fixed operating and maintenance cost, this would make the cost of new entry equal to $75/kW-yr (in real 2005 dollars, or $81.2/kW-yr in 2008 dollars). This is only moderately lower than the cost of new entry used in the NYISO ICAP manual for the New York Control Area demand curve for the 2007/2008 capability period ($87.6/kW-yr). Thus, the Department does not believe that increasing the cost of new entry would alter the conclusions in the Congestion Study.
NYPSC commented that Section 10 (External Region Supply) in the GE-MAPS Assumptions Memo “scheduled” flows from Hydro Quebec to New York, New England, and Ontario on 12 months of historical data that might not be typical.
The Department will work with NYPSC to develop more representative data for use in future congestion studies. However, the Department does not believe that changing these data would alter the conclusions in the Congestion Study.
NYPSC commented that Section 12C (Market Model Assumptions—ISO Boundaries) of the GE-MAPS Assumptions Memo cites high hurdle rates between NYISO and ISO New England (ISO-NE)
The Department recognizes the absence of wheeling charges between NYISO and ISO-NE. The Congestion Study used hurdle rates to reflect other inefficiencies in conducting transactions across market boundaries resulting from differences in market design.
NYPSC commented that Section 12D (Market Model Assumptions—Operating Reserves) of the GE-MAPS Assumptions Memo misstates how New York determines operating reserves.
The Congestion Study based operating reserve assumptions on the actual requirements instituted by each reliability region.
NJBPU argued that the Congestion Study fails to take into account reliability upgrades that PJM has already required in its existing Regional Transmission Expansion Program (RTEP) process and new upgrades continually being formulated as that process progresses. According to PSEG and PEC, the Department did not take sufficient account of PJM's proposed Reliability Pricing Model (RPM) or the effects of mandatory reliability-driven transmission reinforcements and upgrades, since such upgrades like the Neptune Project would reduce congestion. PSEG asserted that the Congestion Study's claim that “addition of * * * generation capacity * * * will create additional congestion unless new transmission is also developed” is erroneous and presumes the siting of remote generation that is far from load and located on the wrong side of the constraint. Additionally, PEC contended that RPM may spur the addition of new generation close to load centers that is not accounted for in the Congestion Study.
The model included planned capacity that is scheduled to come on line over the next several years. In addition, the model assumes that when additional capacity is needed, new capacity will be added at locations that have high locational prices, which are usually close to load. This tends to reduce modeled congestion. The PJM RPM process, if and when it is implemented, should have a similar result.
PEC questioned why the re-powering of the Potomac River and Benning plants is considered uneconomical.
No assumptions were made in the Congestion Study with regard to these plants.
Toll Brothers claimed that the Congestion Study fails to take into account two assumptions that will reduce the need for increased transmission capacity from west to east in the PJM footprint: (1) the likely retirement of some generation facilities between the Midwest and the District of Columbia; and (2) increased restrictions on traditional air pollution emissions from coal-fired plants and the future regulation of greenhouse gas emissions, both of which would increase the cost of electricity generated by such plants. NYPSC asked if modeling accounted for compliance with the Clean Air Interstate Rule.
The Congestion Study analysis included only planned retirements. Any attempt to forecast other retirements would be inappropriately speculative. Similarly, in the Eastern analysis, each unit in the model is assumed to comply with all promulgated air regulations, including the Clean Air Interstate Rule, and the Department did not speculate about potential future regulation.
CPUC argued that the Congestion Study exaggerated the significance of congestion into southern California, relying heavily on simulations instead of historical data and on information from project proponents. CPUC noted that one of the studies provided to DOE concluded, based on physical flow data from 1999 through 2005, that Arizona-to-southern California was not among the areas found to be experiencing heavy path usage. CPUC noted that the year 2008 simulations cited in the Congestion Study as indicating high economic significance of congestion from Arizona into southern Nevada and southern California actually show that the highest simulated congestion costs occur on lines from Arizona into southern Nevada.
The Department's identification of southern California as a Critical Congestion Area was based on a combination of factors, including the existence of historical congestion, projections that this historical congestion will worsen in the absence of remedial measures, as well as the economic and strategic significance of southern California to the Nation as a whole. Thus, while other areas in the Western Interconnection may have experienced higher levels of historical congestion, the Department believes that the totality of circumstances in southern California warrant its identification as a Critical Congestion Area and, as explained further in Section IX below, the draft designation of a National Corridor.
In the Congestion Study, the Department solicited alternatives and recommendations for National Corridor designations. The Department received a number of such alternatives and recommendations for the Mid-Atlantic Critical Congestion Area. Some commenters, including EEI and Exelon Corporation, recommended National Corridor designations in eastern New York and eastern PJM, citing the need to remedy the existing and growing congestion problems in the Mid-Atlantic Critical Congestion Area, but they did not specify specific boundaries.
Based on its regional transmission planning studies, PJM recommended three specific National Corridors in the Mid-Atlantic area. According to PJM, a National Corridor is needed in a contiguous area of southeastern Pennsylvania, northern West Virginia, western Maryland, and northern Virginia, because in the absence of construction of a new high-voltage transmission circuit within this area, PJM and North American Electric Reliability Corporation (NERC)
AEP recommended a National Corridor to encompass the general anticipated route of a transmission line it is proposing to build between West Virginia and Maryland. Allegheny recommended a National Corridor to encompass the general anticipated route of a transmission line that it and Dominion Virginia Power (Dominion) are proposing to build between southwestern Pennsylvania and northern Virginia.
The Governor of the State of West Virginia commented that development of transmission to supply regions north and east of West Virginia with low-priced clean-coal generation and renewable generation from within, as well as south and west of, his State would result in economic and reliability benefits for all involved regions. Thus, noting the time it can take to site a transmission line and the urgency of addressing the transmission problems, the Governor recommended designation of a National Corridor that would encompass the AEP project as well as the Allegheny-Dominion project.
New York Regional Interconnect Inc. (NYRI) recommended a National Corridor to encompass the general anticipated route of a transmission line it has proposed to build from Marcy, New York to New Windsor, New York.
The City of New York argued that growing energy demand, national security concerns, the unique nature of electricity dependence in the Nation's financial and commercial capital, and fuel diversity and stability factors all warrant the designation of one or more National Corridors for New York City. Specifically, the City of New York recommended a National Corridor between the New Jersey segment of PJM and New York City.
NYISO commented that the Congestion Study correctly included metropolitan New York within the Critical Congestion Area, and correctly identified the general location and direction of congestion in New York. NYISO explained that it conducts a Comprehensive Reliability Planning Process to assess reliability needs and that while its analysis indicates a reliability need for additional resources in southeast New York starting in 2008, sufficient market-based generation solutions have been submitted so that reliability criteria will be met through 2014. Thus, according to NYISO there is no need for a National Corridor from a reliability standpoint. However, NYISO also noted that “New York's comprehensive and effective generation siting law expired in December 2002 and has not been re-enacted.” NYISO further noted that while it provides up-to-date data to assist stakeholders in evaluating investments to address the economic effects of congestion, “by design, the NYISO leaves the decision making on economic solutions for the Market Participants.”
Numerous commenters recommended against one or more National Corridor designations for the Mid-Atlantic Critical Congestion Area. The Governor of the Commonwealth of Virginia commented that no National Corridor designations should be made before there had been adequate consultation with States.
Many commenters recommended against designation of the National Corridor proposed by Allegheny,
After reviewing the alternatives and recommendations provided, the Department believes that designation of a National Corridor for the Mid-Atlantic Critical Congestion Area may be warranted. In the following sections, the Department will detail its factual finding of the existence of constraints or congestion that adversely affects consumers in the Mid-Atlantic Critical Congestion Area and explain the considerations that it believes warrant designation of a National Corridor for this area. Finally, the Department will delineate and explain the specific boundaries of the draft National Corridor.
The Congestion Study identified the Atlantic coastal area from metropolitan New York southward through northern Virginia as a Critical Congestion Area based on evidence of historical, persistent congestion caused by numerous well-known constraints that are projected to continue and worsen unless addressed through remedial measures. In conducting the Congestion Study, the Department identified these well-known constraints based on a review of extant transmission studies and expansion plans available prior to the publication of the Study. These constraints are listed in Table VIII-1, in no particular order, and their approximate locations are shown in Figures VIII-1 and VIII-2.
Many of these constraints were binding, and thus produced congestion in years 2004, 2005, and 2006. (See Tables VIII-2 and VIII-3 for summaries of hourly data reported by PJM and NYISO.) Further, from 2004 through
The modeling directed by DOE for the Congestion Study projected that some of these constraints will continue to be problems in 2008, along with other additional constraints. DOE found that looking across the several Congestion Study scenarios, 12 constraints were of particular interest in the PJM footprint and 21 in New York. These constraints are listed in Tables VIII-6 and VIII-7 respectively. DOE's analysis indicates that five of the ten most problematic constraints in the Eastern Interconnection are in New York, and the other five are in the PJM footprint.
The existence of constraints causing persistent congestion is further evidenced by regional differences in generation capacity factors within the PJM and NYISO footprints. In a regional-scale electricity market, generators producing electricity at lower costs will typically be used at higher capacity factors than generators with higher production costs, except when such efficient use of resources is not feasible due to transmission limitations and the need to operate some generation capacity close to load centers to ensure voltage stability in those areas.
PJM data for 2004, 2005, and 2006 show that the utilization rate (or capacity factor) for large generators (>200MW) in the $30-40/MWh cost category in the western portion of PJM's footprint was 63, 61, and 67 percent on average respectively (Table VIII-8); DOE projections show a slightly higher figure for 2008 (also Table VIII-8). By comparison, the average capacity factor for generation in the same cost class in the eastern portion of PJM's footprint was 74, 79, and 77 percent in 2004, 2005, and 2006 respectively and is projected by DOE at over 79 percent for 2008. (See Table VIII-9.) In DOE's projections for 2008, similar differentials in capacity factor are seen between the western and eastern portions of PJM's footprint for higher cost groups of generators (i.e., $40-50/MWh, $50-60/MWh, $60-80/MWh, and $80-90/MWh). The western portion of PJM's footprint has no operating units above $100/MWh; the eastern portion does, and they are used when needed. (See Figure VIII-3.)
These historical data and projections confirm that there are differences in capacity factors between the eastern and western portions of PJM's footprint, and that the eastern portion consistently relies on a more-expensive-to-run mix of
DOE also examined the data from its projections for 2008 to identify the transmission constraints that most limited flows from the western portion of PJM's footprint (and from the eastern portion of the Midwest ISO's footprint) to serve loads in the eastern portion of PJM's footprint. The constrained facilities are listed in Table VIII-10, and the approximate locations of those constraints are shown in Figure VIII-4.
A somewhat similar situation exists in New York State. For purposes of this analysis, DOE divided the State into three geographic areas: Upstate West (NYISO zones A through E), Upstate East (NYISO Zones F through I), and
DOE reviewed both historical data and its projections for 2008 to identify the constraints that appear most critical in limiting the use of generation in upstate New York, Ontario, and Pennsylvania to serve downstate New York loads. The constraints thus identified are listed in Table VIII-12, and their approximate locations are shown in Figures VIII-8A and VIII-8B.
Further, PJM notes in its comments that total congestion costs in its growing footprint rose from $65 million in 1999 to more than $2.09 billion in 2005.
Thus, the Department has documented the existence of persistent congestion into and within the Mid-Atlantic Critical Congestion Area, as well as the constraints causing that persistent congestion. As discussed in Section II.A above, whenever there is persistent congestion, buyers must rely on power from less-preferred generating sources, a smaller range of generators is able to serve load, and grid operators have fewer options for dealing with adverse circumstances or unanticipated events, all of which adversely affects consumers. Therefore, the Department finds under FPA section 216(a)(2) that there are “constraints or congestion that adversely affects consumers” in the Mid-Atlantic Critical Congestion Area.
Given the presence of constraints or congestion that adversely affects consumers in the Mid-Atlantic Critical Congestion Area, the Secretary has the discretion to consider designation of a National Corridor. As discussed above in Section II.A, the Secretary will determine whether to exercise his discretion based on the totality of the information developed, taking into account relevant considerations, including the considerations identified in FPA section 216(a)(4), as appropriate. In this section, the Department discusses the considerations that it believes warrant designation of the Mid-Atlantic Area National Corridor.
Data from January 2004 through December 2006 confirm that despite the fact that PJM has been operating as a single market, transmission constraints result in major and persistent disparities in wholesale electricity prices within the market. (See Figure VIII-9.) As a result of these fundamental price disparities, electricity consumers in the eastern portion of PJM's footprint consistently end up paying higher electricity bills than consumers in the western portion.
As shown in Figure VIII-10
MPSC Staff Report, Electric Supply Adequacy Report of 2007, p. 3 (Jan. 2007) (MPSC Report). The report continues “Maryland is directly affected by transmission congestion, particularly since it and neighboring states (including the District of Columbia) have to import a large proportion of their energy needs. * * * LMPs in Maryland are among the very highest in PJM.”
For the area served by NYISO, historical electricity price data from 2004 through 2006 show a persistent pattern of substantially lower wholesale electricity prices in the day-ahead market for the western and upstate
As shown in Figure VIII-12, the difference in monthly average wholesale day-ahead prices between the highest and lowest zones was as much as $44/MWh. A similar pattern is seen if one looks only at the day-ahead on-peak
In addition, the constraints in New York result in consumers in downstate New York paying disproportionate generation capacity costs. If local load-serving entities were to contract for their electricity supply needs across New
To ensure that the locational ICAP requirements are met, NYISO operates an ICAP market. The ICAP market involves the sale of generation capacity, unlike NYISO's day-ahead and real-time markets, which involve the sale of energy. Load-serving entities that have not met their full ICAP requirements through contracts with local generators must participate in NYISO's ICAP market. The ICAP market consists of periodic auctions for three areas: New York City, Long Island, and the New York Control Area (which is all of NYISO).
The amount of capacity that a generator is qualified to provide through the ICAP market is determined by an Unforced Capacity (UCAP) methodology, which accounts for the possibility of forced outages, thus the prices set in the ICAP market are referred to as UCAP prices. As shown in Figure VIII-14, UCAP prices for New York City and Long Island were consistently higher than UCAP prices for the entire New York Control Area over the 26-month period from September 2004 to October 2006, sometimes dramatically so. The substantial differentials between the State-wide UCAP prices and UCAP prices in New York City and Long Island represent a premium the load-serving entities in the City and on Long Island (and their retail customers) must pay to ensure reliability by maintaining local generation capacity instead of improving the transmission system sufficiently to be able to rely more extensively on distant generation sources. This premium is in addition to the higher costs the load-serving entities and their customers pay for electric energy because they are relying to a greater extent on generation sources with higher production costs.
The data detailed above indicate that consumers in the Mid-Atlantic Critical Congestion Area now pay high electricity prices because their electricity suppliers are unable to access low-cost supplies due to insufficient
Therefore, the Department believes that economic development considerations warrant designation of a National Corridor for the Mid-Atlantic Critical Congestion Area.
The constraints limiting delivery of electricity to the eastern portion of PJM's footprint pose a threat to reliability given the steady growth in electricity demand in that area, the area's aging generation fleet with recent retirements of significant amounts of capacity, the slow pace of development of new local generation capacity in that area, and the uncertainties associated with increasing demand response.
Weather-normalized summer peak load for the PJM footprint as a whole is projected to grow at an average rate of 1.6 percent per year for the period 2006 through 2016. However, projected annual growth varies widely among the utilities in PJM's footprint, ranging from 0.7 percent to 2.4 percent, and much of the most rapid growth is concentrated in the eastern portion, and particularly in the Baltimore-Washington-Northern Virginia area.
Between 2003 and 2006, a total of 582 MW of generating capacity in the Baltimore-Washington-northern Virginia area was retired or put on a restricted-use status for environmental reasons.
MPSC Report, p. 23.
Further, while efforts are being made to increase the participation of demand-side resources in the PJM wholesale electricity markets, it does not appear that such efforts are capable of producing near-term results on the scale needed to forestall the need for additional transmission.
[F]or purposes of long-term planning for total system adequacy, substituting [demand response] for incremental transmission capability would require, at best, several times the equivalent amount of new generation that would be needed to offset the new transmission capacity. [Demand response] does not produce a steady stream of MW equivalent output because it is normally cycled over a given time period (i.e., load would be switched off and on to ensure minimal impact to the [demand response] provider, rather than switched off for the entire duration of the system need). Also, [demand response] is produced in a variety of diverse programs, which also result in divergent measurements. Within PJM, [demand response] participants may be price responsive, contractually obligated, or directly controlled. Each category of [demand response] results in a variation of the expected amount, or “output,” of [demand response] that is provided when called upon, thereby further complicating the difficulty of determining, for long-term planning purposes, the transmission or generation MW that are equivalent to a stated amount of [demand response].
Thus, PJM asserts:
With regard to New York, since its submission of comments on the Congestion Study, NYISO has published a new Reliability Needs Assessment (2007 RNA) as part of its Comprehensive Reliability Planning Process.
NYISO notes that load in southeast New York has been growing by over two percent per year.
By 2011, the NYCA load forecast estimates that approximately two thirds of the NYCA load will be located in load Zones G through K which is downstream of the UPNY-SENY [Upstate New York-Southeast New York] transmission interface. In addition, approximately 52% of the NYCA load will be located in load Zones J and K, downstream of the Dunwoodie-South transmission interface, which is a slight increase from current load levels.
The demands that are increasingly being placed on the transmission system in conjunction with other system changes, consisting primarily of generating units retirements * * *, load growth, neighboring system changes and the lack of new capacity or transmission resources downstream of the UPNY-SENY interface, have and will continue to result in voltage criteria violations at much lower transfer levels than have previously occurred. The result is that over time, transfers into and through SENY will increasingly be limited by voltage constraints rather than thermal constraints. This reduced capability of the bulk power system to make power transfers into SENY due to these voltage constraints, coupled with continuing load growth in SENY results in a resource adequacy criterion violation by 2011.
The data detailed above indicate that consumers in the Mid-Atlantic Critical Congestion Area face threats to reliability if existing congestion problems are not addressed. Reliable electricity supplies are vital to the economic and social well-being of any metropolitan area. Electricity supply disruptions may come in many forms, ranging from brief disturbances in power quality and localized outages to large-scale, cascading blackouts. The exact cost of electric supply disruptions is difficult to quantify and varies depending upon the specific circumstances. However, such disruptions can impose enormous costs on consumers and may also, under
For example, estimates of the total cost of the eastern blackout of August 14, 2003 range between $4 billion and $10 billion (U.S. $) for the United States; in Canada, the same event led to a reduction in gross domestic product of 0.7 percent in August, a net loss of 18.9 million work hours, and manufacturing shipments in Ontario were down $2.3 billion (Canadian $).
Further, one of the considerations identified in FPA section 216(a)(4) is whether “the economic vitality and development of the corridor, or the end markets served by the corridor, may be constrained by
Therefore, the Department believes that reliability considerations warrant designation of a National Corridor for the Mid-Atlantic Critical Congestion Area.
Much of the existing generation fleet in the eastern portion of PJM's footprint is fueled by oil or natural gas. For example, about 28 percent of the installed generation capacity in Maryland and the District of Columbia is either solely oil-fired or capable of using both oil and natural gas as fuels, as is 35 percent of the installed capacity in Delaware. Further, more than 75 percent of the generation capacity that has been added in recent years in Delmarva, Maryland, the District of Columbia, and New Jersey has been fueled by natural gas.
More than 6000 MW of additional coal-fired generation, some utilizing clean-coal technology, is currently under construction or active in PJM's interconnection queue. All of this capacity is or will be located far from the Baltimore-Washington-Northern Virginia load centers. Moreover, approximately 12,000-15,000 MW of additional wind-powered generation is either under construction or under active study in PJM's interconnection queue. With the exception of one plant under construction on the New Jersey coast, all of these facilities are or will be located west of the [eastern] load centers.
Accordingly, one of the consequences of transmission congestion in the eastern portion of PJM's footprint is that it prolongs and exacerbates the area's existing use of oil and natural gas as generation fuels.
Most of the existing generation fleet in the downstate portion of New York is fueled by oil or natural gas. On a State-wide basis, about 39 percent of the electricity used in New York in 2005 came from oil or gas units, and 32 percent came from coal or hydroelectric capacity.
Oil and natural gas are relatively high in price and must be purchased in markets that are highly volatile and subject to unanticipated international trends and adverse events. Inadequate transmission capacity leaves consumers in the Mid-Atlantic Critical Congestion Area exposed, perhaps increasingly, to the higher prices and higher price volatility associated with these generation fuels, with a resulting impact on business certainty, especially for industrial consumers. Lack of adequate transmission capacity also limits the Mid-Atlantic Critical Congestion Area's access to generation fueled by domestic sources that could displace generation fueled by foreign sources. Thus, economic growth may be jeopardized and energy independence is compromised. Further, one of the considerations identified in FPA section 216(a)(4) is whether “(i) economic growth in the corridor, or the end markets served by the corridor, may be jeopardized by reliance on limited sources of energy; and (ii) a diversification of supply is warranted.” FPA section 216(a)(4)(B); 16 U.S.C. 824p(a)(4)(B). Another consideration identified in that statute is whether “the energy independence of the United States would be served by the designation.” FPA section 216(a)(4)(C); 16 U.S.C. 824p(a)(4)(C).
Therefore, the Department believes that supply diversity and energy independence considerations warrant designation of a National Corridor for the Mid-Atlantic Critical Congestion Area.
The Mid-Atlantic Critical Congestion Area is home to 55 million people (19 percent of the Nation's 2005 population)
Therefore, the Department believes that national defense and homeland security considerations warrant designation of a National Corridor for the Mid-Atlantic Critical Congestion Area.
In this section, the Department first explains how it determined the general extent of the draft Mid-Atlantic Area National Corridor using a source-and-sink approach. Then the Department explains how it delineated specific boundaries for the draft Mid-Atlantic Area National Corridor.
In order to set the boundaries of the draft Mid-Atlantic Area National Corridor, DOE used the general source-and-sink approach described in Section III above. The sink areas are the locations of the consumers adversely affected by the persistent congestion documented in Section VIII.B above. Specifically, the sink areas are the areas downstream of the constraints identified in Section VIII.B above, from metropolitan New York City south along the Atlantic coast to northern Virginia.
With regard to selecting source areas, as discussed in Section III above, the Department was guided by the considerations identified in FPA section 216(a)(4). In particular, the Department focused on the considerations of ensuring adequate supplies of reasonably priced power,
Having identified the source and sink areas, DOE next sought to determine which transmission constraints most limit the delivery of electricity from the source areas to the sink areas. The results of this inquiry are shown in Figure VIII-16.
In the PJM footprint, the major obstacles to increased west-to-east flows are three groups of heavily loaded large high-voltage transmission lines. One group extends from northern West Virginia and western Maryland into
Somewhat similarly, providers of electricity to consumers in the New York City area have limited access to the source areas in upstate New York and in the western part of the State, due to several clusters of transmission constraints within New York State.
Thus, within PJM's footprint, the draft National Corridor encompasses the problematic existing west-to-east transmission lines; further, the draft National Corridor is broad enough, north-to-south, to encompass a range of potential projects and a range of potential routes to facilitate additional west-to-east flows. In addition, the draft National Corridor includes the sink areas as well, because it is frequently the case that the full potential benefits associated with a major new line will not be gained unless key improvements are made in the area to which the electricity is to be delivered. Somewhat similarly, the draft National Corridor extends far enough into the source areas to encompass a number of possible strong points on the transmission network that serves those areas.
In New York, the draft National Corridor extends northward from the area immediately north of New York City to the vicinity of Utica; then it divides into two legs, one to the Massena area and one to the Buffalo area. As with the section in the PJM footprint, this section of the draft National Corridor is broad enough to encompass a range of potential projects and a range of potential routes, and it includes the sink areas as well to encompass appropriate upgrades there. Further, as shown in Figure VIII-17, there are several important transmission constraints between New York City and Long Island. As a result, no solutions to New York City's congestion problems should be planned without considering Long Island, and thus the draft National Corridor includes Long Island.
Finally, although for ease of presentation the discussion thus far has focused on a draft National Corridor in the PJM footprint and a draft National Corridor in New York, the two areas are contiguous along a part of the shared border between the PJM and NYISO footprints. Accordingly, the draft National Corridor for the Mid-Atlantic Critical Congestion Area is a single Corridor—the draft Mid-Atlantic Area National Corridor—covering part of the
Having identified the sink and source areas on which to base the draft Mid-Atlantic Area National Corridor, as well as the constraints that must be encompassed in the National Corridor, DOE then delineated the specific boundaries of the draft Mid-Atlantic Area National Corridor. Again, for ease of presentation, the Department will discuss the draft Mid-Atlantic Area National Corridor in terms of a section within the PJM footprint and a section in New York; however, the Department notes that it is a single draft Mid-Atlantic Area National Corridor that is under consideration.
For the section within the PJM footprint, DOE first identified some general boundary points, and then linked certain of these points by means of straight lines to form a polygon. It would be impractical, however, to treat the polygon as this section of the draft Mid-Atlantic Area National Corridor, because that would not enable precise, easily identified boundaries in all areas. Accordingly, if the polygon includes some part of a county (or a city not included within a county), the Department has included all of that county or city in the draft National Corridor. This approach enlarges the draft Mid-Atlantic Area National Corridor but, in addition to establishing readily identifiable boundaries, helps ensure that the draft National Corridor encompasses a range of potential projects and a range of potential routes, as discussed in Section III above.
The western margin of the section of the polygon within the PJM footprint, in functional terms, is the eastern edge of the existing 765 kV transmission network in the Midwest, beginning with the South Canton substation, located near Canton, Ohio, continuing on to other substations to the south located on one side or the other of the Ohio River (which forms the boundary between Ohio and West Virginia), and ending with the John Amos substation near Charleston, West Virginia. Tapping into this network with new west-to-east transmission lines would enable access to generation capacity throughout the source areas.
The eastern margin of the section of the polygon within the PJM footprint is a straight line from the Calvert Cliffs substation in southern Maryland due east to the Atlantic shoreline, and then generally northward following the Atlantic shoreline and then up the Hudson River to the northeastern corner of New Jersey. The area around the Calvert Cliffs substation is of interest because if additional nuclear generating capacity is developed at the Calvert Cliffs nuclear plant or at nearby Virginia plants, additional transmission capacity would be needed to enable the electricity output to be moved from the Calvert Cliffs substation (or other relevant substations within the polygon) to the load centers in the sink area. If the nuclear capacity is not developed, the sink area could still benefit from development of additional west-to-east transmission capacity across the PJM footprint.
The Department has extended the draft National Corridor to the actual shoreline not because major new transmission lines are likely to be sited in such areas, but rather because these areas are sink areas, and transmission upgrades in some locations within these areas may be needed to gain the full benefit of improving their access to the source areas.
The southern margin of the section of the polygon within the PJM footprint is a straight line between the John Amos substation and the Calvert Cliffs substation.
The northern margin of the section of the polygon within the PJM footprint is: a straight line between the South Canton substation and the Susquehanna substation (which is the northernmost 500 kV substation in eastern PJM); a straight line from the Susquehanna substation due north to the Pennsylvania-New York border; the Pennsylvania-New York border east and southeast to the border between Pennsylvania and New Jersey; and then the border between New York and New Jersey southeast to the northeast corner of New Jersey.
Connecting the points described above produces the polygon shown in Figure VIII-18. Defining the draft National Corridor boundaries as including all of the partially enclosed cities or counties, as shown in Figure VIII-19, establishes the portion of the draft Mid-Atlantic Area National Corridor within the PJM footprint.
For the section of the draft Mid-Atlantic Area National Corridor within New York, DOE has adopted a somewhat simpler approach based more directly on county boundaries. DOE has identified four areas within New York
The first area is New York City and Long Island. This area is included because it is a sink area.
Second is a central upstate area, extending from New York City northward to include an area around the city of Saratoga Springs, and westward to include an area around the city of Utica. This central upstate area encompasses a number of the existing constraints that limit the delivery of additional electricity in bulk from the source areas to the sink areas. Although easing the constraints in this area could provide benefits in the sink areas, these benefits could be limited unless some of the key constraints further to the north and to the west were also addressed. Therefore, the Department has included the following two additional areas in the draft National Corridor.
The draft National Corridor includes an area to the south and east of the city of Massena, New York. This area encompasses several transmission constraints that may frequently prevent electricity flows from the source areas to the sink areas.
Finally, the draft National Corridor includes an area between the city of Buffalo and the city of Syracuse. This area is a major electricity pathway that is frequently constrained, preventing electricity flows from the source areas to the sink areas.
The resulting New York section of the draft Mid-Atlantic Area National Corridor, based on the boundaries of the affected counties, is shown in Figure VIII-20. The entire draft Mid-Atlantic Area National Corridor is shown in Figure VIII-21.
The list of the counties and cities that comprise the draft Mid-Atlantic Area National Corridor is as follows:
Counties: All are included—Kent, New Castle, and Sussex.
City: Washington.
Counties: All are included except Somerset. Those included are Allegany, Anne Arundel, Baltimore, Calvert, Caroline, Carroll, Cecil, Charles, Dorchester, Frederick, Garrett, Harford, Howard, Kent, Montgomery, Prince George's, Queen Anne's, St. Mary's, Talbot, Washington, Wicomico, and Worcester.
City: Baltimore.
Counties: All are included—Atlantic, Bergen, Burlington, Camden, Cape May, Cumberland, Essex, Gloucester, Hudson, Hunterdon, Mercer, Middlesex, Monmouth, Morris, Ocean, Passaic, Salem, Somerset, Sussex, Union, and Warren.
Counties: Albany, Bronx, Broome, Cayuga, Chenango, Clinton, Columbia, Delaware, Dutchess, Erie, Franklin, Fulton, Genesee, Greene, Herkimer, Jefferson, Kings, Lewis, Livingston, Madison, Monroe, Montgomery, Nassau, New York, Niagara, Oneida, Onondaga, Ontario, Orange, Orleans, Otsego, Putnam, Queens, Renssalaer, Richmond, Rockland, St. Lawrence, Saratoga, Schenectady, Schoharie, Seneca, Suffolk Sullivan, Ulster, Wayne, Westchester, and Wyoming.
Counties: Belmont, Carroll, Columbiana, Harrison, Jefferson, and Stark.
Counties: Adams, Allegheny, Armstrong, Beaver, Bedford, Berks, Blair, Bradford, Bucks, Butler, Cambria, Centre, Chester, Clearfield, Clinton, Columbia, Dauphin, Delaware, Fayette, Franklin, Fulton, Greene, Huntingdon, Indiana, Jefferson, Juniata, Lackawanna, Lancaster, Lebanon, Lehigh, Luzerne, Mifflin, Monroe, Montgomery, Montour, Northampton, Northumberland, Perry, Philadelphia, Pike, Schuylkill, Snyder, Somerset, Susquehanna, Union, Wayne, Washington, Westmoreland, Wyoming, and York.
Counties: Arlington, Clarke, Culpeper, Fairfax, Fauquier, Frederick, Loudon, Madison, Page, Prince William, Rappahannock, Rockingham, Shenandoah, Stafford and Warren.
Cities: Alexandria, Harrisonburg, Fairfax, Falls Church, Manassas, Manassas Park, and Winchester.
Counties: Barbour, Berkeley, Braxton, Brooke, Calhoun, Clay, Doddridge, Gilmer, Grant, Hampshire, Hancock, Hardy, Harrison, Jackson, Jefferson, Lewis, Marion, Marshall, Mineral, Monongalia, Morgan, Nicholas, Ohio, Pendleton, Pleasants, Pocahontas, Preston, Randolph, Ritchie, Roane, Taylor, Tucker, Tyler, Upshur, Webster, Wetzel, Wirt, and Wood.
In response to the Congestion Study, the Department received a number of National Corridor alternatives and recommendations for the Southern California Critical Congestion Area.
SCE recommended a National Corridor to encompass the general anticipated route of a transmission line it is proposing to build between the Palo Verde hub in Arizona and Palm Springs, California (Devers-Palo Verde 2 or DPV2). EEI supported SCE's recommended National Corridor, citing the need to remedy the existing and growing congestion problems in the Southern California Critical Congestion Area as well as the need for utilities in the State to meet renewable energy requirements.
San Diego Gas and Electric Company (SDG&E) recommended a National Corridor to encompass the general anticipated route of a transmission line it is proposing to build through Imperial County, California to San Diego, California (Sunrise Powerlink).
The Nevada Hydro Company, Inc. (Nevada Hydro) recommended a National Corridor to encompass the general anticipated route of a transmission line associated with its proposed Lake Elsinore Advanced Pumped Storage project (LEAPS) in southern California.
Los Angeles Department of Water and Power (LADWP) noted that the Congestion Study had not mentioned LADWP's proposed Green Path North project (Green Path), which it regards as very important to relieving congestion, maintaining reliability in the area west of Devers, and diversifying generation sources by increasing access to 2000 MW of potential geothermal power in the Imperial Valley region. LADWP stated, “DOE may wish to consider the Green Path North project as a [National Corridor].”
The California Independent System Operator (CAISO)
CEC agreed with the classification of southern California as a Critical Congestion Area and noted that “the San Diego region's transmission problems are acute and graphically illustrate the importance of adequate transmission.” CEC commented that “California interests could be served by the Federal [National Corridor] planning and permitting processes under certain limited conditions, given the State's history of impediments in developing needed transmission capacity.” However, CEC stated that the focus of the Congestion Study was too narrow to accommodate State laws and policies on renewable portfolio standards.
IID acknowledged that the Congestion Study correctly identified the presence of congestion on the intertie between IID's control area and SCE's control area (Path 42). However, IID noted that it has already identified two feasible solutions to mitigate congestion on Path 42, and
CPUC recommended against any National Corridor designations in southern California at this time. Noting that skepticism about California's siting of infrastructure may have contributed to the identification of southern California as a Critical Congestion Area, CPUC argued that California stakeholders, including CPUC, CAISO, CEC, and the transmission owners, have worked closely together to achieve significant progress in transmission expansion, completing $1.8 billion worth of transmission projects between 2000 and 2004. CPUC noted that it would soon be considering the adoption of a proposed decision that would grant a rebuttable presumption in a CPUC siting proceeding to a CAISO determination that a proposed project is needed.
CPUC further asserted that specific progress is being made in southern California: DPV2 is in the final stages of permitting;
After reviewing the alternatives and recommendations provided,
The Congestion Study identified southern California as a Critical Congestion Area, based on evidence of historical, persistent congestion caused by numerous well-known transmission constraints into and within southern California. The congestion caused by these constraints is projected to continue or worsen unless it is addressed through remedial actions. In conducting the Congestion Study, the Department identified and assessed these constraints based on a review of the extant transmission studies and expansion plans available prior to the publication of the Congestion Study.
DOE has assessed these constraints at two levels. In the Congestion Study, DOE assessed congestion at the WECC Path
The historical review performed for the Congestion Study confirmed the presence of congestion in years 1999 through 2005 on Path 26 (Northern—Southern California), Path 45 (San Diego County—Baja California Norte), Path 46
CAISO data document the presence of congestion on paths going into southern California. The CAISO footprint is divided into three zones. Based on the branch groups, CAISO manages congestion into and out of these zones through operation of a day-ahead and an hour-ahead market.
In the day-ahead market, the Adelanto, Blythe, Eldorado, Mead, and Palo Verde branch groups had the most binding hours of all the CAISO branch groups. The Palo Verde and Mead branch groups were the most congested in 2006 with binding hours of 15 and 13 percent respectively. Congestion on Palo Verde, in terms of binding hours, diminished somewhat in 2006 as compared to 2004 and 2005, but the congestion prices increased. On Mead, both binding hours and congestion prices were higher in 2006 than in 2004 and 2005. On Path 26, the congestion price diminished after its capacity limit was raised in late June 2005, but the number of binding hours increased. As shown in Table IX-1, these same branch groups are also congested in CAISO's hour-ahead market. The aggregate annual congestion revenues for several of these branch groups are shown in Table IX-2, and range from $122,000 to $17 million in 2006.
CAISO data also demonstrate the existence of congestion on paths within southern California. When congestion arises in real time within one of the three CAISO zones, CAISO must engage in redispatch. CAISO draws from three sources for this redispatch: Reliability-must-run (RMR) units;
Data from WAPA also demonstrate that routes into SP15 via the Blythe, Gene, Marketplace, and Mead substations are frequently congested, as indicated by numerous denials of requests to reserve capacity for transfers of power into SP15. (See Table IX-3).
Thus, the Department has documented the existence of persistent congestion into and within the Southern California Critical Congestion Area, as well as the constraints causing that persistent congestion. As discussed in Section II.A above, whenever there is persistent congestion, buyers must rely on power from less-preferred generating sources, a smaller range of generators is able to serve load, and grid operators have fewer options for dealing with adverse circumstances or unanticipated events, all of which adversely affects consumers. Therefore, the Department finds under FPA section 216(a)(2) that there are “constraints or congestion that adversely affects consumers” in the Southern California Critical Congestion Area.
Given the presence of constraints or congestion that adversely affects consumers in the Southern California Critical Congestion Area, the Secretary has the discretion to consider designation of a National Corridor. As
In recent years, southern California's electricity supply capability, combined with what supplies can be imported from external sources, has been barely enough to meet peak electricity demand. In the summer of 2005, CAISO declared two Stage 2 Emergencies in southern California (July 21 and 22) and a transmission emergency occurred on August 25 that resulted in the curtailment of 900 MW of firm load. In the summer of 2006, rolling blackouts were avoided during a period of extremely hot weather only through a combination of good fortune, extraordinary efforts by the utilities, CAISO, and the Bonneville Power Administration, and timely cooperation by electricity consumers to reduce electricity demand.
In its comments to DOE, CAISO noted that load in southern California has been growing at a rate of approximately 1.5 percent annually, which translates into a total of approximately 657 MW of new load that needs to be served each year. CAISO notes that this rate of load growth, combined with the threat of extreme weather conditions, such as a 1-in-10-year heat wave, could mean that by 2015, the loss of a single critical transmission path could necessitate the curtailment of approximately 1,500 MW of load. CAISO notes that the San Diego area is projected to be deficient in overall generation capacity by the year 2010 due to severe import limits. CAISO also notes looming reliability problems on the South of Lugo path, a major CAISO internal path that serves the Los Angeles Basin. CAISO states that in the event of a double-line contingency on that path at peak load, anywhere from 500 to 1,000 MW of load would need to be curtailed.
Since submission of its comments on the Congestion Study, CAISO has published additional analyses that identify potential reliability problems in southern California. In its assessment for the summer of 2007, CAISO concludes that there is a 23 percent chance of entering into a Stage 1 emergency in the area south of Path 26 (SP26), and a 12 percent chance of entering into a Stage 2 emergency.
Similarly, LADWP stated in its comments to the Department that “Zone SP26 is a large load center that is currently experiencing reliability problems because of transmission constraints. * * * Zone SP26 will likely continue its dependence on imports, so transmission improvements are needed to avoid future violations of reliability standards. * * *”
In its comments to DOE, SDG&E described the San Diego area's situation as follows:
The San Diego region has only two points of interconnection to the interstate electric transmission grid: A 500 kV line at SDG&E's Miguel substation that delivers power from the east, and a series of 230 kV lines connecting at the San Onofre Nuclear Generating Station (“SONGS”) switchyard to the north. Taken together, these two paths are capable of serving only a portion of the peak-load requirements of the SDG&E local reliability area. Neither of these paths is capable of serving the full peak-load requirements of the SDG&E local reliability area if the other is out of service. In fact, these two paths are barely sufficient to serve the average load of the region. As a result of growing loads in southern California, coupled with the addition of new generation in the desert southwest, the import capability into the San Diego area is often fully utilized.
To put the San Diego constraints in perspective, there are more than forty-five 500 kV transmission lines in the state of California. The two major utilities serving the Los Angeles area have more than thirty 500 kV AC transmission lines as well as two +/−500 kV DC lines. Phoenix, America's sixth largest city, has eight 500 kV transmission lines and six 345 kV transmission lines. By comparison, among the large electric service areas in the State and the west, San Diego is extremely under-served in terms of high voltage access to the rest of the grid. [footnotes omitted]
The data detailed above indicate that consumers in the Southern California Critical Congestion Area face threats to reliability if existing congestion problems are not addressed. Reliable electricity supplies are vital to the economic and social well-being of any metropolitan area. Electricity supply disruptions may come in many forms, ranging from brief disturbances in power quality and localized outages to large-scale, cascading blackouts. The exact cost of electric supply disruptions is difficult to quantify and varies depending upon the specific circumstances. However, such disruptions can impose enormous costs on consumers and may also, under certain circumstances, pose dangers to public health and safety.
For example, on Saturday, August 10, 1996, a blackout affected several western States, including much of California, for several hours. CEC conducted a survey to gauge the effects and implications of the blackout. The outage affected slightly less than half of California's residential electricity customers, 20 percent of the commercial customers, and 25 percent of the industrial customers. Forty-one percent of the commercial respondents and 31 percent of the industrial respondents said that the outage was “very disruptive” to their operations. The losses reported ranged from $40 to $5 million.
Another California analysis provides further insights:
Blackouts impose a wide range of costs on the economy, but these costs are incredibly difficult to quantify. The primary costs are direct and roughly proportional to the duration of the outage and the amount of undelivered power, including lost production and idled labor. Frequently, however, actual losses are much greater than this. For example, when production systems are shut down, it can take hours or days to restart them and return to full productivity. Often, information technology equipment and even basic manufacturing equipment is damaged when power is suddenly lost; and industries dependent on climate control (from bioscience labs to supermarkets) are threatened with damaged research or spoiled goods. Finally, power interruptions frequently result in lost data, which can be costly and sometimes impossible to reproduce.
Loss of power can also impose longer-term costs by damaging external relationships and customer interactions. For example, a power interruption for an internet-based business can compromise security and harm its reputation, leading to lower sales in the future * * *. For a brick-and-mortar business, inadequate lighting and lack of power to security systems increase the potential likelihood of vandalism and theft. Loss of climate control and telecommunications capabilities makes it especially difficult for restaurants and retail establishments to attract and retain customers. However, all of these factors still only point to direct costs. Indirect costs multiply the impact several times over as the effects of a power interruption ripple through the economy; for example, lost sales by a
Further, one of the considerations identified in FPA section 216(a)(4) is whether “the economic vitality and development of the corridor, or the end markets served by the corridor, may be constrained by
Therefore, the Department believes that reliability considerations warrant designation of a National Corridor for the Southern California Critical Congestion Area.
Much of the existing generation fleet on which southern California relies is fueled by natural gas. During 2005, about 38 percent of the electricity generated within California was produced from units fueled by natural gas, as compared with 20 percent from coal, 17 percent from large hydro, and 14 percent from nuclear.
Natural gas is relatively high in price and must be purchased in markets that are highly volatile and subject to unanticipated international trends and adverse events. Inadequate transmission capacity leaves consumers in the Southern California Critical Congestion Area exposed, perhaps increasingly, to the higher prices and higher price volatility associated with this generation fuel, with a resulting impact on business certainty, especially for industrial consumers. Thus, economic growth may be jeopardized.
Moreover, the Department takes note that CPUC has adopted an interim Emissions Performance Standard, which is a facility-based emissions standard requiring that all new long-term commitments for base-load generation to serve California consumers be with power plants that have emissions no greater than a combined cycle gas turbine plant. In addition, the State of California has established standards requiring load-serving entities to meet 20 percent of their electricity needs through renewable-based generation capacity (wind, geothermal, and solar) by 2010, and 33 percent by 2020. In order to meet these goals and to provide for steady economic growth, consumers in the Southern California Critical Congestion Area will need additional transmission access to a range of sources of supply, particularly renewable energy.
Further, one of the considerations identified in FPA section 216(a)(4) is whether “(i) economic growth in the corridor, or the end markets served by the corridor, may be jeopardized by reliance on limited sources of energy; and (ii) a diversification of supply is warranted.” FPA section 216(a)(4)(B); 16 U.S.C. 824p(a)(4)(B).
Therefore, the Department believes that supply diversity considerations warrant designation of a National Corridor for the Southern California Critical Congestion Area.
The Southern California Critical Congestion Area is home to 20.7 million people (7.0 percent of the Nation's 2005 population)
Therefore, the Department believes that national defense and homeland security considerations warrant designation of a National Corridor for the Southern California Critical Congestion Area.
In this section, the Department first explains how it determined the general extent of the draft Southwest Area National Corridor using a source-and-sink approach. Then, the Department explains how it delineated specific boundaries for the draft Southwest Area National Corridor.
In order to set the boundaries of the draft Southwest Area National Corridor, DOE used the general source-and-sink approach described above in Section III. The sink areas are the locations of the consumers adversely affected by the persistent congestion documented in Section IX.B above. Specifically, the sink areas are the urban areas downstream of the constraints identified in Section IX.B above, including the cities of Los Angeles, San Bernardino, Riverside, Anaheim, San Diego, and other nearby municipalities.
With regard to selecting source areas, as discussed in Section III above, the Department was guided by the considerations identified in FPA section 216(a)(4). In particular, the Department focused on the considerations of ensuring adequate supplies of power
Having identified the source and sink areas, DOE sought to delineate a draft National Corridor that would connect those areas, encompass all of the relevant constraints contributing to congestion in southern California, and
Finally, the draft Southwest Area National Corridor includes the several substations and related transmission facilities between Los Angeles and the Hoover Dam area southeast of Las Vegas, Nevada. This area and the area around Palo Verde, Arizona are the two principal portals from the east for transferring bulk power into southern California. From both a transmission planning perspective and an operational perspective, it is useful to think of these two pathways as closely related. Adding facilities or changing the operating rules on one is almost certain to require changes in the other so as to maintain an appropriate balance between them.
CAISO 2004 Annual Report, p. 6-3.
After determining the general area to be covered by the draft National Corridor, DOE addressed the question of establishing its specific boundaries. DOE relied on county boundaries to determine the perimeter of the draft Southwest Area National Corridor. That is, if a portion of the general area identified in Section IX.D.1 above (i.e., the source areas, the sink areas, and the areas in between encompassing the constraints of concern) is located within a county, then the entire county is assumed to be within the draft National Corridor, and the outer perimeter of the group of counties thus identified defines the draft National Corridor as whole. This approach establishes boundaries that are precise and identifiable. Moreover, this approach helps ensure that the draft National Corridor encompasses a range of potential projects and a range of potential routes, as discussed in Section III above. The resulting draft Southwest Area National Corridor is shown in Figure IX-6.
The counties that comprise the draft Southwest Area National Corridor are as follows:
Imperial, Kern, Los Angeles, Orange, Riverside, San Bernardino, and San Diego.
La Paz, Maricopa, and Yuma.
Clark.
The Secretary of Energy has approved the publication of this notice.
Government National Mortgage Association, HUD.
Proposed rule.
The Government National Mortgage Association (Ginnie Mae) is proposing regulations that would restrict the issuance of physical certificates representing Ginnie Mae mortgage-backed securities and would clarify that book-entry securities may be withdrawn from the Federal Reserve book-entry system after Ginnie Mae has approved a request for physical certificates, also known as definitive securities, in the same amount. This proposed rule would also eliminate the requirement for a classified balance sheet.
Interested persons are invited to submit comments to the Office of General Counsel, Rules Docket Clerk, Department of Housing and Urban Development, 451 Seventh Street, SW., Room 10276, Washington, DC 20410-0500. Communications should refer to the above docket number and title.
Thomas R. Weakland, Senior Vice President, Office of Program Administration, Government National Mortgage Association, Department of Housing and Urban Development, Room B-133, 451 Seventh Street, SW., Washington, DC 20410; telephone (202) 475-4915 (this is not a toll-free number). Persons with hearing or speech impairments may access this number through TTY by calling the toll-free Federal Information Relay Service at (800) 877-8339.
The Government National Mortgage Association (GNMA) (Ginnie Mae) guarantees privately issued securities backed by trusts or pools of mortgage loans that are insured or guaranteed by the Federal Housing Administration, the Rural Housing Service, the Department of Veterans Affairs, and the Department of Housing and Urban Development (HUD). Ginnie Mae is a government corporation within HUD, authorized by the National Housing Act (12 U.S.C. 1716
Ginnie Mae-guaranteed securities are issued in book-entry form. Under current Ginnie Mae regulations, a securityholder may request that the book-entry security be converted into certificated form after initial issuance. Certificates are physical documentation of the ownership of the security. Ginnie Mae proposes to revise the regulations to state that for all securities issued after particular issue dates, physical certificates may only be issued as approved by Ginnie Mae. Also, the proposed rule would clarify that book-entry securities may be withdrawn after Ginnie Mae has approved a request for definitive Ginnie Mae securities.
Ginnie Mae proposes to limit the issuance of physical securities because: (1) Virtually all of Ginnie Mae's investors hold their securities in book-entry form through the Federal Reserve Bank of New York (FRBNY) or through a FRBNY participant; (2) book-entries will decrease the costs for issuers; (3) physical securities provide more opportunities for fraud; and (4) the shift from physical securities to book-entry securities conforms with industry practice.
Additionally, Ginnie Mae proposes to revise the financial reporting rule for issuers participating in its MBS programs. The revisions will remove the requirement that issuers submit classified balance sheets. Ginnie Mae proposes to remove this requirement in order to conform with industry practice.
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) (UMRA) establishes requirements for federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments, and the private sector. This proposed rule does not impose any federal mandate on any state, local, or tribal government, or the private sector within the meaning of UMRA.
This proposed rule does not direct, provide for assistance or loan and mortgage insurance for, or otherwise govern or regulate, real property acquisition, disposition, leasing, rehabilitation, alteration, demolition, or new construction, or establish, revise, or provide for standards for construction or construction materials, manufactured housing, or occupancy. Accordingly, under 24 CFR 50.19(c)(1), this proposed rule is categorically excluded from environmental review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321).
The Regulatory Flexibility Act (5 U.S.C. 601
Notwithstanding HUD's determination that this proposed rule will not have a significant economic impact on a substantial number of small entities, HUD specifically invites comments regarding less burdensome alternatives to this rule that will meet HUD's program responsibilities.
Executive Order 13132 (entitled “Federalism”) prohibits an agency from publishing any rule that has federalism implications if the rule either imposes substantial direct compliance costs on state and local governments and is not required by statute, or the rule preempts state law, unless the agency meets the consultation and funding requirements of section 6 of the order. This proposed rule will not have federalism implications and would not impose substantial direct compliance costs on state and local governments or preempt state law within the meaning of the order.
The information collection requirements contained in this proposed rule are currently approved by the Office of Management and Budget (OMB) under section 3504(h) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) and assigned OMB control number 2503-0033. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection displays a currently valid control number.
OMB reviewed this rule under Executive Order 12866 (entitled “Regulatory Planning and Review”). OMB determined that this rule is a “significant regulatory action” as defined in section 3(f) of the order (although not an economically significant regulatory action, as provided under section 3(f)(1) of the order). The docket file is available for public inspection between the hours of 8 a.m. and 5 p.m. weekdays in the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 Seventh Street, SW., Room 10276, Washington, DC 20410-0500. Due to security measures at the HUD Headquarters building, please schedule an advance appointment to review the docket file by calling the Regulations Division at (202) 708-3055 (this is not a toll-free number). Hearing- and speech-impaired individuals may access this number through TTY by calling the toll-free Federal Information Relay Service at (800) 877-8339.
Mortgages, Securities.
Accordingly, for the reasons described in the preamble, HUD proposes to amend 24 CFR parts 320 and 350 as follows:
1. The authority citation for 24 CFR part 320 continues to read as follows:
12 U.S.C. 1721(g) and 1723a(a); and 42 U.S.C. 3535(d).
2. Revise § 320.5(e) to read as follows:
(e)
3. Revise § 320.10 to read as follows:
Issuers shall submit to the Association audited annual financial statements within 90 days of their fiscal year end. All financial statements shall include a balance sheet and a statement of operations and cash flows. The audit shall be conducted in accordance with the standards for financial audits of the U.S. Government Accountability Office's
4. The authority citation for 24 CFR part 350 continues to read as follows:
12 U.S.C. 1721(g) and 1723a(a); and 42 U.S.C. 3535(d).
5. Revise § 350.8(a) to read as follows:
(a) Eligible book-entry Ginnie Mae securities may be withdrawn from the book-entry system after Ginnie Mae has approved a request for the delivery of definitive Ginnie Mae securities in the same amount.
Department of Veterans Affairs.
Proposed rule.
The Department of Veterans Affairs (VA) proposes to amend its regulations governing the representation of claimants for veterans benefits in order to implement provisions of the Veterans Benefits, Health Care, and Information Technology Act of 2006, and to reorganize and clarify existing regulations. The proposed regulations would establish the procedures and rules necessary for VA to facilitate the paid representation of claimants by accredited agents and attorneys after a notice of disagreement has been filed with respect to a case. The intended effect of these regulations is to fulfill Congress' direction that agents and attorneys may be paid for services rendered after a notice of disagreement is filed with respect to a decision by an agency of original jurisdiction while ensuring that claimants for veterans benefits have responsible qualified representation in the preparation, presentation, and prosecution of claims for veterans benefits.
Written comments may be submitted by through www.Regulations.gov; by mail or hand-delivery to Director, Regulations Management (00REG), Department of Veterans Affairs, 810 Vermont Ave., NW., Room 1068, Washington, DC 20420; or by fax to (202) 273-9026. Comments should indicate that they are submitted in response to “RIN 2900-AM62—Accreditation of Agents and Attorneys; Agent and Attorney Fees.” Copies of comments received will be available for public inspection in the Office of Regulation Policy and Management, Room 1063B, between the hours of 8 a.m. and 4:30 p.m., Monday through Friday (except holidays). Please call (202) 273-9515 for an appointment. (This is not a toll free number.) In addition, during the comment period, comments are available online through the Federal Docket Management System (FDMS) at
Michael G. Daugherty, Staff Attorney, Office of the General Counsel (022G2), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 273-6315. (This is not a toll free number.)
Section 101 of Public Law 109-461, the Veterans Benefits, Health Care, and Information Technology Act of 2006, amends chapter 59 of title 38, United States Code, governing the recognition of individuals for the preparation, presentation, and prosecution of claims for benefits before VA. Prior to the amendments, 38 U.S.C. 5904(a) authorized VA to accredit individuals who show that they are of good character and reputation and qualified to provide competent representation. In current 38 CFR 14.629, VA implemented section 5904(a) by requiring agents to establish their good character and reputation through an application process and pass a written examination administered by VA as a prerequisite to accreditation. Attorneys were presumed to be qualified for VA accreditation based upon membership in good standing of a State bar. The amendments to chapter 59 require VA to: (1) Regulate the qualifications and standards of conduct applicable to accredited agents and attorneys; (2) annually collect information about accredited agents' and attorneys' standing to practice or appear before any court, bar, or Federal or State agency; (3) proscribe accreditation of individuals who have been suspended or disbarred by any such entity without reinstatement; (4) add to the list of grounds for suspension or exclusion of agents or attorneys from further practice before VA; and (5) subject veterans service organization representatives and individuals recognized for a particular claim to suspension and exclusion from further practice before VA on the same grounds as apply to agents and attorneys.
Section 101 of Public Law 109-461 also amends the fee provisions in chapter 59 including the point in the VA appeals process at which an agent or attorney can charge fees for representation. The VA appeals process begins when an individual disagrees with a decision made by an Agency of Original Jurisdiction (AOJ), such as a VA Regional Office (RO). To appeal a decision, an individual must file a Notice of Disagreement (NOD) with the AOJ expressing disagreement with the decision and a desire for appellate review. If the AOJ receives a timely NOD, it will change its decision or send the claimant a Statement of the Case (SOC) designed to provide information necessary to appeal the case to the Board of Veterans' Appeals (Board). After submitting a timely NOD, and following the receipt of a SOC, an individual may complete his or her appeal to the Board by timely filing a substantive appeal. Once the appeal has been submitted and assuming the Board has sufficient information to reach a decision, the Board will issue a final administrative decision in the case. Prior to the amendments, section 5904(c)(1) proscribed the charging of fees by agents and attorneys for services provided before a first final decision of the Board in a case. Under the amendments, accredited agents and attorneys may charge fees for services provided after the claimant files a NOD.
The amendments also authorize VA to: (1) Restrict the amount of fees agents or attorneys may charge and subject fee agreements between agents or attorneys and claimants to review by VA, such review to be appealable to the Board; and (2) collect an assessment from any agent or attorney to whom VA pays fees directly from past-due benefits. Further, the amendments eliminate fee matters as grounds for criminal penalties under 38 U.S.C. 5905.
To implement the amendments to chapter 59 and to reorganize and clarify existing regulations, VA proposes to amend 38 CFR parts 14, 19 and 20 relating to the representation of claimants for veterans benefits, the accreditation of individuals who may provide representation, and the limitation on fees. VA also proposes to move regulations relating to remote access to computerized veterans' claims records from part 14 to 38 CFR part 1 concerning release of information from claimant records. VA has made no substantive changes to the remote access regulations and is moving these regulations to part 1 because they are similar in content to other part 1 regulations governing the disclosure of claimant information and will be easier to locate in that part.
We propose to define “agency of original jurisdiction,” “service,” and “representation” to clarify current regulations and assist in implementation of other provisions discussed below. With respect to “agency of original jurisdiction,” in
The introductory text to current § 14.629 tasks the VA Regional Counsel of jurisdiction with resolving any question concerning the current qualifications of an accredited service organization representative, agent, or attorney. Current 38 CFR 14.632 also tasks the Regional Counsel of jurisdiction with determining the qualifications of prospective representatives, agents, and attorneys. Consistent with current practice, we propose to amend the introductory text to § 14.629 to provide that it is the Assistant General Counsel of jurisdiction or his or her designee who manages VA's accreditation program and makes initial determinations concerning the qualifications of prospective representatives, agents, and attorneys. The Assistant General Counsel would accredit qualified individuals and would notify other individuals concerning the reasons for disapproval, an opportunity to submit additional information, and any restrictions on further application for accreditation. The Assistant General Counsel's determination concerning the current qualifications of an applicant is a final decision unless appealed by the applicant to the General Counsel. Any such appeal must be in writing, limited to the evidence before the Assistant General Counsel, and filed with the General Counsel not later than 30 days from the date on which the Assistant General Counsel's decision was mailed. The General Counsel's decision concerning the current qualifications of an applicant is a final decision of the agency not subject to further review. Questions regarding the current qualifications of accredited representatives, agents, and attorneys would be resolved using the procedures in § 14.633.
Section 5904(a)(2) requires agents and attorneys, as a condition of accreditation, to establish that they are of good character and reputation; are qualified to render claimants valuable service, and are otherwise competent to assist claimants in presenting claims; possess the level of experience or specialized training specified by VA; and certify to VA that they have satisfied the qualification standards established by VA. Section 5904(a)(3) requires VA to annually collect information about accredited agents' and attorneys' standing to practice or appear before any court, bar, or Federal or State agency, and section 5904(a)(4) prohibits VA from recognizing any agent or attorney who has been suspended or disbarred by any court, bar, or Federal or State agency to which the agent or attorney was previously admitted and not subsequently reinstated.
To implement the accreditation requirements established by Congress, we propose to establish a two-step process for accrediting agents and attorneys that is similar to the process for agents under current § 14.629(b). Individuals desiring accreditation would be required to file with the Office of the General Counsel a written application (VA Form 21a) on which they provide background information relevant to a determination of good character and reputation. Pursuant to the requirements of section 5904(a)(4), applicants would also be required to provide information about their standing to practice or appear before any court, bar, or Federal or State agency, to include a certification of good standing that may be available from the court, bar, or agency, and would be required to provide VA with a release to enable VA to obtain such other information that may be necessary to process the application. Upon a determination that the prospective agent or attorney is of good character and reputation, an applicant would then be given the opportunity to demonstrate his or her qualification to render valuable service to claimants and competence to assist claimants in presenting claims by achieving a score of 75 percent or more on a written examination administered at the office of a VA Regional Counsel or the VA Central Office. Currently, VA notifies prospective claims agents that they will be tested on information available in the United States Code and the Code of Federal Regulations. To assist agents and attorneys in preparing for future accreditation examinations, VA would make relevant materials available in a format widely available to the general public.
In section 5904(a)(2), Congress gave VA the option of requiring a specific “level of experience” or “specialized training” as a condition of accreditation. VA has determined that successful completion of a written examination that covers veterans benefits law and procedures would provide the best proof that an agent or attorney has the requisite qualifications for accreditation under section 5904(a)(2). First, State licensing authorities generally require an examination to be admitted to the bar. Accordingly, attorneys are familiar with written examinations as an objective measure of their skill, competence, and qualifications to represent clients. Second, written examinations are a practical means of carrying out Congress' intent to allow veterans to choose their own counsel. An attorney who meets the character and reputation requirements and possesses the requisite knowledge of veterans benefits law could take the examination without waiting to achieve a specific “level of experience” or attending “specialized training,” which may not be readily available or adequately demonstrate the competence desired by Congress. Third, under current § 14.629(b), VA Regional Counsels administer exams to applicants for accreditation as claims agents and that procedure could be made available to attorneys at each of the Regional Counsel's local offices. Finally, Congress has also authorized the United States Patent and Trademark Office (PTO) to accredit agents and attorneys for purposes of practice before that agency. Under that authority, the PTO determined that, among other requirements not relevant to VA's accreditation program, objective testing would suffice for purposes of making qualification determinations. We believe that successful completion of a written examination demonstrates that an agent or attorney possesses a level of knowledge better than mere evidence of training or a period of experience. Therefore, proposed § 14.629(b) would implement a testing requirement that is based upon our experience in accrediting agents under current procedures and the PTO's experience in accrediting agents and attorneys under 37 CFR part 11.
In proposed § 14.629(b), VA would also expand its inquiry into an applicant's background to provide a more complete basis for the Department's determination of good character and reputation. In addition, proposed § 14.629(b) would provide specific examples of conduct that would
Proposed § 14.629(c) would amend provisions relating to representation provided by attorneys, law firms, law students and paralegals to clarify that a claimant must use a VA Form 21-22a to appoint an accredited attorney. As will be discussed further below, a VA Form 21-22a, signed by the claimant, is also necessary to authorize VA to disclose protected claimant information to an agent or attorney. VA intends to facilitate efficient adjudication of claims through universal use of this form. VA's field personnel cannot efficiently or accurately sort through a variety of appointment forms and releases, many of which would require further legal review to determine whether VA could lawfully release a claimant's information.
Section 5903 authorizes VA to recognize any individual for purposes of providing representation on one claim, provided that the individual certifies that he or she will not charge a fee for the representation and files the appropriate power of attorney. Proposed § 14.630 would clarify that a properly executed VA Form 21-22a is necessary to allow VA to disclose claimant information to a person providing representation under the authority of this section. This change is necessary to comply with 38 CFR part 1, which implements the disclosure provisions of the Privacy Act, 38 U.S.C. 5701, and 38 U.S.C. 7332. It would also commit an individual providing representation under this section to comply with the laws administered by VA and the rules of conduct in proposed § 14.632. New paragraph (d) would implement section 5903(b), which authorizes VA to suspend or exclude an individual providing representation under this section on the same basis as accredited agents or attorneys.
We propose to amend § 14.631(a) to clarify that a properly executed VA Form 21-22a, signed by the claimant and the accredited representative, agent, attorney, or individual authorized to provide representation for a particular claim, is required for purposes of both representation and VA's disclosure of claimant information to the individual designated on the form.
Current § 14.631(b), which permits attorneys to submit declarations of representation on letterhead, would be removed to reflect Congress' amendment of section 5904 and to comply with the disclosure provisions in 38 CFR part 1. VA acknowledges that this change would impose some additional responsibilities in the near-term for attorneys who use letterhead declarations in their veterans' law practice. However, the use of a standard authorization form, with language that VA has approved as legally sufficient, will expedite VA's correspondence with attorneys and ensure that claimant information is released only according to law.
Redesignated § 14.631(c) would not include the procedure for an organization or individual to decline representation, which we propose to remove consistent with the signature requirement in proposed § 14.631(a). In its place we propose to provide guidance regarding the circumstances under which an individual or organization may withdraw from representation and the procedure for withdrawing.
Redesignated § 14.631(f) would clarify that agents and attorneys may limit the scope of their representation regarding a particular claim by describing the limitation in writing on the VA Form 21-22a. This clarification is necessary to ensure that claimants and their agents or attorneys understand the scope of representation.
We propose to remove current § 14.632 consistent with our above discussion of amendments to the introductory text to § 14.629. In its place, we propose to add new provisions governing the standards of conduct for accredited representatives, agents, and attorneys as required by Congress in section 5904(a). In developing the proposed standards of conduct, we reviewed both the American Bar Association's Model Rules of Professional Conduct and other Federal agency rules of practice. We propose to establish general affirmative duties of honesty, competence, and diligence for all persons providing representation before VA. The proposed rules would also list specific conduct and behavior expressly prohibited in representing claimants before VA. Finally, in addition to the requirement concerning VA's standards of conduct, the rules would also require attorneys to conform to the standards of conduct established by the jurisdictions in which they are admitted to practice. Violation of VA's standards of conduct or those of the jurisdiction in which an attorney is admitted to practice, would be a basis for cancellation of accreditation under proposed 38 CFR 14.633.
Proposed § 14.633(c) would implement sections 5904(b)(6) through (9) by adding to the list of grounds for suspension or exclusion of agents or attorneys from further practice before VA.
We propose to further amend § 14.633 to clarify the roles and responsibilities of VA personnel during cancellation-of-accreditation proceedings. Currently § 14.633(d) requires the Regional Counsel of jurisdiction to initiate an inquiry upon the receipt of information indicating that a representative, agent, or attorney no longer meets accreditation requirements, has engaged in improper conduct, or has demonstrated a lack of competence in providing representation. However, the accreditation program is managed by an Assistant General Counsel at VA's Central Office, and, generally, allegations of misconduct are initially directed to the Central Office for evaluation. As a result, we have determined that it would be more efficient for the Assistant General Counsel managing the program to handle all inquiries and forward certain investigative tasks to a Regional Counsel as necessary. Accordingly, in proposed § 14.633(d), we state that the Assistant General Counsel of jurisdiction shall conduct the inquiry into allegations that may warrant suspension or cancellation of accreditation under § 14.633(b) through (d).
Currently, § 14.633(e) distinguishes representatives from agents and attorneys in that representatives are immediately suspended upon notification of the General Counsel's intent to cancel accreditation. However, section 5901(b)(2) subjects representatives to suspension and exclusion on the same basis as agents and attorneys. Because all individuals providing representation for VA claimants are held to the same standards of conduct, and subject to suspension and exclusion on the same basis, we propose to amend § 14.633(e) to provide accredited representatives and individuals providing representation under § 14.630 with the same procedural rights as are afforded to accredited agents and attorneys.
Additionally, the process for notifying agents and attorneys of VA's intent to cancel accreditation in current § 14.633(e) provides a period of only 10
Currently, § 14.633(f) through (g) provides that the General Counsel may cancel an accreditation after notice and opportunity for a hearing conducted by a hearing officer who is not an employee of the Office of the Regional Counsel. However, in some cases, the VA Central Office is a more appropriate forum for the hearing because the evidence required to conduct a hearing is located at or near the Central Office, or the events and circumstances providing the basis for the hearing took place at or near the Central Office. As a result, referral to a Regional Office for a hearing may unnecessarily delay cancellation proceedings. In § 14.633(f), we propose to establish an alternate hearing location at the VA Central Office following the same general procedure as exists in current rules for a Regional Office hearing with the exception that the Director of the Compensation and Pension Service would appoint the hearing officer and the Assistant General Counsel or the Assistant General Counsel's designee would present the evidence for VA. In both instances, the General Counsel would make the final decision on suspension or cancellation of accreditation based on the recommendation of the Assistant General Counsel.
Current § 14.633(f) does not restrict VA's ability to schedule a hearing in disaccreditation proceedings. As discussed above, proposed § 14.633(e) requires individuals served with notice of intent to cancel accreditation to file an answer with the Office of the General Counsel within 30 days from the date the notice was mailed. To ensure that an individual receives adequate notice of a hearing conducted under § 14.633 and to prevent a hearing from being scheduled during the 30-day period allowed for an answer, we propose to require that a hearing officer provide notice of a hearing at least 21 days before the date of the hearing and to prohibit hearings from being scheduled during the 30-day period allowed for an answer.
In a proceeding under § 14.633, current § 14.633(f) does not establish a deadline for the introduction of evidence by VA or by an individual providing representation under § 14.630, representative, agent or attorney. Unlike a benefits claim, in a § 14.633 proceeding, the evidence of record associated with a decision to suspend or cancel accreditation should be sufficiently developed at the completion of a hearing such that no additional evidence relevant to the General Counsel's decision is likely to exist, and, as a result, the record can be closed at the completion of the hearing. Accordingly, in proposed § 14.633(g), we state that, if an individual has not provided VA with an answer within 30 days from the date the notice was mailed, the record will be closed; otherwise the record will be closed 10 days after the completion of the hearing. The procedures in § 14.633(g) are necessary to provide individuals an expeditious decision on cancellation of their accreditation and to ensure that veterans receive competent representation.
To maintain the integrity of the record and ensure expeditious processing, we would also make corresponding technical amendments in parts 19 and 20 to prohibit the parties from introducing additional evidence after the record is closed and before the Board of Veterans' Appeals renders a decision on the matter. A decision of the General Counsel to close the record in a § 14.633 proceeding at the completion of a hearing in no way limits the ability of the Board of Veterans' Appeals to conduct a de novo review of the material issues of fact and law in the record on appeal or to remand to the General Counsel under 38 CFR 19.9 for any action essential for a proper appellate decision.
Under current § 14.633(g), the decision of the General Counsel to suspend or cancel the accreditation of an individual providing representation under § 14.630, representative, agent, or attorney is final. However, the regulation does not prescribe the procedure required to appeal such a decision. We propose to amend § 14.633(g) to provide that appeals of a General Counsel decision cancelling accreditation would be initiated and processed according to the provisions in 38 CFR parts 19 (subpart B) and 20 (subpart C). Proposed § 14.633(g) would also clarify that closing the record 30 days after the date the notice of intent to cancel accreditation was mailed or 10 days after the completion of the hearing would not affect the General Counsel's ability to issue a supplemental statement of the case pursuant to a remand from the Board as provided in § 19.9 of this title or to correct a deficient statement of the case as provided in § 19.31 of this title.
In section 5904(a)(4), Congress prohibited VA from recognizing any agent or attorney suspended or disbarred by any court, bar, or Federal or State agency to which the individual was admitted to practice and not subsequently reinstated. Similarly, in section 5904(b)(7), Congress added as grounds for suspension or exclusion of agents and attorneys from practice before the Department suspension or disbarment by any court, bar, or Federal or State agency to which the individual was admitted to practice and not subsequently reinstated. We interpret these provisions to reflect Congress' intent that the Office of the General Counsel should act upon any information that it receives concerning accredited agents and attorneys who have been barred from practice before any court, bar, or agency. Further, consistent with Congress' intent to maintain the integrity of judicial and administrative proceedings by excluding persons subject to disciplinary sanctions, we believe it is appropriate for VA to notify courts, bars, or agencies of VA's disciplinary proceedings. Accordingly, we propose in § 14.633(h) to provide notice, at the discretion of the General Counsel, of any suspension or cancellation of VA accreditation to the courts, bars, agencies, or jurisdictions in which the agent or attorney is admitted to practice.
Current 38 CFR 20.609, codified in the Board's Rules of Practice, governs the payment of fees for representation provided by accredited agents and attorneys. In section 5904(c)(1), Congress directed that agents and attorneys may be paid for services provided after a notice of disagreement is filed in a case, directed that fee agreements shall be filed with the Secretary rather than with the Board, and authorized VA to review fee agreements and order a reduction in the fee if it is found unreasonable or excessive, such decisions being appealable to the Board. Accordingly, we have determined that the fee provisions in current § 20.609 are no longer appropriate for inclusion in the Board's Rules of Practice and should be moved to part 14. We propose to redesignate § 20.609 as § 14.636, and amend it consistent with section 5904(c).
Proposed § 14.636(c) would implement section 5904(c)(1) by providing that agents and attorneys may charge fees for services rendered on a particular claim or claims only after an agency of original jurisdiction has rendered a decision on such particular claim or claims and a notice of disagreement has been filed with respect to the decision.
Proposed § 14.636(d)(2)(i) would clarify that a “disinterested third party” means an organization, government entity, or person that will not benefit financially from resolution of a claim. This clarification is necessary to prevent agents and attorneys from charging and/or receiving fees for representation provided before a notice of disagreement is filed in a case from third parties who will directly benefit from the outcome of a case. We intend to preclude conflicts of interest that would arise as a result of agents and attorneys receiving fees from these third parties by proposing, in § 14.636(g), that fee agreements involving alleged disinterested third-party payers must identify the relationship between the third-party payer and the veteran, claimant or appellant.
Proposed § 14.636(g) would establish new requirements for fee agreements between claimants and agents or attorneys. Agents and attorneys would be required to file fee agreements with the Office of the General Counsel in Washington, DC, and clearly specify in the agreements whether VA is to directly pay agent or attorney fees out of an award of past-due benefits. Any fee agreement calling for fees exceeding 20 percent of past-due benefits would not be considered a direct-pay fee agreement and, as a result, the agent or attorney would be responsible for collecting any fees for representation from the claimant without assistance from VA.
Current § 20.609 provides that the Board may review a fee agreement between a claimant or appellant and an attorney or agent upon its own motion or that of any party to the agreement and may order a reduction in the fee called for if it finds that the fee is excessive or unreasonable. Proposed § 14.636(i) implements section 5904(c) by shifting the authority to review fee agreements for reasonableness to the Office of the General Counsel, subject to review by the Board. We also propose to clarify that, following a decision by the Office of the General Counsel that the terms of the fee agreement are unreasonable, the agent or attorney must refund any excess payment to the claimant unless the agent or attorney files a notice of disagreement concerning the General Counsel's decision. Such refund must occur within the time allowed for filing a notice of disagreement.
Current provisions in § 20.609 do not clearly establish a deadline for the introduction of evidence in a motion for review of a fee agreement. For the reasons discussed above concerning proceedings under § 14.633, we propose in § 14.636 to close the record in proceedings to review fee agreements 15 days after the date on which the agent or attorney files a response to the motion with the Office of the General Counsel or 30 days after the moving party served the motion on the agent or attorney if there is no response. The Assistant General Counsel will forward the record and a recommendation to the General Counsel for a final decision. To maintain the integrity of the record, we would also make corresponding technical amendments in parts 19 and 20 to prohibit the parties from introducing additional evidence after the record is closed and before the Board of Veterans' Appeals renders a decision on the matter. A decision of the General Counsel to close the record in a fee review proceeding in no way limits the ability of the Board to conduct a de novo review of the material issues of fact and law in the record on appeal or to remand to the General Counsel under 38 CFR 19.9 for any other action essential for a proper appellate decision.
Provisions in current 38 CFR part 3 provide that the amount of compensation or pension paid to incarcerated veterans shall be reduced. Provisions in current 38 CFR part 1 provide that a debt owed to VA resulting from participation in a benefits program may be collected through administrative offset. Current § 20.609 states that VA's payment of fees out of past-due benefits is to be paid out of a cash award to the claimant. We propose to clarify in § 14.636(h)(3)(iv) that, under current law, the amount of fees paid to an agent or attorney representing a claimant shall be based upon the amount of past-due benefits actually paid to the claimant after all applicable reductions.
In proposed § 14.636(h), we would implement section 5904(a)(6), which provides that VA may collect an assessment out of the fees paid directly to agents or attorneys from past-due benefits. Such an assessment would be equal to five percent of the amount of the fee required to be paid to the agent or attorney, not to exceed $100 for each such payment.
We propose to redesignate and amend current § 20.610 governing payment of expenses to agents and attorneys as § 14.637 for the same reasons as discussed above concerning current § 20.609.
Current provisions in § 20.610 do not clearly establish a deadline for the introduction of evidence in a motion for review of expenses. For the reasons discussed above concerning proceedings under § 14.633, we propose in § 14.637 to close the record in proceedings to review expenses 15 days after the date on which the agent or attorney files a response to the motion with the Office of the General Counsel or 30 days after the moving party served the motion on the agent or attorney if there is no response. The Assistant General Counsel will forward the record and a recommendation to the General Counsel for a final decision. To maintain the integrity of the record, we would also make corresponding technical amendments in parts 19 and 20 to prohibit the parties from introducing additional evidence after the record is closed and before the Board of Veterans' Appeals renders a decision on the matter. A decision of the General Counsel to close the record in a review of expenses in no way limits the ability of the Board to conduct a de novo review of the material issues of fact and law in the record on appeal or to remand to the General Counsel under 38
In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), the information collection requirements included in this proposed regulation are revisions of existing collections under Office of Management and Budget (OMB) Control No. 2900-0321, which pertains to the appointment of an individual as a claimant's representative, and OMB Control No. 2900-0605, which pertains to the application for accreditation as a claims agent.
We note that the proposed rules would affect two other collections of information. In proposed § 14.629(b), the appeal to the General Counsel of a decision by the Assistant General Counsel to deny an application for accreditation would involve a new collection of information; however, under the current regulations VA denies less than ten applications every year, which is outside the scope of the Paperwork Reduction Act.
Comments on the information collections included in this proposed rule should be submitted to the Office of Management and Budget, Attention: Desk Officer for the Department of Veterans Affairs, Office of Information and Regulatory Affairs, Washington, DC 20503, with copies sent by mail or hand delivery to the Director, Regulations Management (00REG), Department of Veterans Affairs, 810 Vermont Avenue, NW., Room 1068, Washington, DC 20420; fax to (202) 273-9026; e-mail through
Comments by the public on proposed collections of information will help VA in—
Evaluating whether the proposed collections of information are necessary for the proper performance of the functions of the Department, including whether the information will have practical utility;
Evaluating the accuracy of the Department's estimate of the burden of the proposed collections of information, including the validity of the methodology and assumptions used; and
Enhancing the quality, usefulness, and clarity of the information to be collected; and Minimizing the burden of the collections 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,
OMB assigns control numbers to collections of information it approves. VA 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.
Section 14.631(a)—Under this section, VA requires claimants to identify to VA the individual acting on their behalf in the preparation, presentation, and prosecution of claims before the Department. VA proposes to require all persons providing representation before the Department to sign this form to indicate acceptance of appointment of representation, and proposes to require agents and attorneys to indicate on the form whether the agent or attorney desires to limit the scope of their representation with this claimant to a particular claim and, if so, to identify the limits of such representation.
It is important to note that our estimated number of respondents for collections of information under both 38 CFR 14.629(a) and 14.631(b) reflects data relating to representation under prior law. We anticipate that the number of respondents will increase slightly in 2007 and to a greater extent in future years based upon increased opportunities for paid agent and attorney representation, but we currently lack the information necessary to develop a reasonably accurate estimate. We may revise our estimated number of respondents based on comments received during the applicable public comment period.
The Secretary hereby certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601
Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The Executive Order classifies a “significant regulatory action,” requiring review by the Office of Management and Budget (OMB) unless OMB waives such review, as any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. VA has examined the economic, legal, and policy implications of this proposed rule and has concluded that it is a significant regulatory action under Executive Order 12866.
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any year. This final rule would have no such effect on State, local, and tribal governments, or on the private sector.
There are no Federal Domestic Assistance programs associated with this proposed rule.
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Administrative practice and procedure, Claims, Courts, Foreign relations, Government employees, Lawyers, Legal services, Organization and functions (Government agencies), Reporting and recordkeeping requirements, Surety bonds, Trusts and trustees, Veterans.
Administrative practice and procedure, Claims, Veterans.
For the reasons set forth in the preamble, the Department of Veterans Affairs proposes to amend 38 CFR parts 1, 14, 19 and 20 as follows:
1. The authority citation for part 14 continues to read as follows:
5 U.S.C. 301; 28 U.S.C. 2671-2680; 38 U.S.C. 501(a), 512, 515, 5502, 5902-5905; 28 CFR part 14, appendix to part 14, unless otherwise noted.
2. Redesignate §§ 14.640 through 14.643 as §§ 1.600 through 1.603 respectively.
3. Revise § 14.626 to read as follows:
The purpose of the regulation of representatives, agents, attorneys, and individuals is to ensure that claimants for Department of Veterans Affairs (VA) benefits have responsible, qualified representation in the preparation, presentation, and prosecution of claims for veterans' benefits.
a. Revising the introductory text.
b. Revising paragraph (a).
c. Redesignating paragraphs (b) through (l) and (m) and (n) as paragraphs (c) through (m) and (p) and (q), respectively.
d. Adding new paragraphs (b), (n), and (o).
e. Revising newly redesignated paragraphs (d), (e), (g), (l), and (m).
The revisions read as follows:
As used in regulations on representation of VA claimants:
(a)
(b)
(d)
(e)
(g)
(l)
(m)
(n)
(o)
5. Amend § 14.629 by:
a. Revising the introductory text.
b. In paragraph (a)(1), removing “the Department of Veterans Affairs, and adding, in its place, “VA”.
c. Revising paragraph (b) heading.
d. Redesignating paragraph (b)(2) as (b)(6), and paragraph (b)(1) as new paragraph (b)(2).
e. Adding a new paragraph (b)(1).
f. Revising newly redesignated paragraph (b)(2) introductory text and paragraph (b)(2)(i).
g. Redesignating paragraphs (b)(2)(vii) and (viii) as paragraphs (b)(2)(viii) and (ix), respectively.
h. Adding a new paragraph (b)(2)(vii).
i. Adding new paragraphs (b)(2)(x), (b)(3), (b)(4), and (b)(5).
j. Revising newly redesignated paragraph (b)(6).
k. Revising paragraph (c) heading.
l. Revising paragraphs (c)(1) and (c)(3).
m. Revising the note following paragraph (c)(4).
The additions and revisions read as follows:
The Assistant General Counsel of jurisdiction will conduct an inquiry and make an initial determination regarding any question relating to the qualifications of a prospective service organization representative, agent, or attorney. If the Assistant General Counsel determines that the prospective service organization representative, agent, or attorney meets the requirements for accreditation in paragraphs (a) or (b) of this section, notification of accreditation will be issued by the Assistant General Counsel or the Assistant General Counsel's designee and will constitute authority to prepare, present, and prosecute claims before an agency of original jurisdiction or the Board of Veterans' Appeals. If the Assistant General Counsel determines that the prospective representative, agent, or attorney does not meet the requirements for accreditation, notification will be issued by the Assistant General Counsel concerning the reasons for disapproval, an opportunity to submit additional information, and any restrictions on further application for accreditation. The determination of the Assistant General Counsel regarding the qualifications of a prospective service organization representative, agent, or attorney may be appealed by the applicant to the General Counsel. Appeals must be in writing and filed with the Office of the General Counsel (022D), 810 Vermont Avenue, NW., Washington, DC 20420, not later than 30 days from the date on which the Assistant General Counsel's decision was mailed. In deciding the appeal, the General Counsel's decision shall be limited to the evidence of record before the Assistant General Counsel. A decision of the General Counsel is a final agency decision not subject to appeal.
(b)
(2) An individual desiring accreditation as an agent or attorney must establish that he or she is of good character and reputation, is qualified to render valuable assistance to claimants, and is otherwise competent to advise and assist claimants in the preparation, presentation, and prosecution of their claim(s) before the Department. An individual desiring accreditation as an agent or attorney must file a completed application (VA Form 21a) with the Office of the General Counsel (022D), 810 Vermont Avenue, NW., Washington, DC 20420, on which the applicant submits the following:
(i) His or her full name and home and business addresses;
(vii) Information concerning the applicant's level of education and academic history;
(ix) Information relevant to whether the applicant has any physical limitations that would interfere with the completion of a comprehensive written examination administered under the supervision of a VA Regional Counsel; and
(x) Certification that the applicant has satisfied the qualifications and standards required for accreditation as prescribed by VA in this section, and that the applicant will abide by the standards of conduct prescribed by VA in section 14.632 of this part.
(3) Evidence showing lack of good character and reputation includes, but is not limited to, one or more of the following: Conviction of a felony, conviction of a misdemeanor involving fraud, bribery, deceit, theft, or misappropriation; suspension or disbarment from a court, bar, or Federal or State agency on ethical grounds; or resignation from admission to a court, bar, or Federal or State agency while under investigation to avoid sanction.
(4) As a further condition of initial accreditation and annually thereafter, each person seeking accreditation as an agent or attorney shall submit to VA information about any court, bar, or Federal or State agency to which the agent or attorney is admitted to practice or otherwise authorized to appear. Applicants shall provide identification numbers and membership information for each jurisdiction in which the applicant is admitted and a certification that the agent or attorney is in good standing in every jurisdiction in which admitted.
(5) VA will not accredit an individual as an agent or attorney if the individual has been suspended by any court, bar, or Federal or State agency in which the individual was previously admitted and not subsequently reinstated.
(6) After an affirmative determination of character and fitness for practice before the Department, applicants must achieve a score of 75 percent or more on
(c)
(3) A legal intern, law student, or paralegal may not be independently accredited to represent claimants under this paragraph. A legal intern, law student, or certified paralegal may assist in the preparation, presentation, or prosecution of a claim, under the direct supervision of an attorney of record designated under § 14.631(a), if the claimant's written consent is furnished to VA. Such consent must specifically state that participation in all aspects of the claim by a legal intern, law student, or paralegal furnishing written authorization from the attorney of record is authorized. In addition, suitable authorization for access to the claimant's records must be provided in order for such an individual to participate. The supervising attorney must be present at any hearing in which a legal intern, law student, or paralegal participates. The written consent must include the name of the veteran, or the name of the appellant if other than the veteran (
A legal intern, law student, paralegal, or veterans service organization support-staff person, working under the supervision of an individual designated under § 14.631(a) as the claimant's representative, attorney, or agent, may qualify for read-only access to pertinent Veterans Benefits Administration automated claims records as described in §§ 1.600 through § 1.603 in part 1 of this chapter.
6. Amend § 14.630 by:
a. Revising paragraph (a).
b. Revising paragraph (b)(1) introductory text.
c. Adding paragraphs (c) and (d) immediately preceding the authority citation at the end of the section.
The revisions and additions read as follows:
(a) Any person may be authorized to prepare, present, and prosecute one claim. A power of attorney executed on VA Form 21-22a (Appointment of Attorney or Agent as Claimant's Representative), and a statement signed by the person and the claimant that no compensation will be charged or paid for the services, shall be filed with the agency of original jurisdiction where the claim is presented. The power of attorney identifies to VA the claimant's appointment of representation and authorizes VA's disclosure of information to the person representing the claimant.
(b) * * * (1) The number of accredited representatives, agents, and attorneys operating in the claimant's geographic region;
(c) Persons providing representation under this section must comply with the laws administered by VA and with the regulations governing practice before VA including the rules of conduct in § 14.632 of this part.
(d) Persons providing representation under this section are subject to suspension and or exclusion from representation of claimants before VA on the same grounds as apply to representatives, agents, and attorneys in § 14.633 of this part.
7. Amend § 14.631 by:
a. Revising the section heading.
b. Revising paragraph (a) introductory text.
c. Adding paragraph (a)(1)(iv).
d. In paragraph (a)(2), removing “Department of Veterans Affairs” and adding, in its place, “VA”.
e. Removing paragraph (b).
f. Redesignating paragraphs (c) through (g) as paragraphs (b) through (f).
g. Revising newly redesignated paragraph (c).
h. In newly redesignated paragraph (e)(1), removing “the Department of Veterans Affairs” and add, in its place, “VA”.
i. Revising newly redesignated paragraph (f).
The revisions and addition read as follows:
(a) A power of attorney, executed on either VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative) or VA Form 21-22a (Appointment of Attorney or Agent as Claimant's Representative), is required to represent a claimant before VA and to authorize VA's disclosure of information to any person or organization representing a claimant before the Department. Without the signature of a person providing representation for a particular claim under § 14.630 of this part or an accredited veterans service organization representative, agent, or attorney, the appointment is invalid, and the person appointed to provide representation is under no obligation to do so. The power of attorney shall meet the following requirements:
(1) * * *
(iv) An individual providing representation on a particular claim under § 14.630 of this part or an accredited veterans service organization representative, agent, or attorney; and
(b) VA may, for any purpose, treat a power of attorney naming as a claimant's representative an organization recognized under § 14.628, a particular office of such an organization, or an individual representative of such an organization as an appointment of the entire organization as the claimant's representative, unless the claimant specifically indicates in the power of attorney a desire to appoint only the individual representative. Such specific indication must be made in the space on the power-of-attorney form for designation of the representative and must use the word “only” with reference to the individual representative.
(c) An organization, individual providing representation on a particular claim under § 14.630, representative, agent, or attorney named in a power of attorney executed pursuant to paragraph (a) of this section may withdraw from representation if such withdrawal would not adversely impact the claimant's interests. Withdrawal is also permissible if a claimant persists in a course of action that the organization or individual providing representation reasonably believes is fraudulent or
(f)(1) A power of attorney may be revoked at any time, and an agent or attorney may be discharged at any time. Unless a claimant specifically indicates otherwise, the receipt of a new power of attorney executed by the claimant and the organization or individual providing representation shall constitute a revocation of an existing power of attorney.
(2) If an agent or attorney limits the scope of his or her representation regarding a particular claim by so indicating on VA Form 21-22a, or a claimant authorizes a person to provide representation in a particular claim under § 14.630, such specific authority shall constitute a revocation of an existing general power of attorney filed under paragraph (a) of this section only as it pertains to, and during the pendency of, that particular claim. Following the final determination of such claim, the general power of attorney shall remain in effect as to any new or reopened claim.
8. Revise § 14.632 to read as follows:
(a)(1) All persons acting on behalf of a claimant shall faithfully execute their duties as individuals providing representation on a particular claim under § 14.630, representatives, agents, or attorneys.
(2) All individuals providing representation are required to be truthful in their dealings with claimants and VA, and shall conduct themselves in accordance with the non-adversarial nature of practice before the agency of original jurisdiction and the Board. The general provision on non-adversarial practice does not apply in proceedings before the General Counsel conducted under part 14 of this chapter to cancel accreditation or to review fee agreements and expenses for reasonableness.
(b) An individual providing representation on a particular claim under § 14.630, representative, agent, or attorney shall:
(1) Provide claimants with competent representation before VA. Competent representation requires the knowledge, skill, thoroughness, and preparation necessary for the representation. This includes understanding the issues of fact and law relevant to the claim as well as the applicable provisions of title 38, United States Code, and title 38, Code of Federal Regulations;
(2) Act with reasonable diligence and promptness in representing claimants. This includes responding promptly to VA requests for information or assisting a claimant in responding promptly to VA requests for information.
(c) An individual providing representation on a particular claim under § 14.630, representative, agent, or attorney shall not:
(1) Violate the standards of conduct as described in this section;
(2) Circumvent a rule of conduct through the actions of another;
(3) Engage in conduct involving fraud, deceit, misrepresentation, or dishonesty;
(4) Violate any of the provisions of title 38, United States Code, or title 38, Code of Federal Regulations;
(5) Enter into an agreement for, charge, solicit, or receive a fee that is clearly unreasonable, excessive, or otherwise prohibited by law or regulation;
(6) Solicit, receive, or enter into agreements for gifts in lieu of fees for representation provided before a notice of disagreement is filed with respect to the case;
(7) Delay, without good cause, the processing of a claim at any stage of the administrative process;
(8) Mislead, threaten, coerce, or deceive a claimant regarding benefits or other rights under programs administered by VA;
(9) Engage in, or counsel or advise a claimant to engage in acts or behavior prejudicial to the fair and orderly conduct of administrative proceedings before VA;
(10) Disclose, without the claimant's authorization, any information provided by VA for purposes of representation; or
(11) Engage in any other unlawful, unprofessional, or unethical conduct.
(d) In addition to complying with standards of conduct for practice before VA in paragraphs (a) through (c), an attorney shall not, in providing representation to a claimant before VA, engage in behavior or activities prohibited by the rules of professional conduct of any jurisdiction in which the attorney is licensed to practice law.
9. Amend § 14.633 by:
a. Revising the section heading.
b. Revising paragraphs (a), (b), (c) introductory text, and (c)(1).
c. Redesignating paragraph (c)(4) as paragraph (c)(7).
d. Revising newly redesignated paragraph (c)(7).
e. Adding new paragraphs (c)(4), (c)(5), and (c)(6).
f. Revising paragraphs (d) through (g).
g. Adding new paragraph (h).
The revisions and additions read as follows:
(a) Accreditation or authority to provide representation on a particular claim under § 14.630 may be canceled at the request of an organization, individual providing representation under § 14.630, representative, agent, or attorney.
(b) Accreditation shall be canceled at such time as a determination is made by the General Counsel that any requirement of § 14.629 is no longer met by a representative, agent, or attorney.
(c) Accreditation or authority to provide representation on a particular claim shall be canceled when the General Counsel finds, by clear and convincing evidence, one or more of the following:
(1) Violation of or refusal to comply with the laws administered by VA or with the regulations governing practice before VA including the standards of conduct in § 14.632;
(4) Presenting to VA a frivolous claim, issue, or argument. A claim, issue, or argument is frivolous if the individual providing representation under § 14.630, representative, agent, or attorney is unable to make a good faith argument on the merits of the position taken or to support the position taken by a good faith argument for an extension, modification, or reversal of existing law;
(5) Suspension or disbarment by any court, bar, or Federal or State agency to which such individual providing representation under § 14.630, representative, agent, or attorney was previously admitted to practice, or disqualification from participating in or
(6) Charging excessive or unreasonable fees for representation as determined by VA, the Court of Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit; or
(7) Any other unlawful, unprofessional, or unethical practice.
(d) Accreditation or authority to provide representation on a particular claim shall be canceled when the General Counsel finds that the performance of an individual providing representation under § 14.630, representative, agent, or attorney before VA demonstrates a lack of the degree of competence necessary to adequately prepare, present, and prosecute claims for veteran's benefits.
(e) As to cancellation of accreditation under paragraphs (c) or (d) of this section, upon receipt of information from any source indicating improper conduct, or incompetence, the Assistant General Counsel of jurisdiction shall initiate an inquiry into the matter. If the matter involves an accredited representative of a recognized organization, this inquiry shall include contact with the representative's organization.
(1) If the result of the inquiry does not justify further action, the Assistant General Counsel will close the inquiry and maintain the record for 3 years.
(2) If the result of the inquiry justifies further action, the Assistant General Counsel shall:
(i) Inform the General Counsel of the result of the inquiry and notify the individual providing representation under § 14.630, representative, agent or attorney of an intent to cancel accreditation or authority to provide representation on a particular claim. The notice will be sent to individuals providing representation on a particular claim by certified or registered mail to the individual's last known address of record as indicated on the VA Form 21-22a on file with the agency of original jurisdiction. The notice will be sent to accredited individuals by certified or registered mail to the individual's last known address of record as indicated in VA's accreditation records. The notice will state the reason(s) for the cancellation proceeding and advise the individual to file an answer, in oath or affidavit form or the form specified for unsworn declarations under penalty of perjury in 28 U.S.C. 1746, within 30 days from the date the notice was mailed, responding to the stated reasons for cancellation and explaining why he or she should not be suspended or excluded from practice before VA. The notice will also advise the individual of the right to submit additional evidence and the right to request a hearing on the matter. Requests for hearings must be made in the answer. If the individual does not file an answer with the Office of the General Counsel within 30 days of the date that the Assistant General Counsel mailed the notice, the Assistant General Counsel shall close the record and forward it with a recommendation to the General Counsel for a final decision.
(ii) In the event that a hearing is not requested, the Assistant General Counsel shall close the record and forward it with a recommendation to the General Counsel for a final decision.
(iii) The Assistant General Counsel may extend the time to file an answer or request a hearing for a reasonable period upon a showing of sufficient cause.
(f) If a hearing is requested, at the discretion of the General Counsel, it may be held at a VA Regional Office or at the VA Central Office. For hearings conducted at a Regional Office, the Regional Office Director involved will appoint a hearing officer and the Regional Counsel of jurisdiction or his or her designee will present the evidence. For hearings conducted at the VA Central Office, the Director of the Compensation and Pension Service shall appoint a hearing officer and the Assistant General Counsel or his or her designee shall present the evidence. The hearing officer shall not be from the Office of the General Counsel and shall provide notice of the hearing to the individual providing representation under § 14.630, representative, agent, or attorney by certified or registered mail at least 21 days before the date of the hearing. Hearings shall not be scheduled before the completion of the 30-day period for filing an answer to the notice of intent to cancel accreditation. The hearing officer will have authority to administer oaths. The party requesting the hearing will have a right to counsel, to present evidence, and to cross-examine witnesses. Upon request of the individual requesting the hearing, an appropriate VA official designated in § 2.1 of this chapter may issue subpoenas to compel the attendance of witnesses and the production of documents necessary for a fair hearing. The hearing shall be conducted in an informal manner and court rules of evidence shall not apply. Testimony shall be recorded verbatim. The evidentiary record shall be closed 10 days after the completion of the hearing. The hearing officer shall submit the entire hearing transcript, any pertinent records or information, and a recommended finding to the Assistant General Counsel within 30 days of closing the record. The Assistant General Counsel will review the record and forward it to the General Counsel with a recommendation for a final decision.
(g) The decision of the General Counsel is a final adjudicative determination of an agency of original jurisdiction and may be appealed to the Board of Veterans' Appeals. The effective date for cancellation of accreditation or authority to provide representation on a particular claim shall be the date upon which the General Counsel's final decision is rendered. Notwithstanding provisions in this section for closing the record at the end of the 30-day period for filing an answer or 10 days after a hearing, appeals shall be initiated and processed using the procedures in 38 CFR parts 19 and 20. Nothing in this section shall be construed to limit the Board's authority to remand a matter to the General Counsel under 38 CFR 19.9 for any action that is essential for a proper appellate decision or the General Counsel's ability to issue a supplemental statement of the case under 38 CFR 19.31.
(h) In cases where the accreditation of an agent or attorney is cancelled, the Office of the General Counsel may notify all agencies, courts, and bars to which the agent or attorney is admitted to practice.
10. Add § 14.636 to read as follows:
(a)
(b)
(c)
(d)
(2)
(ii) For purposes of this part, a person shall be presumed not to be disinterested if that person is the spouse, child, or parent of the claimant or appellant, or if that person resides with the claimant or appellant. This presumption may be rebutted by clear and convincing evidence that the person in question has no financial interest in the success of the claim.
(iii) The provisions of paragraph (g) of this section (relating to fee agreements) shall apply to all payments or agreements to pay involving disinterested third parties. In addition, the agreement shall include or be accompanied by the following statement, signed by the attorney or agent: “I certify that no agreement, oral or otherwise, exists under which the claimant or appellant will provide anything of value to the third-party payer in this case in return for payment of my fee or salary, including, but not limited to, reimbursement of any fees paid.”
(e)
(1) The extent and type of services the representative performed;
(2) The complexity of the case;
(3) The level of skill and competence required of the representative in giving the services;
(4) The amount of time the representative spent on the case;
(5) The results the representative achieved, including the amount of any benefits recovered;
(6) The level of review to which the claim was taken and the level of the review at which the representative was retained;
(7) Rates charged by other representatives for similar services; and
(8) Whether, and to what extent, the payment of fees is contingent upon the results achieved.
(f)
(g)
(1) To be valid, a fee agreement must include the following:
(i) The name of the veteran,
(ii) The name of the claimant or appellant if other than the veteran,
(iii) The name of any disinterested third-party payer (see paragraph (d)(2) of this section) and the relationship between the third-party payer and the veteran, claimant, or appellant,
(iv) The applicable VA file number, and
(v) The specific terms under which the amount to be paid for the services of the attorney or agent will be determined.
(2) Fee agreements must also clearly specify if VA is to pay the agent or attorney directly out of past due benefits. A direct-pay fee agreement is a fee agreement between the claimant or appellant and an agent or attorney providing for payment of fees out of past-due benefits awarded directly to an agent or attorney. A fee agreement calling for payment of an amount exceeding 20 percent of past-due benefits shall be considered to be an agreement in which the agent or attorney is responsible for collecting any fees for representation from the claimant without assistance from VA.
(3) A copy of the agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), 810 Vermont Avenue, NW., Washington, DC 20420.
(h)
(i) The total fee payable (excluding expenses) does not exceed 20 percent of the total amount of the past-due benefits awarded,
(ii) The amount of the fee is contingent on whether or not the claim is resolved in a manner favorable to the claimant or appellant, and
(iii) The award of past-due benefits results in a cash payment to a claimant or an appellant from which the fee may be deducted. (An award of past-due benefits will not always result in a cash payment to a claimant or an appellant. For example, no cash payment will be made to military retirees unless there is a corresponding waiver of retirement pay. (See 38 U.S.C. 5304(a) and § 3.750
(2) For purposes of this paragraph, a claim will be considered to have been resolved in a manner favorable to the
(3) For purposes of this paragraph, “past-due benefits” means a nonrecurring payment resulting from a benefit, or benefits, granted on appeal or awarded on the basis of a claim reopened after a denial by the Board of Veterans' Appeals or the lump sum payment which represents the total amount of recurring cash payments which accrued between the effective date of the award, as determined by applicable laws and regulations, and the date of the grant of the benefit by the agency of original jurisdiction, the Board of Veterans' Appeals, or an appellate court.
(i) When the benefit granted on appeal, or as the result of the reopened claim, is service connection for a disability, the “past-due benefits” will be based on the initial disability rating assigned by the agency of original jurisdiction following the award of service connection. The sum will equal the payments accruing from the effective date of the award to the date of the initial disability rating decision. If an increased evaluation is subsequently granted as the result of an appeal of the disability evaluation initially assigned by the agency of original jurisdiction, and if the agent or attorney represents the claimant or appellant in that phase of the claim, the agent or attorney will be paid a supplemental payment based upon the increase granted on appeal, to the extent that the increased amount of disability is found to have existed between the initial effective date of the award following the grant of service connection and the date of the rating action implementing the appellate decision granting the increase.
(ii) Unless otherwise provided in the fee agreement between the claimant or appellant and the agent or attorney, the agent's or attorney's fees will be determined on the basis of the total amount of the past-due benefits even though a portion of those benefits may have been apportioned to the claimant's or appellant's dependents.
(iii) If an award is made as the result of favorable action with respect to several issues, the past-due benefits will be calculated only on the basis of that portion of the award which results from action taken on issues concerning which the criteria in paragraph (c) of this section have been met.
(iv) In cases where an award of past-due benefits is reduced by law including administrative offset to collect a debt or overpayment, VA will calculate the amount of fees to be paid to an agent or attorney based on the cash payment to the claimant or appellant after all applicable reductions.
(4) In addition to filing a copy of the fee agreement with the Office of the General Counsel as required by paragraph (g) of this section, the agent or attorney must notify the agency of original jurisdiction within 30 days of the date of execution of the agreement of the existence of an agreement providing for the direct payment of fees out of any benefits subsequently determined to be past due and provide that agency with a copy of the fee agreement.
(i)
(1) A claimant's or appellant's motion for review of a fee agreement must be served on the agent or attorney and must be filed at the following address: Office of the General Counsel (022D), 810 Vermont Avenue, NW., Washington, DC 20420. The agent or attorney may file a response to the motion, with any relevant evidence, with the Office of the General Counsel not later than 30 days from the date on which the claimant or appellant served the motion on the agent or attorney. Such responses must be served on the claimant or appellant. The claimant or appellant then has 15 days from the date on which the agent or attorney served a response to file a reply with the Office of the General Counsel. Such replies must be served on the agent or attorney.
(2) The Assistant General Counsel shall initiate the Office of the General Counsel's review of a fee agreement on its own motion by serving the motion on the agent or attorney and the claimant or appellant. The agent or attorney may file a response to the motion, with any relevant evidence, with the Office of the General Counsel (022D), 810 Vermont Avenue, NW., Washington, DC 20420, not later than 30 days from the date on which the Office of the General Counsel served the motion on the agent or attorney. Such responses must be served on the claimant or appellant.
(3) The Office of the General Counsel shall close the record in proceedings to review fee agreements 15 days after the date on which the agent or attorney served a response on the claimant or appellant, or 30 days after the claimant, appellant, or the Office of the General Counsel served the motion on the agent or attorney if there is no response. The Assistant General Counsel may, for a reasonable period upon a showing of sufficient cause, extend the time for an agent or attorney to serve an answer or for a claimant or appellant to serve a reply. The Assistant General Counsel shall forward the record and a recommendation to the General Counsel for a final decision. Unless either party files a notice of disagreement with the Office of the General Counsel, the agent or attorney must refund any excess payment to the claimant or appellant not later than the expiration of the time within which the General Counsel's decision may be appealed to the Board of Veterans' Appeals.
(j) In addition to whatever other penalties may be prescribed by law or regulation, failure to comply with the requirements of this section may result in proceedings under § 14.633 of this chapter to terminate the agent's or attorney's accreditation to practice before VA.
(k) Notwithstanding provisions in this section for closing the record at the end of the 30-day period for serving a response or 15 days after the date on which the agent or attorney served a response, appeals shall be initiated and processed using the procedures in 38 CFR parts 19 and 20. Nothing in this section shall be construed to limit the Board's authority to remand a matter to the General Counsel under 38 CFR 19.9 for any action that is essential for a proper appellate decision or the General Counsel's ability to issue a supplemental statement of the case under 38 CFR 19.31.
(Authority: 38 U.S.C. 5902, 5904, 5905)
(The Office of Management and Budget has approved the information collection requirements in this section under control number 2900-0085)
11. Add § 14.637 to read as follows:
(a)
(b)
(c)
(d)
(1) A claimant's or appellant's motion for review of expenses must be served on the agent or attorney and must be filed at the following address: Office of the General Counsel (022D), 810 Vermont Avenue, NW., Washington, DC 20420. The agent or attorney may file a response to the motion, with any accompanying evidence, with the Office of the General Counsel not later than 30 days from the date on which the claimant or appellant served the motion on the agent or attorney. Such responses must be served on the claimant or appellant. The claimant or appellant then has 15 days from the date on which the agent or attorney served a response to file a reply with the Office of the General Counsel. Such replies must be served on the agent or attorney.
(2) The Assistant General Counsel shall initiate the Office of the General Counsel's review of expenses on its own motion by serving the motion on the agent or attorney and the claimant or appellant. The agent or attorney may file a response to the motion, with any accompanying evidence, with the Office of the General Counsel (022D), 810 Vermont Avenue, NW., Washington, DC 20420, not later than 30 days from the date on which the Office of the General Counsel served the motion on the agent or attorney. Such responses must be served on the claimant or appellant.
(3) The Office of the General Counsel shall close the record in proceedings to review expenses 15 days after the date on which the agent or attorney served a response on the claimant or appellant, or 30 days after the claimant, appellant, or the Office of the General Counsel served the motion on the agent or attorney if there is no response. The Assistant General Counsel may, for a reasonable period upon a showing of sufficient cause, extend the time for an agent or attorney to serve an answer or for a claimant or appellant to serve a reply. Unless either party files a notice of disagreement with the General Counsel's decision, the attorney or agent must refund any excess payment to the claimant or appellant not later than the expiration of the time within which the General Counsel's decision may be appealed to the Board of Veterans' Appeals.
(e) In addition to whatever other penalties may be prescribed by law or regulation, failure to comply with the requirements of this section may result in proceedings under § 14.633 of this part to terminate the agent's or attorney's accreditation to practice before VA.
(f) Notwithstanding provisions in this section for closing the record at the end of the 30-day period for serving a response or 15 days after the date on which the agent or attorney served a response, appeals shall be initiated and processed using the procedures in 38 CFR parts 19 and 20. Nothing in this section shall be construed to limit the Board's authority to remand a matter to the General Counsel under 38 CFR 19.9 for any action that is essential for a proper appellate decision or the General Counsel's ability to issue a supplemental statement of the case under 38 CFR 19.31.
(The Office of Management and Budget has approved the information collection requirements in this section under control number 2900-0085)
12. The authority citation for part 1 continues to read as follows:
38 U.S.C. 501(a), and as noted in specific sections.
13. Amend newly redesignated § 1.600 by:
a. Adding an undesignated center heading before the section heading.
b. In paragraph (a) introductory text, removing “14.640 through 14.643” and adding, in its place, “1.600 through 1.603”.
c. In paragraph (b)(1), removing “14.640 through 14.643” and adding, in its place, “1.600 through 1.603”.
d. In paragraph (b)(4), removing “14.640 through 14.643” and adding, in its place, “1.600 through 1.603”.
e. In paragraph (d) introductory text, removing “14.640 through 14.643” and adding, in its place, “1.600 through 1.603”.
The revision and addition read as follows:
14. Amend newly redesignated § 1.602 by:
a. In paragraph (b), removing “14.643” and adding, in its place, “1.603”.
b. In paragraph (c)(3), removing “14.640 through 14.643” and adding, in its place, “1.600 through 1.603”.
15. Amend newly redesignated § 1.603 by:
a. In paragraph (b)(1), removing “14.640 through 14.643” and adding, in its place, “1.600 through 1.603”.
b. In paragraph (c), removing “14.643” and adding, in its place, “1.603”.
16. The authority citation for part 19 continues to read as follows:
38 U.S.C. 501(a) unless otherwise noted.
17. Amend § 19.31 by adding a paragraph (d) and revising the authority citation at the end of the section to read as follows.
(d)
18. Amend § 19.36 by adding a sentence at the end of the paragraph and revising the authority citation to read as follows:
* * * Provisions in this section for submitting additional evidence and references to § 20.1304 do not apply in proceedings before the General Counsel conducted under part 14 of this chapter to suspend or cancel accreditation or to review fee agreements and expenses for reasonableness.
19. Amend § 19.37 by adding a paragraph (c) and revising the authority citation at the end of the section to read as follows.
(c) The provisions of this section do not apply in proceedings before the General Counsel conducted under part 14 of this chapter to cancel accreditation or to review fee agreements and expenses for reasonableness.
20. The authority citation for part 20 continues to read as follows:
38 U.S.C. 501(a) and as noted in specific sections.
21. Remove §§ 20.609 and 20.610.
22. Amend § 20.800 by adding a sentence at the end of the paragraph and revising the authority citation to read as follows:
* * * The provisions of this section do not apply in proceedings before the General Counsel conducted under part 14 of this chapter to cancel accreditation or to review fee agreements and expenses for reasonableness.
23. Amend § 20.1304 by adding a paragraph (e) and revising the authority citation at the end of the section to read as follows.
(e)