Animal and Plant Health Inspection Service
Farm Service Agency
Food Safety and Inspection Service
Forest Service
Committee for Purchase From People Who Are Blind or Severely Disabled
International Trade Administration
National Oceanic and Atmospheric Administration
Air Force Department
Management and Budget Office
Presidential Documents
Fiscal Service
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
Food and Drug Administration
Health Resources and Services Administration
National Institutes of Health
Coast Guard
Fish and Wildlife Service
Land Management Bureau
Surface Mining Reclamation and Enforcement Office
Antitrust Division
Disability Employment Policy Office
Copyright Office, Library of Congress
Management and Budget Office
Fiscal Service
Federal Aviation Administration
Federal Railroad Administration
Fiscal Service
Foreign Assets Control Office
Internal Revenue Service
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
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Office of Personnel Management.
Final rule.
These regulations finalize the interim regulations that provide the rules for determining an employee's official worksite when he or she teleworks from an alternative worksite during an emergency situation, such as a pandemic health crisis, and permit an agency to provide evacuation payments to an employee who is ordered to evacuate from his or her regular worksite and directed to work from home (or an alternative location mutually agreeable to the agency and the employee) during a pandemic health crisis. The final regulations revise the interim regulations to clarify that an employee need not have a telework agreement when directed to work from home. These regulations are issued as part of OPM's efforts to provide agencies with guidance to ensure they are able to fulfill their critical missions while at the same time protect their employees should a pandemic health crisis occur.
The regulations are effective July 16, 2007.
Gene Holson by telephone at (202) 606-2858, by fax at (202) 606-0824, or by e-mail at
On August 17, 2006, the Office of Personnel Management (OPM) published interim regulations (71 FR 47692) in 5 CFR parts 531 and 550 concerning pay actions for employees affected by a pandemic health crisis. The interim regulations (1) Clarified the rules for determining an employee's official worksite for the purpose of identifying his or her location-based pay entitlements when the employee teleworks from an alternative worksite during an emergency situation such as a pandemic health crisis and (2) authorized agencies to provide evacuation payments to an employee who is ordered to evacuate from his or her regular worksite and directed to work from the employee's home (or an alternative location mutually agreeable to the agency and the employee) during a pandemic health crisis. The 60-day comment period for the interim regulations ended on October 16, 2006. OPM received comments from three Federal agencies.
One agency commented on the use of the term “critical missions” in the summary of the interim regulations: “These regulations are issued as part of OPM's efforts to provide agencies with guidance to ensure they are able to fulfill their critical missions while at the same time protect their employees should a pandemic health crisis occur.” The commenter noted that “The National Strategy for Pandemic Influenza” and “Federal Preparedness Circular 65” use the term “essential functions” instead of “critical missions.” The agency recommended that OPM replace the term “critical missions” with “essential functions” to ensure consistency in the terminology used in other Federal guidance. We are not making this change. We used “critical missions” in the summary accompanying the interim regulations to be consistent with the terminology used in OPM's
The same agency also requested clarification of the provision in § 531.605(d)(3), which states that an authorized agency official may make a temporary exception to the requirement that a telework employee must report at least once a week on a regular and recurring basis to the regular worksite in order for the employee to continue receiving the locality rate for the regular worksite. The commenter inquired as to whether there is a time limit on how long a temporary exception under § 531.605(d)(3), may be in effect. There is no such time limit. The intent of § 531.605(d)(3) is to address certain situations where the employee is retaining his or her residence in the commuting area for the regular worksite but is temporarily unable to report to the regular worksite for reasons beyond the employee's control. The fact that an employee may receive lesser pay or benefits if the official worksite is changed to the telework location is not a basis or justification for using this temporary exception. A key consideration is the need to preserve equity between the telework employee and non-telework employees who are working in the same area as the telework location. The temporary exception should generally be used only in cases where (1) the employee is expected to stop teleworking and return to work at the regular worksite in the near future, or (2) the employee is expected to continue teleworking but will be able to report to the regular worksite at least once a week on a regular and recurring basis in the near future. Examples of appropriate temporary situations include: (1) Recovery from an injury or medical condition, or to assist with a family member's recovery from an injury or medical condition; (2) emergency situations that prevent an employee from regularly commuting to the normal worksite, such as a severe weather emergency or a pandemic health crisis; or (3) the employee is away from the area on extended official travel. (See the revised fact sheet,
One agency suggested there is too much emphasis on “pandemic health crisis” in the regulations and recommended replacing that term with “emergency situations, such as a pandemic health crisis” because the agency believes that most emergency situations will be weather-related and
One agency recommended revising § 550.409(a) to make clear that an agency's authority during a pandemic health crisis to order an employee to evacuate from his or her worksite and perform work from the employee's home includes the situation where the agency and the employee do not have a telework agreement in place at the time the order to evacuate is issued. We agree and have revised § 550.409(a). The agency also recommended that OPM delete the provision in § 550.409(a) which limits an agency's authority to order an employee to perform work from a location other than the employee's home to a location that is “mutually agreeable to the agency and the employee.” The agency believes it is impractical to require an agency and an employee to engage in discussions with the intent of reaching an agreement as to where the employee is going to work, especially in the context of an emergency health crisis. We are not adopting this recommendation. During a pandemic health crisis, if an employee does not comply with his or her agency's order to work from home, or the agency and the employee cannot agree on an alternative work location, the agency may disapprove the employee's evacuation payments. Under these circumstances, the employee may be required to use his or her accrued annual leave (
One agency noted that the issue of temporary promotion pay is not clearly addressed in the regulations. Under § 550.409(a), evacuated employees may be assigned to perform any work necessary or required to be performed without regard to his or her grade, level, or title. The regulations also require agencies to compute evacuation payments under § 550.404, which states that evacuation payments must be based on the rate of pay to which the employee was entitled immediately before the issuance of the order to evacuate. The commenter recommended revising the regulations to clarify that evacuation payments must be based on the rate of pay to which the employee was entitled immediately before the issuance of the order to evacuate, notwithstanding an agency's policy or collective bargaining agreement regarding an employee's entitlement to a noncompetitive temporary promotion when the employee is required to perform higher-level duties during the period of evacuation. We are not adopting this recommendation. While there may be circumstances in which it will be necessary to temporarily suspend certain provisions of an agency policy or a collective bargaining agreement in an emergency, it would be inappropriate to provide such a broad authorization to do so. The decision to take such action must be made on a case-by-case basis taking into consideration the facts and circumstances that exist at that time.
The Office of Management and Budget has reviewed this rule in accordance with E.O. 12866.
I certify that these regulations will not have a significant economic impact on a substantial number of small entities because they will apply only to Federal agencies and employees.
Administrative practice and procedure, Claims, Government employees, Law enforcement officers, Wages.
Office of Personnel Management.
5 U.S.C. 5527; E.O. 10982, 3 CFR parts 1959-1963, p. 502.
(a) An agency may order one or more employees to evacuate from their worksite and perform work from their home (or an alternative location mutually agreeable to the agency and the employee) during a pandemic health crisis without regard to whether the agency and the employee have a telework agreement in place at the time the order to evacuate is issued.* * *
Federal Aviation Administration (FAA) DOT.
Final special conditions; request for comments.
These special conditions are issued for the Boeing Model 777-300ER airplane. This airplane as modified by the Boeing Commercial Airplane Company will have a novel or unusual design feature associated with the use of lithium ion battery technology in on-board systems. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
The effective date of these special conditions is June 1, 2007. We must receive your comments by July 30, 2007.
Comments on this rule may be mailed in duplicate to: Federal Aviation Administration, Transport Airplane Directorate, Attention: Rules Docket (ANM-113), Docket No. NM379, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; or delivered in duplicate to the Transport Airplane Directorate at the above address. All comments must be marked Docket No. NM379. Comments may be inspected in the Rules Docket weekdays, except Federal holidays, between 7:30 a.m. and 4 p.m.
Nazih Khaouly, FAA, Airplane & Flight Crew Interface Branch, ANM-111, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 227-2432; facsimile (425) 227-1149.
The FAA has determined that notice and opportunity for prior public comment hereon are impracticable because these procedures would significantly delay issuance of the design approval and thus delivery of the affected aircraft. In addition, these special conditions are identical to those issued for another model of airplane; those special conditions were subjected to prior notice and public comment. The FAA therefore finds that good cause exists for making these special conditions effective upon issuance.
We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference as specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.
We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel about these special conditions. You can inspect the docket before and after the comment closing date. If you wish to review the docket in person, go to the address in the
We will consider all comments we receive by the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions based on the comments we receive.
If you want us to let you know we received your comments on these special conditions, send us a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you.
On February 15, 2006, Boeing Commercial Airplane Group, Seattle, Washington, applied for an amended type certificate to install a new Panasonic eX2 in-flight entertainment (IFE) system in a Boeing 777-300ER airplane. The Boeing Model 777-300ER airplane is a large twin engine airplane with a maximum passenger capacity of 550.
The regulations do not address the novel and unusual design features associated with the installation of an IFE system that uses lithium ion battery technology.
Under the provisions of § 21.101 Boeing Commercial Airplane Group must show that the Boeing Model 777-300ER, as changed, continues to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. T00001SE or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The regulations incorporated by reference in T00001SE are Title 14 Code of Federal Regulations (CFR), part 25, as amended by Amendments 25-1 through 25-98, except for §§ 25.831(a) and (g) and 25.841(a), which remain at Amendment 25-86, and § 25.853(d)(3), which remains at Amendment 25-82. Section 25.1517 is not part of the TC. Refer to Type Certificate No. T00001SE, as applicable, for a complete description of the certification basis for this model, including certain special conditions that are not relevant to these special conditions.
If the Administrator finds that the applicable airworthiness regulations (part 25, as amended) do not contain adequate or appropriate safety standards for the Boeing Model 777-300ER because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.
In addition to the applicable airworthiness regulations and special conditions, the Boeing Model 777-300ER must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.
The FAA issues special conditions, as defined in § 11.19 and § 11.38 and they become part of the type certification basis under § 21.101.
Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, the special conditions would also apply to the other model.
The Boeing Commercial Airplane Group proposes using lithium ion battery technology for the IFE system in this airplane. High capacity, rechargeable lithium ion batteries are a novel or unusual design feature in transport category airplanes. Because of rapid improvements in airplane technology, the applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions for the 777-300ER contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
Lithium ion batteries have certain failure, operational, and maintenance characteristics that differ significantly from those of the nickel-cadmium and lead-acid rechargeable batteries currently approved for installation on large transport category airplanes. The FAA is adopting these special conditions to require that (1) all characteristics of the lithium ion battery and its installation that could affect safe operation of the 777-300ER are addressed, and (2) appropriate maintenance requirements are established to ensure availability of electrical power from the batteries when needed.
The current regulations governing installation of batteries in large transport category airplanes were derived from Civil Air Regulations (CAR) part 4b.625(d) as part of the re-codification of CAR 4b that established 14 CFR part 25 in February, 1965. The new battery requirements, 14 CFR 25.1353(c)(1) through (c)(4), basically reworded the CAR requirements.
Increased use of nickel-cadmium batteries in small airplanes resulted in increased incidents of battery fires and failures. This led to additional rulemaking affecting large transport category airplanes as well a small airplanes. On September 1, 1977, and March 1, 1978, respectively the FAA issued 14 CFR 25.1353(c)(5) and (c)(6), governing nickel-cadmium battery installations on large transport category airplanes.
The proposed use of lithium ion batteries for the IFE system on the Boeing Model 777-300ER airplane has prompted the FAA to review the adequacy of these existing regulations. Our review indicates that existing
At present, there is limited experience with use of rechargeable lithium ion batteries in applications involving commercial aviation. However, other uses of this technology, ranging from wireless telephone manufacturing to the electric vehicle industry, have noted safety problems with lithium ion batteries. These problem include overcharging, over-discharging, and flammability of cell components.
In general, lithium ion batteries are significantly more susceptible to internal failures that can result in self-sustaining increases in temperature and pressure (thermal runaway) than their nickel-cadmium or lead-acid counterparts. This is especially true for overcharging, which causes heating and destabilization of the components of the cell, leading to formation (by plating) of highly unstable metallic lithium. The metallic lithium can ignite, resulting in a self-sustaining fire or explosion. Finally, the severity of thermal runaway from overcharging increases with increasing battery capacity, because of the higher amount of electrolytes in large batteries.
Discharge of some types of lithium ion batteries beyond a certain voltage (typically 2.4 volts) can cause corrosion of the electrodes of the cell, resulting in loss of battery capacity that cannot be reversed by recharging. This loss of capacity may not be detected by the simple voltage measurements commonly available to flightcrews as a means of checking battery status. This is a problem shared with nickel-cadmium batteries.
Unlike nickel-cadmium and lead-acid batteries, some types of lithium ion batteries use liquid electrolytes that are flammable. The electrolytes can serve as a source of fuel for an external fire, if there is a breach of the battery container.
These problems experienced by users of lithium ion batteries raise concern about their use in commercial aviation. The intent of these special conditions is to establish appropriate airworthiness standards for lithium ion battery installations in the Boeing Model 777-300ER airplane and to ensure, as required by 14 CFR 25.601, that these battery installations are not hazardous or unreliable. To address these concerns, these special conditions adopt the following requirements:
• Those sections of 14 CFR 25.1353 that are applicable to lithium ion batteries.
• The flammable fluid fire protection requirements of 14 CFR 25.863. In the past, this rule was not applied to batteries of transport category airplanes, since the electrolytes used in lead-acid and nickel-cadmium batteries are not flammable.
• New requirements to address the hazards of overcharging and over-discharging that are unique to lithium ion batteries.
• New maintenance requirements to ensure that batteries used as spares are maintained in an appropriate state of charge.
As discussed above, these special conditions are applicable to the Boeing Model 777-300ER airplane. Should Boeing apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the special conditions would apply to that model as well.
This action affects only certain novel or unusual design features on one model of airplane. It is not a rule of general applicability.
Under standard practice, the effective date of final special conditions would be 30 days after the date of publication in the
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
In lieu of the requirements of 14 CFR 25.1353(c)(1) through (c)(4), the following special conditions apply. Lithium ion batteries on the Boeing Model 777-300ER airplane must be designed and installed as follows:
(1) Safe cell temperatures and pressures must be maintained during any foreseeable charging or discharging condition and during any failure of the charging or battery monitoring system not shown to be extremely remote. The lithium ion battery installation must preclude explosion in the event of those failures.
(2) Design of the lithium ion batteries must preclude the occurrence of self-sustaining, uncontrolled increases in temperature or pressure.
(3) No explosive or toxic gases emitted by any lithium ion battery in normal operation, or as the result of any failure of the battery charging system, monitoring system, or battery installation not shown to be extremely remote, may accumulate in hazardous quantities within the airplane.
(4) Installations of lithium ion batteries must meet the requirements of 14 CFR 25.863(a) through (d).
(5) No corrosive fluids or gases that may escape from any lithium ion battery may damage surrounding structure or any adjacent systems, equipment, or electrical wiring of the airplane in such a way as to cause a major or more severe failure condition, in accordance with 14 CFR 25.1309(b) and applicable regulatory guidance.
(6) Each lithium ion battery installation must have provisions to prevent any hazardous effect on structure or essential systems caused by the maximum amount of heat the battery can generate during a short circuit of the battery or of its individual cells.
(7) Lithium ion battery installations must have a system to control the charging rate of the battery automatically, so as to prevent battery overheating or overcharging, and,
(i) A battery temperature sensing and over-temperature warning system with a means for automatically disconnecting the battery from its charging source in the event of an over-temperature condition, or,
(ii) A battery failure sensing and warning system with a means for automatically disconnecting the battery from its charging source in the event of battery failure.
(8) Any lithium ion battery installation whose function is required for safe operation of the airplane must incorporate a monitoring and warning feature that will provide an indication to the appropriate flight crewmembers whenever the state of charge of the batteries has fallen below levels considered acceptable for dispatch of the airplane.
(9) The Instructions for Continued Airworthiness required by 14 CFR 25.1529 must contain maintenance requirements for measurements of battery capacity at appropriate intervals to ensure that batteries whose function is required for safe operation of the airplane will perform their intended function as long as the battery is installed in the airplane. The Instructions for Continued Airworthiness must also contain procedures for the maintenance of lithium ion batteries in spares storage to prevent the replacement of batteries whose funciton is required for safe operation of the airplane with batteries that have experienced degraded charge retention ability or other damage due to prolonged storage at a low state of charge.
These special conditions are not intended to replace 14 CFR 25.1353(c) in the certification basis of the Boeing Model 777-300ER airplane. These special conditions apply only to lithium ion batteries and their installations. The requirements of 14 CFR 25.1353(c) remain in effect for batteries and battery installations of the Boeing Model 777-300ER airplane that do not use lithium ion batteries.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action establishes VOR Federal Airway, V-65 over the East Central United States in support of the Midwest Airspace Enhancement Plan (MASE). The FAA is taking this action to enhance safety and to improve the efficient use of the navigable airspace assigned to the Chicago, Cleveland, and Indianapolis Air Route Traffic Control Centers (ARTCC).
Steve Rohring, Airspace and Rules Group, Office of System Operations Airspace and AIM, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone: (202) 267-8783.
On June 16, 2006, the FAA published in the
On January 18, 2007, the FAA published in the
VOR Federal Airways are published in paragraph 6010 of FAA Order 7400.9P dated September 1, 2006, and effective September 15, 2006, which is incorporated by reference in 14 CFR 71.1. The VOR Federal Airways listed in this document will be published subsequently in the Order.
This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 to establish VOR Federal Airway V-65 over the East Central United States within the airspace assigned to the Chicago, Cleveland, and Indianapolis ARTCCs. This action enhances safety and facilitates the more flexible and efficient use of the navigable airspace. Further, this action enhances the management of aircraft operations within the Chicago, Cleveland, and Indianapolis ARTCCs' areas of responsibility.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under 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 rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA has determined that this action qualifies for categorical exclusion under the National Environment Policy Act in accordance with 311a and 311b., FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures”. This airspace action is not expected to cause any potentially significant environment impacts, and no extraordinary circumstances exist that warrant preparation of environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
Pension Benefit Guaranty Corporation.
Final rule.
The Pension Benefit Guaranty Corporation's regulations on Benefits Payable in Terminated Single-Employer Plans and Allocation of Assets in Single-Employer Plans prescribe interest assumptions for valuing and paying benefits under terminating single-employer plans. This final rule amends the regulations to adopt interest assumptions for plans with valuation dates in July 2007. Interest assumptions are also published on the PBGC's Web site (
Effective July 1, 2007.
Catherine B. Klion, Manager, Regulatory and Policy Division, Legislative and Regulatory Department, Pension Benefit Guaranty Corporation, 1200 K Street, NW., Washington, DC 20005, 202-326-4024. (TTY/TDD users may call the Federal relay service toll-free at 1-800-877-8339 and ask to be connected to 202-326-4024.)
The PBGC's regulations prescribe actuarial assumptions—including interest assumptions—for valuing and paying plan benefits of terminating single-employer plans covered by title IV of the Employee Retirement Income Security Act of 1974. The interest assumptions are intended to reflect current conditions in the financial and annuity markets.
Three sets of interest assumptions are prescribed: (1) A set for the valuation of benefits for allocation purposes under section 4044 (found in Appendix B to Part 4044), (2) a set for the PBGC to use to determine whether a benefit is payable as a lump sum and to determine lump-sum amounts to be paid by the PBGC (found in Appendix B to Part 4022), and (3) a set for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using the PBGC's historical methodology (found in Appendix C to Part 4022).
This amendment (1) adds to Appendix B to part 4044 the interest assumptions for valuing benefits for allocation purposes in plans with valuation dates during July 2007, (2) adds to Appendix B to part 4022 the interest assumptions for the PBGC to use for its own lump-sum payments in plans with valuation dates during July 2007, and (3) adds to Appendix C to part 4022 the interest assumptions for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using the PBGC's historical methodology for valuation dates during July 2007.
For valuation of benefits for allocation purposes, the interest assumptions that the PBGC will use (set forth in Appendix B to part 4044) will be 5.33 percent for the first 20 years following the valuation date and 5.00 percent thereafter. These interest assumptions represent an increase (from those in effect for June 2007) of 0.19 percent for the first 20 years following the valuation date and 0.19 percent for all years thereafter.
The interest assumptions that the PBGC will use for its own lump-sum payments (set forth in Appendix B to part 4022) will be 3.25 percent for the period during which a benefit is in pay status and 4.00 percent during any years preceding the benefit's placement in pay status. These interest assumptions represent an increase of 0.25 percent in the immediate rate from those in effect for June 2007. For private-sector payments, the interest assumptions (set forth in Appendix C to part 4022) will be the same as those used by the PBGC for determining and paying lump sums (set forth in Appendix B to part 4022).
The PBGC has determined that notice and public comment on this amendment are impracticable and contrary to the public interest. This finding is based on the need to determine and issue new interest assumptions promptly so that the assumptions can reflect current market conditions as accurately as possible.
Because of the need to provide immediate guidance for the valuation and payment of benefits in plans with valuation dates during July 2007, the PBGC finds that good cause exists for making the assumptions set forth in this amendment effective less than 30 days after publication.
The PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866.
Because no general notice of proposed rulemaking is required for this amendment, the Regulatory Flexibility Act of 1980 does not apply. See 5 U.S.C. 601(2).
Employee benefit plans, Pension insurance, Pensions, Reporting and recordkeeping requirements.
Employee benefit plans, Pension insurance, Pensions.
29 U.S.C. 1302, 1322, 1322b, 1341(c)(3)(D), and 1344.
29 U.S.C. 1301(a), 1302(b)(3), 1341, 1344, 1362.
Office of Surface Mining Reclamation and Enforcement (OSM), Interior.
Final rule; approval of amendment.
We are approving an amendment to the Maryland regulatory program (the Maryland program) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). The program amendment consists of changes to the Maryland Annotated Code (MAC) to increase the end of month balance cap of the Bond Supplement Reserve (Reserve) within the Bituminous Coal Open-Pit Mining Reclamation Fund. The amendment is intended to improve the ability of the Maryland Department of the Environment to finance reclamation projects by increasing the amounts available in the Reserve.
Mr. George Rieger, Telephone: (717) 782-4849 ext. 11. E-mail:
Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, “* * * a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of the Act * * * and rules and regulations consistent with regulations issued by the Secretary pursuant to the Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Maryland program on December 1, 1980. You can find background information on the Maryland program, including the Secretary's findings, the disposition of comments, and conditions of approval in the December 1, 1980,
By an undated letter received on January 29, 2007 (Administrative Record Number MD-587-00), Maryland sent us an amendment to revise its program under SMCRA (30 U.S.C. 1201
In its submittal of this amendment, Maryland stated that this action will improve the ability of the Maryland Department of the Environment to finance reclamation projects by increasing the amounts available in the Reserve. Maryland stated that the amendment also addresses findings and recommendations found in the Actuarial Study approved by OSM in the
The Reserve was established for reclamation purposes when the original bond is not sufficient to reclaim the site for which it was posted in the event of forfeiture. The Reserve receives revenues from two separate surcharges that are assessed for each ton of coal removed by the open-pit or strip method. These funds are used to supplement forfeited bonds to enable the mine site to be reclaimed. If the funds in the Reserve at the end of any month equal or exceed a certain fixed level, or cap, deposits into the Reserve from these surcharges are temporarily stopped. If the funds in the Reserve at the end of any month then drop below a certain fixed level, or floor, deposits into the Reserve from these surcharges are resumed. In this amendment, Maryland proposes to raise both the cap and the floor levels, in order to ensure that more funds are always available for reclamation expenses.
Following are the findings we made concerning the amendment under SMCRA and the Federal Regulations at 30 CFR 732.15 and 732.17. We are approving the amendment.
Prior to this amendment, subsection (c) provided as follows:
(c) When the amount of money in the bond supplement reserve equals or exceeds $300,000 at the end of the month, deposits into the reserve of the amounts provided in subsection (b)(1) and (2) of this section shall end temporarily.
Maryland proposed to revise Subsection (c) by increasing the end-of-month balance cap of the Bond Supplement Reserve from $300,000 to $750,000.
As amended, Subsection (c) provides as follows:
(c) When the amount of money in the bond supplement reserve equals or exceeds $750,000 at the end of the month, deposits into the reserve of the amounts provided in subsection (b)(1) and (2) of this section shall end temporarily.
Because the amendment to this provision ensures more revenues are available in the Bond Supplement Reserve, we find that the changes are not inconsistent with the Federal Regulations at 30 CFR 800.11(e), pertaining to the establishment and maintenance of an alternative bonding system, and can be approved.
Prior to this amendment, subsection (d)(1) provided as follows:
(1) The amount of money in the bond supplement reserve equals or exceeds $300,000 at the end of the month;
Maryland proposed to raise the end-of-month balance cap of the Bond Supplement Reserve from $300,000 to $750,000.
As amended, Subsection (d)(1) provides as follows:
(1) The amount of money in the bond supplement reserve equals or exceeds $750,000 at the end of the month;
Because the amendment to this provision ensures more revenues are available in the Bond Supplement Reserve, we find that the changes are not inconsistent with the Federal Regulations at 30 CFR 800.11(e) and can be approved.
Prior to this amendment, subsection (e) provided as follows:
(e) At the end of any month when the amount of money in the bond supplement reserve is reduced below $200,000:
Maryland proposed to raise the amount from $200,000 to $500,000 because it believes that the end-of-month balance cap that triggers the resumption of surcharges and deposits needed to be increased as well.
As amended, Subsection (e) provides as follows:
(e) At the end of any month when the amount of money in the bond supplement reserve is reduced below $500,000:
Because the amendment to this provision ensures more revenues are available in the Bond Supplement Reserve, we find that the changes are not inconsistent with the Federal Regulations at 30 CFR 800.11(e) and can be approved.
We asked for public comments on the amendment (Administrative Record Number MD-587-02), but did not receive any.
Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Maryland program (Administrative Record Number MD-587-01), but did not receive any.
Based on the above findings, we approve the Maryland amendment that we received on January 29, 2007.
To implement this decision, we are amending the Federal regulations at 30 CFR part 920, which codify decisions concerning the Maryland program. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately.
Section 503(a) of SMCRA requires that Maryland's program demonstrate that it has the capability of carrying out the provisions of the Act and meeting its purposes. Making this regulation effective immediately will expedite that process. SMCRA requires consistency of Maryland and Federal standards.
In accordance with Executive Order 12630, the provisions in the rule, as described in the preamble, do not have significant takings implications; therefore, a takings implication assessment is not required.
This rule is exempt from review by the Office of Management and Budget under Executive Order 12866.
The Department of the Interior has conducted the reviews required by
This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.
In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally-recognized Indian tribes and have determined that the rule does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. The basis for this determination is our decision is on a State regulatory program and does not involve a Federal regulation involving Indian lands.
On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) Considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.
This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)).
This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507
The Department of the Interior certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based upon the analysis performed under various laws and executive orders for the counterpart Federal regulations.
This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the analysis performed under various laws and executive orders for the counterpart Federal regulations.
Intergovernmental relations, Surface mining, Underground mining.
30 U.S.C. 1201
Coast Guard, DHS.
Notice of temporary deviation from regulations.
The Commander, First Coast Guard District, has issued a temporary deviation from the regulation governing the operation of the Massachusetts Bay Commuter Railroad (MBCR)/Amtrak Bridge across the Charles River, mile 0.8, at Boston, Massachusetts. Under this temporary deviation, in effect for two weekends, the MBTA/Amtrak Bridge may remain in the closed position on Friday evening June 8 and 15, 2007, from 11:59 p.m. through to 5 a.m. Saturday morning. Vessels that can pass under the draw without a bridge opening may do so at all times. This deviation is necessary to facilitate bridge track repairs.
This deviation is effective from June 8, 2007 through June 16, 2007.
Materials referred to in this document are available for inspection or copying at the First Coast Guard District, Bridge Branch Office, 408 Atlantic Avenue, Boston, Massachusetts, 02110, between 7 a.m. and 3 p.m., Monday through Friday, except Federal holidays. The telephone number is (617) 223-8364. The First Coast Guard District Bridge Branch Office maintains the public docket for this temporary deviation.
John McDonald, Project Officer, First Coast Guard District, at (617) 223-8364.
The MBTA/Amtrak Bridge, across the Charles River, mile 0.8, at Boston, Massachusetts, has a vertical clearance in the closed position of 3 feet at mean high water and 12 feet at mean low water. The existing drawbridge operation regulations are listed at 33 CFR 117.591(c).
The owner of the bridge, the Massachusetts Bay Commuter Railroad (MBCR), requested a temporary deviation to facilitate repairs to the bridge rails.
Under this temporary deviation the MBCR/Amtrak Bridge need not open for the passage of vessel traffic on Friday evening June 8, 2007 and June 15, 2007, from 11:59 p.m. through 5 a.m. Saturday morning. Vessels that can pass under the bridge without a bridge opening may do so at all times.
In accordance with 33 CFR 117.35(e), the bridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone on the Detroit River, Detroit, Michigan. This zone is intended to restrict vessels from a portion of Detroit River during the Roostertail fireworks display. This temporary safety zone is necessary to protect spectators and vessels from the hazards associated with fireworks displays.
This rule is effective from 9 p.m. on June 2, 2007 until 11 p.m. on June 29, 2007.
Documents indicated in this preamble as being available in the docket, are part of docket [CGD09-07-021] and are available for inspection or copying at U.S. Coast Guard Sector Detroit, 110 Mt. Elliot Ave., Detroit, MI 48207 between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays.
LT Jeff Ahlgren, Waterways Management, U.S. Coast Guard Sector Detroit, 110 Mount Elliot Ave., Detroit, MI 48207; (313) 568-9580.
We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. The permit application was not received in time to publish an NPRM followed by a final rule before the effective date.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
This temporary safety zone is necessary to ensure the safety of vessels and spectators from hazards associated with a fireworks display. Based on accidents that have occurred in other Captain of the Port zones and the explosive hazards of fireworks, the Captain of the Port Detroit has determined fireworks launches in close proximity to watercraft pose significant risk to public safety and property. The likely combination of large numbers of recreation vessels, congested waterways, darkness punctuated by bright flashes of light, alcohol use, and debris falling into the water could easily result in serious injuries or fatalities. Establishing a safety zone to control vessel movement around the location of the launch platform will help ensure the safety of persons and property at these events and help minimize the associated risks.
A temporary safety zone is necessary to ensure the safety of spectators and vessels during the setup, loading, and launching of a fireworks display in conjunction with the Roostertail Fireworks Display. The fireworks display will occur between 9 p.m. and 11 p.m. on June 2, 2007 and June 29, 2007.
The safety zone for the June 2, 2007 and June 29, 2007 fireworks will encompass all waters of Detroit River, near the Roostertail Restaurant between Detroit and Belle Isle, bound by the following coordinates: 42-21′17.75″ N/082-58′31.12″ W; 42-21′13.15″ N/082-58′28.40″ W; 42-21′16.36″ N/082-58′19.42″ W; 42-21′20.59″ N/082-58′22.36″ W. All geographic coordinates
All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port or the designated on-scene representative. Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Detroit or his designated on-scene representative. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16.
This 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 under the regulatory policies and procedures of DHS is unnecessary. This determination is based on the minimal time that vessels will be restricted from the zone and the zone is an area where the Coast Guard expects insignificant adverse impact to mariners from the zones' activation.
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. This rule will affect the following entities, some of which may be small entities: The owners and operators of vessels intending to transit or anchor in a portion of Detroit River between Detroit and Belle Isle near the Roostertail Restaurant between 9 p.m. and 11 p.m. on June 2, 2007 and June 29, 2007.
This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons. This rule will be in effect for only 2 hours. Vessel traffic can pass safely around the safety zone. In the event that this temporary safety zone affects shipping, commercial vessels may request permission from the Captain of the Port Detroit to transit through the safety zone. The Coast Guard will give notice to the public via a Broadcast Notice to Mariners that the regulation is in effect.
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 could better evaluate its effects on them and participate in the rulemaking process. 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 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). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This 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 concern 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 safety zone and fishing rights protection need not be incompatible. We have also determined that 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. Nevertheless, Indian Tribes that have questions concerning the provisions of this rule or options for compliance are encouraged to contact the point of contact listed under
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. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not
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 rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Commandant Instruction M16475.lD and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have 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, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. This event establishes a safety zone, therefore paragraph (34)(g) of the Instruction applies.
A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” is available in the docket where indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
Ports and Waterways Safety Act, 33 U.S.C. 1221-1232, Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(d)
(2) This safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port Detroit or his designated on-scene representative.
(3) The “designated on-scene representative” of the Captain of the Port is any Coast Guard commissioned, warrant, or petty officer who has been designated by the Captain of the Port to act on his behalf. The designated on-scene representative of the Captain of the Port will be aboard either a Coast Guard or Coast Guard Auxiliary vessel. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16.
(4) Vessel operators desiring to enter or operate within the safety zone shall contact the Captain of the Port Detroit or his designated on-scene representative to obtain permission to do so. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the Captain of the Port or his designated on-scene representative.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone near the Grosse Point Club, Lake St. Clair, Grosse Pointe Farms, Michigan. This zone is intended to restrict vessels from a portion of Lake St. Clair during the Celebrate America Fundraiser fireworks display. This temporary safety zone is necessary to protect spectators and vessels from the hazards associated with fireworks displays.
This rule is effective from 9:30 p.m., June 14, 2007 until 11 p.m., June 14, 2007.
Documents indicated in this preamble as being available in the docket, are parts of docket [CGD09-07-030] and are available for inspection or copying at U.S. Coast Guard Sector Detroit, 110 Mt. Elliot Ave., Detroit, MI 48207 between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays.
LT Jeff Ahlgren, Waterways Management, U.S. Coast Guard Sector Detroit, 110 Mount Elliot Ave., Detroit, MI 48207; (313) 568-9580.
We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. The permit application was not received in time to publish an NPRM followed by a final rule before the effective date.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
This temporary safety zone is necessary to ensure the safety of vessels and spectators from hazards associated with a fireworks display. Based on accidents that have occurred in other Captain of the Port zones and the explosive hazards of fireworks, the Captain of the Port Detroit has determined fireworks launches in close proximity to watercraft pose significant risk to public safety and property. The likely combination of large numbers of recreation vessels, congested waterways, darkness punctuated by bright flashes of light, alcohol use, and debris falling into the water could easily result in serious injuries or fatalities. Establishing a safety zone to control vessel movement around the location of the launch platform will help ensure the safety of persons and property at these events and help minimize the associated risks.
A temporary safety zone is necessary to ensure the safety of spectators and vessels during the setup, loading, and launching of a fireworks display in conjunction with the Celebrate America Fundraiser Fireworks Display. The fireworks display will occur between 9:30 p.m. and 11 p.m. on June 14, 2007.
The safety zone will encompass all waters of Lake St. Clair within a five hundred foot radius of the fireworks barge which will be located at 42-22′58″ N; 082-53′46″ W. The fireworks barge will be located approximately 1,500 feet directly offshore from the Grosse Point Club. All geographic coordinates are North American Datum of 1983 (NAD 83).
All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port or the designated on scene patrol personnel. Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Detroit or his designated on scene representative. The Captain of the Port or his designated on scene representative may be contacted via VHF Channel 16.
This 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 under the regulatory policies and procedures of DHS is unnecessary.
This determination is based on the minimal time that vessels will be restricted from the zone and the zone is an area where the Coast Guard expects insignificant adverse impact to mariners from the zones' activation.
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. This rule will affect the following entities, some of which may be small entities: The owners and operators of vessels intending to transit or anchor in a portion of Lake St. Clair near the Grosse Point Club, located on the west side of Lake St. Clair in Grosse Pointe Farms, MI, between 9:30 p.m. and 11 p.m. on June 14, 2007.
This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons. This rule will be in effect for only 1.5 hours. Vessel traffic can pass safely around the safety zone. In the event that this temporary safety zone affects shipping, commercial vessels may request permission from the Captain of the Port Detroit to transit through the safety zone. The Coast Guard will give notice to the public via a Broadcast Notice to Mariners that the regulation is in effect.
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 could better evaluate its effects on them and participate in the rulemaking process.
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 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). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This 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 concern 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 safety zone and fishing rights protection need not be incompatible. We have also determined that 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. Nevertheless, Indian Tribes that have questions concerning the provisions of this rule or options for compliance are encouraged to contact the point of contact listed under
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. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Commandant Instruction M16475.lD and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have 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, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. This event establishes a safety zone, therefore paragraph (34)(g) of the Instruction applies.
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 and 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, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) This safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port Detroit or his designated on-scene representative.
(3) The “designated on-scene representative” of the Captain of the Port is any Coast Guard commissioned, warrant, or petty officer who has been designated by the Captain of the Port to act on his behalf. The designated on-scene representative of the Captain of the Port will be aboard either a Coast Guard or Coast Guard Auxiliary vessel. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16.
(4) Vessel operators desiring to enter or operate within the safety zone shall contact the Captain of the Port Detroit or his designated on-scene representative to obtain permission to do so. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the Captain of the Port or his designated on-scene representative.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing two temporary security zones on the navigable waters of the San Francisco Bay in the vicinity of San Francisco Pier 30/32 and McCovey Cove located in San Francisco, California. These regulated areas are necessary to provide security for participants, spectators, and the general public during this high profile event. The security zones will prohibit all persons and vessels from entering, transiting through, or anchoring within portions of the San Francisco Bay surrounding Pier 30/32 and McCovey Cove, unless authorized by the Captain of the Port (COTP) or his designated representative.
This rule is effective from 8 a.m. on July 7, 2007 through 11:59 p.m. on July 10, 2007.
Documents indicated in this preamble as being available for docket are part of docket COTP San Francisco 07-012 and are available for inspection or copying at the Waterways Safety Branch between 9 a.m. and 4 p.m., Monday through Friday, except Federal holidays.
Lieutenant Eric Ramos, U.S. Coast Guard Sector San Francisco, at (415) 556-2950 extension 143 or Sector San Francisco 24-hour Command Center at (415) 399-3547.
We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM because the planning for this event was not finalized and presented in time to draft and publish an NPRM.
For the same reason listed in the previous paragraph, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
Major League Baseball (MLB) and the San Francisco Giants are sponsoring a series of events leading up to and concluding with the 2007 MLB All-Star Game at AT&T Park in San Francisco from July 7, 2007 to July 10, 2007. This rule is necessary to provide for the security of participants, spectators, and the general public at this high profile event.
The first regulated area in the vicinity of Pier 30/32 will include all navigable waters, from the surface to the seafloor, encompassed by connecting the following points to form a fifty-yard security zone around the pier: beginning at latitude 37°47.26′ N and longitude 122°23.23′ W; thence east to latitude 37°47.26′ N and longitude 122°23.01′ W; thence south to latitude 37°47.13′ N and longitude 122°23.01′ W; and lastly west to latitude 37°47.11′ N and longitude 122°23.24′ W.
The second regulated area in the vicinity of McCovey Cove (China Basin from 3rd Street Bridge to the Bay) will include all navigable waters, from the surface to the seafloor, encompassed by connecting the following points to form a security zone: Beginning at latitude 37°46.70′ N and longitude 122°23.12′ W; thence south-southeasterly to latitude 37°46.58′ N and longitude 122°23.10′ W; thence north-northwesterly to latitude 37°46.61′ N and longitude 122°23.39′ W; thence north-northwesterly to latitude 37°46.63′ N and longitude 122°23.41′ W; and then back to the beginning point (NAD 83). Booms will be placed in the water to mark the entry and exit points of this zone. The only vessels that will be permitted to enter are human-powered vessels 20 feet or less in length and other vessels specified by Major League Baseball or the City of San Francisco. All persons and vessels must consent to search before being permitted to enter this zone.
No person or vessel may enter or remain within the security zones unless authorized by the Captain of the Port, San Francisco, or his designated representative. The Coast Guard may be assisted by other Federal, State, or local law enforcement agencies in enforcing these security zones.
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. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS).
Although this regulation restricts access to a portion of navigable waters, the effect of this regulation will not be significant because: (i) The zones encompass only small portions of the waterway; (ii) vessels may be allowed to enter the zones on a case-by-case basis with permission of the Captain of the Port or his designated representative.
The sizes of the zones are the minimum necessary to provide adequate security on the navigable waters adjacent to AT&T Park and other event venues. The entities most likely to be affected are pleasure craft engaged in recreational activities and sightseeing.
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.
We expect this rule may affect owners and operators of vessels, some of which may be small entities, intending to fish recreationally, sightsee, transit, or anchor in the waters affected by this security zone. This security zone will not have a significant economic impact on a substantial number of small entities for several reasons. This rule will only be in effect for less than four days during the duration of the events and the zones do not encompass areas that are highly trafficked. Vessel traffic can pass safely around the zone at Pier 30/32, and certain vessels will be allowed to enter and remain in the zone at McCovey Cove. Furthermore, other traffic may be allowed to pass through the zones with the permission of the Coast Guard patrol commander. Before the effective period, small entities and the maritime public will be advised of this security zone via Broadcast Notice to Mariners.
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 could better evaluate its effects on them and participate in the rulemaking process. If the rule will affect your small business, organization, or government jurisdiction and you have questions concerning its provisions or options for compliance, please contact Lieutenant Eric Ramos, Waterways Safety Branch, U.S. Coast Guard Sector San Francisco at (415) 556-2950 extension 143, or the 24 hour Command Center at (415) 399-3547.
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 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 rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this 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 would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This 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 would not create an environmental risk to health or risk to safety that might disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We have analyzed this 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 rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus 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 made a preliminary determination that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, we believe that this rule should be categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation because we are creating security zones.
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 and 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, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(d)
Coast Guard, DHS.
Notice of enforcement of regulation.
The Coast Guard will enforce the safety zone established in 33 CFR 165.1191, during the City of Monterey's Fourth of July Fireworks display, to be held on July 4, 2007, in the navigable waters of Monterey Bay. This safety zone is necessary to ensure the safety of participants and spectators during the loading, transport, and launching of fireworks. Unauthorized persons or vessels are prohibited from entering into, transiting through, or anchoring in the safety zone without permission of the Captain of the Port or his designated representative.
Ensign Sheral Richardson, Waterways Management Branch, U.S. Coast Guard Sector San Francisco, at (415) 556-2950 extension 136.
The City of Monterey, Recreation and Community Services Department is sponsoring the annual Fourth of July Fireworks display in the navigable waters of Monterey Bay near the beach east of Municipal Wharf #2. The safety zone established in 33 CFR 165.1191 will be enforced surrounding the barge used as a fireworks launch platform. During the loading of the barge, transit of the barge to the display location, and fifteen minutes prior to the start of the fireworks display, the safety zone will encompass the waters around and under the barge within a radius of 100 feet. Fifteen minutes preceding and during the twenty minute fireworks display itself, the safety zone increases in size to encompass the waters around and under the barge within a radius of 1,000 feet. Loading of the pyrotechnics onto the barge is scheduled to commence at 9 a.m. on July 4, 2007, and will take place at the U.S. Coast Guard Pier, 100 Lighthouse Avenue, Monterey, California. Towing of the barge to the display location is scheduled to take place between 2 p.m. and 9 p.m. on July 4, 2007. During the fireworks display, scheduled to start at approximately 9:15 p.m. on July 4, 2007, the barge will be located approximately 1,500 feet from Municipal Wharf #2 in position 36° 36.178′ N, 121° 53.172′ W.
In accordance with the general regulations in § 165.23 of this part, entry into, transit through, or anchoring within this safety zone by all vessels and persons is prohibited, unless specifically authorized by the Captain of the Port San Francisco, or his designated representative.
The Coast Guard has granted the event sponsor a marine event permit for the fireworks display. This notice is issued under authority of 33 CFR 165.1191 and 5 U.S.C. 552 (a). In addition to this notice, the maritime community will be provided advance notification of the enforcement via Broadcast Notice to Mariners. If the Captain of the Port determines that the safety zone need not be enforced for the full duration stated in this notice, he may use a Broadcast Notice to Mariners to grant general permission to enter the regulated area.
Postal Service.
Final rule.
In this final rule, the Postal Service
This rule is effective July 16, 2007.
Marlo Kay Ivey at 202-268-7613 or Postage Technology Management, Postal Service, at 703-292-3691.
The Postal Service published a final rule in the
As a result, language was used in paragraph 501.16(d) that is in conflict with the way we do business with PC Postage® vendors. This revision will correct that language.
Administrative practice and procedure.
5 U.S.C. 552(a); 39 U.S.C. 101, 401, 403, 404, 410, 2601, 2605, Inspector General Act of 1978, as amended (Pub. L. 95-452, as amended); 5 U.S.C. App. 3.
(a) The PC Postage customer is permitted to make payments for postage
(b) The provider must make payments on behalf of the customer to the Postal Service in accordance with contractual and/or regulatory responsibilities.
(c) The Postal Service requires that the provider publicize to all PC Postage customers the following payment options (listed in order of preference):
(1) Automated clearinghouse (ACH) debits/credits.
(2) Credit cards.
(d) Returned ACH debits are the responsibility of the Postal Service. The RC must lock the customer account immediately so that the customer is unable to reset the account until the Postal Service receives payment in full.
(e)
(f)
(g)
(h) To the extent that the customer maintains funds on deposit for the payment of postage, the provider is required to incorporate the following language into its agreements with PC Postage customers:
By signing this agreement with the provider, you represent that you have read the Acknowledgment of Deposit Requirement—PC Postage and are familiar with its terms. You agree that, upon execution of this agreement with the provider, you will also be bound by all terms and conditions of the Acknowledgment of Deposit Requirement—PC Postage, as it may be amended from time to time.
Postal Regulatory Commission.
Final rule.
This document identifies limited amendments to the Code of Federal Regulations (CFR) related to passage of a postal reform law. The amendments affect nomenclature, section numbering, and citation to statutory authority. These changes will facilitate operation and practice under the new law. Additional conforming changes are under consideration. Given the technical and administrative nature of the changes, comments are not required or requested.
Effective June 15, 2007. Newly redesignated § 3002.3 is suspended indefinitely.
Stephen L. Sharfman, General Counsel, 202-789-6820 and
The Postal Accountability and Enhancement Act (PAEA), Public Law 109-435 (December 20, 2006), recast the Postal Rate Commission as the Postal Regulatory Commission and modified its responsibilities and authorities. To recognize these changes, existing provisions in the Code of Federal Regulations (CFR) must be amended. This rulemaking is part of that process.
Chapter III of title 39 of the CFR is amended to read Postal Regulatory Commission. The authority identified in Parts 3000, 3001, 3002, and 3004 as 39 U.S.C. 3603 is amended to read 39 U.S.C. 503. The name Postal Regulatory Commission is substituted for Postal Rate Commission in sections 3000.735-101, 3001.3, 3001.5(c), 3001.9(a), 3001.17(b)(1), 3001.17(b)(2), 3001.31(k)(3)(i)(
In Part 3002—Organization, the statutory functions of the agency and its individual offices are being revised, and amended regulations will be issued in the future. To accommodate revised regulations, sections 3002.3 through 3002.7 are renumbered as 3002.10 through 3002.14, and section 3002.8, Official Seal, is renumbered as 3002.3. The provisions of renumbered section 3002.3, Official Seal, are suspended.
New section 3002.15 is added to allow for an appropriate description of the functions of the newly established Office of Public Affairs and Governmental Relations. New section 3002.16 is added to allow for an appropriate description of the functions of the newly established Office of Inspector General.
Revisions to part 3001—Rules of Practice and Procedure are also under preparation.
The following table summarizes the impact of this order on provisions in 39 CFR, part 3002.
Add two new sections
1. The Commission adopts the revisions referred to in the body of this order.
2. The Secretary shall arrange for publication of this order in the
By the Commission.
Conflict of interest.
Administrative practice and procedure, Confidential business information, Freedom of information, Sunshine Act.
Organization and functions (Government agencies), Seals and insignia.
Privacy.
Administrative practice and procedure, Confidential business information, Freedom of information.
39 U.S.C. 3603; E.O. 12674; 54 FR 15159; 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 56 FR 42547, 3 CFR, 1990 Comp., p. 396, 5 CFR parts 2634 and 2635.
39 U.S.C. 404(b); 503; 3622-24, 3661, 3662, 3663.
a. 3001.3
b. 3001.5(c)
c. 3001.9(a)
d. 3001.17(b)(1)
e. 3001.17(b)(2)
f. 3001.31(k)(3)(i)(
g. 3001.110
h. 3001.114
i. 3001.116
39 U.S.C. 503; 5 U.S.C. 552.
Privacy Act of 1974 (Pub. L. 93-579); 5 U.S.C. 552a.
a. 3003.2(a)
b. 3003.7
39 U.S.C. 503; 5 U.S.C. 552a.
Animal and Plant Health Inspection Service, USDA.
Proposed rule; correction.
We are correcting an error in our proposed rule to amend the regulations to allow the importation into the continental United States of fresh blueberries from South Africa and Uruguay under certain conditions and to allow the use of cold treatment for blueberries imported into the United States from Argentina. The proposed rule was published in the
Mr. Tony Román, Import Specialist, Commodity Import Analysis and Operation Staff, PPQ, APHIS, 4700 River Road Unit 133, Riverdale, MD 20737-1231; (301) 734-8758.
On June 5, 2007, we published in the
In two places in the Supplementary Information section of the proposed rule and in one place in the regulatory text, we stated that we would require shipments of blueberries from South Africa and Uruguay to be accompanied by a phytosanitary certificate issued by the NPPO of the importing country. This information was incorrect. We should have stated that we would require shipments of blueberries from South Africa and Uruguay to be accompanied by a phytosanitary certificate issued by the NPPO of the exporting country. This document corrects those errors.
In FR Doc. E7-10818, published on June 5, 2007 (72 FR 30979-30984) make the following corrections: On page 30980, first column, fourteenth line following the second table; on page 30981, first column, tenth line; and on page 30984, first column, in proposed § 319.56-2vv(b), correct “importing” to read “exporting”.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for the products listed above. This proposed AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as:
To prevent damage to the rear spar due to working and failing rivets between the rear spar and the inboard rib * * *
The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI.
We must receive comments on this proposed AD by July 16, 2007.
You may send comments by any of the following methods:
•
•
•
•
•
You may examine the AD docket on the Internet at
Karl Schletzbaum, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329-4146; fax: (816) 329-4090.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The Civil Aviation Authority (CAA), which is the aviation authority for New Zealand, has issued AD DCA/750XL/9, dated March 29, 2007 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
To prevent damage to the rear spar due to working and failing rivets between the rear spar and the inboard rib * * *
The MCAI requires inspecting the inboard end of the rear spar for security of the blind rivets, inspecting the radii of the rear spar upper and lower flanges for cracking, inspecting the aft flange of the inboard rib for cracking, replacing the rear spar if cracks are found in any of the inspections, and modifying the rear spar by replacing the blind rivets with bolts or rivets.
You may obtain further information by examining the MCAI in the AD docket.
Pacific Aerospace Limited has issued Mandatory Service Bulletin PACSB/XL/022, dated February 14, 2007. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.
We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.
We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD.
Based on the service information, we estimate that this proposed AD would affect about 7 products of U.S. registry. We also estimate that it would take about 40 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Required parts would cost about $200 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these costs. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here.
Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $23,800, or $3,400 per product.
In addition, we estimate that any necessary follow-on actions would take about 40 work-hours and require parts costing $750, for a cost of $3,950 per product. This cost estimate is per side. We have no way of determining the number of products that may need these actions.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new AD:
(a) We must receive comments by July 16, 2007.
(b) None.
(c) This AD applies to Model 750XL airplanes, serial numbers 101, 102, and 104 through 128, certificated in any category.
(d) Air Transport Association of America (ATA) Code 57: Wings.
(e) The mandatory continuing airworthiness information (MCAI) states:
To prevent damage to the rear spar due to working and failing rivets between the rear spar and the inboard rib * * *
The MCAI requires inspecting the inboard end of the rear spar for security of the blind rivets, inspecting the radii of the rear spar upper and lower flanges for cracking, inspecting the aft flange of the inboard rib for cracking, replacing the rear spar if cracks are found in any of the inspections, and modifying the rear spar by replacing the blind rivets with bolts or rivets.
(f) Unless already done, do the following actions:
(1) Within 50 hours time-in-service (TIS) after the effective date of this AD, and thereafter at intervals not to exceed 150 hours TIS until the blind rivets have been replaced by bolts or rivets as required in paragraph (f)(3) of this AD, inspect the inboard end of the rear spar for security of the blind rivets, which attach the fuselage attach fitting to the rear spar and inboard rib; inspect the radii of the rear spar upper and lower flanges for cracking; and inspect the aft flange of the inboard rib for cracking following Pacific Aerospace Limited Mandatory Service Bulletin PACSB/XL/022 dated February 14, 2007.
(2) Before further flight, after any inspection where cracking is found, repair the aft flange of the inboard rib and/or replace the rear spar following Pacific Aerospace Limited Mandatory Service Bulletin PACSB/XL/022 dated February 14, 2007.
(3) Within 12 months or 300 hours TIS after the effective date of this AD, whichever occurs first, replace the blind rivets (part number NAS1738E-6-6) that join the rear spar and the aft end of the inboard rib with bolts or rivets following Pacific Aerospace Limited Mandatory Service Bulletin PACSB/XL/022, dated February 14, 2007.
(4) At intervals not to exceed 12 months or 300 hours TIS after the effective date of this AD, whichever occurs first, after the modification required in paragraph (f)(3) of this AD, repetitively inspect the main wing aft attachment area following Pacific Aerospace Limited Mandatory Service Bulletin PACSB/XL/022, dated February 14, 2007. If any cracks are found, prior to further flight, repair the main wing aft attachment area.
This AD differs from the MCAI and/or service information as follows: No differences.
(g) The following provisions also apply to this AD:
(1)
(2)
(3)
(h) Refer to the Civil Aviation Authority (CAA), which is the airworthiness authority for New Zealand AD DCA/750XL/9, dated March 29, 2007; and Pacific Aerospace Limited Mandatory Service Bulletin PACSB/XL/022, dated February 14, 2007, for related information.
Federal Aviation Administration (FAA), DOT.
Supplemental notice of proposed rulemaking (SNPRM).
This SNPRM would change the description for the proposed modification of VOR Federal Airway V-133, previously published in the
Comments must be received on or before July 30, 2007.
Send comments on this proposal to the Docket Management System, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590; telephone: (202) 366-9826. You must identify FAA Docket No. FAA-2006-24926 and Airspace Docket No. 06-ASW-1, at the beginning of your comments. You may also submit comments through the Internet at
Steve Rohring, Airspace and Rules Group, Office of System Operations Airspace and AIM, 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-2006-24926 and Airspace Docket No. 06-ASW-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-2006-24926 and Airspace Docket No. 06-ASW-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
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.
On June 16, 2006, the FAA published an NPRM in the
On January 18, 2007, the FAA published in the
The FAA is proposing to amend Title 14 Code of Federal Regulations (14 CFR) part 71 to modify V-133 over the East Central United States. This action is proposed as part of MASE to enhance safety and to facilitate the more flexible and efficient use of the navigable airspace. Further, this action would enhance the management of aircraft operations within the Chicago, Cleveland, and Indianapolis Air Route Traffic Control Centers' areas of responsibility.
VOR Federal Airways are published in paragraph 6010 of FAA Order 7400.9P, dated September 1, 2006, and effective September 15, 2006, which is incorporated by reference in 14 CFR 71.1. The VOR Federal Airways listed in this document would be published subsequently in the Order.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. 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 number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA has determined that this action qualifies for categorical exclusion under the National Environment Policy Act in accordance with 311a and 311b., FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures”. This airspace action is not expected to cause any potentially significant environment impacts, and no extraordinary circumstances exist that warrant preparation of 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 15, 2006, is amended as follows:
From INT Charlotte, NC, 305° and Barretts Mountain, NC, 197° radials; Barrets Mountain; Charleston, WV; Zanesville, OH; Tiverton, OH; Mansfield, OH; Sandusky, OH; INT Sandusky 342°(T)/346°(M) and Detroit, MI 138°(T)/144°(M) radials; Detroit; Salem, MI; INT Salem 346° and Saginaw, MI 160° radials; Saginaw; Traverse City, MI; Escanaba, MI; Sawyer, MI; Houghton, MI; Thunder Bay, ON, Canada; International Falls, MN; to Red Lake, ON, Canada. The airspace within Canada is excluded.
Internal Revenue Service (IRS), Treasury.
Notice of proposed rulemaking and notice of public hearing.
This document contains proposed regulations relating to the use of business aircraft for entertainment. These proposed regulations affect taxpayers that deduct expenses for entertainment, amusement, or recreation provided to specified individuals. This document also provides notice of a public hearing on these proposed regulations. The proposed regulations reflect amendments under the American
Written comments must be received by September 13, 2007. Requests to speak and outlines of topics to be discussed at the public hearing scheduled for October 25, 2007, at 10 a.m., must be received by October 4, 2007.
Send submissions to: CC:PA:LPD:PR (REG-147171-05), room 5203, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand delivered between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG-147171-05), courier's desk, Internal Revenue Service, 1111 Constitution Avenue, NW., Washington, DC. Alternatively, taxpayers may submit electronic comments via the internet at the Federal eRulemaking Portal at
Concerning the regulations under section 274, Michael A. Nixon of the Office of Associate Chief Counsel (Income Tax & Accounting), (202) 622-4930; concerning the regulations under section 61, Lynne A. Camillo of the Office of Division Counsel/Associate Chief Counsel (Tax Exempt & Government Entities), (202) 622-6040 (not toll-free numbers); concerning submissions of comments, the hearing, and/or to be placed on the building access list to attend the hearing, Richard Hurst at
This document contains proposed regulations under section 274(e)(2) of the Internal Revenue Code (Code). Section 274(e)(2) was amended by section 907 of the AJCA, Public Law 108-357, and by section 403(mm) of the GOZA, Public Law 109-135. Both amendments are effective for certain expenses incurred after October 22, 2004. On May 27, 2005, the IRS and Treasury Department issued Notice 2005-45 (2005-24 IRB 1228) providing interim guidance on amended section 274(e)(2) and inviting comments. Notice 2005-45 is effective for expenses incurred after June 30, 2005. Commentators submitted written and electronic comments responding to Notice 2005-45. The IRS and Treasury Department have reviewed and considered all the comments in the process of preparing these proposed regulations. See § 601.601(d)(2)(ii)(
Generally, section 162(a) allows as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business. Under section 274(a)(1)(A), no deduction is allowed for an activity generally considered to be entertainment, amusement, or recreation, unless the taxpayer establishes that the activity is directly related to or (in certain cases) associated with the active conduct of the taxpayer's trade or business.
Section 1.274-2(b)(1) of the Income Tax Regulations provides that entertainment means any activity of a type generally considered to constitute entertainment, amusement, or recreation, such as entertaining at night clubs, cocktail lounges, theaters, country clubs, golf and athletic clubs, sporting events, and on hunting, fishing, vacation and similar trips. Similar activities relating solely to the taxpayer's family also may constitute entertainment. Entertainment may include an activity that satisfies the personal, living, or family needs of an individual, such as providing food and beverages or a hotel suite to a business customer or the customer's family. Entertainment does not include activities, however, that are clearly not regarded as constituting entertainment, such as the provision of supper money by an employer to an employee working overtime, the maintenance of a hotel room by an employer for lodging of an employee while in business travel status, or the use of an automobile in the active conduct of a trade or business even though also used for routine personal purposes such as commuting to and from work. Under § 1.274-2(b)(1)(ii), an objective test is used to determine whether an activity is of a type generally considered to constitute entertainment.
Section 274(e) provides exceptions to the general disallowance provisions of section 274(a). Prior to amendment by the AJCA, section 274(e)(2) excepted expenses from section 274(a) “to the extent that the expenses are treated by the taxpayer” as compensation to the employee. Under prior law, section 274(e)(9) similarly excepted expenses to the extent that the expenses are treated by the taxpayer as income to persons who are not employees.
Section 274(o) provides that the Secretary shall prescribe regulations necessary to carry out the purposes of the section.
Generally, § 1.61-21(b)(1) requires an employee to include in gross income the fair market value of a fringe benefit, such as an entertainment flight, after subtracting amounts paid, by or on behalf of the employee, for the fringe benefit, as well as amounts excluded from income by another section of the Code. If an employee takes a personal flight on an employer's aircraft, and the employer also provides a pilot, the general rule under § 1.61-21(b)(6) is that the fair market value of the flight is equal to the amount that an individual would have to pay in an arm's-length transaction to charter the same or a comparable piloted aircraft for that period for the same or a comparable flight. If the employer does not provide a pilot, the general rule under § 1.61-21(b)(7) is that the fair market value of the flight is equal to the amount that an individual would have to pay in an arm's-length transaction to rent a comparable aircraft for that period in the geographic area in which the aircraft is used. The regulations do not permit valuation of a flight by reference to the employer's costs.
As an alternative to the general valuation rules just described, § 1.61-21(g) provides that an employee's personal flights on an employer's aircraft may be valued using an optional special valuation rule, the non-commercial flight valuation rule. In order to use the non-commercial flight valuation rule, applying the applicable aircraft multiple from § 1.61-21(g)(7), it is necessary to know the weight of the employer's aircraft, the number of miles for the flight being valued, and whether the employee receiving the benefit is a control employee within the meaning of § 1.61-21(g)(8) or (9). The value of an employee's personal use of a company aircraft is computed by multiplying the Standard Industry Fare Level (SIFL) by the terminal charge to arrive at the value of the flight (the SIFL formula). SIFL is a cents-per-mile factor that, taken with the aircraft multiple and the terminal charge, is intended to approximate coach and first class fares on commercial aircraft.
The consistency rule set forth in § 1.61-21(g)(14)(i) provides that a taxpayer who uses the SIFL formula in a calendar year to value any flight provided to an employee must use the SIFL formula to value all flights provided to employees during that calendar year. Notice 2005-45 advised taxpayers that the consistency rule in the regulations would be amended to permit taxpayers to value the entertainment use of aircraft by specified individuals (within the meaning of section 274(e)(2)(B)) under
In
Section 907 of the AJCA was intended to overturn
Thus, in the case of a specified individual, the section 274(e)(2) and (9) disallowance exceptions apply only to the extent that a taxpayer treats as compensation to the specified individual an amount equal to or greater than the amount of deductible entertainment expenses allocable to entertainment provided to the specified individual. Expenses allocable to entertainment provided to the specified individual that the taxpayer does not treat as compensation to the specified individual are disallowed.
Notice 2005-45 references § 1.274-2(b)(1) in defining entertainment. Commentators suggested that the proposed regulations should provide additional guidance on the meaning of “entertainment” in order to assist taxpayers in delineating between entertainment use and “nonentertainment” personal use. The proposed regulations do not adopt these comments because these rules are addressed in the existing regulations at § 1.274-2(b)(1). Consistent with those regulations, entertainment does not include travel for reasons such as attending to business other than that of the employer, medical purposes, attending funerals, and participating in charitable activities.
Several commentators recommended that the proposed regulations adopt a purpose of the flight test that would characterize a flight as a business flight for all purposes if the primary purpose of the flight is business. Thus, under the recommendation, if the primary purpose of the flight were business, no amount would be disallowed for entertainment provided to specified individuals who are traveling for entertainment purposes. Conversely, if the primary purpose of the flight were entertainment, no amount would be allowed as an expense deduction with respect to individuals traveling for business. The proposed regulations do not adopt these comments. The IRS and Treasury Department believe that disregarding entertainment use by a specified individual would be contrary to Congressional intent in amending section 274(e)(2) to disallow expenses allocable to entertainment use of aircraft by specified individuals. Section 274(e)(2)(B) focuses on the recipient of the entertainment, amusement, or recreation, not the purpose of the employer providing the entertainment or the overall use of the aircraft.
Several commentators suggested that entertainment use by a specified individual of an aircraft should not be treated as entertainment within the meaning of section 274 or subject to section 274(e)(2)(B) if there is a business need to use the aircraft to provide security, pursuant to § 1.132-5(m). The proposed regulations do not adopt this comment. Section 1.132-5(m) merely computes the income inclusion for a fringe benefit. It reduces the income inclusion amount rather than eliminates it. It does not convert entertainment flights into business flights.
To calculate the amount of expenses for entertainment use of an aircraft, Notice 2005-45 provides that taxpayers must take into account all of the expenses of maintaining and operating the aircraft. Commentators recommended that entertainment expenses should not include fixed costs such as depreciation. Commentators noted that the legislative history refers to “aircraft operating costs” and “actual cost” and interpreted this language to mean that costs should be limited to variable costs. H. Conf. Rept. 108-755 at 798. Some commentators have suggested that incremental costs are the only costs that should be disallowed.
The proposed regulations do not adopt these comments. Industry use of the term “operating costs” generally refers to all costs, fixed and variable, including depreciation claimed on the taxpayer's tax return. Therefore, the IRS and Treasury Department believe that the use of the term “operating costs” in the legislative history does not reflect Congressional intent to apply section 274(e)(2) to variable costs only. Moreover, the term “aircraft operating costs” in the legislative history is consistent with use of that term in
Commentators suggested that disallowing accelerated depreciation (including the additional first-year depreciation under, for example, sections 168(k), 1400L(b), and 1400N(d)) would result in excessive amounts disallowed in early years and is inconsistent with Congressional intent to provide incentives for purchasing aircraft. In response to these comments, the proposed regulations permit a taxpayer to elect to calculate depreciation on a straight-line basis over the class life of an aircraft for all of the taxpayer's aircraft for the current year and all future years when calculating the amount of disallowed expenses.
Notice 2005-45 permits taxpayers to calculate expenses separately for each aircraft or to aggregate the expenses of
Commentators requested that the proposed regulations provide more details on the definition of cost profile. In response to these comments, the proposed regulations provide additional characteristics that define similar cost profiles. Specific comments are requested on the appropriateness of these characteristics in defining similar cost profiles and on other characteristics that may be useful in determining criteria for aggregating aircraft.
Notice 2005-45 provides an occupied seat hour or mile formula to allocate expenses to entertainment flights provided to specified individuals. The formula multiplies the hours or miles flown by an aircraft by the number of occupied seats. Then a taxpayer aggregates all fixed and variable expenses to determine the total expenses paid or incurred during the taxable year with respect to an aircraft (or aggregated aircraft) and divides the amount of total expenses by total occupied seat hours or miles to determine the cost per occupied seat hour or mile. Once a taxpayer determines this cost, the taxpayer uses the cost to determine the expenses allocable to each specified individual's entertainment flight.
Commentators expressed concern that this formula may not produce accurate results and is administratively burdensome. The proposed regulations retain the occupied seat hour or mile formula, which allows averaging of fixed and variable costs and yields a simple formula for determining the cost of one occupied seat hour or mile. It does not require a determination of whether a flight is for entertainment of specified individuals or other uses or an allocation of entertainment and other costs for a particular flight. Once the taxpayer determines the cost per occupied seat hour or mile, the disallowance calculation is relatively easy and results in a cost for each occupied seat hour or mile allocable to each entertainment flight taken by a specified individual.
Nevertheless, in response to commentators' concerns, the proposed regulations provide the option of allocating expenses on a flight-by-flight basis as an alternative to using the occupied seat mile or hour formula. Under the flight-by-flight method, a taxpayer may aggregate all expenses for the taxable year and divide the amount of total expenses by the number of flight hours or miles for the taxable year to determine the cost per hour or mile. The taxpayer allocates expenses to each flight by multiplying the number of miles or hours for the flight by the expense per hour or mile and allocates expenses for the flight to the passengers on the flight per capita.
Notice 2005-45 applies to entertainment use of an aircraft provided to a specified individual of a taxpayer by a party related to the taxpayer within the meaning of sections 267(b) or 707(b). The notice also defines a specified individual as the recipient of entertainment provided to a spouse or family member of the specified individual or to another person because of the person's relationship to the specified individual, cf. § 1.61-21(a)(4), and includes those entertainment flights within the potential disallowance of costs to the taxpayer. Commentators expressed concern that these provisions defined specified individual too broadly, exceeding the authority of the IRS and Treasury Department, and suggested that the definition be narrowed.
The proposed regulations do not adopt these comments. In the GOZA, Congress enacted technical corrections that clarify that the related party rules of sections 267(b) and 707(b) apply to section 274(e)(2). The IRS and Treasury Department conclude that Congress intended all entertainment flights to be subject to the section 274(e)(2) requirements. However, comments on how the regulations could define passengers aboard by virtue of a relationship with a specified individual are welcome. Finally, the proposed regulations define
The proposed regulations provide that, if an amount disallowed is allocable to depreciation, § 1.274-7 applies and the basis of the aircraft is not reduced for the amount of depreciation disallowed.
Numerous commentators inquired how taxpayers should allocate disallowed expenses between fixed and variable expenses. In response to these comments, the proposed regulations provide that the expense disallowance provisions apply to expenses on a pro rata basis.
Notice 2005-45 provides that an aircraft returning empty from a flight after discharging passengers or traveling empty to pick up passengers (deadheading) is treated as having the same number and character of occupied seat hours or miles as the leg or legs of the trip on which passengers are aboard.
Commentators, citing confusion on the treatment of deadhead flights, have requested additional guidance, including safe harbors such as treating the empty flight as if it had the same composition as the prior or subsequent flight. The proposed regulations adopt these comments by providing more detail on how taxpayers should treat deadhead flights.
Commentators requested guidance on the leasing of aircraft to unrelated third parties. In response to these requests, the proposed regulations provide guidance on the treatment of expenses allocable to taxpayers that charter their aircraft.
Notice 2005-45 addressed the treatment of expenses for the entertainment use of aircraft and did not address the effect of the amendment to section 274(e)(2) on the treatment of aircraft as entertainment facilities. Commentators asked how the entertainment facility disallowance under section 274(a)(1)(B) interacts with rules on aircraft used to provide specified individuals with entertainment.
Section 274(a)(1)(B) disallows all the expenses, direct and indirect, associated with the ownership and operation of an aircraft that is an entertainment facility, except for expenses for business travel and expenses that meet the exceptions of section 274(e). Thus, expenses for personal, nonentertainment travel (such as for medical purposes or attending funerals), as well as for entertainment travel, are disallowed, unless an exception such as 274(e)(2) applies.
The IRS and Treasury Department believe that Congress, in adding section 274(e)(2)(B), contemplated entertainment use of aircraft by specified individuals without specifically considering circumstances in which aircraft may be regarded as entertainment facilities. Therefore, these proposed regulations are limited to use of taxpayer-provided aircraft in
The proposed regulations relax the consistency rule of § 1.61-21(g)(14)(i) to permit taxpayers to value the entertainment use of aircraft by specified individuals under the fair market value rules of § 1.61-21(b), but continue to value flights for other employees and for specified individuals not traveling for entertainment using either the SIFL formula of § 1.61-21(g) or the general (fair market value) rule of § 1.61-21(b).
The proposed regulations preserve the consistency rule of § 1.61-21(g)(14)(i) with respect to particular groups of employees (specified and non-specified individuals) and with respect to non-entertainment flights. Thus, if an employer values the entertainment use of aircraft by one specified individual under the fair market value rules of § 1.61-21(b) in a calendar year, the employer must use the fair market value rules to value the entertainment use of aircraft by all specified individuals during that calendar year.
The existing consistency rules of § 1.61-21(g)(14)(i) continue to apply for valuing the entertainment use of aircraft for other employees (non-specified individuals) and for valuing the personal use of aircraft by specified individuals not traveling for entertainment purposes. Thus, if an employer values the personal use of aircraft by any other employee or the non-entertainment personal use of aircraft by any specified individual using the SIFL formula of § 1.61-21(g) in a calendar year, the employer must use the SIFL formula to value the personal use of aircraft by all other employees and the non-entertainment personal use of aircraft by all specified individuals during that calendar year. Similarly, if the employer values the personal use of aircraft by any other employee or the non-entertainment personal use of aircraft by any specified individual using the fair market value rules of § 1.61-21(b) in a calendar year, the employer must use the fair market value rules to value the personal use of aircraft by all other employees and the non-entertainment personal use of aircraft by all specified individuals during that calendar year.
The proposed regulations clarify that in order for a taxpayer to meet the requirements of section 274(e)(2) for expenses treated as compensation, the taxpayer must include the proper amount as compensation to an employee on the taxpayer's return.
Notice 2005-45 provides that any amount for the entertainment use of an aircraft that is treated by the taxpayer as compensation to a specified individual who is also a covered employee is subject to section 162(m). Commentators disagreed with this conclusion. They opined that the deduction disallowance of section 274 relates to the expenses of the aircraft, not amounts treated as income to the employee, and that, under § 1.162-25T, the expenses associated with providing the aircraft are not deducted by the employer as compensation. Thus, according to the commentators, expenses treated as compensation for purposes of section 274(e)(2) should not be subject to the deduction limitation of section 162(m). However, the IRS and Treasury Department believe that the deduction limitation of section 162(m) applies to amounts treated as compensation for purposes of section 274(e)(2). The legislative history of section 162(m) provides that the deduction limitation of section 162(m) applies to all remuneration for services, including cash and the cash value of all remuneration (including benefits) paid in a medium other than cash regardless of whether the remuneration is deducted as compensation. H.R. Conf. Rep. No. 103-213 (1993) at 585 (993-3 CB 463). Any amount included in an employee's income for entertainment flights is remuneration for services and therefore is subject to section 162(m).
Commentators requested clarification on whether section 274(e)(8), the exception to section 274(a) for entertainment sold to customers, applies to a taxpayer's expenses for providing an aircraft for the entertainment use of specified individuals. A commentator asserted that section 274(e)(8) excepts expenses of a flight from the section 274(a) disallowance to the extent a passenger pays full and fair consideration. The commentator suggested that expenses are excepted from the section 274(a) disallowance under section 274(e)(8) in three circumstances common in business aviation: (1) A lease of an aircraft without a pilot at a fair market value lease rate; (2) payment of a fair market value charter rate for an aircraft the taxpayer has enrolled under a charter certificate held by a charter company; and (3) payment of expenses allowed to be reimbursed in a time-sharing agreement under Federal Aviation Regulation 91.501(d), 14 CFR 91.501(d).
The proposed regulations do not address these issues, as rules implementing the section 274(e)(8) exception are provided in § 1.274-2(f)(2)(ix). Therefore, it is outside the scope of these proposed regulations on the exceptions under section 274(e)(2) and (9). As stated in § 1.274-2(f)(2)(ix), section 274(e)(8) applies only to taxpayers that are in the trade or business of providing entertainment to customers, and only to entertainment sold to customers. Therefore, the exception does not apply to expenses paid or incurred for entertainment provided to individuals by taxpayers that are not in the trade or business of providing entertainment.
As an alternative to determining actual expenses, the IRS and Treasury Department are considering whether the regulations should permit taxpayers to determine the amount of their expenses paid or incurred for entertainment flights by reference to charter rates. Under such a safe harbor, taxpayers could elect to treat as the amount of expenses for entertainment flights an undiscounted charter rate for each flight in lieu of calculating the actual expenses of each entertainment flight provided to specified individuals. Under the safe harbor, the undiscounted charter rate for the flight would be allocated to the individuals on the flight in lieu of the occupied seat or flight-by-flight allocation methods.
Under the charter rate method being considered, an undiscounted charter rate would be based on the amount that a person would pay in an arms-length transaction to charter the same or comparable aircraft for the same or comparable flight. A taxpayer would have to show that a charter rate used to value flights is a substantiated actual, published, undiscounted charter rate charged to the general public within 10 days before or after the taxpayer's flight by a qualified chartering company. A qualified chartering company would be a chartering company unrelated to the taxpayer (within the meaning of section 267(b) or 707(b)) that is in the trade or business of chartering aircraft and that operates and charters 10 or more aircraft
The proposed regulations do not include the safe harbor. Nonetheless, comments are requested on whether such a safe harbor, or other safe harbors, should be adopted. Comments are also requested on the availability of substantiated actual, published, undiscounted charter rates charged to the general public by companies that meet the requirements of a qualified chartering company.
Taxpayers may not use a charter rate to determine expenses allocable to entertainment flights unless and until a rule is adopted in final regulations.
The regulations, as proposed, apply to any taxable year beginning on or after the date of publication of a Treasury decision adopting these rules as final regulations in the
This notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations and, because the regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Code, this notice of proposed rulemaking will be submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.
Before these proposed regulations are adopted as final regulations, consideration will be given to any electronic or written comments (a signed original and eight (8) copies) that are submitted timely to the IRS. The IRS and Treasury Department specifically request comments on the clarity of the proposed regulations and how they may be made easier to understand.
A public hearing has been scheduled for October 25, 2007, at 10 a.m., in the auditorium, Internal Revenue Building, 1111 Constitution Avenue, NW., Washington, DC. Due to building security procedures, visitors must enter through the Constitution Avenue entrance. In addition, all visitors must present photo identification to enter the building. Because of access restrictions, visitors will not be admitted beyond the immediate entrance more than 30 minutes before the hearing starts. For information about having your name placed on the building access list to attend the hearing, see the
The principal authors of these proposed regulations are Michael A. Nixon and Christian T. Wood of the Office of Associate Chief Counsel (Income Tax & Accounting) and Lynne A. Camillo of the Office of the Division Counsel/Associate Chief Counsel (Tax Exempt & Government Entities). However, other personnel from the IRS and Treasury Department participated in their development.
Income taxes, Reporting and recordkeeping requirements.
Accordingly, under the authority of 26 U.S.C. 7805, 26 CFR Part 1 is proposed to be amended as follows:
26 U.S.C. 7805 * * *
Section 1.274-9 also issued under 26 U.S.C. 274(o).* * *
Section 1.274-10 also issued under 26 U.S.C. 274(o).* * *
(g) * * *
(14) * * *
(i)
(ii)
(iii)
(A)
(B)
(a)
(b)
(i) Is the direct or indirect beneficial owner of more than 10 percent of any class of any registered equity (other than an exempted security);
(ii) Is a director or officer of the issuer of the security;
(iii) Would be the direct or indirect beneficial owner of more than 10 percent of any class of a registered security if the taxpayer were an issuer of equity securities; or
(iv) Is comparable to an officer or director of an issuer of equity securities.
(2) For partnership purposes, a specified individual includes any partner that holds more than a 10 percent equity interest in the partnership, or any general partner, officer, or managing partner of a partnership.
(3) For purposes of this section,
(4) A specified individual includes a director or officer of a tax-exempt entity.
(5) A specified individual of a taxpayer includes a specified individual of a party related to the taxpayer within the meaning of section 267(b) or section 707(b).
(6) For purposes of section 274(a), a specified individual is treated as the recipient of entertainment provided to a spouse or family member of the specified individual or to another individual because of the relationship of the spouse, family member or other individual to the specified individual. Thus, expenses allocable to entertainment provided to the spouse, family member, or other individual are attributed to the specified individual for purposes of determining the amount of disallowed expenses.
(c)
(d)
(a)
(2)
(ii)
(
(
(B)
(C)
(
(
(b)
(1)
(2)
(3)
(4)
(5)
(c)
(d)
(2)
(3)
(ii)
(iii)
(4)
(ii)
(e)
(2)
(ii)
(A) Determining the total expenses for the year under paragraph (d)(1) of this section for the aircraft or group of aircraft (as determined under paragraph (d)(4) of this section), as applicable;
(B) Determining the total number of occupied seat hours or miles for the taxable year for the aircraft or group of aircraft by totaling the occupied seat hours or miles of all flights in the taxable year flown by the aircraft or group of aircraft, as applicable. The occupied seat hours or miles for a flight is the number of hours or miles flown for the flight multiplied by the number of seats occupied on that flight. For example, a flight of six hours with three passengers results in 18 occupied seat hours;
(C) Determining the cost per occupied seat hour or mile for the aircraft or group of aircraft, as applicable, by dividing the total expenses in paragraph (e)(2)(ii)(A) of this section by the total number of occupied seat hours or miles determined in paragraph (e)(2)(ii)(B) of this section; and
(D) Determining the amount of expenses allocated to an entertainment flight taken by a specified individual by multiplying the number of hours or miles of the flight by the cost per occupied hour or mile for that aircraft or group of aircraft, as applicable, as determined in paragraph (e)(2)(ii)(C) of this section.
(iii)
(iv)
(i) A taxpayer-provided aircraft is used for Flights 1, 2, and 3, of 5 hours, 5
(ii) For purposes of determining the amount disallowed (to the extent not treated as compensation or reimbursed), $5,000 ($1,000 × 5 hours) each is allocable with respect to A and B for Flight 2, and $4,000 ($1,000 × 4 hours) each is allocable with respect to A, B, E, and F for Flight 3.
(iii) For Flight 2, because Taxpayer treats $1,200 as compensation to A, and B reimburses Taxpayer $500, Taxpayer may deduct $1,700 of the cost of Flight 2 allocable to A and B. The deduction for the remaining $8,300 cost allocable to entertainment provided to A and B on Flight 2 is disallowed (with respect to A, $5,000 less the $1,200 treated as compensation, and with respect to B, $5,000 less the $500 reimbursed).
(iv) For Flight 3, because Taxpayer treats $1,300 each as compensation to A, B, E, and F, Taxpayer may deduct $5,200 of the cost of Flight 3. The deduction for the remaining $10,800 cost allocable to entertainment provided to A, B, E, and F on Flight 3 is disallowed ($4,000 less the $1,300 treated as compensation to each specified individual).
(i) G, a specified individual, is the sole passenger on an aircraft on a two-hour flight from City A to City B for business purposes. G then travels on a three-hour flight from City B to City C for entertainment purposes, and returns from City C to City A on a four-hour flight. G's flights have resulted in nine occupied seat hours (two for the first segment, plus three for the second segment, plus four for the third segment). If G had returned directly to City A from City B, the flights would have resulted in four occupied seat hours.
(ii) Under paragraph (e)(2)(iii) of this section, five occupied seat hours are allocable with respect to G's entertainment (nine total occupied seat hours minus the four occupied seat miles that would have resulted if the travel had been a roundtrip business trip without the entertainment segment). If Taxpayer's cost per occupied seat hour for the year is $1,000, $5,000 is allocated with respect to G's entertainment use of the aircraft ($1,000 × five occupied seat hours). The amount disallowed is $5,000 minus any amount the Taxpayer treats as compensation to G or that G reimburses Taxpayer.
(3)
(ii)
(f)
(2)
(3)
(ii) When a deadhead flight does not occur within a roundtrip flight, but occurs between two unrelated flights involving more than two destinations (such as an occupied flight from point A to point B, followed by a deadhead flight from point B to point C, and then an occupied flight from point C to point A), the allocation of passengers and expenses to the deadhead flight occurring between the two occupied trips is based on the number of passengers on board for the two occupied legs of the flight, the character of the passengers on board (entertainment or nonentertainment purpose) and the length in hours or miles of the two occupied legs of the flight.
(g)
Office of Surface Mining Reclamation and Enforcement (OSM), Interior.
Proposed rule; public comment period and opportunity for public hearing on proposed amendment.
We are announcing receipt of a proposed amendment to the Kentucky Abandoned Mine Land Reclamation (AMLR) Plan under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). The amendment makes several revisions to Kentucky's AMLR Plan and is intended to update and improve the effectiveness of the AMLR plan. Kentucky submitted the amendment in response to the passage of the Surface Mining Control and Reclamation Act Amendments of 2006. This document gives the times and locations that the Kentucky program and this submittal are available for your inspection, the comment period during which you may submit written comments, and the procedures that we will follow for the public hearing, if one is requested.
We will accept written comments until 4 p.m., e.s.t., July 16, 2007. If requested, we will hold a public
You may submit comments, identified by “KY-251-FOR/Administrative Record No. K-74” by any of the following methods:
•
•
•
William J. Kovacic, Telephone: (859) 260-8400. Internet:
The Abandoned Mine Land (AML) Reclamation Program was established by Title IV of SMCRA (30 U.S.C. 1201
By letter dated April 23, 2007, Kentucky sent us a proposed amendment to its AMLR Plan under SMCRA (30 U.S.C. 1201
Kentucky enacted Senate Bill 187 on February 21, 2007, to create a new section of the Kentucky Revised Statutes (KRS) Chapter 350 to allow the Environmental and Public Protection Cabinet (Cabinet) to do the following: expend for reclamation projects which are of a lower priority, if done in conjunction with a project assigned a higher priority; amend KRS 350.550 to delete use of Abandoned Mine Land funds for studies conducted by state agencies; amend KRS 350.555 to allow for expenditure on a reclamation project located adjacent to one already assigned a priority by the cabinet; delete research and development, work on public facilities, and development of publicly owned lands as a priority; amend KRS 350.560 to delete restriction on the use of funds allocated to the Commonwealth by the Secretary of the Interior; amend KRS 350.575 to prohibit a lien filed against a property owner who did not consent to mining operations requiring reclamation; amend KRS 350.597 to retain up to 30% of the funds allocated to Kentucky in a special trust fund; and to include the 2006 amendments to the Surface Mining Reclamation and Control Act in the citation.
Under the provisions of 30 CFR 732.17(h), we are seeking your comments on whether the submission satisfies the applicable program approval criteria of 30 CFR 732.15. If we approve the amendment, it will become part of the Kentucky AMLR Plan. We cannot ensure that comments received after the close of the comment period (see
Send your written comments to OSM at the address given above. Your written comments should be specific, pertain only to the issues proposed in this rulemaking, and include explanations in support of your recommendations.
Please submit Internet comments as an ASCII file avoiding the use of special characters and any form of encryption. Please also include “Attn: KY-251-FOR/Administrative Record No. KY-74” and your name and return address in your Internet message. If you do not receive a confirmation that we have received your Internet message, contact the Lexington Field Office at (859) 260-8400.
We will make comments, including names and addresses of respondents, available for public review during normal business hours. We will not consider anonymous comments. If individual respondents request confidentiality, we will honor their request to the extent allowable by law. Individual respondents who wish to withhold their name or address from public review, except for the city or town, must state this prominently at the beginning of their comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public review in their entirety.
If you wish to speak at the public hearing, contact the person listed under
To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at a public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been given an opportunity to be heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after everyone scheduled to speak and others present in the audience who wish to speak, have been heard.
If only one person requests an opportunity to speak, we may hold a public meeting rather than a public hearing. If you wish to meet with us to discuss the submission, please request a meeting by contacting the person listed under
This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulations.
This rule is exempted from review by the Office of Management and Budget (OMB) under Executive Order 12866.
The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that, to the extent allowable by law, this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments since each such program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR parts 730, 731, and 732 have been met.
This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA. Section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.
In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally-recognized Indian tribes and have determined that the rule does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. The basis for this determination is that our decision is on a State regulatory program and does not involve a Federal program involving Indian Tribes.
On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) Considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.
This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute a major Federal action within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4321
This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507
The Department of the Interior certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) Will not cause a major increase in costs or prices for consumers, individual industries, geographic regions, or Federal, State or local governmental agencies; and (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S. based enterprises to compete with foreign-based enterprises. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.
This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector
Intergovernmental relations, Surface mining, Underground mining.
Department of Defense.
Proposed rule.
The Department of Defense is proposing to update current policies and procedures to reflect the DoD FOIA Program as prescribed by Executive Order 13392. The proposed changes will ensure appropriate agency disclosure of information, and offer consistency with the with the goals of section 552 of title 5, United States Code.
Comment must be received on or before August 14, 2007. Do not submit comments directly to the point of contact or mail your comments to any address other than what is shown below. Doing so will delay the posting of the submission.
You may submit comments, identified by docket number and or RIN number and title, by any of the following methods:
•
•
Mr. James Hogan (703) 696-4699.
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.
It has been certified that this rule does not:
(1) Place a restriction on a use of private property;
(2) Involve a permitting process or any other decision-making process that will interfere with, or otherwise prohibit, the use of private property; or
(3) Regulate private property use for the protection of public health or safety.
It has been certified that this rule does not:
(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy; a section of the economy; productivity; competition; jobs; the environment; public health or safety; or State, local, or tribunal 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 this Executive Order.
It has been certified that this rule does not present any environmental health or safety effects on children.
It has been certified that this rule does not contain a Federal mandate that may result in the expenditure by State, local and tribunal governments, in aggregate, or by the private sector, of $100 million or more in any one year.
It has been certified that this rule does not significantly affect the quality of the human environment.
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.
It has been certified that this rule does not impose reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995. The reporting and recordkeeping requirements have been submitted to OMB for review.
Freedom of information.
Accordingly, 32 CFR part 285 is proposed to be revised to read as follows.
5 U.S.C. 552.
This part:
(a) Update policies and responsibilities for implementing the DoD FOIA Program in accordance with 5 U.S.C. 552 (commonly known as the “FOIA”).
(b) Continues to authorize 32 CFR part 286 to implement the FOIA Program.
(c) Implements E.O. 13392 within the Department of Defense.
(d) Continues to delegate authorities and responsibilities for the effective administration of the FOIA Program consistent with DoD Directive 5105.53.
This part applies to:
(a) The Office of the Secretary of Defense (OSD), the Military Departments, the Chairman of the Joint Chiefs of Staff, the Combatant Commands, the Office of the Inspector General of the Department of Defense, the Defense Agencies, the DoD Field Activities, and all other organizational entities in the Department of Defense (hereafter referred to collectively as the “DoD Components”).
(b) National Security Agency/Central Security Service records, unless the records are exempt according to 50 U.S.C. 402.
(c) Defense Intelligence Agency, National Reconnaissance Office, and National Geospatial-Intelligence Agency records, unless the records are exempt according to 50 U.S.C. 403-5e, 10 U.S.C. 424 and 455, or other applicable law.
It is DoD policy to:
(a) Promote public trust by making the maximum amount of information available to the public, in both hard copy and electronic formats, on the operation and activities of the Department of Defense, consistent with the DoD responsibility to protect national security and other sensitive DoD information.
(b) Allow a requester to obtain records from the Department of Defense that are available through other public information services without invoking the FOIA.
(c) Make available, according to the procedures established by 5 U.S.C. 552, DoD records requested by a member of the public who explicitly or implicitly cites the FOIA.
(d) Answer promptly all other requests for DoD information and records under established procedures and practices.
(e) Release DoD records to the public unless those records are exempt from disclosure as outlined in 5 U.S.C. 552.
(f) Process requests by individuals for access to records themselves contained in a Privacy Act system of records according to the procedures set forth in 32 CFR part 310 and this part, as amplified by 32 CFR part 286.
(g) Provide FOIA requesters with citizen-centered ways to learn about the FOIA process, about DoD records that are publicly available, and about the status of a FOIA request and appropriate information about the DoD response.
(a) The Director, Administration and Management (DA&M), shall:
(1) Serve as the DoD Chief FOIA Officer in accordance with E.O. 13392.
(2) Direct and oversee the DoD FOIA Program to ensure compliance with the policies and procedures that govern administration of the program.
(3) Designate the FOIA Public Liaisons for the Department of Defense in accordance with E.O. 13392. The FOIA Public Liaison for OSD, the Chairman of the Joint Chiefs of Staff, and the Combatant Commands shall be appointed from the Defense Freedom of Information Policy Office (DFOIPO).
(4) Prepare and submit to the Attorney General the DoD Annual Freedom of Information Act Report as required by 5 U.S.C., and other reports as required by E.O. 13392.
(5) Serve as the appellate authority for appeals to the decisions of the respective Initial Denial Authorities within OSD, the Chairman of the Joint Chiefs of Staff, the DoD Field Activities (listed in 32 CFR part 286), and the Combatant Commands. The DA&M or Washington Headquarters Services (WHS) staff.
(6) Prepare and maintain a DoD issuance and other discretionary information to ensure timely and reasonably uniform implementation of the FOIA in the Department of Defense.
(b) The Director, WHS, under the authority, direction, and control of the DA&M, shall administer the FOIA Program, inclusive of training, for OSD and the Chairman of the Joint Chiefs of Staff.
(c) The General Counsel of the Department of Defense shall:
(1) Provide uniformity in the legal interpretation of this part.
(2) Ensure affected OSD legal advisors, public affairs officers, and legislative affairs officers are aware of releases through litigation channels that may be of significant public, media, or Congressional interest, or of interest to senior DoD officials.
(3) Establish procedures to centralize processing of FOIA litigation documents when deemed necessary.
(d) The Under Secretary of Defense for Intelligence shall establish uniform procedures regarding the declassification of national security information made pursuant to requests invoking the FOIA.
(e) The Heads of the DoD Components shall:
(1) Internally administer the DoD FOIA Program; publish any instructions necessary for the administration of this part within their Components that are not prescribed by this part or by other DA&M issuances in the
(2) Serve as, or appoint another Component official as, the FOIA appellate authority for the Component.
(3) Establish one or more FOIA Requester Service Centers as prescribed by E.O. 13392.
(4) Submit names of personnel to the DA&M for designation as FOIA Public Liaisons.
(5) Ensure their respective chains of command, affected legal advisors, public affairs officers, and legislative affairs officers are aware of releases through the FOIA, inclusive of releases through litigation channels, that may be of significant public, media, or Congressional interest, or of interest to senior DoD officials.
(6) Conduct training on the provisions of this part, 5 U.S.C. 552, and 32 CFR part 286 for officials and employees who implement the FOIA.
(7) Submit to DFOIPO inputs to the DoD FOIA Annual Report prescribed in 32 CFR part 286 and E.O. 13392.
(8) Make records specified in 5 U.S.C. 552(a)(2), unless such records are published and copies are offered for sale, available for public inspection and copying in an appropriate facility or facilities, according to rules published in the
(9) Maintain and make current indices of all records available for public inspection and copying, a required by 5 U.S.C. 552(a)(2).
The reporting requirements of 32 CFR part 286 have been assigned Report Control Symbol D-DA&M(A)1365 in accordance with DoD 8910.1-M.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes establishing a temporary safety zone on the Detroit River, Detroit, Michigan. This Zone is intended to restrict vessels
Comments and related material must reach the Coast Guard on or before July 2, 2007.
You may mail comments and related material to U.S. Coast Guard Sector Detroit, 110 Mt. Elliot Ave., Detroit, MI 48207. U.S. Coast Guard Sector Detroit maintains the public docket for this rulemaking. Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, will become part of this docket and will be available for inspection or copying at U.S. Coast Guard Sector Detroit, 110 Mt. Elliot Ave., Detroit, MI 48207 between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays.
LT Jeff Ahlgren, Waterways Management, U.S. Coast Guard Sector Detroit, 110 Mount Elliot Ave., Detroit, MI 48207; (313) 568-9580.
We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (CGD09-07-031), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8
We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to U.S. Coast Guard Sector Detroit at the address under
This temporary safety zone is necessary to ensure the safety of vessels and spectators from hazards associated with a fireworks display. Based on accidents that have occurred in other Captain of the Port zones and the explosive hazards of fireworks, the Captain of the Port Detroit has determined fireworks launches in close proximity to watercraft pose significant risk to public safety and property. The likely combination of large numbers of recreation vessels, congested waterways, darkness punctuated by bright flashes of light, alcohol use, and debris falling into the water could easily result in serious injuries or fatalities. Establishing a safety zone to control vessel movement around the location of the launch platform will help ensure the safety of persons and property at these events and help minimize the associated risks.
A temporary safety zone is necessary to ensure the safety of spectators and vessels during the setup, loading and launching of a fireworks display in conjunction with the Roostertail Fireworks display. The fireworks display will occur between 9 p.m. and 11 p.m. on July 21, 2007.
The safety zone for the July 21, 2007 fireworks will encompass all waters south and west of the Roostertail Restaurant on the North shore of the Detroit River within a 300 foot radius of the fireworks barge located at 42-21′16.67″ N; 082-58′20.41″ W. All geographic coordinates are North American Datum of 1983 (NAD 83).
All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port or the designated on-scene representative. Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Detroit or his designated on-scene representative. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16.
This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.
We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation is unnecessary.
This determination is based on the minimal time that vessels will be restricted from the zone and the zone is an area where the Coast Guard expects insignificant adverse impact to mariners from the zones' activation.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit or anchor in a portion of the Detroit River between Detroit and Belle Isle near the Roostertail Restaurant between 9 p.m. and 11 p.m. on July 21, 2007.
This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons. This rule will be in effect for only 2 hours. Vessel traffic can pass safely around the safety zone. In the event that this temporary safety zone affects shipping, commercial vessels may request permission from the Captain of the Port Detroit to transit through the safety zone. The Coast Guard will give notice to the public via a Broadcast Notice to Mariners that the regulation is in effect.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact LT Jeff Ahlgren, Waterways Management, U.S. Coast Guard Sector Detroit, 110 Mount Elliot Ave., Detroit, MI 48207; (313)-
This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this proposed rule would not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This proposed rule would not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
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 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 encouraged 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 and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is not likely to have a significant effect on the human environment. Draft documentation supporting this preliminary determination is available in the docket where indicated under
Harbors, Marine Safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:
1. The authority citation for part 165 continues to read as follows:
33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
2. Add § 165.T09-031 to read as follows:
(a)
(b)
(c)
(2) This safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port Detroit or his designated on-scene representative.
(3) The “designated on-scene representative” of the Captain of the Port is any Coast Guard commissioned, warrant, or petty officer who has been designated by the Captain of the Port to act on his behalf. The designated on-scene representative of the Captain of the Port will be aboard either a Coast Guard or Coast Guard Auxiliary vessel. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16.
(4) Vessel operators desiring to enter or operate within the safety zone shall contact the Captain of the Port Detroit or his designated on-scene representative to obtain permission to do so. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the Captain of the Port or his designated on-scene representative.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes establishing a temporary safety zone on the St. Clair River, Marine City, Michigan. This zone is intended to restrict vessels from portions of the St. Clair River during the Marine City Maritime Festival Fireworks Display. This temporary safety zone is necessary to protect spectators and vessels from the hazards associated with fireworks displays.
Comments and related material must reach the Coast Guard on or before July 16, 2007.
You may mail comments and related material to U.S. Coast Guard Sector Detroit, 110 Mt. Elliot Ave., Detroit, MI 48207. U.S. Coast Guard Sector Detroit maintains the public docket for this rulemaking. Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, will become part of this docket and will be available for inspection or copying at U.S. Coast Guard Sector Detroit, 110 Mt. Elliot Ave., Detroit, MI 48207 between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays.
LT Jeff Ahlgren, Waterways Management, U.S. Coast Guard Sector Detroit, 110 Mt. Elliot Ave., Detroit, MI 48207; (313) 568-9580.
We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (CGD09-06-016), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8
We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to U.S. Coast Guard Sector Detroit at the address under
This temporary safety zone is necessary to ensure the safety of vessels and spectators from hazards associated with a fireworks display. Based on accidents that have occurred in other Captain of the Port zones and the explosive hazards of fireworks, the Captain of the Port Detroit has determined fireworks launches in close proximity to watercraft pose significant risk to public safety and property. The likely combination of large numbers of recreation vessels, congested waterways, darkness punctuated by bright flashes of light, alcohol use, and debris falling into the water could easily result in serious injuries or fatalities. Establishing a safety zone to control vessel movement around the location of the launch platform will help ensure the safety of persons and property at these events and help minimize the associated risks.
A temporary safety zone is necessary to ensure the safety of spectators and vessels during the setup, loading and launching of a fireworks display in conjunction with the Marine City Maritime Festival Fireworks display. The fireworks display will occur between 9:30 p.m. (local) and 11:30 p.m. (local), September 22, 2007. If this event does not take place at the scheduled time and date due to adverse weather, the fireworks display will occur between 9:30 p.m. (local) and 11:30 p.m., September 23, 2007.
The safety zone for the fireworks will encompass all waters of the St. Clair River enclosed by a line connecting the following points: 42-42-51.5N/082-29-13.97W; 42-43-07.55N/082-29-08.12W; 42-43-04.93N/082-28-54.11W; 42-42-48.58N/082-29-00.81W. This safety zone is located in the St. Clair River, east of the lighthouse in Marine City, MI, near the center of the river. All geographic coordinates are North American Datum of 1983 (NAD 83).
All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port or the designated on-scene representative. Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Detroit or his designated on-scene representative. The Captain of the Port or his on-scene representative may be contacted via VHF Channel 16.
This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.
We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation is unnecessary.
This determination is based on the minimal time that vessels will be restricted from the zone and the zone is an area where the Coast Guard expects insignificant adverse impact to mariners from the zones' activation.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have
The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit or anchor in a portion of the St. Clair River from 9:30 p.m. (local) to 11:30 p.m. (local) on September 22, 2007. If this event does not take place at the scheduled time and date due to adverse weather, this rule will affect the owners or operators of vessels intending to transit or anchor in a portion of the St. Clair River from 9:30 p.m. (local) to 11:30 p.m. (local) on September 23, 2007.
This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons. This rule will be in effect for only 2 hours. Vessel traffic can pass safely around the safety zone. In the event that this temporary safety zone affects shipping, commercial vessels may request permission from the Captain of the Port Detroit to transit through the safety zone. The Coast Guard will give notice to the public via a Broadcast Notice to Mariners that the regulation is in effect.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact LT Jeff Ahlgren, Waterways Management, U.S. Coast Guard Sector Detroit, 110 Mount Elliot Ave., Detroit, MI 48207; (313) 568-9580. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This proposed rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
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 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 encouraged 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 and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is not likely to have a significant effect on the human environment. Draft documentation supporting this preliminary determination is available in the docket where indicated under
Harbors, Marine Safety, Navigation (water), Reporting and record keeping 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, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
2. Add § 165.T09-016 to read as follows:
(a)
(b)
(c)
(2) This safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port Detroit or his designated on-scene representative.
(3) The “designated on-scene representative” of the Captain of the Port is any Coast Guard commissioned, warrant, or petty officer who has been designated by the Captain of the Port to act on his behalf. The designated on-scene representative of the Captain of the Port will be aboard either a Coast Guard or Coast Guard Auxiliary vessel. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16.
(4) Vessel operators desiring to enter or operate within the safety zone shall contact the Captain of the Port Detroit or his designated on-scene representative to obtain permission to do so. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the Captain of the Port or his designated on-scene representative.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard is proposing to establish a permanent safety zone for the annual River Rampage Offshore Power Boat Races on the St. Mary's River. This safety zone is necessary to ensure the safety of spectators and vessels from the hazards associated with high speed vessels. This safety zone is intended to restrict recreational vessel traffic from a portion of the St. Mary's River during the last week of July.
Comments and related materials must reach the Coast Guard on or before July 16, 2007.
You may mail comments and related material to Coast Guard Sector Sault Ste. Marie, 337 Water Street, Sault Ste. Marie, MI 49783. Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, will become part of this docket and will be available for inspection or copying at Coast Guard Sector Sault Ste. Marie between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays.
If you have further questions on this rule, contact Commander Reed Stephenson, U.S. Coast Guard Sector Sault Ste. Marie, at (906) 635-3220.
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 [CGD09-07-017], indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8
We do not now plan to hold a public meeting. But you may submit a request for a public meeting (see
This permanent safety zone is necessary to ensure the safety of waterways users and the event participants from hazards associated with waterways racing. Based on accidents that have occurred in other Captain of the Port zones, and the high-speed hazards of racing, The Captain of the Port Sault Ste. Marie has determined boat racing in close proximity to other watercraft poses significant risk to public safety and property. The likely combination of large numbers of recreation vessels, congested waterways, and high speed craft could easily result in serious injuries or fatalities. Establishing a safety zone to control
The safety zone is established on the St. Mary's River, adjacent to Sault Ste. Marie, MI. The safety zone will encompass all waters of the St. Mary's River within the following coordinates: 46°29′48″ N, 084°18′75″ W, then northeast to 46°29′69″ N, 084°18′24″ W, then southeast to 46°29′32″ N, 084°17′87″ W, then southwest to 46°29′19″ N, 084°18′11″ W. This includes all waters encompassed between two lines, one line running northeast from Welch's Dock for 1,000 yards and one line running northeast from the Sault Ste. Marie Sugar Island Ferry Dock for 500 yards. This safety zone will be enforced the last weekend in July with the following Monday as a rain date from sunrise to termination of the event. All geographic coordinates are North American Datum of 1983 (NAD 83).
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. 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 is unnecessary. This determination is based on the short amount of time that vessels will be restricted from the zones, and the actual location of the safety zones within the waterways.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. 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 (see
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 this proposed 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 would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This proposed rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
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 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
We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.
This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this proposed rule under Commandant Instruction M16475.lD and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is not likely to have a significant effect on the human environment. Draft documentation supporting this preliminary determination is available in the docket where indicated under
Harbors, Marine Safety, Navigation (water), Reporting and record keeping 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, 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 § 165.937 to read as follows:
(a)
(b)
(c)
(2) All persons and vessels must comply with the instructions of the Coast Guard Captain of the Port or the designated on scene patrol personnel. Coast Guard patrol personnel include commissioned, warrant, and petty officers of the U.S. Coast Guard. Upon being hailed by a U.S. Coast Guard vessel via siren, radio, flashing light or other means, the operator shall proceed as directed.
(3) Recreational vessels may request permission from the Captain of the Port Sault Ste. Marie to transit the safety zone. Approval will be made on a case-by-case basis. Requests must be made in advance and approved by the Captain of the Port before transits will be authorized. The Captain of the Port may be contacted via U.S. Coast Guard Sector Sault Ste. Marie on Channel 16, VHF-FM.
(4) Marine Event Permits (CG-4423) will still need to be sent to U. S. Coast Guard Sector Sault Ste. Marie, MI.
(c)
Fish and Wildlife Service, Interior.
Advance notice of proposed rulemaking; notice of intent to prepare an environmental assessment; request for comments and information.
The U.S. Fish and Wildlife Service is considering amending its migratory bird regulations to allow Native Americans to acquire parts and feathers from birds other than eagles for religious or spiritual use. No current regulations govern the acquisition and possession of migratory bird parts and feathers of birds other than eagles for Native American religious or spiritual use. We have a compelling interest in protecting the traditional religious and spiritual resource values of Native Americans as part of our trust relationship with federally recognized Native American tribes. We recognize the need to balance this compelling reason against the equally compelling basis for the Migratory Bird Treaty Act. We seek information necessary to prepare an environmental assessment under the National Environmental Policy Act and its implementing regulations for a possible proposed rule.
To ensure consideration, we must receive your written comments and suggestions on or before August 14, 2007.
1.
2.
3. Submit comments via
4.
Andrea Kirk, Permits Administrator, Migratory Birds—Region 3, U.S. Fish and Wildlife Service, 1 Federal Drive, Fort Snelling, MN 55111.
We, the U.S. Fish and Wildlife Service (Service), are the Federal agency with the primary responsibility for managing migratory birds. Our authority is based on the Migratory Bird Treaty Act (MBTA) (16 U.S.C. 703
The MBTA contains no express provisions regarding the religious/spiritual use of migratory bird feathers. However, we recognize the significance of the parts and feathers to Native American religious/spiritual practices under the American Indian Religious Freedom Act (42 U.S.C. 1996; AIRFA), a policy statement issued by Secretary of the Interior C.B. Morton in 1975, and our 1994 Native American Policy. The American Indian Religious Freedom Act (AIRFA), passed in 1978, clarifies U.S. policy pertaining to the protection of Native American religious freedom. AIRFA acknowledges prior infringement on the right of freedom of religion for Native Americans and clearly states that laws passed for other purposes are not meant to restrict the rights of Native Americans. The Morton policy statement provides Native Americans protection from Federal prosecution, harassment, or other interference for their possession, transport, use, donation, exchange, or loan of the feathers of federally protected species without compensation. The Morton policy statement also protects Native Americans who wish to possess bird parts and/or feathers to be worked on by tribal craftsmen for eventual use in religious/spiritual activities and allows the transfer of parts and/or feathers to tribal craftsmen without charge.
Our 1994 Native American Policy states that we must expedite processing and distribution of animal parts to Native Americans. Between 1990 and 2000, our National Eagle Repository distributed eagle parts and feathers to enrolled tribal members. Regulations governing permits for use of eagle parts and feathers are in 50 CFR Part 22. The Repository also distributed migratory bird parts and feathers from birds other than eagles to enrolled tribes. We conducted this distribution on an ad-hoc basis under the authority of 50 CFR 21.27, Special Purpose Permits, with no criteria or conditions specific to Native American religious or spiritual use. In 1999, we temporarily suspended distribution of non-eagle feathers, due to administrative resource constraints. We now intend to prepare an environmental assessment for a possible proposed regulation for the legal acquisition by Native Americans of non-eagle feathers for religious/spiritual use.
We intend to prepare an assessment in order to analyze the potential impacts of various alternatives for establishing a legal mechanism for the acquisition of non-eagle feathers by Native Americans for religious/spiritual purposes. We will assess potential impacts on the natural and human environment that may result from different alternatives for legalizing the acquisition of these feathers, including impacts to Native American culture and religion. We particularly solicit comments on the following topics (most of these are discussed further following the list):
(1) The source(s) of the parts and feathers that we would make available;
(2) What criteria or conditions we should establish for individuals to be eligible to receive the migratory bird parts and feathers;
(3) How different means of legal acquisition may affect Native American tribes;
(4) How Native American tribes could be affected if we extend such authorization to other persons in addition to enrolled members of federally recognized Native American tribes;
(5) The extent of Native American demand for the parts and feathers;
(6) Whether the types of feathers being requested should be limited to those historically significant to the tribe acquiring them;
(7) Which species of migratory birds are most valuable for Native American religious/spiritual purposes;
(8) Potential impacts to migratory bird populations and other wildlife; and
(9) Other concerns the public may have related to this initiative.
Further discussion of selected items from above list follows:
(1)
(2)
(3)
(4)
(5)
The authorities for this notice are the Migratory Bird Treaty Act of 1918, as amended (16 U.S.C. 703-712), and the Bald and Golden Eagle Protection Act (16 U.S.C. 668a).
Farm Service Agency, USDA.
Notice requesting nominations.
The Secretary of Agriculture is renewing the charter of the Advisory Committee on Beginning Farmers and Ranchers (Committee). The Committee provides advice to the Secretary on ways to encourage Federal and State beginning farmer programs to provide joint financing to beginning farmers and ranchers and other methods of creating new farming and ranching opportunities. This notice invites nominations for persons to serve on the Committee.
We will consider nominations we receive by July 16, 2007.
We invite you to submit nominations for Committee members. You may submit nominations to: Mark Falcone, Designated Federal Official (DFO) for the Advisory Committee on Beginning Farmers and Ranchers, Farm Service Agency, U.S. Department of Agriculture, 1400 Independence Avenue, SW., STOP 0522, Washington, DC 20250-0522; telephone (202) 720-1632; Fax (202) 690-1117; or e-mail
Mark Falcone at (202) 720-1632.
As required by Section 5 of the Agricultural Credit Improvement Act of 1992 (Pub. L, 102-554), the Secretary of Agriculture established the Committee to advise the Secretary on: (1) Development of a program of coordinated financial assistance to qualified beginning farmers and ranchers under section 309(i) of the Consolidated Farm and Rural Development Act (Federal and State beginning farmer programs provide joint financing to beginning farmers and ranchers), (2) methods of maximizing the number of new farming and ranching opportunities created through the program, (3) methods of encouraging States to participate in the program, (4) administration of the program, and (5) other methods of creating new farming or ranching opportunities.
The law requires that members of the Committee be representatives from the following groups: (1) The Farm Service Agency (FSA); (2) State beginning farmer programs (as defined in section 309(i)(5) of the Consolidated Farm and Rural Development Act); (3) commercial lenders; (4) private nonprofit organizations with active beginning farmer or rancher programs; (5) the Cooperative State Research, Education, and Extension Service; (6) community colleges or other educational institutions with demonstrated experience in training beginning farmers or ranchers; and (7) other entities or persons providing lending or technical assistance to qualified beginning farmers or ranchers. The Secretary has also appointed farmers and ranchers to the Committee.
USDA Departmental Regulation 1042-119, dated November 25, 1998, first established the Committee and designated FSA to provide support. One-half of the Committee membership was replaced when the Committee charter was last renewed on November 16, 2005. Approximately one-third of the 20 existing members will be replaced when the charter is renewed in November 2007. We are now accepting nominations of individuals to serve for a 2-year term on the Committee. Reappointments are made to assure effectiveness and continuity of operations. The duration of the Committee is indefinite. No member, other than a USDA employee, can serve for more than 6 consecutive years. As a result, there will be a vacancy in at least three groups: Commercial lenders, other entities or persons, and farmers and ranchers. Appointments and reappointments to the Committee will be made in the fall of 2007 and all nominees will be notified in writing at that time.
The Committee meets at least once a year and all meetings are open to the public. Committee meetings provide an opportunity for members to exchange ideas and provide advice on ways to increase opportunities for beginning farmers and ranchers. Members discuss various issues and draft recommendations, which are submitted to the Secretary in writing.
Nominations are being sought through the media, this
Appointments to the Committee will be made by the Secretary of Agriculture. Equal opportunity practices, consistent with USDA policies, will be followed in making all appointments to the Committee. To ensure that the recommendations of the Committee have taken into account the needs of the diverse groups served by the Department, membership should include, to the extent practicable, individuals with demonstrated ability to represent minorities, women, persons with disabilities, and senior citizens.
Farm Service Agency, USDA.
Notice of public meetings.
We are issuing this notice to advise the public that meetings of the Advisory Committee on Beginning Farmers and Ranchers (Committee) will be held to discuss various beginning farmer issues.
The public meetings will be held July 9-10, 2007. The first meeting, on July 9, 2007, will start at 8 a.m. and end by 5:30 p.m. The second meeting, on July 10, 2007, will begin at 8 a.m. and end by 6 p.m. All times noted are Central Standard Time (CST). See Supplementary Information for oral presentation submission date.
All meetings will be held at the Embassy Suites Des Moines-On the River, 101 East Locust Street, Des Moines, Iowa, (515) 244-1700. Written requests to make oral presentations must be sent to: Mark Falcone, Designated Federal Official for the Advisory Committee on Beginning Farmers and Ranchers, Farm Service Agency, U.S. Department of Agriculture (USDA), 1400 Independence Avenue, SW., STOP 0522, Washington, DC 20250-0522; telephone (202) 720-1632; FAX (202) 690-1117; e-mail:
Mark Falcone at (202) 720-1632.
Section 5 of the Agricultural Credit Improvement Act of 1992 (Pub. L. 102-554) required the Secretary of Agriculture (the Secretary) to establish the Committee for the purpose of advising the Secretary on the following:
(1) The development of a program of coordinated financial assistance to qualified beginning farmers and ranchers required by section 309(i) of the Consolidated Farm and Rural Development Act (7 U.S.C. 1929). Under the program, Federal and State beginning farmer programs provide financial assistance to beginning farmers and ranchers;
(2) Methods of maximizing the number of new farming and ranching opportunities created through the program;
(3) Methods of encouraging States to participate in the program;
(4) The administration of the program; and
(5) Other methods of creating new farming or ranching opportunities.
The Committee meets annually and all meetings are open to the public. The duration of the Committee is indefinite. Earlier meetings of the Committee, beginning in 1999, provided an opportunity for members to exchange ideas on ways to increase opportunities for beginning farmers and ranchers. Members discussed various issues and drafted numerous recommendations, which were provided to the Secretary.
Agenda items for the July 2007 meetings include:
(1) Discussions concerning provisions of the 2007 Farm Bill legislative proposals to assist beginning farmers and ranchers;
(2) A young farmer panel discussion;
(3) Comments from the Director of Iowa's Beginning Farmer Center;
(4) Status of previous committee recommendations.
Attendance is open to all interested persons but limited to space available. Anyone wishing to make an oral presentation should submit a request in writing (letter, fax, or e-mail) to Mark Falcone at the above address. Statements should be received no later than July 5, 2007. Requests should include the name and affiliation of the individual who will make the presentation and an outline of the issues to be addressed. The floor will be open to oral presentations beginning at 1:15 p.m. CST on July 9, 2007.
Comments will be limited to 5 minutes, and presenters will be approved on a first-come, first-served basis.
Persons with disabilities who require special accommodations to attend or participate in the meetings should contact Mark Falcone by July 5, 2007.
Food Safety and Inspection Service, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995 and the Office of Management and Budget (OMB) regulations, the Food Safety and Inspection Service (FSIS) is announcing its intention to request a revision of an approved information collection concerning the regulatory requirements relating to specified risk materials in cattle to reflect the most recent plant data, which support a finding of more total burden hours.
Comments on this notice must be received on or before August 14, 2007.
FSIS invites interested persons to submit comments on this notice. Comments may be submitted by any of the following methods:
• Mail, including floppy disks or CD-ROM's, and hand- or courier-delivered items: Send to Docket Clerk, U.S. Department of Agriculture, Food Safety and Inspection Service, 300 12th Street, SW., Room 102 Cotton Annex, Washington, DC 20250.
• Electronic mail:
• Federal eRulemaking Portal: This Web site provides the ability to type short comments directly into the comment field on this Web page or attach a file for lengthier comments. Go to
All submissions received by mail or electronic mail must include the Agency name and docket number. All comments submitted in response to this document, as well as research and background information used by FSIS in developing this document, will be available for public inspection in the FSIS Docket Room at the address listed above between 8:30 a.m. and 4:30 p.m., Monday through Friday, except Federal holidays. Comments will also be posted on the Agency's Web site at
FSIS is requesting revision of an approved information collection addressing paperwork requirements specified in the regulations relating to specified risk materials (SRMs) in cattle.
FSIS requires that official establishments that slaughter cattle or process carcasses or parts of cattle develop written procedures for the removal, segregation, and disposition of specified risk materials. The Agency also requires that these establishments maintain daily records to document the implementation and monitoring of their procedures for the removal, segregation, and disposition of SRMs, and any corrective actions that they take, to ensure that the procedures are effective (9 CFR 310.22).
The Agency is revising the SRM information collection based on the most recent plant data, which support a finding of more total burden hours than there are in the approved information collection.
FSIS has made the following estimates based upon an information collection assessment:
Copies of this information collection assessment can be obtained from John O'Connell, Paperwork Reduction Act Coordinator, Food Safety and Inspection Service, USDA, 300 12th Street, SW., Room 112, Washington, DC 20250-3700, (202) 720-5627,(202) 720-0345.
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.
Public awareness of all segments of rulemaking and policy development is important. Consequently, in an effort to ensure that the public and in particular minorities, women, and persons with disabilities, are aware of this notice, FSIS will announce it on-line through the FSIS web page located at
FSIS also will make copies of this
In addition, FSIS offers an e-mail subscription service which provides automatic and customized access to selected food safety news and information. This service is available at
Food Safety and Inspection Service, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995 and the Office of Management and Budget (OMB) regulations, the Food Safety and Inspection Service (FSIS) is announcing its intention to request a revision of an approved information collection regarding the regulatory requirements associated with the production of meat from Advanced Meat Recovery systems to reflect its most recent plant data, which support a finding of fewer total burden hours.
Comments on this notice must be received on or before August 14, 2007.
FSIS invites interested persons to submit comments on this notice. Comments may be submitted by any of the following methods:
• Mail, including floppy disks or CD-ROM's, and hand-or courier-delivered items: Send to Docket Clerk, U.S. Department of Agriculture, Food Safety and Inspection Service, 300 12th Street, SW., Room 102 Cotton Annex, Washington, DC 20250.
• Electronic mail:
• Federal eRulemaking Portal: This Web site provides the ability to type short comments directly into the comment field on this Web page or attach a file for lengthier comments. Go to
All submissions received by mail or electronic mail must include the Agency name and docket number. All comments submitted in response to this document,
John O'Connell, Paperwork Reduction Act Coordinator, Food Safety and Inspection Service, USDA, 300 12th Street, SW., Room 112, Washington, DC 20250-3700, (202) 720-0345.
FSIS is requesting revision of an approved information collection addressing paperwork and recordkeeping requirements regarding the regulatory requirements associated with the production of meat from Advanced Meat Recovery (AMR) systems. The Agency is revising the AMR information collection based on its most recent plant data, which support a finding of fewer total burden hours than there are in the approved information collection.
FSIS requires that official establishments that produce meat from AMR systems (1) ensure that the bones used for the systems do not contain brain, trigeminal ganglia, or spinal cord and are from animals younger than 30 months of age; (2) test for calcium, iron, spinal cord, and dorsal root ganglia (DRG); (3) document their testing protocols; (4) handle product in a manner that does not cause product to be misbranded or adulterated; and (5) maintain records of their documentation and of their test results (9 CFR 318.24).
FSIS has made the following estimates based upon an information collection assessment:
Copies of this information collection assessment can be obtained from John O'Connell, Paperwork Reduction Act Coordinator, Food Safety and Inspection Service, USDA, 300 12th Street, SW., Room 112, Washington, DC 20250-3700, (202) 720-5627, (202)720-0345.
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.
Public awareness of all segments of rulemaking and policy development is important. Consequently, in an effort to ensure that the public and in particular minorities, women, and persons with disabilities, are aware of this notice, FSIS will announce it on-line through the FSIS web page located at
FSIS also will make copies of this
In addition, FSIS offers an e-mail subscription service which provides automatic and customized access to selected food safety news and information. This service is available at
Forest Service, USDA.
Withdrawal of an environmental impact statement.
On August 20, 2004, the
Karen Lessard, District Ranger, Mountainair Ranger District, Cibola National Forest, P.O. Box 69, Mountainair, NM 87036-0069, Phone (505) 847-2290, Fax (505) 847-2238.
Forest Service, USDA.
Notice of intent to prepare an environmental impact statement.
The US Forest Service (FS) will prepare an environmental impact statement (EIS) on a proposed action that implements certain aspects of the Pueblo de San Ildefonso Claims Settlement Act of 2005 (Pub. L. 109-186). Portions of the Act considered in this analysis include mandated transfer of certain National Forest System lands to the Pueblo de San Ildefonso (about 7,058 acres), the Pueblo of Santa Clara (about 740 acres), and Los Alamos County (about 631 acres). Lands would be conveyed in exchange for an appraised monetary value. The legislation also requires the Forest Service to offer for purchase six parcels of National Forest System lands to Los Alamos County near the community (totaling about 324 acres), and to reconstruct Forest Road (FR) 416v to a high-clearance, Level 2 standard. Although these proposed actions have been mandated by the Act, the Santa Fe National Forest will conduct a National Environmental Policy Act environmental analysis to disclose the impacts of these actions, and to fully describe any discretionary actions that may also be included as part of the land transfers called for in the Act. However, under the Act, discretion is limited. A map of the area is located at the following Forest Service Web site:
Comments concerning the project must be received by July 10, 2007. The draft environmental impact statement is expected in September 2007 and the final environmental impact statement is expected in November 2007.
Send written comments to Sandy Hurlocker, District Ranger, US Forest Service, Espan
Sandy Hurlocker, District Ranger, Espan
The Act provides that the Settlement Area Land and the Northern Tier Lands shall be held by the Secretary of the Interior in trust for the benefit of each Pueblo. Lands acquired by Los Alamos County as Water System Lands become San Ildefonso Pueblo tribal lands if they were no longer needed for Los Alamos County's water facilities. Most of the Los Alamos Townsite lands are currently used for Los Alamos County water facilities, including Los Alamos Reservoir and dam, as well as water tanks. Except for the restrictions and reservations identified above, the Secretary of Agriculture does not propose to place any restrictions on future use of the Townsite lands, Settlement Area lands, Water System lands, or Northern Tier lands.
The Act also calls for reservation of a number of road easements to assure public access to lands that would otherwise be inaccessible to motorized vehicles once the conveyance takes place. For most of these reservations, existing roads provide adequate access and so only an administrative action is expected. However, as part of the Los Alamos Agreement, road improvement work must be completed to improve public access to the National Forest System lands adjoining the Settlement Area Lands prior to conveyance. The Act allows for reconstruction of FR 416v to a high clearance, Level 2 to provide this access.
Even though the Act requires these actions and so discretion is limited, the Santa Fe National Forest will study and disclose in an environmental impact statement the effects of the actions described in the Act that relate to the Secretary of Agriculture's authority to transfer lands and reconstruct Road 416v. Other actions to be undertaken by the Department of Interior, the Pueblo de San Ildefonso, or Los Alamos have not been included in the scope of this proposal because they can be accomplished separately. A map of the area is located at the following Forest Service Web site:
The Santa Fe National Forest proposes the following:
• Convey the Settlement Area lands to the Pueblo de San Ildefonso (approximately 7,058 acres) located in: Township 20 north, Range 7 east, sections 19, 20, 21, 28, 29, 30, 31, 32, 33; and Township 19 north, Range 7 east, sections 4, 5, 6, 7, 8, 9; New Mexico Principal Meridian.
• Convey the Water System lands to Los Alamos County (approximately 631 acres) located in Township 20 north, Range 7 east, section 31; Township 19 north, Range 7 east, sections 4, 5, 6, 7, 8, 9; Township 19 north, Range 6 east, section 1; New Mexico Principal Meridian.
• Convey the Northern Tier Lands to the Pueblo of Santa Clara (approximately 740 acres) located in Township 20 north, Range 7 east, sections 17, 18; New Mexico Principal Meridian.
• Offer the conveyance the Los Alamos Townsite lands to Los Alamos County. These six parcels total approximately 324 acres of National
• Reconstruct FR 416v to a high clearance, Level 2, standard, following the existing route as much as practical. Reconstruction will require grading, culvert placement, and possibly relocation of short segments.
• Ancillary actions that may be implemented along with the land transfers and road reconstruction. Examples include fence construction along boundary lines and road closures where roads no longer serve a purpose to the management of National Forests.
This notice of intent initiates the scoping process that guides the development of the environmental impact statement. The Forest Service invites written comments and suggestions on the proposed action, including any issues to consider, as well as any concerns relevant to the analysis.
Early Notice of Importance of Public Participation in Subsequent Environmental Review: A draft environmental impact statement will be prepared for comment. The comment period on the draft environmental impact statement will be 45 days from the date the Environmental Protection Agency publishes the notice of availability in the
The Forest Service believes, at this early stage, it is important to give reviewers notice of several court rulings related to public participation in the environmental review process. First, reviewers of draft environmental impact statements must structure their participation in the environmental review of the proposal so that it is meaningful and alerts an agency to the reviewer's position and contentions.
Forest Service, USDA.
Notice of intent to prepare an environmental impact statement.
The Sequoia National Forest will prepare an environmental impact statement (EIS) to disclose the impacts associated with the following proposed actions:
1. The addition of approximately 71 miles of existing unauthorized routes to the National Forest System (NFS) of motorized trails, open to wheeled motorized vehicle use by the public.
2. The addition of approximately 0.9 miles of existing unauthorized routes to NFS roads, open to all wheeled motorized vehicle use by the public.
3. The change of approximately 21.8 miles of existing NFS roads, currently closed to public wheeled motorized vehicle use, to NFS motorized trails, open to wheeled motorized vehicle use by the public.
4. The change of approximately 8.4 miles of existing NFS roads, currently open to public wheeled motorized vehicle use, to NFS motorized trails, open to all wheeled motorized vehicle use by the public.
5. The change of approximately 23.2 miles of existing NFS roads, currently closed to public wheeled motorized vehicle use, to NFS roads, open to all wheeled motorized vehicle use by the public.
6. The change of approximately 19.5 miles of existing NFS roads, currently open to wheeled motorized vehicle use by the public, to closed NFS roads.
7. The change of approximately 12.4 miles of existing NFS roads, currently open to public use by highway legal vehicles only, to NFS roads, open to all
8. The change of approximately 0.5 miles of existing NFS road, currently open to highway legal vehicles only, to NFS motorized trail, open to wheeled motorized vehicle use by the public.
9. The continuation of wheeled motorized vehicle use by the public on the NFS trail north of Dry Meadow and amendment of the Sequoia National Forest Land and Resource Management Plan to change approximately 5,500 acres of semi-primitive non-motorized (SPNM) to semi-primitive motorized (SPM), to conform with motorized vehicle use of the trail.
10. The prohibition of wheeled motorized vehicle travel off of designated NFS roads, NFS trails, and areas by the public, except as allowed by permit or other authorization.
The comment period on the proposed action will extend 30 days from the date the notice of intent is published in the
Send written comments to: Chris Sanders, Travel Management, Sequoia National Forest, 1839 South Newcomb Street, Porterville, CA 93257. The phone number is (559) 784-1500.
Chris Sanders at the address listed above.
Over the past few decades, the availability and capability of motorized vehicles, particularly off-highway vehicles (OHVs) and sport utility vehicles (SUVs) has increased tremendously. Nationally, the number of OHV users has climbed sevenfold in the past 30 years, from approximately 5 million in 1972 to 36 million in 2000. California is experiencing the highest level of OHV use of any state in the nation. There were 786,914 ATVs and OHV motorcycles registered in 2004, up 330% since 1980. Annual sales of ATVs and OHV motorcycles in California were the highest in the U.S. for the last 5 years. Four-wheel drive vehicle sales in California increased by 1500% to 3,046,866 from 1989 to 2002.
Unmanaged OHV use has resulted in unplanned roads and trails, erosion, watershed and habitat degradation, and impacts to cultural resource sites. Compaction and erosion are the primary effects of OHV use on soils. Riparian areas and aquatic dependent species are particularly vulnerable to OHV use. Unmanaged recreation, including impacts from OHVs, is one of “Four Key Threats Facing the Nation's Forests and Grasslands” (USDA Forest Service, June 2004).
On August 11, 2003, the Pacific Southwest Region of the Forest Service entered into a Memorandum of Intent (MOI) with the California Off-Highway Motor Vehicle Recreation Commission and the Off-Highway Motor Vehicle Recreation Division of the California Department of Parks and Recreation. That MOI set in motion a regionwide effort to “Designate OHV roads, trails, and any specifically defined open areas for motorized wheeled vehicles on maps of the 19 National Forests in California by 2007.” On November 9, 2005, the Forest Service published final travel management regulations in the
On some NFS lands, long managed as open to cross-country motor vehicle travel, repeated use has resulted in unplanned, unauthorized roads and trails. These routes generally developed without environmental analysis or public involvement and do not have the same status as NFS roads and NFS trails included in the forest transportation system. Nevertheless, some unauthorized routes are well sited, provide excellent opportunities for outdoor recreation by motorized and non-motorized users, and would enhance the National Forest System of designated roads, trails, and areas. Other unauthorized routes are poorly located and cause unacceptable impacts. Only NFS roads and NFS trails can be designated for wheeled motorized vehicle use. In order for an unauthorized route to be designated, it must first be added to the forest transportation system.
The Sequoia National Forest is not proposing changes to the existing designated route systems in the Hume Lake and Tule River Ranger Districts, the portion of the Hot Springs Ranger District within the Giant Sequoia National Monument, or on the Kern Plateau at this time. Wheeled motorized vehicle use in these areas is already restricted to an existing designated system of routes.
In 2004, the Sequoia National Forest completed in inventory of unauthorized routes, as described in the MOI, on NFS lands in the Kern River Ranger District and the Hot Springs Ranger District, outside of the Giant Sequoia National Monument, and identified approximately 582.4 miles of unauthorized routes. The Sequoia then used an interdisciplinary process to conduct travel analysis that included working the public to determine whether any of the unauthorized routes should be proposed for addition to the transportation system. Roads, trails, and areas that are currently part of the Sequoia transportation system and are open to wheeled motorized vehicle travel will remain designated for such use, except as described below under the Proposed Action. This proposal focuses only on the prohibition of wheeled motorized vehicle travel off designated routes and needed changes to the Sequoia transportation system, including the addition of some user-created routes to the Sequoia transportation system and other changes to existing motor vehicle restrictions. The proposed action is being carried forward in accordance with the Travel Management Rule (36 CFR Part 212).
In accordance with the rule, following a decision on this proposal, the Sequoia National Forest will publish a Motor Vehicle Use Map (MVUM), identifying all Sequoia roads, trails, and areas that are designated for motor vehicle use. The MVUM shall specify the classes of vehicles and, if appropriate, the times of year for which use is designated.
A Mediated Settlement Agreement (MSA) was signed in 1990, which resolved multiple appeals of the 1988 forest plan. Pages 99-101 of the MSA discuss management of the trail north of Dry Meadows. “If a trail that can accommodate OHV use can be located through the area, the SPNM boundary shall be adjusted accordingly.”
The following needs have been identified for this proposal:
1. There is a need for regulation of unmanaged wheeled motorized vehicle travel by the public. Currently, wheeled motorized vehicle travel by the public is not prohibited off designated routes in the Kern River Ranger District and the Hot Springs Ranger District, outside of the Giant Sequoia National Monument (except by forest order). In their enjoyment of the national forest, motorized vehicle users have created numerous unauthorized routes. The number of such routes has continued to grow each year, with many routes having environmental impacts and
2. There is a need for limited changes and additions to the Sequoia National Forest transportation system to:
2.1. Provide wheeled motorized access to recreation opportunities (camping, hunting, fishing, hiking, horseback riding, etc.).
2.2. Provide a diversity of wheeled motorized recreation opportunities (4 x 4 vehicles, motorcycles, ATVs, passenger vehicles, etc.).
2.3. As obligated by the 1990 Mediated Settlement Agreement (MSA), to the Sequoia National Forest Land and Resource Management Plan to consider whether the trail north of Dry Meadows should continue to be managed for wheeled motorized use (MSA, pages 99-101). Under the Sequoia Land and Resource Management Plan the trail north of Dry Meadows runs through a semi-primitive non-motorized (SPNM) area.
It is Forest Service policy to provide a diversity of road and trail opportunities for experiencing a variety of environments and modes of travel consistent with the national forest recreation role and land capability [FSM 2353.03(2)].
In meeting these needs the proposed action must also achieve the following purposes:
A. Avoid impacts to cultural resources.
B. Provide for public safety.
C. Provide for a diversity of recreational opportunities.
D. Assure adequate access to public and private lands.
E. Provide for adequate maintenance and administration of designations based on availability of resources and funding to do so.
F. Minimize damage to soil, vegetation, and other forest resources.
G. Avoid harassment of wildlife and significant disruption of wildlife habitat.
H. Minimize conflicts between wheeled motor vehicles and existing or proposed recreational uses of NFS lands.
I. Minimize conflicts among different classes of wheeled motor vehicle uses of NFS lands or neighboring federal lands.
J. Assure compatibility of wheeled motor vehicle use with existing conditions in populated areas, taking into account sound, emissions, etc.
K. Have valid existing rights of use and access (rights-of-way).
Based on the stated purpose and need for action, and as a result of the recent travel analysis process, the Sequoia proposes the following changes to the current transportation system.
1. The addition of approximately 71 miles of existing unauthorized routes to the National Forest System (NFS) of motorized trails, open to wheeled motorized vehicle use by the public.
2. The addition of approximately 0.9 miles of existing unauthorized routes to NFS roads, open to all wheeled motorized vehicle use by the public.
3. The change of approximately 21.8 miles of existing NFS roads, currently closed to public wheeled motorized vehicle use, to NFS motorized trails, open to wheeled motorized vehicle use by the public.
4. The change or approximately 8.4 miles of existing NFS roads, currently open to public wheeled motorized vehicle use, to NFS motorized trails, open to wheeled motorized vehicle use by the public.
5. The change of approximately 23.2 miles of existing NFS roads, currently closed to public wheeled motorized vehicle use, to NFS roads, open to all wheeled motorized vehicle use by the public.
6. The change of approximately 19.5 miles of existing NFS roads, currently open to wheeled motorized vehicle use by the public, to closed NFS roads.
7. The change of approximately 12.4 miles of existing NFS roads, currently open to public use by highway legal vehicles only, to NFS roads, open to all wheeled motorized vehicle use by the public.
8. The change of approximately 0.5 mile of existing NFS road, currently open to highway legal vehicles, to NFS motorized trail, open to wheeled motorized vehicle use by the public.
9. The continuation of wheeled motorized vehicle use by the public on the NFS trail north of Dry Meadow and amendment of the Sequoia National Forest Land and Resource Management Plan to change approximately 5,500 acres of semi-primitive non-motorized (SPNM) to semi-primitive motorized (SPM), to conform with motorized vehicle use of the trail.
10. The prohibition of wheeled motorized vehicle travel off of designated NFS roads, NFS trails, and areas by the public, except as allowed by permit or other authorization.
Maps and tables describing in detail both the existing Sequoia National Forest transportation system and the proposed action can be found at
The Responsible Official is Tina J. Terrell, Forest Supervisor, Sequoia National Forest, 1839 South Newcomb Street, Porterville, CA 93257.
The responsible official will decide whether to adopt and implement the proposed action, an alternative to the proposed action, or take no action to make changes to the existing Sequoia National Forest transportation system, amend the Forest Plan, or prohibit cross-country wheeled motorized vehicle travel by the public off the designated system. Once the decision is made, the Sequoia National Forest will publish a Motor Vehicle Use Map (MVUM), identifying the roads, trails, and areas that are designated for motor vehicle use. The MVUM shall specify the classes of vehicles and, if appropriate, the times of year for which use is designated.
Public participation will be especially important at several points during the analysis. The Forest Service will be seeking information, comments, and assistance from federal, state, and local agencies and other individuals or organizations interested in or affected by the proposed action.
The Notice of Intent is expected to be published in the
The draft environmental impact statement is expected to be filed with the Environmental Protection Agency (EPA) and to be available for public review by September 2007. EPA will publish a notice of availability of the draft EIS in the
The final EIS is scheduled to be completed in September 2008. In the
This notice of intent initiates the scoping process, which guides the development of the environmental impact statement.
A draft environmental impact statement will be prepared for comment. The comment period on the draft environmental impact statement will be 45 days from the date the Environmental Protection Agency publishes the notice of availability in the
The Forest Service believes, at this early stage, it is important to give reviewers notice of several court rulings related to public participation in the environmental review process. First, reviewers of draft environmental impact statements must structure their participation in the environmental review of the proposal so that it is meaningful and alerts an agency to the reviewer's position and contentions.
To assist the Forest Service in identifying and considering issues and concerns on the proposed action, comments on the draft environmental impact statement should be as specific as possible. It is also helpful if comments refer to specific pages or chapters of the draft environmental impact statement. Comments may also address the adequacy of the draft environmental impact statement or the merits of the alternatives formulated and discussed in the statement. Reviewers may wish to refer to the Council on Environmental Quality Regulations for implementing the procedural provisions of the National Environmental Policy Act at 40 CFR 1503.3 in addressing these points.
Comments received, including the names and addresses of those who comment, will be considered part of the public record on this proposal and will be available for public inspection.
Committee for Purchase From People Who Are Blind or Severely Disabled.
Proposed additions to the Procurement List.
The Committee is proposing to add to the Procurement List products and services to be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.
Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia 22202-3259.
Kimberly M. Zeich, Telephone: (703) 603-7740, Fax: (703) 603-0655, or email
This notice is published pursuant to 41 U.S.C 47(a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.
If the Committee approves the proposed additions, the entities of the Federal Government identified in the notice for each product or service will be required to procure the products and services listed below from nonprofit agencies employing persons who are blind or have other severe disabilities.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. If approved, the action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the products and services to the Government.
2. If approved, the action will result in authorizing small entities to furnish the products and services to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the products and services proposed for addition to the Procurement List.
Comments on this certification are invited. Commenters should identify the statement(s) underlying the certification on which they are providing additional information.
The following products and services are proposed for addition to Procurement List for production by the nonprofit agencies listed:
Committee for Purchase From People Who Are Blind or Severely Disabled.
Additions to the Procurement List.
This action adds to the Procurement List products to be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.
Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia 22202-3259
Kimberly M. Zeich, Telephone: (703) 603-7740, Fax: (703) 603-0655, or e-mail
On April 20, 2007, the Committee for Purchase From People Who Are Blind or Severely Disabled published notice (72 FR 19878) of proposed additions to the Procurement List.
Comments were received from two cap manufacturers who are not current contractors for the cap requirement (Cap, Utility, Camouflage Pattern, Air Force (ABU)) which was proposed for addition to the Procurement List. Both manufacturers objected to the statement in the Regulatory Flexibility Act Certification contained in the Committee's notice of proposed addition to the Procurement List that the proposed addition “will not have a significant impact on a substantial number of small entities.” These two companies claimed that developments in the military headwear industry, including additions to the Procurement List, had severely reduced their opportunities in the industry, as well as reducing the number of small entities participating in the industry from five to two.
“Small entities” as defined by the Regulatory Flexibility Act at 5 U.S.C. 601(6) include small nonprofit agencies as well as small businesses. There are at least five nonprofit agencies participating in the Committee's program which are currently producing military headwear. Even if seven small entities could be considered a substantial number, the positive impact on five of them should balance the negative impact noted by the two manufacturers. Consequently, the
This addition to the Procurement List merely raises the Committee's share of the cap in question from 25 percent of the Government requirement to 50 percent. It does not foreclose bidding by the two manufacturers on the remaining 50 percent of the requirement. In light of the fact that the Committee is only required to assess impact on the current contractors for a product being considered for addition to the Procurement List, the limitation of the Committee's share of the cap requirement shows that the Committee is sensitive to the industry impact concerns raised by the two manufacturers.
After consideration of the material presented to it concerning capability of qualified nonprofit agencies to provide the products and impact of the additions on the current or most recent contractors, the Committee has determined that the products listed below are suitable for procurement by the Federal Government under 41 U.S.C. 46-48c and 41 CFR 51-2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the products to the Government.
2. The action will result in authorizing small entities to furnish the products to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the products proposed for addition to the Procurement List.
Accordingly, the following products are added to the Procurement List:
This action does not affect current contracts awarded prior to the effective date of this addition or options that may be exercised under those contracts.
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 emergency provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35).
The information to be collected in the LUCA Program is essential to the mission of the Census Bureau and will directly contribute to the successful outcome of Census 2010. The Census Bureau will use the LUCA program to help develop the housing unit and group quarters (
The Census Bureau requests expedited OMB approval of the LUCA Program by July 15, 2007.
Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer, (202) 482-0266, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent by July 15, 2007 to Brian Harris-Kojetin, OMB Desk Officer either by fax (202-395-7245) or e-mail (
Import Administration, International Trade Administration, Department of Commerce.
June 15, 2007.
Damian Felton or Brandon Farlander, AD/CVD Operations, Office 1, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington DC 20230; telephone (202) 482-0133 or (202) 482-0182, respectively.
On March 19, 2007, the Department of Commerce (“the Department”) published the preliminary results of the new shipper review for stainless steel bar from Germany.
On page 12767, in the first column, under the heading “Preliminary Results of Review,” on the 36th line, the following sentence should read, “The Department will issue final results of this new shipper review, including the results of our analysis of the issues raised in any such written comments or at a hearing, within 120 days of publication of these preliminary results.”
This notice serves solely to correct the number of days specified for the issuance of the final results of this new shipper review as it was listed in the
Import Administration, International Trade Administration, Department of Commerce.
June 15, 2007.
Terre Keaton Stefanova or David Goldberger, AD/CVD Operations, Office 2, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-1280 or (202) 482-4136, respectively.
On March 2, 2007, the Department of Commerce (the Department) published in the
On May 24, 2007, Ugitech timely withdrew its request for an administrative review of its sales during the above-referenced period. Pursuant to 19 CFR 351.213(d)(1), the Secretary will rescind an administrative review, in whole or in part, if a party who requested the review withdraws the request within ninety days of the date of publication of notice of initiation of the requested review. Because Ugitech has withdrawn its request for review within the 90-day period and no other party requested a review of Ugitech, in accordance with 19 CFR 351.213(d)(1), we are rescinding this review with respect to Ugitech.
The Department will issue appropriate assessment instructions directly to U.S. Customs and Border Protection (CBP) 15 days after the publication of this notice. The Department will direct CBP to assess antidumping duties at the cash deposit rate in effect on the date of entry for entries during the period March 1, 2006, through February 28, 2007.
This notice is published in accordance with section 777(i)(1) of the Tariff Act of 1930, as amended, and 19 CFR 351.213(d)(4).
Import Administration, International Trade Administration, Department of Commerce.
June 15, 2007.
Matthew Renkey (People's Republic of China) or David Goldberger (United Arab Emirates), AD/CVD Operations, Offices 2 and 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-2312 or (202) 482-4136, respectively.
On May 29, 2007, the Department of Commerce (Department) received antidumping duty petitions (petitions) filed by Mid Continent Nail Corporation, Davis Wire Corporation, Gerdau Ameristeel Corporation (Atlas Steel & Wire Division), Maze Nails (Division of W.H. Maze Company), and Treasure Coast Fasteners, Inc. (collectively, the petitioners) on behalf of the domestic industry producing certain steel nails.
Section 732(b)(1) of the Tariff Act of 1930, as amended (the Act), requires that a petition be filed by or on behalf of the domestic industry. Section 732(c)(4)(A) of the Act provides that the Department's industry support determination be based on whether a minimum percentage of the relevant industry supports the petition. A petition meets this requirement if the domestic producers or workers who support the petition account for: (i) at least 25 percent of the total production of the domestic like product; and (ii) more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the petition. Moreover, section 732(c)(4)(D) of the Act provides that, if the petition does not establish support of domestic producers or workers accounting for more than 50 percent of the total production of the domestic like product, the Department shall: (i) poll the industry or rely on other information in order to determine if there is support for the petition, as required by subparagraph (A), or (ii) if there is a large number of producers, determine industry support using a statistically valid sampling method to poll the industry.
Section 732(c)(1)(A)(ii) of the Act provides that within 20 days of the filing of an antidumping duty petition, the Department will determine, inter alia, whether the petition has been filed by or on behalf of the U.S. industry producing the domestic like product. Section 732(c)(1)(B) of the Act provides that the deadline for the initiation determination, in exceptional circumstances, may be extended by 20 days in any case in which the Department must “poll or otherwise determine support for the petition by the industry.” Because it is not clear from the petition whether the industry support criteria have been met, the Department has determined to extend the time for initiating an investigation in order to poll the domestic industry. On June 1, 2007, the Department began issuing polling questionnaires to all known domestic producers of certain steel nails identified in the petition. The questionnaires are on file in the Central Records Unit in room B-099 of the main Department of Commerce building. The Department requested that each company complete the polling questionnaire and fax their responses to the Department.
The Department will need additional time to analyze the domestic producers' responses to this request for information. Therefore, it is necessary to extend the deadline determining the adequacy of the petition for a period not to exceed 40 days from the filing of the petition. As a result, the initiation determination will now be due no later than July 9, 2007.
The Department will contact the International Trade Commission (ITC) and will make this extension notice available to the ITC.
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 August 14, 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: Thomas W. Jackson at 301-713-2750, ext. 167, or at
NOAA publishes the U.S. Coast Pilot, a series of nine books which supplement the suite of nautical charts published by NOAA. The U.S. Coast Pilot contains information essential to navigators plying U.S. coastal and intra-coastal waters which cannot be readily displayed upon the charts. The Coast Pilot Report is offered to the public as a means of facilitating suggested changes to the text made by the public.
A paper form is used.
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 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 August 14, 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 Sarah McAvinchey, (206) 526-4323 or
Based on the management regime specified each year, designated regulatory areas in the commercial ocean salmon fishery off the coasts of Washington, Oregon, and California may be managed by numerical quotas. To accurately assess catches relative to quota attainment during the fishing season, catch data by regulatory area must be collected in a timely manner. Requirements to land salmon within specific time frames and in specific areas may be implemented in the preseason regulations to aid in timely and accurate catch accounting for a regulatory area. State landing systems normally gather the data at the time of landing. If unsafe weather conditions or mechanical problems prevent compliance with landing requirements, fishermen need an alternative to allow for a safe response. Fishermen would be exempt from landing requirements if the appropriate notifications are made to provide the name of the vessel, the port where delivery will be made, the approximate amount of salmon (by species) on board, and the estimated time of arrival.
Notifications are made by at-sea radio or cellular phone transmissions.
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.
FR Doc. 07-2878 originally published at pages 32079-32081 in the issue of Monday, June 11, 2007. Due to numerous errors, the document is being reprinted in its entirety.
Commodity Futures Trading Commission.
Final order.
On May 14, 2007, the Commodity Futures Trading Commission (“CFTC” or the “Commission”) published for public comment in the
Authority for this exemption is found in Section 4(c) of the CEA.
John C. Lawton, Deputy Director and Chief Counsel, 202-418-5480;
The OCC is both a Derivatives Clearing Organization (“DCO”) registered pursuant to Section 5b of the CEA,
CBOE has filed with the Securities and Exchange Commission (“SEC”) proposed rule changes to provide for the listing and trading on CBOE of cash-settled products characterized by CBOE as options based on credit events in one or more debt securities of specified “Reference Entities.”
CBOE has also filed with the SEC proposed rule changes to provide for the listing and trading on CBOE of products called Credit Default Basket Options (“CDBOs”).
OCC has filed with the CFTC, pursuant to Section 5c(c) of the CEA and Commission Regulations 39.4(a) and 40.5 thereunder,
The request for approval concerning the CDO product was filed effective March 8, 2007. On April 23, 2007, the review period was extended pursuant to Regulation 40.5(c) until June 6, 2007, on the ground that the CDOs “raise novel or complex issues, including the nature of the contract, that require additional time for review.” The request for approval concerning the CDBO product was filed effective April 23, 2007.
Section 4(c)(1) of the CEA empowers the CFTC to “promote responsible economic or financial innovation and fair competition” by exempting any transaction or class of transactions from any of the provisions of the CEA (subject to exceptions not relevant here) where the Commission determines that the exemption would be consistent with the public interest. The Commission may grant such an exemption by rule, regulation or order, after notice and opportunity for hearing, and may do so on application of any person or on its own initiative. In enacting Section 4(c), Congress noted that the goal of provision “is to give the Commission a means of providing certainty and stability to existing and emerging markets so that financial innovation and market development can proceed in an effective and competitive manner.”
Section 4(c)(2) provides that the Commission may grant exemptions only when it determines that the requirements for which an exemption is being provided should not be applied to the agreements, contracts or transactions at issue, and the exemption is consistent with the public interest and the purposes of the CEA; that the agreements, contracts or transactions will be entered into solely between appropriate persons; and that the exemption will not have a material adverse effect on the ability of the Commission or any contract market to discharge its regulatory or self-regulatory responsibilities under the CEA.
In the May 14, 2007
The Commission received four comment letters. The Chicago Mercantile Exchange (“CME”) stated that it “applauds” the Commission's proposal to promote innovation but that it believed some issues should be addressed before a final order is issued. CME argued that: (1) It would be unfair for OCC and CBOE to receive exemptive relief yet continue to oppose CME's efforts to list competitive products; (2) the Commission should not accept OCC's and CBOE's characterization of the products as options; (3) there are strong arguments that the products are based on commodities, not securities; and (4) it is not proper to define “appropriate persons” in terms of the status of the person's intermediary.
OCC focused on the “appropriate persons” issue. OCC argued that in light of the customer suitability rules and the overall federal securities regulatory framework, the products would be limited to “appropriate persons.”
The CBOE stated that, though it believes CDOs and CDBOs to be securities subject to the securities laws, it has no objection to the Commission issuing a Section 4(c) exemptive order without reaching the issue of whether CDOs and CDBOs are (or are not) subject to the CEA.
The Chicago Board of Trade (“CBOT”) suggested that characterizing the CDOs and CDBOs as “novel instruments” should be repudiated or clarified because it could have implications under the patent laws.
After considering the complete record in this matter, including the comments received, the Commission has determined that the requirements of Section 4(c) have been met.
Second, the CDOs and CDBOs would be entered into solely between appropriate persons. This issue was discussed by both CME and OCC in their respective comment letters. Section 4(c)(3) includes within the term “appropriate persons” a number of specified categories of persons, but also in subparagraph (K), “such other
Third, the exemption would not have a material adverse effect on the ability of the Commission or any designated contract market to carry out their regulatory responsibilities under the CEA. There is no reason to believe that granting an exemption here would interfere with the Commission's or a designated contract market's ability to oversee the trading of similar products on a designated contract market or otherwise to carry out their duties. None of the comment letters received addressed this issue.
Therefore, upon due consideration, pursuant to its authority under Section 4(c) of the CEA, the Commission hereby issues this Order and exempts the trading and clearing of CDOs and CDBOs to be listed and traded on CBOE and cleared through OCC as a securities clearing agency from the CEA. This Order is contingent upon the approval by the SEC, pursuant to Section 19(b) of the 1934 Act, of CBOE and OCC rules to permit the listing and trading of CDOs and CDBOs on CBOE. This Order is subject to termination or revision, on a prospective basis, if the Commission determines upon further information that this exemption is not consistent with the public interest. If the Commission believes such exemption becomes detrimental to the public interest, the Commission may revoke this Order on its own motion.
The Paperwork Reduction Act of 1995 (“PRA”)
Section 15(a) of the CEA, as amended by Section 119 of the Commodity Futures Modernization Act of 2000 (“CFMA”),
Section 15(a) of the CEA further specifies that costs and benefits shall be evaluated in light of five broad areas of market and public concern: Protection of market participants and the public; efficiency, competitiveness, and financial integrity of futures markets; price discovery; sound risk management practices; and other public interest considerations. Accordingly, the Commission could in its discretion give greater weight to any one of the five enumerated areas and could in its discretion determine that, notwithstanding its costs, a particular order was necessary or appropriate to protect the public interest or to effectuate any of the provisions or to accomplish any of the purposes of the CEA.
The exemptive order issued today is expected to facilitate market competition. The Commission has considered the costs and benefits of the order in light of the specific provisions of Section 15(a) of the CEA, as follows:
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The Commission requested comment on its application of these factors in the proposing release. No comments were received.
After considering these factors, the Commission has determined to issue this Order.
FR Doc. 07-2878 originally published at pages 32079-32081 in the issue of Monday, June 11, 2007. Due to numerous errors, the document is being reprinted in its entirety.
Defense Finance and Accounting Service, DoD.
Notice.
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Defense Finance and Accounting Service announces the proposed extension of a
Consideration will be given to all comments received by August 14, 2007.
You may submit comments, identified by docket number and title, by any of the following methods:
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To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Military Pay, Standards and Compliance, Defense Finance and Accounting Service, DFAS-JJFMB/CL, ATTN: Ms. Laurie Eldridge, 1240 East 9th Street, Room 1781, Cleveland, Ohio 44199, or call Ms. Laurie Eldridge at (216) 204-3631.
When military members apply for benefits, they must complete the form which corresponds to the particular dependent situation (a parent, a child born out-of-wedlock, an incapacitated child over age 21, a student age 21-22, or a ward of a court). While members usually complete these forms, they can also be completed by others considered members of the public. Dependency claim examiners use the information from these forms to determine the degree of benefits. Without this collection of information, proof of an entitlement to a benefit would not exist. The requirement to complete these forms helps alleviate the opportunity for fraud, waste, and abuse of dependent benefits.
Department of Defense.
Notice of a TRICARE over-the-counter drug demonstration project.
This notice is to advise interested parties of a demonstration project in which the Department of Defense will evaluate allowing selected over-the-counter (OTC) drugs to be included on the TRICARE uniform formulary. The Secretary will evaluate the costs/benefits and beneficiary satisfaction of providing OTC drugs under the pharmacy benefits program when the selected OTC drugs are determined to be clinically effective. The demonstration project will be available for beneficiaries within the United States, Puerto Rico, Virgin Islands, and Guam.
MAJ Travis Watson, TRICARE Management Activity, Pharmaceutical Operations Directorate, telephone (703) 681-2890.
Section 705 of the John Warner National Defense Authorization Act for 2007 (hereafter Section 705) directed the Department of Defense to conduct a demonstration project to allow certain over-the-counter medications to be included on the uniform formulary under section 1074g of title 10, United States Code. Section 705 requires that OTC drugs provided under this demonstration project be made available through at least two of the following dispensing venues—military treatment facilities, TRICARE retail network pharmacies, or the TRICARE mail order pharmacy. The Department intends to initially offer the selected OTC drugs through the TRICARE mail order pharmacy and a limited number of designated military treatment facilities (no less than five per TRICARE region). Not all OTC drugs will be covered under this demonstration project. An OTC drug shall be made available to a beneficiary through the demonstration project if (a) the beneficiary has a prescription for a drug requiring a prescription; (b) the Pharmacy & Therapeutics Committee has determined
Current law excludes cost sharing of OTC drugs (except insulin) under the Pharmacy Benefits Program. Section 705 requires the demonstration project to evaluate the clinical and cost effectiveness of OTC drugs as well as beneficiary satisfaction with the project. At the conclusion of not more than two years of the project, the Secretary will evaluate the hypotheses that substitution of selected OTC drugs under the TRICARE Pharmacy Benefits Program provides clinical and cost effectiveness along with beneficiary satisfaction, and submit a report to the Armed Services Committee of both the House and Senate that includes conclusions and recommendations for improving the provision of OTC drugs under the pharmacy benefits program and whether permanent legislative authority should be provided to cover OTC drugs under the pharmacy benefits program. Section 705 also authorizes the Department to continue the demonstration for up to one year after submitting the report if it is recommended that the Department should be granted permanent authority to provide OTCs.
(1) Inclusion of certain over-the-counter drugs. The Department of Defense Pharmacy & Therapeutics (P&T) Committee must find that the OTC drug is cost-effective and therapeutically equivalent to a prescription drug within a selected therapeutic class. The P&T Committee will expeditiously begin relative clinical and cost-effective evaluations of OTC drugs in therapeutic classes that would meet the intent of this requirement. The P&T Committee will review OTC drugs throughout the course of the demonstration project. Some potential candidates include omeprazole, an anti-ulcer/heartburn agent; loratidine, a non-sedating antihistamine; topical antifungals; and niacin, a cholesterol lowering agent. The minutes of the DoD Pharmacy & Therapeutics Committee (
(2) OTC drug availability through the demonstration project. There are two categories of beneficiaries who are eligible candidates for the demonstration: (1) Those who have a current prescription filled for a drug in the therapeutic class; and (2) those who have a new prescription for a prescription item that has an approved OTC drug equivalent, as defined by the program. For beneficiaries who have a currently filled prescription, the Pharmacy Data Transaction Service (PDTS) will be used to review a patient's medication history to verify whether they have received a therapeutically equivalent prescription drug that corresponds to the OTC drug covered under the demonstration project. For beneficiaries who have a new prescription, the process used to verify eligibility will depend upon the dispensing venue the beneficiary chooses to use. Not all OTC drugs eligible for dispensing through this project will be available at all dispensing venues. The Pharmacy Program Office will communicate OTC drug availability through the use of the TRICARE Web site (
(3) Dispensing venues and project scope. This demonstration project is required to be conducted through at least two of the three points of service for dispensing prescriptions. Standard utilization management processes will be applied to the demonstration project consistent with current practices at TMOP, military treatment facilities, and the TRICARE Retail Pharmacy network.
i. TRICARE Mail Order Pharmacy. The demonstration project will be initiated in the TRICARE mail order pharmacy. When a beneficiary receives a prescription product from TMOP, which has an OTC drug available for dispensing under this demonstration, the beneficiary will have their prescription filled, and additionally, they will receive a letter informing them about the demonstration and how to participate. The letter will consist of demonstration information and a pre-printed prescription for the OTC drug. In order to participate in the demonstration, the beneficiary must take the pre-printed prescription to their provider for signature. The beneficiary can send the signed, pre-printed prescription or a new prescription from the provider to TMOP for filling in place of the legend prescription. A provider's signature is required on either. Providers may send a prescription to the TMOP via facsimile or mail. When the prescription for the OTC is received by TMOP, all remaining refills (if any) will be filled with the OTC instead of the original prescription drug. The contractor shall accept either the signed pre-printed prescription or a new prescription from the provider.
ii. Military treatment facilities. The Pharmacy Program Office in conjunction with the DoD P&T Committee will search for opportunities to find cost-effective OTC drugs that meet the intent of the program design. Many therapeutic drugs in drug classes with an equivalent OTC are more costly than the generic drug that can be obtained by the MTF with federal pricing. The number of military treatment facilities that will participate in the demonstration project will be consistent in scope with the requirements in Section 705, which allows the Department to conduct the demonstration throughout the entire pharmacy benefits program, or at a limited number of sites. If a limited number of sites are selected, the number may not be less than five in each TRICARE region. The Pharmacy Program Office will communicate OTC drug availability through the use of the TRICARE Web site (
iii. TRICARE retail pharmacy network. Upon the completion of contract changes and operational considerations, the demonstration project will be conducted within selected pharmacies of the TRICARE retail pharmacy network. The number and location of retail pharmacies that will participate in the demonstration project will be consistent in scope with the requirements in Section 705, which allows the Department to conduct the demonstration throughout the entire pharmacy benefits program, or at a limited number of sites. If a limited number of sites are selected, the number may not be less than five in each TRICARE region. The Pharmacy Program Office will communicate OTC drug availability through the use of the TRICARE Web site (
(4) Cost sharing requirements. Beneficiaries will not be charged a cost
(5) Period of demonstration. This demonstration project will begin no later than May 1, 2007 in TMOP, and phased in at MTFs and/or retail pharmacies during the first year and the demonstration will last until the implementation of the combined TRICARE mail and retail contract (TPharm) which is approximately two years from the start date of the demonstration project.
HQ Air Education and Training Command, AF Officer Accession and Training Schools, AF Junior ROTC, Department of Defense.
Notice.
In compliance with Section 3506(c)(2)(A) of the
Consideration will be given to all comments received by August 14, 2007.
You may submit comments, identified by docket number and title, by any of the following methods:
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To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to HQ AFOATS/JRO, ATTN: Ms. Kathy Palmer, 511 East Maxwell Blvd, Maxwell AFB AL 36112-6101, or e-mail
Respondents are high school officials who provide information about their school. The completed application is used to determine the eligibility of the school to host an Air Force JROTC unit.
Headquarters, Air Force Reserve Officer Training Corps (AFROTC), Department of Defense.
Notice.
In compliance with Section 3506(c)(2)(A) of the
Consideration will be given to all comments received by August 14, 2007.
You may submit comments, identified by docket number and title, by any of the following methods:
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To request more information this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to The AFROTC Scholarship Program, ATTN: Mr. Jack Sanders, 551 E. Maxwell Blvd, Maxwell AFB AL
The following is required to be provided by the applicant and maintained by AFROTC. Names, addresses, SSANs, telephone numbers, transcripts, and resumes.
Office of Admissions, HQ United States Air Force Academy, Department of the Air Force, Department of Defense.
Notice.
In compliance with Section 3506(c)(2)(A) of the
Consideration will be given to all comments received by August 14, 2007.
You may submit comments, identified by docket number and title, by any of the following methods:
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To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to The Office of Admissions, 2304 Cadet Drive, Suite 2400, USAF Academy, CO 80840. Point of contact is Ms Shawn M. Hordemann, telephone (719) 333-7291.
The information collected on this form is required by 10 U.S.C. 9346. The respondents are students who are applying for admission to the United States Air Force Academy. Each student's background and aptitude is reviewed to determine eligibility. If the information on this form is not collected, the individual cannot be considered for admittance to the Air Force Academy.
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 August 14, 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 August 14, 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
Institute of Education Sciences, Department of Education.
Notice of a new system of records.
In accordance with the Privacy Act of 1974, as amended, (Privacy Act) the Department of Education (Department) publishes this notice of a new system of records entitled “Impact Evaluation of Upward Bound's Increased Focus on Higher-Risk Students” (18-13-17). The National Center for Education Evaluation and Regional Assistance at the Department's Institute of Education Sciences (IES) commissioned this evaluation. It will be conducted under a contract that IES awarded in September 2006. IES has been collaborating with the Department's Office of Postsecondary Education (OPE) to coordinate the study of the impacts of the Upward Bound program on higher-risk students and students as a whole.
The study will address the following questions:
(1) What are the impacts of Upward Bound on student outcomes—including course taking, grades received, test scores, retention in high school, college preparation services received, and college and career expectations—both overall and for higher-risk students?
(2) Does the impact of Upward Bound vary according to grantee practices and characteristics, such as the ratio of higher-risk students to total students served by the grantee?
(3) Does there appear to be a relationship between program impacts and control group students' receipt of similar services, such as tutoring, mentoring, after-school and summer enrichment programs, and college application and financial aid assistance?
The system will contain information about approximately 3,600 students applying for admission at approximately 90 Upward Bound grantees for the 2007-2008 academic year, of which approximately 1,800 will have been offered admission to Upward Bound and 1,800 will serve as a control group for the purposes of this evaluation. These students will be in either 9th or 10th grade during the 2007-2008 academic year. The Upward Bound grantees included in the evaluation will be a sample of all Upward Bound grantees. The system of records will include information about these sampled students, including their names, addresses, demographic information such as race/ethnicity, gender, age, and educational background, attitudes toward school, and educational aspirations.
The Department seeks comment on the new system of records described in this notice, in accordance with the requirements of the Privacy Act. We must receive your comments on the proposed routine use for the system of records referenced in this notice on or before July 16, 2007.
The Department filed a report describing the new system of records covered by this notice with the Chair of the Senate Committee on Homeland Security and Governmental Affairs, the Chair of the House Committee on Oversight and Government Reform, and the Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB) on June 12, 2007. This system of records will become effective at the later date of—(1) The expiration of the 40-day period for OMB review on July 22, 2007, unless OMB waives 10 of the 40-day review period for compelling reasons shown by the Department or (2) July 16, 2007 unless the system of records needs to be changed as a result of public comment or OMB review.
Address all comments about the proposed routine use to Dr. Ricky Takai, Director, Evaluation Division, National Center for Education Evaluation and Regional Assistance, Institute of Education Sciences, U.S. Department of Education, 555 New Jersey Avenue, NW., room 502D, Washington, DC 20208-0002. Telephone: (202) 208-7083. If you prefer to send comments through the Internet, use the following address:
You must include the term “Impact Evaluation of Upward Bound's Increased Focus on Higher-Risk Students” in the subject line of the electronic message.
During and after the comment period, you may inspect all comments about this notice in room 502D, 555 New Jersey Avenue, NW., Washington, DC, between the hours of 8 a.m. and 4:30 p.m., Eastern time, Monday through Friday of each week except Federal holidays.
On request, we will supply an appropriate aid to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for this notice. If you want to schedule an appointment for this type of aid, please contact the person listed under
Dr. Ricky Takai. Telephone: (202) 208-7083. If you use a telecommunications device for the deaf (TDD), you may call the Federal Relay Service (FRS) at 1-800-877-8339.
Individuals with disabilities may obtain this document in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) on request to the contact person listed in this section.
The Privacy Act, 5 U.S.C. 552a, requires the Department to publish in the
The Privacy Act applies to information about individuals that contain individually identifiable information and that is retrieved by a unique identifier associated with each individual, such as a name or social security number. The information about each individual is called a “record,” and the system, whether manual or computer-based, is called a “system of records.” The Privacy Act requires each agency to publish notices of systems of records in the
To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC, area at (202) 512-1530.
The official version of this document is the document published in the
For the reasons discussed in the preamble, the Director of the Institute of Education Sciences, U.S. Department of Education, publishes a notice of a new system of records to read as follows:
Impact Evaluation of Upward Bound's Increased Focus on Higher-Risk Students.
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(1) Evaluation Division, National Center for Education Evaluation and Regional Assistance, Institute of Education Sciences (IES), U.S. Department of Education, 555 New Jersey Avenue, NW., room 500J, Washington, DC 20208-0002.
(2) Abt Associates, Inc., 55 Wheeler Street, Cambridge, MA 02138-1168, and 4550 Montgomery Avenue, Suite 800 North, Bethesda, MD 20814-3343.
(3) The Urban Institute, 2100 M Street, NW., Washington, DC 20037-1264.
(4) Berkeley Policy Associates, 440 Grand Avenue, Suite 500, Oakland, CA 94610-5012.
The system will contain information about approximately 3,600 students applying for admission at approximately 90 Upward Bound grantees for the 2007-2008 academic year, of which approximately 1,800 will have been offered admission to Upward Bound and 1,800 will serve as a control group for the purposes of this evaluation. These students will be in either 9th or 10th grade during the 2007-2008 academic year. The Upward Bound grantees included in the evaluation will be a sample of all Upward Bound grantees.
The system of records will include information about sampled students, including their names, addresses, demographic information such as race/ethnicity, gender, age, and educational background, attitudes toward school, and educational aspirations.
This evaluation is authorized under: (1) Section 402H of the Higher Education Act of 1965, as amended (HEA), 20 U.S.C. 1070a-18; and (2) sections 171(b) and 173 of the Education Sciences Reform Act of 2002 (ESRA), 20 U.S.C. 9561(b) and 9563. Section 402H of the HEA explicitly authorizes the Secretary of Education to enter into contracts with organizations to evaluate the effectiveness of Upward Bound and other Federal TRIO programs.
The information in this system is used for the following purpose: To study, as authorized by section 402H of the Higher Education Act of 1965, as amended (HEA), 20 U.S.C. 1070a-18, the impacts of Upward Bound on eligible students' preparation for, and success in, postsecondary education. In particular, this system is necessary to provide information for analyses of the impacts of the Upward Bound programs on higher-risk students as well as on other eligible students. The system is also needed for analyses of variations in impacts on students according to the characteristics of Upward Bound projects and control group students' access to, and receipt of, services similar to those offered through Upward Bound.
The Department of Education (Department) may disclose information contained in a record in this system of records under the routine use listed in this system of records without the consent of the individual if the disclosure is compatible with the purposes for which the record was collected. These disclosures may be made on a case-by-case basis or, if the Department has complied with the computer matching requirements of the Privacy Act of 1974, as amended (Privacy Act), under a computer matching agreement. Any disclosure of individually identifiable information from a record in this system must also comply with the requirements of section 183 of the ESRA (20 U.S.C. 9573) providing for confidentiality standards that apply to all collections, reporting and publication of data by IES.
Not applicable to this system notice.
The Department maintains records on CD-ROM, and the contractor and subcontractors maintain data for this system on computers and in hard copy.
Records in this system are indexed by a number assigned to each individual that is cross referenced by the individual's name on a separate list.
All physical access to the Department's site, to the sites of the Department's contractor, and to the sites of the subcontractors where this system of records is maintained, will be controlled and monitored by security personnel. The computer system employed by the Department offers a high degree of resistance to tampering and circumvention. This security system limits data access to Department and contract staff on a “need to know” basis, and controls individual users' ability to access and alter records within the system.
The contractor selected for this evaluation has been required to establish similar sets of procedures at its sites and at subcontractor sites to ensure confidentiality of data. Their systems will be required to provide reasonable assurance that information identifying individuals is in files physically separated from other research data. The contractor and subcontractors are required to maintain security of the complete set of all master data files and documentation. Access to individually identifiable data will be strictly controlled. At each site all data will be kept in locked file cabinets during nonworking hours, and work on hardcopy data will take place in a single room, except for data entry. Physical security of electronic data will also be maintained. Security features that protect project data include password-protected accounts that authorize users to use the contractor's and subcontractors' information systems but only to access specific network directories and network software; user rights and directory and file attributes that limit those who can use particular directories and files and determine how they can use them; and, additional security features that the network administrators establish for projects as needed. The contractor and
In safeguarding personally identifiable information (PII), the contractor and its subcontractors also are subject to the Department's requirements contained in the Department of Education's Handbook for the Protection of Sensitive But Unclassified Information, OCIO-15, and the Department's policy that the transmission of sensitive but unclassified information, including PII, through an e-mail requires that the contents be password protected in a ZIP file.
Records are maintained and disposed of in accordance with the Department's Records Disposition Schedules (ED/RDS, Part 3, Item 2b and Part 3, Item 5a).
Director, Evaluation Division, National Center for Education Evaluation and Regional Assistance, Institute of Education Sciences, U.S. Department of Education, 555 New Jersey Avenue, NW., room 502D, Washington, DC 20208-0002.
If you wish to determine whether a record exists regarding you in the system of records, contact the systems manager. Your request must meet the requirements of regulations at 34 CFR 5b.5, including proof of identity.
If you wish to gain access to your record in the system of records, contact the system manager. Your request must meet the requirements of regulations at 34 CFR 5b.5, including proof of identity.
If you wish to contest the content of a record regarding you in the system of records, contact the system manager. Your request must meet the requirements of the regulations at 34 CFR 5b.7, including proof of identity.
This system will consist of records obtained on eligible students applying to Upward Bound projects at approximately 90 host institutions. The records will consist of parental consent and student consent forms, responses from a baseline survey of students, and information provided by Upward Bound projects on each student. At a later point in time, school records (from school, district, or state databases) and College Board and ACT records will be merged onto the system of records, as will responses from a survey of Upward Bound project coordinators and a follow-up survey of the students. Records in this system of records will be matched with other data solely for research purposes, to study the impacts of Upward Bound on students' preparation for college. The specific matched data will NOT be used to make decisions concerning the rights, benefits, or privileges of the students who participate in this study. After students turn 18 and give their own consent to participate in the study, additional data merges from Federal Student Aid files, National Student Clearing House data, school records, College Board and ACT records, and additional follow-up surveys of students may occur, again solely for research purposes, to study the impacts of Upward Bound on students' postsecondary outcomes. The individual identifiers that would be used to merge the different sources of data would be removed from the data files before the files are used for data analysis.
None.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Additional comments may be submitted on or before July 16, 2007.
Submit your comments, referencing Docket ID No. EPA-HQ-OAR-2004-0016, to (1) EPA online using
Jeff Herring, Air Quality Policy Division (C504-05), Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Research Triangle Park, NC 27711; telephone number: (919) 541-3195; fax number: (919) 541-5509; e-mail address:
EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On February 9, 2007 (72 FR 6233), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received no comments during the comment period. Any additional comments on this ICR should be submitted to EPA and OMB within 30 days of this notice.
EPA has established a public docket for this ICR under Docket ID No. EPA-HQ-OAR-2004-0016, which is available for online viewing at
Use EPA's electronic docket and comment system at
The EPA regulations setting forth requirements for the Federal operating permits program are at part 71, title 40, chapter I of the Code of Federal Regulations. These are referred to as the “Part 71 Federal Operating Permit Regulations,” which are the subject of the ICR addressed in this notice. The part 71 program is being implemented for sources located in Indian country, Outer Continental Shelf sources, and in areas that do not have part 70 programs.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Before submitting the ICR to OMB for review and approval, EPA is soliciting comments on specific aspects of the proposed information collection as described below.
Comments must be submitted on or before August 14, 2007.
Submit your comments, identified by Docket ID No. EPA-HQ-OEI-2007-0412, by one of the following methods:
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Central Data Exchange (CDX), 2823T, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: 202-566-2133; fax number: 202-566-1684; e-mail address:
EPA has established a public docket for this ICR under Docket ID No. EPA-HQ-OEI-2007-0412, which is available for online viewing at
Use
Pursuant to section 3506(c)(2)(A) of the PRA, EPA specifically solicits comments and information to enable it to:
(i) 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;
(ii) 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;
(iii) Enhance the quality, utility, and clarity of the information to be collected; and
(iv) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses. In particular, EPA is requesting comments from very small businesses (those that employ less than 25) on examples of specific additional efforts that EPA could make to reduce the paperwork burden for very small businesses affected by this collection.
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible and provide specific examples.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.
5. Offer alternative ways to improve the collection activity.
6. Make sure to submit your comments by the deadline identified under
7. To ensure proper receipt by EPA, be sure to identify the docket ID number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and
The ICR provides a detailed explanation of the Agency's estimate, which is only briefly summarized here:
For CDX flows that are subject to Cross-Media Electronic Reporting Rule (CROMERR) electronic signature requirements, user registration involves the collection of information sufficient to establish the identity of the user and his or her authorization to sign the report(s) in question. For purpose of establishing identity, in most cases the registration process involves asking the user to sign and submit a paper electronic signature agreement that sets forth the terms and conditions under which the user will electronically sign submissions to CDX; the user will also be asked to supply certain items of personal information, including—in a few cases—government-issued identifiers such as a social security number. For purposes of establishing signatory authorization, registration may involve collecting information about the user's position in the organization for which s/he will sign reports, either from the user or from some official in the organization.
This ICR renewal accounts for the burden on registrants of providing this information for CDX flows. When this ICR was originally submitted for approval, it accounted for the CROMERR-related burden on registrants for all EPA programs that might incorporate electronic reporting, whether or not the program's electronic reporting involved a CDX flow. By agreement with the affected programs, the CROMERR burden not connected with a CDX flow will now be accounted for under the ICRs specific to those programs. As a result, the burden associated with this CDX-specific ICR renewal is substantially reduced from what was calculated for the original version.
EPA will consider the comments received and amend the ICR as appropriate. The final ICR package will then be submitted to OMB for review and approval pursuant to 5 CFR 1320.12. At that time, EPA will issue another
Environmental Protection Agency.
Notice.
In compliance with the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Comments must be submitted on or before August 14, 2007.
Submit your comments, identified by Docket ID No. EPA-HQ-OA-2007-0408 identified by the Docket ID numbers provided for each item in the text, by one of the following methods:
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Gerald Filbin, Office of Policy, Economics, and Innovation, (1807T), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: 202-566-2182; fax number: 202-566-2220; e-mail address:
EPA has established a public docket for this ICR under Docket ID No. EPA-HQ-AO-2007-0408, which is available for online viewing at
Use
Pursuant to section 3506(c)(2)(A) of the PRA, EPA specifically solicits comments and information to enable it to:
(i) 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;
(ii) 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;
(iii) Enhance the quality, utility, and clarity of the information to be collected; and
(iv) 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,
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible and provide specific examples.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.
5. Offer alternative ways to improve the collection activity.
6. Make sure to submit your comments by the deadline identified under
7. To ensure proper receipt by EPA, be sure to identify the docket ID number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and
Docket ID No. EPA-HQ-OA-2007-0408.
The ICR provides a detailed explanation of the Agency's estimate, which is only briefly summarized here:
There is an increase of 2292 hours in the total estimated respondent burden compared with that identified in the ICR currently approved by OMB. This increase reflects the need to collect information on project performance and outcomes in the form of quarterly reporting and final project reporting for current and future projects that is not addressed in other ICRs.
EPA will consider the comments received and amend the ICR as appropriate. The final ICR package will then be submitted to OMB for review and approval pursuant to 5 CFR 1320.12. At that time, EPA will issue another
Availability of EPA comments prepared pursuant to the Environmental Review Process (ERP), under section 309 of the Clean Air Act and Section 102(2)(c) of the National Environmental Policy Act as amended.
Requests for copies of EPA comments can be directed to the Office of Federal Activities at 202-564-7167. An explanation of the ratings assigned to draft environmental impact statements (EISs) was published in F.R. dated April 6, 2007 (72 FR 17156).
Responsible Agency: Office of Federal Activities, General Information 202-564-7167 or
Environmental Protection Agency (EPA).
Notice of Determination.
The Regional Administrator of the Environmental Protection Agency—New England Region, has determined that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for the state waters of Branford, East Haven, New Haven, West Haven, Orange, Milford, Stratford, Bridgeport, Fairfield, Westport, Norwalk, Darien, Stamford, and Greenwich. The area also includes the Housatonic River from the Derby Dam and the Quinnipiac River from the southern border of North Haven.
Ann Rodney, U.S. Environmental Protection Agency—New England Region, One Congress Street, Suite 1100, COP, Boston, MA 02114-2023. Telephone: (617) 918-0538. Fax number: (617) 918-1505. e-mail address:
This Notice of Determination is for the state waters of Branford, East Haven, New Haven, West Haven, Orange, Milford, Stratford, Bridgeport, Fairfield, Westport, Norwalk, Darien, Stamford, and Greenwich. The area also includes the Housatonic River from the Derby Dam and the Quinnipiac River from the southern border of North Haven, Connecticut. The area of designation includes:
The proposed area also includes the navigable reaches of all Connecticut rivers and tidal streams that drain into Long Island Sound within its bounds, including the Housatonic River from the Derby Dam and the Quinnipiac River from the southern border of North Haven.
On February 23, 2007, notice was published that the State of Connecticut had petitioned the Regional Administrator, Environmental Protection Agency, to determine that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for the state waters of Branford, East Haven, New Haven, West Haven, Orange, Milford, Stratford, Bridgeport, Fairfield, Westport, Norwalk, Darien, Stamford, and Greenwich. The area also includes the Housatonic River from the Derby Dam and the Quinnipiac River from the southern border of North Haven. Nine comments were received on this petition.
The petition was filed pursuant to Section 312(f)(3) of Public Law 92-500, as amended by Public laws 95-217 and 100-4, for the purpose of declaring these waters a “No Discharge Area” (NDA).
Section 312(f)(3) states: After the effective date of the initial standards and regulations promulgated under this section, if any State determines that the protection and enhancement of the quality of some or all of the waters within such States require greater environmental protection, such State may completely prohibit the discharge from all vessels of any sewage, whether treated or not, into such waters, except that no such prohibition shall apply until the Administrator determines that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for such water to which such prohibition would apply.
The information submitted to EPA by the State of Connecticut certifies that there are 43 pumpout facilities located within the proposed area. A list of the facilities, with phone numbers, locations, and hours of operation is appended at the end of this determination.
Based on the examination of the petition and its supporting documentation and information from site visits by EPA New England staff, EPA has determined that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for the area covered under this determination.
This determination is made pursuant to Section 312(f)(3) of Public Law 92-500, as amended by Public laws 95-217 and 100-4.
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, June 19, 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), (9)(A)(ii) and (9)(B), 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.
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, June 19, 2007, to consider the following matters:
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.
Memorandum and resolution re: Proposed Amendment of Part 344 to Extend the Time Period to Report Quarterly Personal Securities Trading.
Memorandum and resolution re: Final Rule: Depository Institution Management Officials Interlocks Act.
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.
Board of Governors of the Federal Reserve System
Background
Notice is hereby given of the final approval of proposed information collections by the Board of Governors of the Federal Reserve System (Board) under OMB delegated authority, as per 5 CFR 1320.16 (OMB Regulations on Controlling Paperwork Burdens on the Public). Board-approved collections of information are incorporated into the official OMB inventory of currently approved collections of information. Copies of the Paperwork Reduction Act Submission, supporting statements and approved collection of information instruments are placed into OMB's public docket files. The Federal Reserve may not conduct or sponsor, and the respondent is not required to respond to, an information collection that has been extended, revised, or implemented on or after October 1, 1995, unless it displays a currently valid OMB control number.
Federal Reserve Board Clearance Officer--Michelle Shore--Division of Research and Statistics, Board of Governors of the Federal Reserve System, Washington, DC 20551 (202-452-3829).
OMB Desk Officer--Alexander T. Hunt--Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10235, Washington, DC 20503.
The FR 4011 is voluntary and is authorized under Sections 4(j) and 4(k) of the BHC Act, 12 U.S.C. § 1843(j) through (k); and sections 225.88, and 225.89, of Regulation Y, 12 C.F.R. 225.88, and 225.89.
The FR 4012 is mandatory and is authorized under Section 4(l)(1) and 4(m) of the BHC Act, 12 U.S.C. § 1843(l)(1) and (m); section 8(a) of the International Banking Act, 12 U.S.C. § 3106(a); and sections 225.83 and 225.93 of Regulation Y, 12 C.F.R. 225.83 and 225.93.
The FR 4017 is required to obtain a benefit and is authorized under Section 9 of the Federal Reserve Act, 12 U.S.C. § 335; and section 208.76 of Regulation H, 12 C.F.R. 208.76.
The FR 4019 is required to obtain a benefit and is authorized under Section 4(k)(7) of the BHC Act, 12 U.S.C. § 1843(k)(7); and sections 225.171(e)(3), 225.172(b)(4), and 225.173(c)(2) of Regulation Y, 12 C.F.R. 225.171(e)(3), 225.172(b)(4), and 225.173(c)(2).
The FR 4023 is mandatory and is authorized under Section 4(k)(7) of the BHC Act, 12 U.S.C. § 1843(k)(7); and sections 225.171(e)(4) and 225.175 of Regulation Y, 12 C.F.R. 225.171(e)(4) and 225.175.
For the FR 4010, FR 4011, FR 4017, and FR 4019, a company may request confidential treatment of the information contained in these information collections pursuant to section (b)(4) and (b)(6) of the Freedom of Information Act (FOIA)(5 U.S.C. 552 (b)(4) and (b)(6)). Since the Federal Reserve does not collect the FR 4023, no issue of confidentiality under the FOIA arises. FOIA will only be implicated if the Board's examiners retained a copy of the records in their examination or supervision of the institution, and would likely be exempt from disclosure pursuant to FOIA (5 U.S.C. '552(b)(4), (b)(6), and (b)(8)).
There are no formal reporting forms for these collections of information, which are event generated, though in each case the type of information required to be filed is described in the Board's regulations. These collections of information are required pursuant to amendments made by the GLB Act to the Bank Holding Company Act or the Federal Reserve Act, or Board regulations issued to carry out the GLB Act.
Board of Governors of the Federal Reserve System, June 12, 2007.
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 July 9, 2007.
Board of Governors of the Federal Reserve System, June 11, 2007.
Federal Trade Commission (FTC).
Notice.
The Federal Trade Commission (FTC) is providing notice to its employees, former employees, and applicants for federal employment about the rights and remedies available to them under the Federal antidiscrimination, whistleblower protection, and retaliation laws. This notice fulfills the FTC’s initial notification obligation under the Notification and Federal Employees Antidiscrimination and Retaliation Act (No FEAR Act), as implemented by Office of Personnel Management (OPM) regulations at 5 CFR part 724.
Barbara Wiggs, Director, Office of Equal Employment Opportunity (EEO), by mail at Federal Trade Commission, Mail Drop H-413, 600 Pennsylvania Avenue, NW., Washington, DC 20580, or by telephone at (202) 326-2197. Additional information can be found on the FTC’s website at
On May 15, 2002, Congress enacted the “Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002,” which is now known as the No FEAR Act.
The Act also requires this agency to provide this notice to its Federal employees, former Federal employees and applicants for Federal employment to inform you of the rights and protections available to you under Federal antidiscrimination, whistleblower protection, and retaliation laws.
A Federal agency cannot discriminate against an employee or applicant with respect to the terms, conditions or privileges of employment on the basis of race, color, national origin, religion, sex, age, disability, sexual orientation, parental status or any other non-merit factor. Discrimination on these bases is prohibited by one or more of the following statutes: 5 U.S.C. 2302(b)(1), 29 U.S.C. 206(d), 29 U.S.C. 631, 29 U.S.C. 633a, 29 U.S.C. 791 and 42 U.S.C. 2000e-16.
If you believe that you have been the victim of unlawful discrimination on the basis of race, color, religion, sex, national origin or disability, you must contact an Equal Employment Opportunity (EEO) counselor within 45 calendar days of the alleged discriminatory action, or, in the case of a personnel action, within 45 calendar days of the effective date of the action, before you can file a formal complaint of discrimination with your agency.
A Federal employee with authority to take, direct others to take, recommend or approve any personnel action must not use that authority to take or fail to take, or threaten to take or fail to take, a personnel action against an employee or applicant because of disclosure of information by that individual that is reasonably believed to evidence violations of law, rule or regulation; gross mismanagement; gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety, unless disclosure of such information is specifically prohibited by law and such information is specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs.
Retaliation against an employee or applicant for making a protected disclosure is prohibited by 5 U.S.C. 2302(b)(8). If you believe that you have been the victim of whistleblower retaliation, you may file a written complaint (Form OSC-11) with the U.S. Office of Special Counsel at 1730 M Street, NW., Suite 218, Washington, DC 20036-4505 or online through the OSC Web site at
A Federal agency cannot retaliate against an employee or applicant
Under the existing laws, each agency retains the right, where appropriate, to discipline a Federal employee for conduct that is inconsistent with Federal antidiscrimination and whistleblower protection laws up to and including removal. If OSC has initiated an investigation under 5 U.S.C. 1214, however, according to 5 U.S.C. 1214(f), agencies must seek approval from the Special Counsel to discipline employees for, among other activities, engaging in prohibited retaliation. Nothing in the No FEAR Act alters existing laws or permits an agency to take unfounded disciplinary action against a Federal employee or to violate the procedural rights of a Federal employee who has been accused of discrimination.
For further information regarding the No FEAR Act regulations, refer to 5 CFR part 724, as well as the appropriate offices within the FTC (e.g., Office of EEO, Human Resources Management Office, or Office of the General Counsel). Additional information regarding Federal antidiscrimination, whistleblower protection and retaliation laws can be found on the EEOC Website at
Pursuant to section 205 of the No FEAR Act, neither the Act nor this notice creates, expands or reduces any rights otherwise available to any employee, former employee or applicant under the laws of the United States, including the provisions of law specified in 5 U.S.C. 2302(d).
Federal Trade Commission.
Extension of deadline for submission of public comments.
The Federal Trade Commission is extending the deadline for filing public comments on several issues in connection with the preparation of a report required by the Postal Accountability and Enhancement Act.
Public comments must be received on or before August 6, 2007.
Comments should refer to “USPS Study, Project No. P071200” to facilitate the organization of comments. A comment filed in paper form should include this reference both in the text and on the envelope, and the original and two copies should be delivered to the following address: Federal Trade Commission/Office of the Secretary, Room 135-H (Annex F ), 600 Pennsylvania Avenue, N.W., Washington, D.C. 20580.
Because paper mail in the Washington area and at the FTC is subject to delay, please consider submitting your comment in electronic form, as prescribed below. Comments containing any material for which confidential treatment is requested, however, must be filed in paper (rather than electronic) form, and the first page of the document must be clearly labeled “Confidential,” and must comply with FTC Rule 4.9(c).
Comments filed in electronic form (except comments containing any confidential material) should be submitted to the FTC by clicking on the following Web link:
The FTC Act and other laws the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. All timely and responsive public comments, whether filed in paper or electronic form, will be considered by the Commission and will be available to the public on the FTC Web site, to the extent practicable, at
Requests for additional information should be addressed to James Cooper, Federal Trade Commission, Office of Policy Planning, 600 Pennsylvania Avenue, N.W., Washington, D.C. 20580. Email: jcooper1@ftc.gov; Telephone: 202-326-3367.
On December 20, 2006, President Bush signed the Postal Accountability and Enhancement Act into law. The Act requires the Federal Trade Commission to prepare and submit to the President, Congress, and the Postal Regulatory Commission (“PRC”) a comprehensive report, by December 20, 2007, identifying Federal and State laws that apply differently to the United States Postal Service — with respect to the competitive category of mail — and to private companies providing similar products.
On May 1, 2007, the Commission announced that it was seeking public comment on several issues to assist in the preparation of the report, and published a Notice to that effect in the
By direction of the Commission.
Pursuant to Public Law 92-463, notice is hereby given of the thirteenth meeting of the Secretary's Advisory Committee on Genetics, Health, and Society (SACGHS), U.S. Public Health Service. The meeting will be held from on Tuesday, July 10, 2007, from 8:30 a.m. to approximately 5 p.m. in Room 800 of the Hubert H. Humphrey Building, 200 Independence Avenue, SW., Washington, DC 20001. The meeting will be open to the public with attendance limited to space available. The meeting also will be Web cast.
The meeting will focus primarily on the issue of gene patents and licensing practices and consist of a series of presentations and discussions involving international experts on how other countries are addressing questions related to the impact of gene patents and licensing practices on patient access to genetic tests. In addition, the SACGHS task force on oversight of genetic testing will present a brief report on the progress of its fact-finding and consultative efforts with regard to the Secretary's charge. The Committee will also be updated about the public comments received in response to the Committee's solicitation on its draft report on pharmacogenomics.
Time will be provided for public comments. The Committee would welcome hearing from anyone wishing to provide public comment on any issue related to genetics, health, and society. Individuals who would like to provide public comment should notify the SACGHS Executive Secretary, Ms. Sarah Carr, by telephone at 301-496-9838 or e-mail at
Under authority of 42 U.S.C. 217a, Section 222 of the Public Health Service Act, as amended, the Department of Health and Human Services established SACGHS to serve as a public forum for deliberations on the broad range of human health and societal issues raised by the development and use of genetic and genomic technologies and, as warranted, to provide advice on these issues. The draft meeting agenda and other information about SACGHS, including information about access to the Web cast, will be available at the following Web site:
National Institute of Environmental Health Sciences (NIEHS); National Institutes of Health.
Meeting announcement and request for comments.
CERHR announces the second meeting of the CERHR Expert Panel on Bisphenol A on August 6-8, 2007, at the Hilton Alexandria Old Town in Alexandria, VA. This meeting is open to the public with time scheduled for oral public comment. Attendance is limited only by the available meeting space.
The second expert panel meeting on bisphenol A will be held August 6-8, 2007. The interim draft expert panel report containing sections 1-4 is currently available for public comment [
The second expert panel meeting will be held at the Hilton Alexandria Old Town, 1767 King Street, Alexandria, VA (located across the street from the King Street Metro Stop). Written comments should be sent to Dr. Michael D. Shelby, CERHR Director [NIEHS, P.O. Box 12233, MD EC-32, Research Triangle Park, NC 27709 (mail), (919) 316-4511 (fax), or
Dr. Michael D. Shelby, CERHR Director, 919-541-3455,
CERHR convened the expert panel on March 5-7, 2007 to complete its report on the potential reproductive and developmental hazards of bisphenol A. The panel discussed and made revisions to the draft expert panel report, but because of the length and complexity of this evaluation, the panel was unable to complete its task. Information about the meeting and the draft interim expert panel report, which shows all edits to date, are available on the CERHR Web site (
The expert panel will reconvene on August 6-8, 2007, for a second meeting at the Hilton Alexandria Old Town, 1767 King Street, Alexandria, VA. The meeting will begin each day at 8:30 a.m. and continue until adjournment. It is anticipated to adjourn by noon on August 8, although adjournment may occur earlier or later depending upon the time needed for the expert panel to complete its work. The expert panel will (1) continue its review, (2) finalize sections 1-4 of the draft report, (3) reach conclusions regarding whether exposure to bisphenol A is a hazard to human reproduction or development, and (4) write Section 5 Summary, Conclusions, and Critical Data Needs. The interim draft report will serve as the starting point for the expert panel's discussions at its August meeting.
Bisphenol A (CAS RN: 80-5-07) is a high production volume chemical used in the production of epoxy resins, polyester resins, polysulfone resins, polyacrylate resins, polycarbonate plastics, and flame retardants. Polycarbonate plastics are used in food and drink packaging; resins are used as lacquers to coat metal products such as food cans, bottle tops, and water supply pipes. Some polymers used in dental sealants and tooth coatings contain bisphenol A. Exposure to the general population can occur through direct contact to bisphenol A or by exposure to food or drink that has been in contact with a material containing bisphenol A. CERHR selected this chemical for evaluation because of (1) high production volume, (2) widespread human exposure, (3) evidence of reproductive toxicity in laboratory animal studies, and (4) public concern.
The CERHR again invites written public comments on the interim draft expert panel report on bisphenol A. All
Time will be set aside on August 6, 2007, for the presentation of oral public comments at the expert panel meeting. Seven minutes will be available for each speaker (one speaker per organization). Persons wishing to make oral remarks are asked to contact CERHR by July 30 (see
NTP established CERHR in June 1998 [
CERHR invites the nomination of agents for review or scientists for its expert registry. Information about CERHR and the nomination process can be obtained from its homepage (
CERHR follows a formal, multi-step process for review and evaluation of selected chemicals. Information about the process and CERHR is available on the CERHR Web site under “About CERHR” or in printed copy from CERHR.
In accordance with Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC) announces the following meetings of the aforementioned subcommittee and committee.
Agenda items are subject to change as priorities dictate.
The Director, Management Analysis and Services Office, has been delegated the authority to sign
Centers for Medicare & Medicaid Services, Department of Health and Human Services.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Centers for Medicare & Medicaid Services (CMS), Department of Health and Human Services, is publishing the following summary of proposed collections for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the Agency's function; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
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To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, access CMS Web Site address at
Written comments and recommendations for the proposed information collections must be mailed or faxed within 30 days of this notice directly to the OMB desk officer: OMB Human Resources and Housing Branch, Attention: Carolyn Lovett, New Executive Office Building, Room 10235, Washington, DC 20503, Fax Number: (202) 395-6974.
Centers for Medicare & Medicaid Services, Department of Health and Human Services.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Centers for Medicare & Medicaid Services (CMS) is publishing the following summary of proposed collections for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
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To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, access CMS' Web Site address at
To be assured consideration, comments and recommendations for the proposed information collections must be received at the address below, no later than 5 p.m. on August 14, 2007.
CMS, Office of Strategic Operations and Regulatory Affairs, Division of Regulations Development—C, Attention: Bonnie L Harkless, Room C4-26-05, 7500 Security Boulevard, Baltimore, Maryland 21244-1850.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act of 1995 (the PRA), Federal agencies are required to publish notice in the
Submit written or electronic comments on the collection of information by August 14, 2007.
Submit electronic comments on the collection of information to:
Denver Presley, Jr., Office of the Chief Information Officer (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-1472.
Under the PRA (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
Under Section 740 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 379j-12), as amended by the Animal Drug User Fee Act of 2003 (ADUFA), FDA has the authority to assess and collect for certain animal drug user fees. Because the submission of user fees concurrently with applications and supplements is required, review of an application cannot begin until the fee is submitted. The types of fees that require a cover sheet are certain animal drug application fees and certain supplemental animal drug application fees. The cover sheet, FDA Form 3546, is designed to provide the minimum necessary information to determine whether a fee is required for the review of an application or supplement, to determine the amount of the fee required, and to assure that each animal drug user fee payment and each animal drug application for which payment is made, is appropriately linked to that payment. The form, when completed electronically, will result in the generation of a unique payment identification number used for tracking the payment. FDA will use the information collected to initiate administrative screening of new animal drug applications and supplements to determine if payment has been received.
Respondents to this collection of information are new animal drug sponsors, applicants, or manufacturers.
FDA estimates the burden of this collection of information as follows:
Based on FDA's database system, there are an estimated 140 manufacturers of products or sponsors of new animal drugs potentially subject to ADUFA. However, not all manufacturers or sponsors will have any submissions in a given year and some may have multiple submissions. The total number of annual responses is based on the number of submissions received by FDA in fiscal year 2003. The Center for Veterinary Medicine estimates 69 annual responses that include the following: 28 new animal drug premarket approval applications and 41 supplements. The estimated hours per response are based on past FDA experience with the various submissions, and range from 30 minutes to 1 hour. The hours per response are based on the average of these estimates.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Fax written comments on the collection of information by July 16, 2007.
To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB, Attn: FDA Desk Officer, FAX: 202-395-6974. All comments should be identified with the OMB control number 0910-NEW and title “Label Comprehension Study.” Also include the FDA docket number found in brackets in the heading of this document.
Denver Presley, Jr., Office of the Chief Information Officer (HFA-250), Food
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
FDA issued the “Draft Guidance for Industry and FDA Staff: Class II Special Controls Guidance Document: Labeling for Male Condoms Made of Natural Rubber Latex” on November 14, 2005 (70 FR 69156). Section 21 U.S.C. 393(d)(2)(C) of the Federal Food, Drug and Cosmetic Act (the act) states that the Secretary, through the Commissioner, shall be responsible to conduct research relating to * * * devices in carrying out this chapter. In order to evaluate the understandability of the condom labeling language currently on the market and the labeling language proposed in this draft guidance, as well as a future revised version of the labeling, FDA plans to evaluate readers' comprehension of three versions of condom labeling through a label comprehension study.
The proposed label comprehension study will measure current and potential condom consumers' understanding of the current market labeling and the proposed condom labeling in the draft guidance of the retail package, foil and package insert of condom labeling, as well as a future revised version of the labeling. The label comprehension study will follow a sequential design, first testing both the current market labeling (Part A) and the draft labeling in the guidance (Part B) in Stage 1, and then a revised version of the labeling in Stage 2.
FDA will conduct a label comprehension study via a mall intercept/central location intercept methodology with pre-screened participants. The FDA will administer a screening instrument, the Rapid Estimate of Adult Literacy in Medicine (REALM) test, an informed consent, and a questionnaire with approximately 20 questions related to the condom labeling language to a total of 1,200 participants: 400 participants for Part A of Stage 1, 400 participants for Part B of Stage 1, and 400 participants for Stage 2 of the study. Results of the study will be considered in FDA's condom labeling recommendations to provide important risk/benefit and use information associated with condoms in an easily understood language.
In the
FDA estimates the burden for this collection of information as follows:
This was based on similar types of FDA studies conducted in the past. FDA has conducted both focus group studies and label comprehension studies, where similar participant activities, such as reading the labeling, taking the REALM test, signing the informed consent, and answering questions on a self-administered questionnaire took place. In order to achieve the 1,200 participants for the condom label comprehension study, FDA estimates screening 3,300 to achieve 1,200 interviews.
In compliance with the requirement for opportunity for public comment on proposed data collection projects (section 3506(c)(2) of Title 44, United States Code, as amended by the Paperwork Reduction Act of 1995, Pub.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques of other forms of information technology.
This is a request for revision of the Nursing Education Loan Repayment Program (NELRP) application and participant monitoring forms. The NELRP was originally authorized by 42 U.S.C. 297b(h) (section 836(h) of the Public Health Service Act) as amended by Public Law 100-607, November 4, 1988. The NELRP is currently authorized by 42 U.S.C. 297n (section 846 of the Public Health Service Act) as amended by Public Law 107-205, August 1, 2002.
Under the NELRP, registered nurses are offered the opportunity to enter into a contractual agreement with the Secretary to receive loan repayment for up to 85 percent of their qualifying educational loan balance as follows: 30 percent each year for the first 2 years and 25 percent for the third year. In exchange, the nurses agree to serve full-time as a registered nurse for 2 or 3 years at a health care facility with a critical shortage of nurses.
NELRP requires the following information:
1. Applicants must provide information on their nursing education, employment, and proposed service site;
2. Applicants must provide information on their outstanding nursing educational loans;
3. Applicants must provide banking information from their financial institution; and
4. Employers must provide information on the health care facility and on the employment status of applicants and participants.
Send comments to Susan G. Queen, Ph.D., HRSA Reports Clearance Officer, Room 10-33 Parklawn Building, 5600 Fishers Lane, Rockville, Maryland 20857. Written comments should be received with 60 days of this notice.
Health Resources and Services Administration, HHS.
Notice.
The Health Resources and Services Administration (HRSA) is requesting nominations to fill three vacancies on the Advisory Commission on Childhood Vaccines (ACCV). The ACCV was established by Title XXI of the Public Health Service Act (the Act), as enacted by Public Law (Pub. L.) 99-660 and as subsequently amended, and advises the Secretary of Health and Human Services (the Secretary) on issues related to implementation of the National Vaccine Injury Compensation Program (VICP).
The agency must receive nominations on or before July 16, 2007.
All nominations are to be submitted to the Director, Division of Vaccine Injury Compensation, Healthcare Systems Bureau (HSB), HRSA, Parklawn Building, Room 11C-26, 5600 Fishers Lane, Rockville, Maryland 20857.
Ms. Delia Jones, Principal Staff Liaison, Policy Analysis Branch, Division of Vaccine Injury Compensation, HSB, HRSA at (301) 443-6593 or e-mail:
Under the authorities that established the ACCV, the Federal Advisory Committee Act of October 6, 1972 (Pub. L. 92-463) and
The ACCV advises the Secretary on the implementation of the VICP. The activities of the ACCV include: recommending changes in the Vaccine Injury Table at its own initiative or as the result of the filing of a petition; advising the Secretary in implementing section 2127 regarding the need for childhood vaccination products that result in fewer or no significant adverse reactions; surveying Federal, State, and local programs and activities related to gathering information on injuries associated with the administration of childhood vaccines, including the adverse reaction reporting requirements of section 2125(b); advising the Secretary on the methods of obtaining, compiling, publishing, and using credible data related to the frequency and severity of adverse reactions associated with childhood vaccines; and recommending to the Director of the National Vaccine Program that vaccine safety research be conducted on various vaccine injuries.
The ACCV consists of nine voting members appointed by the Secretary as follows: (1) Three health professionals, who are not employees of the United States Government and have expertise in the health care of children, and the epidemiology, etiology, and prevention of childhood diseases, and the adverse reactions associated with vaccines, at least two shall be pediatricians; (2) three members from the general public, at least two shall be legal representatives (parents or guardians) of children who have suffered a vaccine-related injury or death; and (3) three attorneys, at least one shall be an attorney whose specialty includes representation of persons who have suffered a vaccine-related injury or death, and one shall be an attorney whose specialty includes representation of vaccine manufacturers. In addition, the Director of the National Institutes of Health, the Assistant Secretary for Health, the Director of the Centers for Disease Control and Prevention, and the Commissioner of the Food and Drug Administration (or the designees of such officials) serve as nonvoting ex officio members.
Specifically, HRSA is requesting nominations for three voting members of the ACCV representing: (1) A pediatrician who has expertise in the health care of children, the epidemiology, etiology, and prevention of childhood diseases, and the adverse reactions associated with vaccines; (2) a member of the general public who is the legal representative of a child who has suffered a vaccine injury or death; and (3) an attorney whose specialty includes representation of persons who have suffered vaccine injuries or deaths. Nominees will be invited to serve a 3-year term beginning January 1, 2008, and ending December 31, 2010.
Interested persons may nominate one or more qualified persons for membership on the ACCV. Nominations shall state that the nominee is willing to serve as a member of the ACCV and appears to have no conflict of interest that would preclude the ACCV membership. Potential candidates will be asked to provide detailed information concerning consultancies, research grants, or contracts to permit evaluation of possible sources of conflicts of interest. A curriculum vitae or resume should be submitted with the nomination.
The Department of Health and Human Services has special interest in assuring that women, minority groups, and the physically disabled are adequately represented on advisory committees; and therefore, extends particular encouragement to nominations for appropriately qualified female, minority, or disabled candidates.
Pursuant to Public Law 92-463, notice is hereby given of the thirteenth meeting of the Secretary's Advisory Committee on Genetics, Health, and Society (SACGHS), U.S. Public Health Service. The meeting will be held from on Tuesday, July 10, 2007, from 8:30 a.m. to approximately 5 p.m. in Room 800 of the Hubert H. Humphrey Building, 200 Independence Avenue, SW., Washington, DC 20001. The meeting will be open to the public with attendance limited to space available. The meeting also will be Web cast.
The meeting will focus primarily on the issue of gene patents and licensing practices and consist of a series of presentations and discussions involving international experts on how other countries are addressing questions related to the impact of gene patents and licensing practices on patient access to genetic tests. In addition, the SACGHS task force on oversight of genetic testing will present a brief report on the progress of its fact-finding and consultative efforts with regard to the Secretary's charge. The Committee will also be updated about the public comments received in response to the Committee's solicitation on its draft report on pharmacogenomics.
Time will be provided for public comments. The Committee would welcome hearing from anyone wishing to provide public comment on any issue related to genetics, health, and society. Individuals who would like to provide public comment should notify the SACGHS Executive Secretary, Ms. Sarah Carr, by telephone at 301-496-9838 or e-mail at
Under authority of 42 U.S.C. 217a, Section 222 of the Public Health Service Act, as amended, the Department of Health and Human Services established SACGHS to serve as a public forum for deliberations on the broad range of human health and societal issues raised by the development and use of genetic and genomic technologies and, as warranted, to provide advice on these issues. The draft meeting agenda and other information about SACGHS, including information about access to the Web cast, will be available at the following Web site:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set foth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure f which would constitute a clearly unwarranted invasion of personal privacy.
Notice is hereby given of a change in the meeting of the National Institute of Mental Health Special Emphasis Panel, July 12, 2007, 1 p.m. to July 12, 2007, 4 p.m., National Institutes of Health, Neuroscience Center, 6001 Executive Boulevard, Rockville, MD 20852 which was published in the
The meeting will be held on July 11, 2007 and the time has been changed to 1:30 p.m. to 4 p.m. The meeting location remains the same. The meeting is closed to the public.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Science and Technology Directorate, DHS.
60-day Notice and request for comment.
The Department of Homeland Security (DHS) invites interested persons to comment on the following forms for the Small Business Innovation Research (SBIR) program: Company Registration (DHS FORM 10022), Research Topic Recommendation (DHS FORM 10018), Submit a Question (DHS FORM 10020), Collaboration Opportunity (DHS FORM 10021), Reviewer Opportunity (DHS FORM 10019), E-mail Mailing List Signup (DHS FORM 10016), E-mail Mailing List Removal (DHS FORM 10024), Proposal Coversheet (DHS FORM 10017), Cost Proposal (DHS FORM 10023) forms and instructions (hereinafter “Forms Package”) designed to collect proposal information from small businesses through the SBIR Web site. This notice and request for comments is required by the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. chapter 35).
Comments are encouraged and will be accepted until August 14, 2007.
You may submit comments, identified by docket number DHS-2007-0046, by one of the following methods:
• Federal eRulemaking Portal:
• E-mail:
• Mail: Science and Technology Directorate, ATTN: OCIO/Kenneth D. Rogers, 245 Murray Drive, Bldg. 410, Washington, DC 20528.
Kenneth D. Rogers (202) 254-6185 (this is not a toll free number).
DHS invites the general public to comment on the new information collection forms, as described below.
Interested parties can obtain copies of the Forms Package by calling or writing the point of contact listed above.
The Department of Homeland Security (DHS) Small Business Innovation Research (SBIR) program established under the Small Business Innovation Development Act of 1982 (Pub. L. 97-219) is responsible for collecting information used by the DHS SBIR/Small Business Technology Transfer (STTR) Program Office to: 1. Identify members of the public who qualify for, and are interested in participating in, the DHS SBIR/STTR Program; 2. Facilitate SBIR/STTR outreach to the public; 3. Provide the DHS SBIR/STTR Program Office necessary and sufficient information to determine that proposals submitted by the public to the DHS SBIR/STTR Program meet criteria for consideration under the program.
Please note that the Forms Package includes nine forms for collecting proposal information from small businesses. As explained herein, these separate forms are intended to reduce burden and improve records management by (1) allowing offerors to submit identifying information only once and then to reference that previously submitted identifying information in the submittal of proposals, (2) eliminating the cost and delay associated with the submission of proposals via non-electronic means, (3) facilitating timely review of proposals, and (4) improving the accuracy of records management for proposals. The Department is committed to improving its SBIR processes and urges all interested parties to suggest how these materials can further reduce burden while seeking necessary information under the Act.
DHS is particularly interested in comments that:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Suggest ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Suggest 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, e.g., permitting electronic submissions of responses.
(1)
(2)
(3)
(4)
(5)
(6)
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice.
This Notice identifies unutilized, underutilized, excess, and surplus Federal property reviewed by HUD for suitability for possible use to assist the homeless.
Kathy Ezzell, Department of Housing and Urban Development, Room 7262, 451 Seventh Street, SW., Washington, DC 20410; telephone (202) 708-1234; TTY number for the hearing- and speech-impaired (202) 708-2565, (these telephone numbers are not toll-free), or call the toll-free Title V information line at 1-800-927-7588.
In accordance with the December 12, 1988 court order in
Office of the Assistant Secretary for Housing—Federal Housing Commissioner, HUD.
Notice of upcoming meeting via conference call.
This notice sets forth the schedule and proposed agenda of an upcoming meeting of the Manufactured Housing Consensus Committee (the Committee) to be held via telephone conference. This meeting is open to the general public, which may participate by following the instructions below.
The conference call meeting will be held on Wednesday, July 25, 2007, from 11 a.m. to 2 p.m. eastern daylight time.
Information concerning the conference call can be obtained from the Department's Consensus Committee Administering Organization, the National Fire Protection Association (NFPA). Interested parties can link onto the NFPA's Web site for instructions concerning how to participate, and for contact information for the conference call, in the section marked “Business” “Manufactured Housing Consensus Committee Information”. The link can be found at:
Alternately, interested parties may contact Jill McGovern of NFPA at (617) 984-7404 (this is not a toll-free number) for conference call information.
William W. Matchneer III, Associate Deputy Assistant Secretary, Office of Regulatory Affairs and Manufactured Housing, Department of Housing and Urban Development, 451 7th 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 Sections 10(a) and (b) 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, 42 U.S.C. 5403(a)(3). The Committee is charged with providing recommendations to the Secretary to adopt, revise, and interpret manufactured home construction and safety standards and procedural and enforcement regulations, and with developing and recommending proposed model installation standards to the Secretary.
The purpose of this conference call meeting is for the Committee to review and act on task group recommendations to implement changes in the bylaws concerning member terms and to discuss prospects for a new Committee chairperson.
Fish and Wildlife Service, Interior.
Notice of receipt of applications for permit.
The public is invited to comment on the following applications to conduct certain activities with endangered species and marine mammals.
Written data, comments or requests must be received by July 16, 2007.
Documents and other information submitted with these applications are available for review, subject to the requirements of the Privacy Act and Freedom of Information Act, by any party who submits a written request for a copy of such documents within 30 days of the date of publication of this notice to: U.S. Fish and Wildlife Service, Division of Management Authority, 4401 North Fairfax Drive, Room 700, Arlington, Virginia 22203; fax 703/358-2281.
Division of Management Authority, telephone 703/358-2104.
The public is invited to comment on the following applications for a permit to conduct certain activities with endangered species. This notice is provided pursuant to Section 10(c) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
The applicant requests a permit to import two West African dwarf crocodiles (
The applicant requests a permit to import the sport-hunted trophy of one male bontebok (
The applicant requests a permit to import the sport-hunted trophy of one male bontebok (
The applicant requests a permit to import the sport-hunted trophy of one male bontebok (
The public is invited to comment on the following applications for a permit to conduct certain activities with endangered marine mammals and marine mammals. The applications were submitted to satisfy requirements of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
The applicant requests a permit to conduct a comprehensive study of Florida manatee (
Concurrent with the publication of this notice in the
The applicant requests a permit to import a polar bear (
The applicant requests a permit to import a polar bear (
The applicant requests a permit to import a polar bear (
The applicant requests a permit to import a polar bear (
The applicant requests a permit to import a polar bear (
The applicant requests a permit to import a polar bear (
The applicant requests a permit to import a polar bear (
The applicant requests a permit to import a polar bear (
The applicant requests a permit to import a polar bear (
The applicant requests a permit to import a polar bear (
The applicant requests a permit to import a polar bear (
The applicant requests a permit to import a polar bear (
The applicant requests a permit to import a polar bear (
The applicant requests a permit to import a polar bear (
The applicant requests a permit to import a polar bear (
The applicant requests a permit to import a polar bear (
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 Pitka's Point Native Corporation. The lands are in the vicinity of the Native village of Pitka's Point, Alaska, and are located in:
Containing 9,216.10 acres.
Containing 1,272.57 acres.
Aggregating 10,488.67 acres.
The subsurface estate in these lands will be conveyed to Calista Corporation when the surface estate is conveyed to Pitka's Point Native Corporation. Notice of the decision will also be published four times in the Tundra Drums.
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 July 16, 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
Bureau of Land Management, Interior.
Notice of availability.
In accordance with the National Environmental Policy Act of 1969 and the Federal Land Policy and Management Act of 1976, the Bureau of Land Management (BLM) has prepared three Proposed Resource Management Plans/Final Environmental Impact Statements (PRMPs/FEISs) for public lands managed by the Eagle Lake Field Office, Susanville, California; the Alturas Field Office, Alturas, California; and the Surprise Field Office, Cedarville, California. These plans are now available for public review.
BLM planning regulations (43 CFR 1610.5-2) state that any person who participated in the planning process, and has an interest which is or may be adversely affected, may protest. The protest must be filed within 30 days of the date that the Environmental Protection Agency publishes its Notice of Availability in the
Jeff Fontana, Public Affairs Officer, Bureau of Land Management, 2950 Riverside Dr., Susanville, CA 96130, (503) 252-5332.
Copies of the Alturas, Eagle Lake, and Surprise PRMPs/FEISs have been sent to affected Federal, State, and local government agencies and to interested parties, and are available for public inspection at the BLM's Alturas Field Office, 708 West 12th Street, Alturas, California; the Eagle Lake Field Office, 2950 Riverside Drive, Susanville, California; or the Surprise Field Office, 602 Cressler Street, Cedarville, California. Interested persons may also review the PRMPs/FEISs on the Internet at
Comments on the Draft RMPs/EISs received from the public were incorporated into the PRMPs/FEISs. Public comments resulted in the addition of clarifying text, but did not significantly change proposed land use decisions.
Instructions for filing a protest with the Director of the BLM regarding the PRMPs/EISs may be found at 43 CFR 1610.5-2. A protest may only raise those issues which were submitted for the record during the planning process. E-mail and faxed protests will not be accepted as valid protests unless the protesting party also provides the original letter by either regular or overnight mail postmarked by the close of the protest period. Under these conditions, BLM will consider the e-mail or faxed protest as an advance copy and it will receive full consideration. If you wish to provide BLM with such advance notification, please direct faxed protests to the attention of the BLM protest coordinator at 202-452-5112, and e-mails to
Please direct the follow-up letter to the appropriate address provided below.
The protest must contain:
a. The name, mailing address, telephone number, and interest of the person filing the protest.
b. A statement of the part or parts of the plan and the issue or issues being protested.
c. A copy of all documents addressing the issue(s) that the protesting party submitted during the planning process or a statement of the date they were discussed for the record.
d. A concise statement explaining why the protestor believes the State Director's decision is wrong.
All protests must be in writing and mailed to one of the following addresses:
Individual respondents may request confidentiality. If you wish to withhold your name and/or street address from public review or from disclosure under the Freedom of Information Act, you must state this prominently at the beginning of your protest. Such requests will be honored to the extent allowed by law. All submissions from organizations and businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, will be available for public inspection in their entirety.
The Director will promptly render a decision on the protest. The decision will be in writing and will be sent to the protesting party by certified mail, return receipt requested. The decision of the Director is the final decision of the Department of the Interior.
This document was received at the Office of the Federal Register June 12, 2007.
Bureau of Land Management, Department of the Interior.
Notice.
The purpose of this notice is to inform the public and interested State and local government officials of the filing of Plats of Survey in Nevada.
David D. Morlan, Chief, Branch of Geographic Sciences, Bureau of Land Management (BLM), Nevada State Office, 1340 Financial Blvd., P.O. Box 12000, Reno, Nevada 89520, 775-861-6541.
1. The Plat of Survey of the following described lands was officially filed at the Nevada State Office, Reno, Nevada, on April 5, 2007:
The plat, in two sheets, representing the dependent resurvey of portions of the Original Walker River Indian Reservation Boundary, a portion of the subdivisional lines, and a portion of the subdivision-of-section lines of section 20 and the subdivision of certain sections, Township 15 North, Range 26 East, Mount Diablo Meridian, Nevada, executed under Group No. 830, was accepted April 3, 2007.
This survey was executed to meet certain administrative needs of the Bureau of Indian Affairs.
2. The Plats of Survey of the following described lands were officially filed at the Nevada State Office, Reno, Nevada, on April 12, 2007.
The plat, in two sheets, representing the dependent resurvey of a portion of the south boundary and a portion of the subdivisional lines, the subdivision of sections 25, 26, 27 and 33, and metes-and-bounds surveys in sections 25, 28 and 33, Township 23 South, Range 61 East, Mount Diablo Meridian, Nevada, executed under Group No. 826, was accepted April 10, 2007.
The plat representing the dependent resurvey of a portion of the subdivisional lines of Township 19 South, Range 62 East, Mount Diablo Meridian, Nevada, executed under Group No. 836, was accepted April 10, 2007.
These surveys were executed to meet certain administrative needs of the Bureau of Land Management.
3. The Plats of Survey of the following described lands were officially filed at the Nevada State Office, Reno, Nevada, on April 20, 2007.
The plat representing the dependent resurvey of a portion of the east boundary, and a portion of the subdivisional lines and a portion of the subdivision-of-section lines of section 3, Township 14 North, Range 19 East, Mount Diablo Meridian, Nevada, executed under Group No. 822, was accepted April 19, 2007.
The plat representing the dependent resurvey of a portion of the subdivisional lines and portions of the subdivision-of-section lines of sections 6 and 18, Township 14 North, Range 20 East, Mount Diablo Meridian, Nevada, executed under Group No. 823, was accepted April 19, 2007.
These surveys were executed to meet certain administrative needs of the Bureau of Indian Affairs.
4. The Plat of Survey of the following described lands was officially filed at the Nevada State Office, Reno, Nevada, on May 4, 2007.
The plat, in three sheets, representing the dependent resurvey of the Fourth Standard Parallel North, through a portion of Range 31 East, portions of the south, east and west boundaries, and a portion of the subdivisional lines, and the subdivision of section 33, a metes-and-bounds survey through sections 14, 22, 23, 27, 28 and 33, and a metes-and-bounds survey in section 30, Township 20 North, Range 31 East, Mount Diablo Meridian, Nevada, executed under Group No. 831, was accepted April 30, 2007.
This survey was executed to meet certain administrative needs of the Fish and Wildlife Service.
5. The Plat of Survey of the following described lands was officially filed at the Nevada State Office, Reno, Nevada, on May 11, 2007.
The plat representing the dependent resurvey of a portion of the subdivisional lines and a portion of the subdivision-of-section lines of section 25, Township 14 South, Range 65 East, Mount Diablo Meridian, Nevada, executed under Group No. 829, was accepted May 10, 2007.
This survey was executed to meet certain administrative needs of the Bureau of Indian Affairs.
6. The Plat of Survey of the following described lands will be officially filed at the Nevada State Office, Reno, Nevada, on the first business day after thirty (30) days from the publication of this notice.
The plat representing the independent resurvey of a portion of the subdivisional lines, Township 14 South, Range 69 East, Mount Diablo Meridian, Nevada, executed under Group No. 789, was accepted June 5, 2007.
This survey was executed to meet certain administrative needs of the Bureau of Land Management.
7. Subject to valid existing rights, the provisions of existing withdrawals and classifications, the requirement of applicable laws, and other segregations of record, these lands are open to application, petition and disposal, including application under the mineral leasing laws. All such valid applications received on or before the official filing of the Plat of Survey described in paragraph 6, shall be considered as simultaneously filed at that time.
8. The above-listed surveys are now the basic record for describing the lands for all authorized purposes. These surveys have been placed in the open files in the BLM Nevada State Office and are available to the public as a matter of information. Copies of the surveys and related field notes may be furnished to the public upon payment of the appropriate fees.
United States International Trade Commission.
Request for comments.
The Commission requests comments with respect to the proposed modifications set forth at the end of this notice. The Commission is investigating the tariff treatment of certain products that appear to be subject to higher tariffs as a result of modifications recommended in investigation No. 1205-6 and implemented pursuant to Presidential Proclamation 8097. In addition, U.S. Customs and Border Protection (Customs) has requested certain changes in the Harmonized Tariff Schedule of the United States (HTS). Recommendations from this investigation will be included in an addendum to the original investigation report.
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 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
David Beck, Director, Office of Tariff Affairs & Trade Agreements (O/TATA) (202 205-2603 or
Section 1205 of the Omnibus Trade and Competitiveness Act of 1988 (19 U.S.C. 3005) directs the Commission to periodically review the HTS and make recommendations on modifications to the HTS. The changes may be for purposes including: (a) Conformity to modifications made to the Harmonized System Convention (Convention) of the World Customs Organization (WCO), (b) promotion of uniform application of the Convention and, (c) alleviation of unnecessary administrative burdens. The recommended changes should ensure “substantial rate neutrality'.
In April 2006, the Commission issued a report entitled Proposed Modifications to the Harmonized Tariff Schedule of the United States, investigation No. 1205-6, Publication No. 3851. The modifications recommended in the report were put into effect on February 3, 2007, pursuant to Presidential Proclamation 8097, which was published in the
Any submissions that contain confidential business information (CBI) 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 “non-confidential” version, and that the CBI be clearly identified by means of brackets. All written submissions, except for CBI, will be made available for inspection by interested parties.
The Commission may include some or all of the CBI it receives in the final report it sends to the President. However, the Commission will not publish CBI in the public version of the final report in a manner that could reveal the operation of the firm supplying the information. The public version of the final report will be made available to the public on the Commission Web site.
By order of the Commission.
Office of Disability Employment Policy, Department of Labor.
Notice of correction.
Solicitation for Grant Applications (SGA) 07-09; National Technical Assistance Center on Transition and Employment for Youth with Disabilities; Notice of Correction.
1.
2.
3.
4.
Any questions regarding this SGA prior to the closing deadline, should be directed to Cassandra Mitchell, Procurement Services Center, e-mail address:
Copyright Office, Library of Congress.
Notice of filings, request for comments.
The Copyright Office is publishing a final list of stations listed in affidavits sent to the Copyright Office in which the owner or licensee of the station attests that the station qualifies as a specialty station in accordance with the Federal Communications Commission's (FCC) definition of specialty station in effect on June 24, 1981. Any party may file an objection to an owner’s claim of specialty station status with the Copyright Office.
Comments must be received on or before July 16, 2007. The effective date of the annotated list will coincide with the beginning of the accounting period that starts after the publication of the final list in the
If hand delivered by a private party, the sworn affidavit should be brought to Room 401 of the James Madison Building between 8:30 a.m. and 5 p.m. The material should be addressed as follows: Office of the General Counsel, Library of Congress, James Madison Building, LM-401, Washington, DC, 20559-6000.
If delivered by a commercial courier, the sworn affidavit must be delivered to the Congressional Courier Acceptance Site (“CCAS”) located at 2nd and D Streets, NE, Washington, D.C. between 8:30 a.m. and 4 p.m. The envelope should be addressed as follows: Office of the General Counsel, U.S. Copyright Office, LM 401, James Madison Building, 101 Independence Avenue, SE, Washington, DC. Please note that CCAS will not accept delivery by means of overnight delivery services such as Federal Express, United Parcel Service or DHL.
If sent by mail (including overnight delivery using U.S. Postal Service Express Mail), the sworn affidavit should be addressed to U.S. Copyright Office, Copyright GC/I&R, P.O. Box 70400, Southwest Station, Washington, DC 20024.
Tanya M. Sandros, Acting General Counsel, P.O. Box 70977, Southwest Station, Washington, DC 20024-0977. Telephone: (202) 707-8380. Telefax: (202) 252-3423.
Under the cable compulsory license, section 111 of title 17, United States Code, a cable operator may carry the signal of a television station classified as a specialty station at the base rate rather than at the higher 3.75
The Copyright Office published its first specialty station list in 1990 under a procedure which allowed the licensee of the station to file an affidavit with the Office attesting to the fact that the station’s
programming comports with the 1981 FCC definition and hence, qualifies it as a specialty station. At the same time, the Office also announced its intention to regularly update the list. 55 FR 40021 (October 1, 1990). The Office’s second list was published in 1995. 60 FR 34303 (June 30, 1995). Its third list was published in 1998. 63 FR 67703 (December 8, 1998).
On February 8, 2007, the Copyright Office published a notice asking the licensee, or a valid agent of the licensee, to file a sworn affidavit with the Copyright Office stating that the station’s programming satisfies the FCC’s former requirements for specialty station status. 72 FR 6008 (February 8, 2007). In response to the notice, the Copyright Office received affidavits on
Copyright Office licensing examiners shall refer to the final annotated list in examining a statement of account where a cable system operator claims specialty station status for a particular station. If a cable system operator claims specialty station status for a station not on the published final list, the examiner determines whether the owner of the station has filed an affidavit since publication of the list. Affidavits received after publication of the final annotated list shall be kept on file in the Licensing Division of the Copyright Office. Any interested party may file an objection to any such late-filed affidavit and the objection shall be filed together with the corresponding affidavit.
KBLN, Grants Pass, OR
KAKW, Kileen, TX
KTFO-CA, Austin, TX
KDTV(TV), San Francisco, CA
KDTV-CA, Santa Rosa, CA
KFTV(TV), Hanford, CA
KMEX-TV, Los Angeles, CA
KNIC-TV, Blanco, TX
KTVW-TV, Phoenix, AZ
KTVW-CA, Flagstaff, AZ
KUTH(TV), Provo, UT
KUVE-TV, Green Valley, AZ
KUVE-CA, Tuscon, AZ
KUVN-TV, Garland, TX
KUVN-CA, Fort Worth, TX
KUVS-TV, Modesto, CA
KWEX-TV, San Antonio, TX
KXLN-TV, Rosenberg, TX
WGBO-TV, Joliet, IL
WFDC-TV, Arlington, VA
WLTV(TV), Miami, FL
WHQS-TV, Cleveland, OH
WUVG-TV, Athens, GA
WTNC-LP, Durham, NC
WUVC-TV, Fayetteville, NC
WUVP-TV, Vineland, NJ
WXTV(TV), Paterson, NJ
K48GX, Tuscon, AZ
KABE-LP, Bakersfield, CA
KFPH-TV, Flagstaff, AZ
KFPH-CA, Phoenix, AZ
KFSF-TV, Vallejo, CA
KFTH-TV, Alvin, TX
KFTR-TV, Ontatio, CA
KFTU-TV, Douglas, AZ
KFTU-CA, Tuscon, AZ
KSTR-TV, Irving, TX
KTFD-TV, Boulder, CO
KTFF-TV, Portersville, CA
KTFF-LP, Fresno, CA
KTFK-TV, Stockton, CA
KTFQ-TV, Albuquerque, NM
WAMI-TV, Hollywood, FL
WFTT-TV, Tampa, FL
WFTY-TV, Smithtown, NY
WFUT-TV, Newark, NJ
WOTF-TV, Melbourne, FL
WUTF-TV, Marlborough, MA
WXFT-TV, Aurora, IL
WLII(TV), Caguas, Puerto Rico
WSUR-TV Ponce, Puerto Rico
KBTF-CA, Bakersfield, CA
KFTO-CA, San Antonio, TX
KNIC-CA, San Antonio, TX
KTFB-CA, Bakersfield, CA
WFPA-CA, Philadelphia, PA
K21GC, Safford, AZ
K45DX, Floresville, TX
KZOL-LP, Safford, AZ
K16FB, Globe, AZ
KDOS-LP, Globe, AZ
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation announces the following meeting.
Dinner locally 7:00 (open)
Review team separate working dinner (closed)
8:00-8:30 Review Team assemble at Gump Lab
8:30-9:10 Research and other presentations (open)
Nuclear Regulatory Commission.
Issuance of Environmental Assessment and Finding of No Significant Impact for License Amendment.
Betsy Ullrich, Commercial and R&D Branch, Division of Nuclear Materials Safety, Region I, U.S. Nuclear Regulatory Commission, 475 Allendale Road, King of Prussia, Pennsylvania 19406. Telephone: (610) 337-5040; fax number: (610) 337-5269; e-mail:
The U.S. Nuclear Regulatory Commission (NRC) is considering the issuance of a license amendment to Source Materials License No. SUC-1275. This license is held by the Department of the Army, Seneca Army Depot Activity (the Licensee) for its Seneca Army Depot located in Romulus, New York (the Facility). Issuance of this amendment would authorize release of the Facility for unrestricted use and termination of the NRC license. The licensee requested this action in a letter dated June 15, 2004.
The NRC has prepared an Environmental Assessment (EA) in support of this action in accordance with the requirements of Title 10, Code of Federal Regulations (CFR), Part 51 (10 CFR Part 51). Based on the EA, the NRC has concluded that a Finding of No Significant Impact (FONSI) is appropriate with respect to the proposed action. The amendment will be issued to the Licensee following the publication of this FONSI and EA in the
The proposed action would approve the Licensee's June 15, 2004, license amendment request, resulting in the termination of its NRC materials license and release of the Facility for unrestricted use. License No. SUC-1275 was issued on September 3, 1976, pursuant to 10 CFR Part 40, and has been amended periodically since that time. This license authorized the Licensee to use depleted uranium (DU) for purposes of handling, on-site transportation, inspection, storage and demilitarization of DU cartridges. As a Depot, this facility also stored military commodities authorized under License Nos. SUC-1380, SUB-834, and 45-16023-01NA, most of which was in the form DU commodities. One location was used for storage of uranium and thorium ores authorized by License No. STC-133, and that location was decommissioned in 1993. Records also indicate that promethium-147 microspheres in military equipment, authorized by License No. 12-00722-07, were also stored in one location at the Facility.
The Facility is situated on 10,587 acres and consists of ammunition bunkers called “igloos”, warehouses, and support buildings located in a sparsely populated farmland area. Within the Facility, use of licensed materials was confined to five buildings, one warehouse, and 121 ammunition bunkers.
In September 1999, the Licensee ceased licensed activities and initiated preliminary decommissioning activities. Based on the Licensee's historical knowledge of the site and the conditions of the Facility, the Licensee determined that only routine decontamination activities, in accordance with their NRC-approved, operating radiation safety procedures, were required. However, because the possession and use of DU had been authorized by its license, the Licensee elected to demonstrate compliance with the radiological criteria for unrestricted release as specified in 10 CFR 20.1402 by developing derived concentration guideline levels (DCGLs) for its Facility. The proposed DCGLs were submitted in their License Termination Plan dated February 11, 2003. After the NRC approved the License Termination Plan in 2003, the license was amended to authorize decommissioning activities only. The Licensee conducted surveys of the Facility and provided information to the NRC to demonstrate that it met the criteria in Subpart E of 10 CFR Part 20 for unrestricted release and for license termination in a Termination Report dated June 15, 2004. A confirmatory survey was performed by Oak Ridge Institute for Science and Education (ORISE) in October 2006, to verify the radiological status of the Facility.
The Licensee ceased conducting licensed activities at the Facility, and seeks the unrestricted use of its Facility and the termination of its NRC materials license. Termination of its license would end the Licensee's obligation to pay annual license fees to the NRC.
The historical review of licensed activities conducted at the Facility shows that such activities involved use of the following radionuclides with half-lives greater than 120 days: Depleted uranium (DU) and promethium-147 (Pr-147). Prior to performing the final status survey, the Licensee conducted decontamination activities, as necessary, in the areas of the Facility affected by these radionuclides.
The Licensee conducted final status surveys from July through September 2002. The final status survey report was attached to the Licensee's amendment request dated June 15, 2004. The Licensee developed site-specific DCGL's to demonstrate compliance with the radiological criteria for unrestricted release, using a release criteria of 10 millirem per year, which is below the 25 millirem per year limit in 10 CFR 20.1402. The Licensee conducted site-specific dose modeling using input parameters specific to the Facility, using the RESRAD code resident farmer scenario and the RESRAD-Build building occupancy scenario. The Licensee thus determined the maximum amount of residual radioactivity on building surfaces, equipment, materials, and soils that will satisfy the NRC requirements in subpart E of 10 CFR Part 20 for unrestricted release. The NRC previously reviewed the Licensee's methodology and proposed DCGLs, and concluded that the proposed DCGLs were acceptable for use as release criteria at the Facility. The Licensee's final status survey results were below these DCGLs, and are thus acceptable.
The NRC contracted with ORISE which conducted confirmatory scanning and dose rate surveys from October 30 to November 2, 2006. None of the confirmatory survey results exceeded the DCGLs established for the Facility. Based on its review, the staff has determined that the affected environment and any environmental impacts associated with the proposed action are bounded by the impacts evaluated by the “Generic Environmental Impact Statement in Support of Rulemaking on Radiological Criteria for License Termination of NRC-Licensed Nuclear Facilities” (NUREG-1496) Volumes 1-3 [ML042310492, ML042320379, and ML042330385]. The Licensee also considered and appropriately accounted for the dose contribution from previous site releases. Accordingly, there were no significant environmental impacts from the use of radioactive material at the Facility. The NRC staff reviewed the docket file records and the final status survey report to identify any non-radiological hazards that may have impacted the environment surrounding the Facility. No such hazards or impacts to the environment were identified. The NRC has found no other radiological or non-radiological activities in the area that could result in cumulative environmental impacts.
The NRC staff finds that the proposed release of the Facility for unrestricted use and the termination of the NRC materials license is in compliance with 10 CFR 20.1402, including the impact of residual radioactivity at previously-released site locations of use. Based on its review, the staff considered the impact of the residual radioactivity at the Facility and concluded that the proposed action will not have a significant effect on the quality of the human environment.
Due to the largely administrative nature of the proposed action, its environmental impacts are small. Therefore, the only alternative the staff considered is the no-action alternative, under which the staff would leave things as they are by simply denying the amendment request. This no-action alternative is not feasible because it conflicts with 10 CFR 40.42(d), requiring that decommissioning of source material facilities be completed and approved by the NRC after licensed activities cease. The NRC's analysis of the Licensee's final status survey data confirmed that the Facility meets the requirements of 10 CFR 20.1402 for unrestricted release and for license termination. Additionally, this denial of the application would result in no change in current environmental impacts. The environmental impacts of the proposed action and the no-action alternative are therefore similar, and the no-action alternative is accordingly not further considered.
The NRC staff has concluded that the proposed action complies with the NRC's unrestricted release criteria specified in 10 CFR 20.1402. Because the proposed action will not significantly impact the quality of the human environment, the NRC staff concludes that the proposed action is the preferred alternative.
NRC provided a draft of this Environmental Assessment to the New York State Department of Environmental Conservation for review on April 3, 2007. On May 2, 2007, New York State Department of Environmental Conservation responded by e-mail. The State agreed with the conclusions of the EA, and otherwise had no comments.
The NRC staff has determined that the proposed action is of a procedural nature, and will not affect listed species or critical habitat. Therefore, no further consultation is required under Section 7 of the Endangered Species Act. The NRC staff has also determined that the proposed action is not the type of activity that has the potential to cause effects on historic properties. Therefore, no further consultation is required under Section 106 of the National Historic Preservation Act.
The NRC staff has prepared this EA in support of the proposed action. On the basis of this EA, the NRC finds that there are no significant environmental impacts from the proposed action, and that preparation of an environmental impact statement is not warranted. Accordingly, the NRC has determined that a Finding of No Significant Impact is appropriate.
Documents related to this action, including the application for license amendment and supporting documentation, are available electronically at the NRC's Electronic Reading Room at
1. NUREG-1757, “Consolidated NMSS Decommissioning Guidance;”
2. Title 10 Code of Federal Regulations, Part 20, Subpart E, “Radiological Criteria for License Termination;”
3. Title 10, Code of Federal Regulations, Part 51, “Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions;”
4. NUREG-1496, “Generic Environmental Impact Statement in Support of Rulemaking on Radiological Criteria for License Termination of NRC-Licensed Nuclear Facilities;”
5. Inspection records and Licensing documentation for License SUC-1275 with amendments;
6. Letter dated February 11, 2003, with the Seneca Army Depot Activity License Termination and License Release Plan dated February 11, 2003 [ML030450373];
7. Letters dated April 3, 2003 [ML031010534], September 2, 2004 [ML042540117] and January 28, 2005 [ML050320064];
8. Letter dated June 15, 2004, requesting termination [ML041810284] with NRC License Termination Report for Seneca Army Depot Activity, Romulus, New York, dated June 30, 2004 [ML041810290 and ML041810294];
9. Letter dated February 28, 2005 [ML050970152] with Summary Tables [ML051050173], Retrospective Power Curves [ML051050181, ML051050183, ML051050184, ML051050185, ML051050188, ML051050191, ML051050195, ML051050197, ML051050203, and ML051050205], and Supplementary Information Spreadsheets [ML051050208, ML051050215, ML051050217, ML051050218, ML051050219, ML051050220, ML051050231, ML051050253, ML051050255, ML051050305, ML051050307, ML051050313, ML051050315, ML051050317, ML051050318, ML051050320, ML051050321, ML051050322, ML051050324, ML051050325, ML051050327, ML051050329, ML051050331, ML051050332, ML051050334, ML051050335, ML051050339, ML051050343, ML051050344, ML051050346, ML051050347, ML051050360, ML051050362, ML051050363, ML051050364, ML051050366, ML051050367, ML051050370, ML051050373, ML051050375, ML051050376, ML051050378, ML051050379, ML051050381, ML051050382, ML051050386, ML051050388, ML051050391, ML051050394, ML051050396, ML051050398, ML051050399, ML051050401, ML051050402, ML051050405, ML051050407, ML051050408, ML051050409, ML051050410, ML051050439, ML051050443, ML051050445, ML051050446, ML051050451, ML051050452, ML051050453, ML051050454, ML051050457, ML051050459, ML051050460, ML051050462, ML051050464, ML051050465, ML051050466, ML051050468, ML051050478, ML051050479, ML051050511, ML051050512, ML051050513, ML051050516, ML051050517, ML051050519, ML051050537, ML051050541, ML051050542, ML051050544, ML051050545, ML051050546, ML051050547, ML051050551, ML051050553, ML051050555, ML051050557, ML051050559, ML051050561, ML051050563, ML051050564, ML051050565, ML051080165, ML051080166, ML051080171, ML051080175, ML051080177, ML051080179, ML051080181, ML051080196, ML051080197, ML051080198, ML051080212, ML051080227, ML051080229, ML051080230, ML051080239, ML051080240, ML051080242, ML051080243, ML051080244, ML051080245, ML051080247, ML051080248, ML051080249, ML051080252, ML051080253, ML051080254, ML051080255, ML051080256, ML051080257, ML051080259, ML051080260, ML051080261, ML051080263, ML051080265, ML051080268, ML051080271, ML051080273, ML051080278, ML051080280, ML051080282,
10. Letter dated October 5, 2005 [ML070300192];
11. Letter dated November 29, 2005 [ML053470250] with Addendum A, Data Evaluation Using the Scenario A Null Hypothesis, dated November 30, 2005 [ML053470337];
12. Oak Ridge Institute for Science and Education (ORISE), Proposed Confirmatory Survey Plan for the Seneca Army Depot Activity (SEDA), Romulus, New York, dated October 27, 2006 [ML070300233]; and
13. ORISE letter dated March 13, 2007 [ML070790088] with ORISE Confirmatory Survey Results for the Seneca Army Depot Activity (SEDA), Romulus, New York, Final Report, February 2007 [ML070790054];
If you do not have access to ADAMS, or if there are problems in accessing the documents located in ADAMS, contact the NRC Public Document Room (PDR) Reference staff at 1-800-397-4209, 301-415-4737, or by e-mail to
For the Nuclear Regulatory Commission.
Westinghouse Electric Company, LLC (WEC), holds certificates for the AP600 and AP1000 reactor designs issued by the U.S. Nuclear Regulatory Commission (NRC) in accordance with the Atomic Energy Act (AEA) of 1954, as amended.
The Commission has decided to require, through rulemaking, that nuclear power plant designers perform a rigorous assessment of design features that could provide additional inherent protection to avoid or mitigate the effects of an aircraft impact, while reducing or eliminating the need for operator actions, where practicable. In anticipation of this requirement, and to assist designers in completing this assessment, the Commission has decided to provide the beyond design basis, large commercial aircraft characteristics specified by the Commission to plant designers who have the need to know and who meet the NRC's requirements for the disclosure of such information. The specified aircraft characteristics that are the subject of this order are hereby designated as Safeguards Information (SGI),
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 person who is to be permitted to have access to SGI. The NRC's implementation of this requirement cannot await the completion of the SGI rulemaking, which is underway, because the EPAct fingerprinting and criminal history records check requirements for access to SGI were immediately effective upon enactment of the EPAct. Therefore, in accordance with Section 149 of the AEA, as amended by the EPAct, the Commission is imposing additional requirements for access to SGI, as set forth by this Order, so that Westinghouse can obtain and grant access to SGI. This Order also requires compliance with the safeguards protection measures set forth in 10 CFR 73.21 and imposes requirements for access to and protection of SGI by any person,
In order to implement this Order, WEC must nominate an individual who will review the results of the FBI criminal history records check to make SGI access determinations. This individual, referred to as the “reviewing official,” must be someone who seeks access to SGI. Based on the results of the FBI criminal history records check, the NRC staff will determine whether this individual may have access to SGI. If the NRC determines that the individual may not be granted access to SGI, the enclosed Order prohibits that individual from obtaining access to any SGI. Once the NRC approves a reviewing official, that reviewing official, and only that reviewing official, can make SGI access determinations for other individuals who have been identified by WEC as having a need-to-know SGI, and who have been fingerprinted and have had a criminal history records check in accordance with this Order. The reviewing official can only make SGI access determinations for other individuals, but cannot approve other individuals to act as reviewing officials. Only the NRC can approve a reviewing official. Therefore, if a WEC wishes to have a new or additional reviewing official, the NRC must approve that
Certain categories of individuals are relieved by rule from the fingerprinting requirements pursuant to 10 CFR 73.59. Those individuals include: Federal, State, and local law enforcement personnel; Agreement State inspectors who conduct security inspections on behalf of the NRC; members of Congress; certain employees of members of Congress or Congressional Committees who have undergone fingerprinting for a prior U.S. government criminal history check; and representatives of the International Atomic Energy Agency or certain foreign government organizations. In addition, individuals who have had a favorably-decided U.S. Government criminal history check within the last five (5) years, or individuals who have active Federal security clearances (provided in either case that they make available the appropriate documentation), have already been subjected to fingerprinting and criminal history checks, thus, have satisfied the EPAct fingerprinting requirement.
The Commission has broad statutory authority to protect and prohibit the unauthorized disclosure of SGI. Section 147 of the AEA grants the Commission explicit authority to issue such Orders, as necessary, to prohibit the unauthorized disclosure of SGI. Furthermore, as discussed above, Section 652 of the EPAct amended Section 149 of the AEA to require fingerprinting and an FBI identification and a criminal history records check of each individual who seeks access to SGI. In addition, no person may have access to SGI unless the person has an established need-to-know.
To provide assurance that WEC is implementing appropriate measures to a consistent level of protection to prohibit unauthorized disclosure of SGI, and to comply with the fingerprinting and criminal history check requirements for access to SGI, WEC shall implement the requirements for the protection of SGI as set forth in 10 CFR 73.21 and of this Order. 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 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 and 10 CFR part 73, it is hereby ordered, effective immediately, that WEC and all other persons who seek or obtain access to safeguards information as described herein shall comply with the requirements set forth in 10 CFR 73.21 and this order.
A. 1. No person may have access to SGI unless that person has a need-to-know the SGI, has been fingerprinted and undergone an FBI identification and criminal history records check, and satisfies all other applicable requirements for access to SGI. Fingerprinting and the FBI identification and criminal history records check are not required, however, for any person who is relieved from the requirement by 10 CFR 73.59 or who has had a favorably-decided U.S. Government criminal history check within the last five (5) years, or who has an active federal security clearance, provided in the latter two (2) cases that the appropriate documentation is made available to WEC's NRC-approved reviewing official.
2. No person may have access to any SGI if the NRC, when making an SGI access determination for a nominated reviewing official, has determined, based on fingerprinting and an FBI identification and criminal history records check, that the person nominated may not have access to SGI.
B. No person may provide SGI to any other person except in accordance with Condition III.A. above. Prior to providing SGI to any person, a copy of this Order shall be provided to that person.
C. WEC shall comply with the following requirements:
1. WEC shall, within twenty (20) days of the date of this Order, establish and maintain a fingerprinting program that meets the requirements of 10 CFR 73.21 and the Attachment to this Order.
2. WEC shall, within twenty (20) days of the date of this Order, submit the fingerprints of one (1) individual who: (a) WEC nominates as the “reviewing official” for determining access to SGI by other individuals; and (b) has an established need-to-know the information. The NRC will determine whether this individual (or any subsequent reviewing official) may have access to SGI and, therefore, will be permitted to serve as WEC's reviewing official.
3. WEC may allow any individual who currently has access to SGI to continue to have access to previously-designated SGI without being fingerprinted, pending a decision by the NRC-approved reviewing official (based on fingerprinting and an FBI criminal history records check) that the individual may continue to have access to SGI. WEC shall make determinations on continued access to SGI within ninety (90) days of the date of this Order, in part on the results of the fingerprinting and criminal history check, for those individuals who were previously granted access to SGI before the issuance of this Order.
4. WEC shall, in writing, within twenty (20) days of the date of this Order, notify the Commission: (1) If it is unable to comply with any of the requirements described in the Order, including the Attachment; or (2) if compliance with any of the requirements is unnecessary in its specific circumstances. The notification shall provide WEC's justification for seeking relief from, or variation of, any specific requirement.
WEC's responses to C.1., C.2., C.3, and C.4, above shall be submitted to the Director, Office of New Reactors, U.S. Nuclear Regulatory Commission, Washington, DC 20555. In addition, WEC responses shall be marked as “Security-Related Information—Withhold Under 10 CFR 2.390.”
The Director, Office of New Reactors, may, in writing, relax or rescind any of the above conditions upon demonstration of good cause by WEC.
In accordance with 10 CFR 2.202, WEC must, and any other person adversely affected by this Order may, submit an answer to this Order and may request a hearing with regard to this Order, within twenty (20) 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 in which to submit an answer or request a hearing must be made in writing to the Director, Office of New Reactors, 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 by
If a hearing is requested by WEC, or a person whose interest is adversely affected, the Commission will issue an Order designating the time and place of any 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), WEC may, in addition to demanding a hearing, at the time the answer is filed or sooner, move the presiding officer to 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 Hearing Shall Not Stay the Immediate Effectiveness of this Order.
For the Nuclear Regulatory Commission.
Licensees and other persons who are required to conduct fingerprinting shall comply with the requirements of this attachment.
A. 1. Each licensee subject to the provisions of this attachment shall fingerprint each individual who is seeking or permitted access to Safeguards Information (SGI). 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 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 73.59, has 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 access to SGI 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 shall review the information received from the FBI and consider it, in conjunction with the trustworthiness and reliability requirements included in Attachment 2 to this Order, in making a determination whether to grant access to SGI to individuals who have a need-to-know the SGI.
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 access to SGI.
7. The licensee shall document the basis for its determination whether to grant access to SGI.
B. The licensee shall notify the NRC of any desired change in reviewing officials, in compliance with C.2 of the subject Order. The NRC will determine whether the individual nominated as the new reviewing official may have access to SGI based on a previously-obtained or new criminal history check and, therefore, will be permitted to serve as the licensee's reviewing official.
A licensee shall not base a final determination to deny an individual access to SGI solely on the basis of information received from the FBI involving: An arrest more than one (1) year old for which there is no information of the 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 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 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 access to SGI, 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 by 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 re-submission 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 re-submission. 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 it 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 provide 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 SGI access determination based upon the criminal history record only upon receipt of the FBI's ultimate confirmation or correction of the record. Upon a final adverse determination on access to SGI, the licensee shall provide the individual its documented basis for denial. Access to SGI shall not be granted to an individual during the review process.
1. Each licensee who obtains a criminal history record on 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 or 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 access to Safeguards Information. No individual authorized to have access to the information may re-disseminate 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 record check may be transferred to another licensee if the licensee holding the criminal history record check receives the individual's written request to re-disseminate the information contained in his/her file, and the current 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 determination of access to SGI (whether access was approved or denied). 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.
When a licensee or other person
The licensee's reviewing official is required to evaluate all pertinent and available information in making a determination of access to SGI, including the criminal history information pertaining to the individual as required by the NRC Order. The criminal history records check is used when determining whether an individual has a record of criminal activity that indicates that the individual should not have access to SGI. Each determination of access to SGI, which includes a review of criminal history information, must be
(i) If negative information is discovered that was not provided by the individual, or which is different in any material respect from the information provided by the individual, this information should be considered, and decisions made based on these findings, must be documented.
(ii) Any record containing a pattern of behaviors which indicates that the behaviors could be expected to recur or continue, or recent behaviors which cast questions on whether an individual should have access to SGI, should be carefully evaluated prior to any authorization of access to SGI.
It is necessary for a licensee to resubmit fingerprints only under two conditions:
(1) The FBI has determined that the fingerprints cannot be classified due to poor quality in the mechanics of taking the initial impressions; or
(2) The initial submission has been lost.
If the FBI advises that six sets of fingerprints are unclassifiable based on conditions other than poor quality, the licensee may submit a request to the NRC for alternatives. When those search results are received from the FBI, no further search is necessary.
This policy establishes a process for individuals whom the Nuclear Regulatory Commission (NRC) licensees or other persons
This policy applies solely to those employees of licensees who are nominated as a reviewing official, and who are thus considered, by the NRC, for initial or continued access to SGI in that position.
Determinations for granting a nominated reviewing official access to SGI will be made by the NRC staff. Access to SGI shall be denied or revoked whenever it is determined that an individual does not meet the applicable standards. Any doubt about an individual's eligibility for initial or continued access to SGI shall be resolved in favor of the national security and access will be denied or revoked.
a. Prior to a determination by the NRC Facilities Security Branch Chief that an individual nominated as a reviewing official is denied or revoked access to SGI, the individual shall:
(i) Be provided the contents of records obtained from the FBI for the purpose of assuring correct and complete information. If, after reviewing the record, an individual believes that it 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 will forward the challenge to the agency that submitted the data and request 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 necessary changes in accordance with the information supplied by that agency.
(ii) Be afforded ten (10) days to initiate an action challenging the results of an FBI criminal history records check (described in (I), above) after the record is made available for the individual's review. If such a challenge is initiated, the NRC Facilities Security Branch Chief may make a determination based upon the criminal history record only upon receipt of the FBI's ultimate confirmation or correction of the record.
a. Prior to a determination by the NRC Facilities Security Branch Chief that an individual nominated as a reviewing official is denied or revoked access to SGI, the individual shall:
(i) Be afforded an opportunity to submit information relevant to the individual's trustworthiness and reliability. The NRC Facilities Security Branch Chief shall, in writing, notify the individual of this opportunity, and any deadlines for submitting this information. The NRC Facilities Security Branch Chief may make a determination of access to SGI only upon receipt of the additional information submitted by the individual, or, if no such information is submitted, when the deadline to submit such information has passed.
a. Upon a determination by the NRC Facilities Security Branch Chief that an individual nominated as a reviewing official is denied or revoked access to SGI, the individual shall be provided a written explanation of the basis for this determination.
a. Upon a determination by the NRC Facilities Security Branch Chief that an individual nominated as a reviewing official is denied or revoked access to SGI, the individual shall be afforded an opportunity to appeal this determination to the Director, Division of Facilities and Security. The determination must be appealed within twenty (20) days of receipt of the written notice of the determination by the Facilities Security Branch Chief, and may either be in writing or in person. Any appeal made in person shall take place at the NRC's headquarters, and shall be at the individual's own expense. The determination by the Director, Division of Facilities and Security, shall be rendered within sixty (60) days after receipt of the appeal.
a. A determination by the Director, Division of Facilities and Security, shall be provided to the individual in writing, and include an explanation of the basis for this determination. A determination by the Director, Division of Facilities
Pension Benefit Guaranty Corporation.
Notice of request for OMB approval.
The Pension Benefit Guaranty Corporation (PBGC) is requesting that the Office of Management and Budget (OMB) approve, under the Paperwork Reduction Act, a collection of information under its procedures on multiemployer plan elections. This notice informs the public of the PBGC's request and solicits public comment on the collection of information.
Comments should be submitted by July 16, 2007.
Comments should be sent to the Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Pension Benefit Guaranty Corporation, via electronic mail at
Copies of the request for approval (including the procedures) may be obtained without charge by writing to the Disclosure Division of the Office of the General Counsel of PBGC at the above address, visiting the Disclosure Division, faxing a request to 202-326-4042, or calling 202-326-4040 during normal business hours. (TTY and TDD users may call the Federal relay service toll-free at 1-800-877-8339 and ask to be connected to 202-326-4040.) The Disclosure Division will e-mail, fax, or mail the request to you, as you request.
Constance Markakis, Attorney, Legislative and Regulatory Department, Pension Benefit Guaranty Corporation, 1200 K Street, NW., Washington, DC 20005-4026, 202-326-4000, ext. 6779. (For TTY and TDD, call 800-877-8339 and request connection to 202-326-4000, ext. 6779.)
Section 1106 of the Pension Protection Act of 2006 (Pub. L. 109-280) (“PPA 2006”), as modified by Public Law 110-028, amends the definition of a “multiemployer plan” in Title I of ERISA and the Internal Revenue Code of 1986 to allow certain plans to elect to be multiemployer plans pursuant to procedures prescribed by PBGC.
A plan is eligible for the election if it is (1) a plan revoking a previous election to remain a single-employer plan under section 3(37)(E) of ERISA, or (2) a plan with respect to which substantially all employer contributions were made by tax-exempt employers. In either case, for three prior plan years, the plan must have been a plan to which more than one employer was required to contribute that was maintained pursuant to one or more collective bargaining agreements. PPA 2006 also imposes other requirements for an election, and provides certain exemptions from the requirements. All elections must be made by August 17, 2007.
PBGC procedures for implementing these multiemployer plan elections require a plan to submit specified information to PBGC to demonstrate that it meets the statutory eligibility requirements. On April 13, 2007 (72 FR 18692), PBGC published a notice informing the public that it intended to request OMB approval of the procedures and soliciting public comment. PBGC received four comments on the procedures (posted on PBGC's Web site at
The PBGC is requesting that OMB approve this collection of information for three years. (Although plans must make an election by August 17, 2007, PBGC may request additional information, after that date, that is needed to review the election.) 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 PBGC estimates that approximately 35 plans will respond to this collection of information. The PBGC further estimates that the average burden of this collection of information will be 2.5 hours and $1,875 per plan, with an average total burden of 87.5 hours and $65,625.
Pension Benefit Guaranty Corporation.
Notice of interest rates and assumptions.
This notice informs the public of the interest rates and assumptions to be used under certain Pension Benefit Guaranty Corporation regulations. These rates and assumptions are published elsewhere (or can be derived from rates published elsewhere), but are collected and published in this notice for the convenience of the public. Interest rates are also published on the PBGC's Web site (
The required interest rate for determining the variable-rate premium under part 4006 applies to premium payment years beginning in June 2007. The interest assumptions for performing multiemployer plan valuations following mass withdrawal under part 4281 apply to valuation dates occurring in July 2007.
Catherine B. Klion, Manager, Regulatory and Policy Division, Legislative and Regulatory Department, Pension Benefit Guaranty Corporation, 1200 K Street, NW., Washington, DC 20005, 202-326-4024. (TTY/TDD users may call the Federal relay service toll-free at 1-800-877-8339 and ask to be connected to 202-326-4024.)
Section 4006(a)(3)(E)(iii)(II) of the Employee Retirement Income Security Act of 1974 (ERISA) and § 4006.4(b)(1) of the PBGC's regulation on Premium Rates (29 CFR part 4006) prescribe use of an assumed interest rate (the “required interest rate”) in determining a single-employer plan's variable-rate premium. Pursuant to the Pension Protection Act of 2006, for premium payment years beginning in 2006 or 2007, the required interest rate is the
On February 2, 2007 (at 72 FR 4955), the Internal Revenue Service (IRS) published final regulations containing updated mortality tables for determining current liability under section 412(l)(7) of the Code and section 302(d)(7) of ERISA for plan years beginning on or after January 1, 2007. As a result, in accordance with section 4006(a)(3)(E)(iii)(II) of ERISA, the “applicable percentage” to be used in determining the required interest rate for plan years beginning in 2007 is 100 percent.
The required interest rate to be used in determining variable-rate premiums for premium payment years beginning in June 2007 is 6.01 percent (i.e., 100 percent of the 6.01 percent composite corporate bond rate for May 2007 as determined by the Treasury).
The following table lists the required interest rates to be used in determining variable-rate premiums for premium payment years beginning between July 2006 and June 2007.
The PBGC's regulation on Duties of Plan Sponsor Following Mass Withdrawal (29 CFR part 4281) prescribes the use of interest assumptions under the PBGC's regulation on Allocation of Assets in Single-Employer Plans (29 CFR part 4044). The interest assumptions applicable to valuation dates in July 2007 under part 4044 are contained in an amendment to part 4044 published elsewhere in today's
Postal Regulatory Commission.
Notice of field hearings.
Recent legislation alters the postal ratemaking process, and tasks the Postal Regulatory Commission to develop regulations to implement this process. This notice informs the public of field hearings that will be held to guide this process.
1. June 22, 2007: field hearing, Kansas City, MO (10 a.m.).
2. June 28, 2007: field hearing, Los Angeles, CA.
3. July 9, 2007: field hearing, Wilmington, DE.
Submit comments electronically via the Commission's Filing Online system at
Ann Fisher, chief of staff, 202-789-6820 and
1. 72 FR 5230 (February 5, 2007).
2. 72 FR 29284 (May 25, 2007).
The Postal Accountability and Enhancement Act (PAEA) was enacted December 20, 2006.
As part of this rulemaking docket, the Commission has invited mail users from a broad cross-section of the mailing community to testify at several public hearings in locations outside of Washington, DC. At this time, the following dates and locations have been identified: June 22, 2007 in Kansas City, Missouri; June 28, 2007 in Los Angeles, California; and July 9, 2007 in Wilmington, Delaware. Further details on the Kansas City hearing are provided in this notice; any changes related to that hearing and further details concerning the other field hearings will be posted on the Commission's Web site,
The Kansas City field hearing will be held Friday, June 22, 2007 in Council Chambers, City Hall (26th Floor), 414 E. 12th Street, Kansas City, Missouri 64106. The hearing is scheduled to begin at 10 a.m. and conclude by 12 noon. Scheduled witnesses include: Donald J. Hall, Jr., Vice Chairman, President and Chief Executive Officer, Hallmark Cards, Inc.; David Berry, Vice President, Community Publications Inc.; Mury L. Salls, Senior Vice President, DST Mailing Services; William S. Berkley, President and Chief Executive Officer, Tension Envelope Corporation; and Randy Stumbo, Director of Distribution and Postal Affairs, Meredith Corporation.
1. The Commission will hold hearings in Kansas City, Missouri on June 22,
2. The Secretary of the Commission is directed to arrange for publication of this notice and order in the
By the Commission.
Section 2(c) of the Railroad Unemployment Insurance Act (RUIA) specifies the maximum normal unemployment and sickness benefits that may be paid in a benefit year. Section 2(c) further provides for extended benefits for certain employees and for beginning a benefit year early for other employees. The conditions for these actions are prescribed in 20 CFR part 302.
All information about creditable railroad service and compensation needed by the RRB to administer Section 2(c) is not always available from annual reports filed by railroad employers with the RRB (OMB 3220-0008). When this occurs, the RRB must obtain supplemental information about service and compensation. The RRB utilizes Form(s) UI-41, Supplemental Report of Service and Compensation, and UI-41a, Supplemental Report of Compensation, to obtain the necessary information.
Our ICR describes the information we seek to collect from the public. Completion of the forms is mandatory. One response is required (per individual) from a respondent. Review and approval by OIRA ensures that we impose appropriate paperwork burdens. The RRB invites comments on the proposed collection of information to determine (1) the practical utility of the collection; (2) the accuracy of the estimated burden of the collection; (3) ways to enhance the quality, utility and clarity of the information that is the subject of collection; and (4) ways to minimize the burden of collections on respondents, including the use of automated collection techniques or other forms of information technology. Comments to RRB or OIRA must contain the OMB control number of the ICR. For proper consideration of your comments, it is best if RRB and OIRA receive them within 30 days of publication date.
Comments regarding the information collection should be addressed to Ronald J. Hodapp, Railroad Retirement Board, 844 North Rush Street, Chicago, Illinois, 60611-2092 or
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Global Datatel, Inc. (n/k/a Xcana Petroleum, Inc.) because it has not filed any periodic reports since the period ended March 31, 2001, nor has it provided the public with current financial information since the deregistration of its stock on October 9, 2006.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Laminaire Corp. (n/k/a Cavico Corp.) because it has not filed any periodic reports since the period ended September 30, 1999.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Military Communications Technologies, Inc. (n/k/a Carbon Race Corporation) because it has not filed any periodic reports since the period ended March 31, 2004, nor has it provided the public with current financial information since the deregistration of its stock on October 9, 2006.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of TAM Restaurants, Inc. (n/k/a Aerofoam Metals, Inc.) because it has not filed any periodic reports since the period ended June 27, 2001.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Upside Development, Inc. (n/k/a Amorocorp) because it has not filed any periodic reports since the period ended September 30, 2001.
The Commission is of the opinion that the public interest and the protection of investors require a suspension of trading in the securities of the above-listed companies.
By the Commission.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange, through its wholly owned subsidiary, NYSE Arca Equities, Inc. (“NYSE Arca Equities” or “Corporation”), proposes to amend NYSE Arca Equities Rule 14.3 to remove obsolete references to Wave Securities, L.L.C. (“Wave Securities”). The text of the proposed rule change is available at the Exchange, the Commission's Public Reference Room, and
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The Corporation proposes to amend NYSE Arca Equities Rule 14.3 to remove references to Wave Securities. In the first quarter of 2006, the Corporation sold Wave Securities, a wholly owned introducing broker subsidiary, to Merrill Lynch & Co., Inc. This sale terminated any affiliation between the Corporation and Wave Securities. Previously, in the second quarter of 2003, Archipelago Securities succeeded Wave Securities and assumed Wave Securities' outbound router function. As a result, the Corporation is removing from its rules the obsolete references to Wave Securities and replacing them, where applicable, with Archipelago Securities.
The proposed rule change is consistent with the provisions of Section 6 of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has neither solicited nor received written comments on the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(iii) 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 e-mail to
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to list and trade shares (“Shares”) of the following four funds (“Funds”) of StateShares
• StateShares
• StateShares
• StateShares
• StateShares
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item III below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to list the Shares of the Funds. The Company is an investment company with 22 series of underlying fund portfolios and is registered under the Investment Company Act of 1940 (“1940 Act”).
Under NYSE Arca Equities Rule 5.2(j)(3), the Exchange may list and/or trade pursuant to unlisted trading privileges (“UTP”) “Investment Company Units” (“ICUs”).
BNY Investment Advisors (“Sub-Advisor”), a separate identifiable division of The Bank of New York (“BONY”), a New York State banking corporation, would act as investment sub-advisor to each Fund. Pursuant to a Sub-Advisory Agreement between the Advisor and the Sub-Advisor, the Sub-Advisor would be responsible for the day-to-day management of each Fund, subject to the supervision of the Advisor and the Funds' Board of Directors. The Sub-Advisor would be responsible for implementing the replication strategy for each Fund with regard to its Underlying Index and for general administration, compliance, and management services, as may be agreed between the Advisor and the Sub-Advisor from time to time.
Each Fund has elected and intends to continue to qualify as a “regulated investment company” (a “RIC”) under the Internal Revenue Code (“Code”). Among other things, each Fund must meet certain diversification tests imposed by the Code to satisfy RIC requirements.
Each Underlying Index was created and developed by XG based on its own proprietary model. In developing each Underlying Index, XG has established specific characterization/inclusion/exclusion criteria governing the stocks that are included in each Underlying Index. Each Underlying Index is maintained by the Index Administrator based on such criteria and is generally reconstituted on an annual basis. Decisions regarding additions to, and removals from, each individual Underlying Index are made by the Index Administrator, on an annual basis, in its sole discretion.
The Advisor uses a “passive,” or “indexing,” approach in managing each Fund. The Funds do not seek to outperform any particular market sector and would not assume temporary defensive positions when markets decline or appear overvalued. Each Fund would invest at least 90% of its assets in the common stocks of companies in the Underlying Index. Because each Underlying Index is comprised only of stocks from companies headquartered in the named State, as indicated by its name (
From time to time, it may not be possible, for regulatory or other legal reasons, to replicate each Underlying Index and in such cases the Advisor may pursue a sampling strategy in managing the portfolio. Pursuant to this strategy, a Fund may invest the remainder of its assets in securities of companies not included in an Underlying Index if the Advisor believes that such securities would
The component securities of the Underlying Indexes are all listed on a national securities exchange.
Information about each Underlying Index, including the component securities in each Underlying Index and value of the securities in each Underlying Index are disseminated every 15 seconds during the Core Trading Session through Reuters.
Each Fund would impose transaction fees on in-kind purchases and redemptions of the Fund to cover the custodial and other costs incurred by the Fund in effecting in-kind trades. To compensate the Company for transfer and other transaction costs involved in creation transactions through the clearing process (as described below), investors would be required to pay a fixed creation transaction fee, payable to the Company regardless of the number of creations made each day. A redemption transaction fee would be imposed to offset transfer and other transaction costs that may be incurred by a Fund. An additional variable charge for cash redemptions (when cash redemptions are available or specified) for a Fund may be imposed. The creation and redemption transaction fees for creations and redemptions in-kind for the Funds are described in the Funds' prospectuses.
Each Fund would issue and redeem, on a continuous basis, shares at its net asset value (“NAV”) only in blocks of 100,000 shares or multiples thereof (each, a “Creation Unit” or a “Creation Unit Aggregation”), generally in exchange for a basket of equity securities included in the Underlying Index, together with the deposit of a specified cash payment. Shares would be redeemable only in Creation Unit Aggregations, and, generally, in exchange for portfolio securities and a specified cash payment.
All orders to purchase Shares of each Fund in Creation Units must be placed with the Distributor by or through an “Authorized Participant,” which is either: (1) A “Participating Organization,”
The Balancing Amount is an amount equal to the difference between the NAV of a Creation Unit and the market value of the Deposit Securities (“Deposit Amount”). It ensures that the NAV of a Fund Deposit (not including the transaction fee) is identical to the NAV of the Creation Unit it is used to purchase. If the Balancing Amount is a positive number (
The Company, through the NSCC, makes available on each business day, immediately prior to the opening of business on the NYSE (currently 9:30 a.m. Eastern Time), a list of the names and the required number of shares of each Deposit Security to be included in the current Fund Deposit for each Fund (based on information at the end of the previous business day). The Fund Deposit is applicable, subject to any adjustments as described below, to effect purchases of Creation Units of a Fund until such time as the next-announced Fund Deposit composition is made available. Each Fund reserves the right to accept a nonconforming Fund Deposit.
The identity and number of shares of the Deposit Securities required for a Fund Deposit may change to reflect rebalancing adjustments and corporate actions by a Fund, or in response to adjustments to the weighting or composition of the component stocks of the Underlying Index. In addition, the Company reserves the right to permit or require the substitution of an amount of cash—
In addition to the list of names and numbers of securities constituting the current Deposit Securities, the Company, through the NSCC, would also make available on each business day the estimated Cash Component, effective through and including the previous business day, per outstanding Creation Unit of each Fund. All questions as to the number of shares of each security in the Deposit Securities and the validity, form, eligibility, and acceptance for deposit of any securities to be delivered should be determined by the appropriate Fund, and the Fund's determination should be final and binding.
With respect to a Fund, the Administrator, through the NSCC, makes available prior to the opening of business on the NYSE (currently 9:30 a.m. Eastern Time) on each business day, the identity of the Fund securities that would be applicable (subject to possible amendment or correction) to redemption requests received in proper form (as described below) on that day. Fund Shares received on redemption may not be identical to Deposit Securities that are applicable to creations of Creation Unit Aggregations.
Unless cash redemptions are available or specified for a Fund, the redemption proceeds for a Creation Unit Aggregation would generally consist of Fund Shares, as announced on the business day of the request for redemption received in proper form, plus or minus cash in an amount equal to the difference between the NAV of the Fund Shares being redeemed, as next determined after a receipt of a request in proper form, and the value of the Fund Shares (the “Cash Redemption Amount”), less a redemption transaction fee. If the Fund Shares have a value greater than the Fund Shares' NAV, a compensating cash payment equal to the difference must be made by or through an Authorized Participant by the redeeming shareholder.
The right of redemption may be suspended or the date of payment postponed for each Fund: (1) For any period during which the NYSE is closed (other than customary weekend and holiday closings); (2) for any period during which trading on the NYSE is suspended or restricted; (3) for any period during which an emergency exists as a result of which disposal of the shares of a Fund or determination of a Fund's NAV is not reasonably practicable; or (4) in such other circumstances as is permitted by the Commission.
Dividends and other distributions on Shares would be distributed on a pro-rata basis to beneficial owners of such Shares. Dividend payments would be made through DTC Participants and Indirect Participants to beneficial owners then of record with proceeds received from the Company.
The Company would make additional distributions to the extent necessary: (1) To distribute the entire annual taxable income of the Company, plus any net capital gains; and (2) to avoid imposition of the excise tax imposed by Section 4982 of the Code. Management of the Company reserves the right to declare special dividends if, in its reasonable discretion, such action is necessary or advisable to preserve the status of each Fund as a RIC or to avoid imposition of income or excise taxes on undistributed income.
According to the Funds' Registration Statement, the NAV of each Fund's shares would be calculated each business day as of the close of regular trading on the NYSE, generally 4 p.m. Eastern Time. NAV per-share would be computed by dividing the net assets by the number of shares outstanding.
Additional information regarding the indicative value of shares of each Fund, also known as the “indicative optimized portfolio value” (“IOPV”), would be disseminated every 15 seconds through the Consolidated Tape throughout the Opening, Core, and Late Trading Sessions (4 a.m. to 8 p.m. Eastern Time) by the Exchange. The IOPV does not necessarily reflect the precise composition of the current portfolio of securities held by a Fund at a particular point in time or the best possible valuation of the current portfolio. Therefore, the IOPV should not be viewed as a “real-time” update of the NAV, which is computed only once a day. The IOPV is generally determined by using both current market quotations and/or quotations obtained from broker-dealers that may trade in the portfolio securities held by a Fund.
The Funds' Web site (
Each Fund's portfolio holdings would be publicly disseminated each day that
The Company has informed the Exchange that each Fund would make the NAV for each Fund available to all market participants at the same time. If the NAV is not disseminated to all market participants at the same time, the Exchange would halt trading in the Fund Shares.
Information about each Underlying Index, including the component securities in each Underlying Index and the value of the securities in each Underlying Index, would be disseminated every 15 seconds during NYSE Arca's Core Trading Session through Reuters.
The continued listing criteria for ICUs under NYSE Arca Equities Rule 5.5(g)(2) provide that the Exchange would consider the suspension of trading and delisting (if applicable) of the Shares in any of the following circumstances:
• Following the initial 12-month period beginning upon the commencement of trading of the Shares of a Fund, there are fewer than 50 record and/or beneficial holders of such Shares for 30 or more consecutive trading days; or
• The value of the Underlying Index of a Fund is no longer calculated or available; or
• Such other event occurs or condition exists that, in the opinion of the Exchange, makes further dealings on the Exchange inadvisable.
In addition, the Exchange would remove the Shares from trading and listing upon termination of the Company.
The Exchange represents the Company and is required to comply with Rule 10A-3 under the Act
With respect to trading halts, the Exchange may consider all relevant factors in exercising its discretion to halt or suspend trading in the Shares of each Fund. Trading may be halted because of market conditions or for reasons that, in the view of the Exchange, make trading in the Shares inadvisable. These may include: (1) The extent to which trading is not occurring in the securities comprising an Underlying Index and/or the financial instruments of a Fund; or (2) whether other unusual conditions or circumstances detrimental to the maintenance of a fair and orderly market are present. In addition, trading in Shares would be subject to trading halts caused by extraordinary market volatility pursuant to the Exchange's “circuit breaker” rule
The Exchange's current trading surveillance focuses on detecting when securities trade outside their normal patterns. When such situations are detected, surveillance analysis follows and investigations are opened, where appropriate, to review the behavior of all relevant parties for all relevant trading violations.
The Exchange may obtain information via the Intermarket Surveillance Group (“ISG”) from other exchanges who are members or affiliates of the ISG.
In addition, the Exchange also has a general policy prohibiting the distribution of material, non-public information by its employees.
In addition, the Bulletin would reference that each Fund is subject to various fees and expenses described in the Registration Statement. The Bulletin would also discuss any exemptive, no-action, and interpretive relief granted by the Commission from Section 11(d)(1) of the Act
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments on the proposed rule change were neither solicited nor received.
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.
After careful consideration, the Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
The Shares of the four Funds do not meet the “generic” listing standards of NYSE Arca Rule 5.2(j)(3) and thus cannot be listed in reliance upon Rule
The Commission believes that the proposal is consistent with Section 11A(a)(1)(C)(iii) of the Exchange Act,
The Commission believes that the proposed rules are reasonably designed to promote fair disclosure of information that may be necessary to price an ETF appropriately. The Exchange has represented that if the NAV is not disseminated to all market participants at the same time, the Exchange would halt trading in the Fund shares.
The Commission believes that the proposal is reasonably designed to preclude trading of the Shares when transparency is impaired. If the IOPV or the Index value applicable to a series of Shares is not being calculated and disseminated as required, the Exchange may halt trading during the day in which the interruption to the dissemination of the IOPV or the Index value occurs. If the interruption to the calculation and dissemination of the IOPV or the Index value persists past the trading day in which it occurred, the Exchange would halt trading no later than the beginning of the trading day following the interruption.
The Commission finds that the Exchange's proposed rules and procedures for trading of the Shares are consistent with the Act. The Exchange deems the Shares to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities.
In support of this proposal, the Exchange has made the following representations:
1. The Exchange will rely on its existing surveillance procedures applicable to derivative products to monitor trading in the Shares. These procedures are adequate to properly monitor Exchange trading of the Shares in all trading sessions and to deter and detect violations of Exchange rules. The Exchange may obtain information via the ISG from other exchanges that are members or affiliates of the ISG.
2. Prior to the commencement of trading, the Exchange will inform its ETP Holders in an Information Bulletin of the special characteristics and risks associated with trading the Shares.
3. If the IOPV or the Index value applicable to a series of Shares is not being calculated and disseminated as required, the Exchange may halt trading during the day in which the interruption to the dissemination of the IOPV or the Index value occurs. If the interruption to the calculation and dissemination of the IOPV or the Index value persists past the trading day in which it occurred, the Exchange would halt trading no later than the beginning of the trading day following the interruption.
This Order is conditioned on NYSE Arca's adherence to the foregoing representations.
The Commission finds good cause to approve the proposed rule change, prior to the thirtieth day after publication for comment in the
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Phlx proposes to extend its payment for order flow pilot program, which is currently in effect until May 27, 2007, for an additional one-year period until May 27, 2008. This proposal is scheduled to expire on the same date as the one-year pilot program in effect in connection with the provisions of Exchange Rule 1080(l) relating to Directed Orders.
Other than extending the date of the pilot program for an additional year, no other changes to the Exchange's current payment for order flow program are being proposed at this time.
The Exchange is also proposing to make minor clarifying changes to the Exchange's Summary of Equity Option and RUT and RMN Charges fee schedule to update the language that appears in a footnote and to clarify the title relating to the Exchange's payment for order flow fees.
Below is the text of the proposed rule change. Proposed deletions are in [brackets]; proposed additions are
(1) For trades resulting from either Directed or non-Directed Orders that are delivered electronically and executed on the Exchange: Assessed on ROTs, specialists and Directed ROTs on those trades when the specialist unit or Directed ROT elects to participate in the payment for order flow program. * * *
(2) No payment for order flow fees will be assessed on trades that are not delivered electronically.
See Appendix A for additional fees.
*Assessed on transactions resulting from customer orders and are available to be disbursed by the Exchange according to the instructions of the specialist units/specialists or Directed ROTs to order flow providers who are members or member organizations, who submit, as agent, customer orders to the Exchange or non-members or non-member organizations who submit, as agent, customer orders to the Exchange through a member or member organization who is acting as agent for those customer orders. Th
***Any excess payment for order flow funds billed but not utilized by the specialist or Directed ROT will be carried forward unless the Directed ROT or specialist elects to have those funds rebated to the applicable ROT, Directed ROT or specialist on a pro rata basis, reflected as a credit on the monthly invoices. At the end of each calendar quarter, the Exchange will calculate the amount of excess funds from the previous quarter and subsequently rebate excess funds on a pro-rata basis to the applicable ROT, Directed ROT or specialist who paid into that pool of funds.
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change, and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. Phlx has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The Exchange states that the purpose of extending the Exchange's payment for order flow program for an additional year is to remain competitive with other options exchanges that administer payment for order flow programs.
Currently, the following payment for order flow fees are in effect at the Exchange:
The purpose of making minor technical changes to the payment for order flow fee section of the Exchange's Summary of Equity Option and RUT and RMN Charges fee schedule is to delete obsolete words. Additionally, the purpose of deleting the words “equity option,” which appear in front of the payment for order flow fee section is to more clearly reflect that RUT and RMN, although index options, are also assessed payment for order flow charges.
This proposal, consistent with the Exchange's current payment for order flow program, will remain in effect as a pilot program that is scheduled to expire on the same date as the one-year pilot program in effect in connection with the provisions of Exchange Rule 1080(l) relating to Directed Orders.
The Exchange believes that the proposed rule change to amend its schedule of fees is consistent with Section 6(b) of the Act
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing proposed rule change has been designated as a fee change 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.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Cancellation of Advisory Committee on Democracy Promotion July 18, 2007 meeting.
On June 8, 2007, Notice was published in the
For more information, contact Paul Lettow, Senior Advisor to the Under Secretary for Democracy and Global Affairs, Department of State, Washington, DC 20520, telephone: (202) 647-1189.
The reform effort regarding the Model Procurement Law is being undertaken by UNCITRAL's Working Group I, which has been meeting twice annually, in Vienna and New York, to develop new language for the UNCITRAL Model Procurement Law and the Guide to Enactment. The working papers that reflect this effort are gathered at the UNCITRAL Web site, at
As part of its broader effort to reform the UNCITRAL Model Procurement Law to reflect advances in electronic procurement, the UNCITRAL working group has made substantial progress in developing new provisions in the model law. At its May 2007 meeting in New York, the UNCITRAL working group addressed proposed provisions that would: (a) Set standards for the use of electronic communications in procurement under the UNCITRAL Model Procurement Law; (b) Describe when, and how, electronic reverse auctions might be used under the model law; and (c) Define rules for the use of indefinite-delivery, indefinite-quantity (“IDIQ”) contracts, generally referred to as “frameworks agreements” in the European Union and under the proposed changes to the Model Procurement Law.
The provisions under consideration by the working group are described in,
The Advisory Committee's study group will be holding a public meeting to review and discuss the proposed reforms to the UNCITRAL Model Procurement Law at The George Washington University Law School Faculty Conference Center, 5th Floor 2000 H Street, NW., Washington, DC on June 27, 2007 from 1 p.m. EST to 3 p.m. EST. Written comments need to be submitted by June 22, 2007 to the Office of Private International Law, U.S. Department of State, 2430 E Street, NW., Washington, DC 20037-2851, attn: Michael Dennis, or by facsimile to 202-776-8482, or by electronic mail to
Federal Aviation Administration, DOT.
Notice of intent of waiver with respect to land.
The Federal Aviation Administration (FAA) is considering a proposal to change a portion of the Cleveland Hopkins International Airport (CLE) from aeronautical use to non-aeronautical use and to authorize the sale of the airport property. The proposal consists of the sale of vacant, unimproved land owned by the City of Cleveland (City).
The City has requested from FAA a “Release from Federal agreement obligated land covenants” to sell portions of three (3) parcels. The property proposed for release was acquired by the City without Federal funding. There are no impacts to the airport by allowing the City to dispose of the vacant property. Approval does not constitute a commitment by the FAA to financially assist in the disposal of the airport property nor a determination of eligibility for grant-in-aid funding from the FAA. The disposition of proceeds from the disposal of the airport property will be in accordance with FAA's Policy and Procedures Concerning the Use of Airport Revenue, published in the
In accordance with section 47107(h) of title 49, United States Code, this notice is required to be published in the
Comments must be received on or before July 16, 2007.
Mr. David J. Welhouse, Program Manager, Detroit Airports District Office, 11677 South Wayne Road, Suite 107, Romulus, Michigan 48174.
Mr. David J. Welhouse, Program Manager, Detroit Airports District Office, 11677 South Wayne Road, Suite 107, Romulus, Michigan 48174. Telephone Number (734) 229-2952/FAX Number (734) 229-2950. Documents reflecting this FAA action may be reviewed at this same location or at Cleveland Hopkins International Airport, Cleveland, Ohio.
Following is a legal description of the property (portions of Parcel 029-38-002 (New Lot 5A), Parcel A, and Parcel B) located in Cleveland, Cuyahoga County, Ohio, and described as follows:
Situated in the City of Cleveland, County of Cuyahog and State of Ohio known as being part of Original Rockport Township Section 4 and also part of New Lot 5A as recorded in Volume 333, Page 59 of the Cuyahoga County Record of Maps and being more fully described as follows:
Commencing at the intersection of the centerline of Brookpark Road, 100 feet wide, as recorded in Volume 130, page 68 of the Cuyahoga County Record of Plats, with the original centerline of Old Grayton Road, 60.00 feet wide, said intersection being the Southeasterly corner of a parcel of land conveyed to the City of Cleveland by deed recorded in Volume 3433, Page 340 of Cuyahoga County Deed Records;
Thence Westerly along the Southerly line of land so conveyed to the City of Cleveland and the centerline of said Brookpark Road, South 89 degrees 43 minutes 19 seconds West, 232.87 feet to a point;
Thence North 00 degrees 16 minutes 41 seconds West, 50.00 feet to an iron pin set at the northerly right of way line of said Brookpark Road and the Principal Place of Beginning of the parcel herein described;
Thence Westerly along the Southerly line of said New Lot 5A and said northerly right of way line of Brookpark Road, South 89 degrees 43 minutes 19 seconds West, 471.47 feet to the Southwesterly corner of said Lot 5A, said corner also being on the easterly line of land conveyed to the United States of America by deed recorded in Volume 8041, Page 262 of Cuyahoga County Deed records and referenced by an iron pin monument box found South 00 degrees 38 minutes 24 seconds East, 50.00 feet from said corner;
Thence Northerly along the Westerly line of said New Lot 5A and the Easterly line of land so conveyed to the United States of America, North 00 degrees 38 minutes 24 seconds West, 595.97 feet to a K.S. capped iron pin found at the Northwesterly corner of said City of Cleveland property;
Thence North 88 degrees 46 minutes 18 seconds East, 612.48 feet to an iron pin set and the southerly line of New Lot 1A as recorded in Volume 333, Page 59 of said Cuyahoga County Record of Maps;
Thence, continuing North 88 degrees 26 minutes 58 seconds East, a distance of 380.04 feet to an iron pin set on the Westerly curved right of way line of Relocated Old Grayton Road;
Thence, Southerly along said Westerly curved right of way line of Relocated Old Grayton Road, along the arc of a curve bearing to the left, said curve having a radius of 410.00 feet, an included angle of 65 degrees 36 minutes 47 seconds, a chord which bears South 20 degrees 47 minutes 52 seconds West and measures 444.28 feet, a distance of 469.52 feet to an iron pin set;
Thence, South 89 degrees 43 minutes 19 seconds West, a distance of 357.34 feet, passing through an iron pin set at 157.34 feet, to an iron pin set;
Thence, South 00 degrees 16 minutes 41 seconds East, a distance of 200.00 feet to an iron pin set at the northerly right of way line of said Brookpark Road and the Principal Place of Beginning and containing 10.161 acres of land, more or less, as surveyed by Terence R. Allison, Professional Surveyor No. 7176 of Michael Benza & Associates, Inc., dated May 18, 2005, be the same more or less, but subject to all legal highways.
Situated in the City of Cleveland, County of Cuyahoga and State of Ohio, known as being part of Original Middleburg Township Lot No. 3, Section No. 21, also being part of the original Cedar Point Road (vacated), also part of lands conveyed to the City of Cleveland by deed dated November 15, 1982 as recorded in Volume 15676, Page 651 of Cuyahoga County Recorder's Records, being more fully described as follows:
Commencing at an iron pin in a monument box found and used at the intersection of the centerline of Cedar Point Road, having a 60-foot Right-of-Way with the centerline of Lucille Avenue, having a 60-foot Right-of-Way, also being a point on the Western line of said Lot No. 3;
Thence along the centerline of said Cedar Point Road, bearing South 89 degrees 09 minutes 47 seconds East, a distance of 1206.17 feet to an iron pin in a monument box found and used at a point of curvature in the centerline of Cedar Point Road;
Thence along the centerline of said Cedar Point Road and along a tangent curve to the left, the long chord of which bears North 55 degrees 52 minutes 14 seconds East for a distance of 596.21 feet, having a radius of 520.24 feet and an arc length of 634.87 feet to a point of tangency therein, as witnessed by a
Thence continuing along the centerline of Cedar Point Road, bearing North 20 degrees 54 minutes 57 seconds East, a distance of 161.51 feet to a point of curvature therein, as witnessed by a
Thence continuing along the centerline of Cedar Point Road and along a tangent curve to the right, the long chord of which bears North 31 degrees 44 minutes 19 seconds East for a distance of 153.56 feet, having a radius of 408.89 feet and an arc length of 154.48 feet to a point on the Northern terminus of Cedar Point Road;
Thence along the Northern terminus of Cedar Point Road, bearing South 45 degrees 11 minutes 14 seconds East, a distance of 30.03 feet to a point on the Eastern Right-of-Way line of Cedar Point Road, also being a point on a Northern corporation line of the City of Cleveland, as witnessed by a
Thence along the Southeasterly projection of the Northern terminus of Cedar Point Road, bearing South 45 degrees 11 minutes 14 seconds East, a distance of 69.19 feet to a point ont he Eastern Corporation line of the City of Cleveland;
Thence parallel to the centerline of Cedar Point Road and along a non-tangent curve to the left, the long chord of which bears South 31 degrees 22 minutes 42 seconds West for a distance of 112.50 feet, having a radius of 309.78 feet and an arc length of 113.13 feet to a point of tangency, as witnessed by a
Thence continuing parallel to the centerline of Cedar Point Road, bearing South 20 degrees 54 minutes 57 seconds West, a distance of 161.51 feet to an iron pin set;
Thence continuing parallel to the centerline of Cedar Point Road, along a tangent curve to the right, the long chord of which bears South 47 degrees 07 minutes 17 seconds West for a distance of 547.01 feet, having a radius of 619.35 feet, and an arc length of 566.56 feet to an iron pin set on the Southeastern line of lands conveyed to Cleveland Electric Illuminating by deed dated March 21, 2002 as recorded in AFN 200203211027 of Cuyahoga County Recorder's Records, also being a point
Thence along said Corporation line and the Southeastern line of said lands of Cleveland Electric Illuminating and the Northeasterly projection thereof, bearing North 28 degrees 52 minutes 58 seconds East, a distance of 93.37 feet to a point on the Southeastern line of lands conveyed to the United States of America by deed dated August 30, 1990 as recorded in Volume 90-5269, Page 42 of Cuyahoga County Recorder's Records, also being a point on the centerline of the aforesaid original Cedar Point Road (vacated), as witnessed by a
Thence along the centerline of original Cedar Point Road (vacated) and a Southern line of lands conveyed to the United States of America by Recorded in Volume 9491, Page 678 of Cuyahoga County Recorder's Records, bearing North 86 degrees 18 minutes 46 seconds East, a distance of 55.16 feet to an angle point therein as witnessed by a
Thence continuing along the centerline of original Cedar Point Road (vacated) and a Southern line of lands conveyed to the United States of America (Volume 9491, Page 678), bearing North 35 degrees 18 minutes 46 seconds East, a distance of 75.14 feet to a point thereon, also being a point on the Eastern Right-of-Way line of Cedar Point Road, also being a point on the Northern Corporation line of the City of Cleveland, as witnessed by a
Thence continuing along said Corporation line and the Eastern Right-of-Way line of Cedar Point Road and along a tangent curve to the left, the long chord of which bears North 37 degrees 35 minutes 44 seconds East for a distance of 315.86 feet, having a radius of 550.24 feet, and an arc length of 320.37 feet to a point of tangency, as witnessed by a
Thence continuing along said Corporation line and the Eastern Right-of-Way line of Cedar Point Road, bearing North 20 degrees 54 minutes 57 seconds East, a distance of 50.61 feet to a point thereon, also being a point on the centerline of original Cedar Point Road (vacated) and a Southern line of the aforesaid lands of the United States of America (Volume 9491, Page 678), as witnessed by a
Thence along the centerline of original Cedar Point Road (vacated) and a Southern line of said lands of the United States of America (Volume 9491, Page 678), bearing North 35 degrees 18 minutes 46 seconds East, a distance of 22.23 feet to an angle point therein as witnessed by a
Thence continuing along the centerline of original Cedar Point Road (vacated) and a Southern line of said lands of the United States of America (Volume 9491, Page 678), bearing North 00 degrees 39 minutes 46 seconds East, a distance of 15.97 feet to a point on the Northern Corporation line of the City of Cleveland and the Eastern Right-of-Way line of Cedar Point Road, as witnessed by a
Thence along the said Northern Corporation line and the Eastern Right-of-Way line of Cedar Point Road, bearing North 20 degrees 54 minutes 57 seconds East, 74.39 feet to a point of curvature thereon, as witnessed by a
Thence continuing along the said Northern Corporation line and the Eastern Right-of-Way line of Cedar Point Road and along a tangent curve to the right, the long chord of which bears North 31 degrees 38 minutes 58 seconds East for a distance of 141.13 feet, having a radius of 378.89 feet, and an arc length of 141.96 feet to a point thereon, also being a point on the Northern terminus of Cedar Point Road and the Principal Place of Beginning and containing 1.2056 Acres of land, more or less but subject to all legal highways and all covenants and agreements of record.
Situated in the City of Brook Park, County of Cuyahoga and State of Ohio, known as being part of Original Middleburg Township Lot No. 3, Section No. 21, also being part of the original Cedar Point Road (vacated), also part of lands conveyed to the City of Cleveland by deed dated November 15, 1982 as recorded in Volume 15676, Page 651 of Cuyahoga County Recorder's Records, being more fully described as follows:
Commencing at an iron pin in a monument box found and used at the intersection of the centerline of Cedar Point Road, having a 60-foot Right-of-Way, with the centerline of Lucille Avenue, having a 60-foot Right-of-Way, also being a point on the Western line of said Lot No. 3;
Thence along the centerline of said Cedar Point Road, bearing South 89 degrees 09 minutes 47 seconds East, a distance of 1206.17 feet to an iron pin in a monument box found and used at a point of curvature in the centerline of Cedar Point Road;
Thence along the centerline of said Cedar Point Road and along a tangent curve to the left, the long chord of which bears North 55 degrees 52 minutes 14 seconds East for a distance of 596.21 feet, having a radius of 520.24 feet and an arc length of 634.87 feet to a point of tangency therein, as witnessed by a
Thence continuing along the centerline of Cedar Point Road, bearing North 20 degrees 54 minutes 57 seconds East, a distance of 161.51 feet to a point of curvature therein, as witnessed by a
Thence continuing along the centerline of Cedar Point Road and along a tangent curve to the right, the long chord of which bears North 31 degrees 44 minutes 19 seconds East for a distance of 153.56 feet, having a radius of 408.89 feet and an arc length of 154.48 feet to a point on the Northern terminus of Cedar Point Road;
Thence along the Northern terminus of Cedar Point Road, bearing North 45 degrees 11 minutes 14 seconds West, a distance of 30.02 feet to a point on the Western Right-of-Way line of Cedar Point Road and the Principal Place of Beginning of the parcel herein described;
Thence along the Western Right-of-Way of Cedar Point Road and along a non-tangent curve to the left, the long chord of which bears South 36 degrees 32 minutes 30 seconds West for a distance of 94.40 feet, having a radius of 438.89 feet, and an arc length of 94.59 feet to a point thereon, also being a point on the centerline of original Cedar Point Road (vacated) and a Southern line of lands conveyed to the United States of America by deed Recorded in Volume 9491, Page 678 of Cuyahoga County Recorder's Records;
Thence continuing along said centerline of original Cedar Point Road (vacated) and a Southern line of lands
Thence co-linear to the aforesaid Northern terminus of Cedar Point Road, bearing South 45 degrees 11 minutes 14 seconds East, a distance of 77.11 feet to a point on the Western Right-of-Way line of Cedar Point Road; and the Principal Place of Beginning and containing 0.0790 acres of land, more or less but subject to all legal highways and all covenants and agreements of record.
Federal Aviation Administration (FAA), DOT.
Notice.
The FAA invites public comment about our intention to request the Office of Management and Budget's (OMB) revision of a current information collection. The
Please submit comments by July 16, 2007.
Carla Mauney at
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to Nathan Lesser, Desk Officer, Department of Transportation/FAA, and sent via electronic mail to
Comments are invited on: Whether the proposed collection of information is necessary for the proper performance of the functions of the Department, including whether the information will have practical utility; the accuracy of the Department's estimates of the burden of the proposed information collection; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information on respondents, including the use of automated collection techniques or other forms of information technology.
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
The FAA invites public comments about our intention to request the Office of Management and Budget (OMB) to approve a current information collection. The information collected is used to determine compliance and applicant eligibility.
Please submit comments by August 14, 2007.
Carla Mauney on (202) 267-9895, or by e-mail at:
Send comments to the FAA at the following address: Mr. Carla Mauney, Room 712, Federal Aviation Administration, Strategy and Investment Analysis Division, AIO-20, 800 Independence Ave., SW., Washington, DC 20591.
Federal Aviation Administration (FAA), DOT.
Notice.
The FAA invites public comments about our intention to request the Office of Management and Budget's (OMB) revision of a current information collection. The
Please submit comments by July 16, 2007.
Carla Mauney at
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to Nathan Lesser, Desk Officer, Department of Transportation/FAA, and sent via electronic mail to
Comments are invited on: Whether the proposed collection of information is necessary for the proper performance of the functions of the Department, including whether the information will have practical utility; the accuracy of the Department's estimates of the burden of the proposed information collection; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information on respondents, including the use of automated collection techniques or other forms of information technology.
Federal Aviation Administration (FAA), DOT.
Notice.
The FAA invites public comments about our intention to request the Office of Management and Budget's (OMB) revision of a current information collection. The
Please submit comments by July 16, 2007.
Carla Mauney at
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to Nathan Lesser, Desk Officer, Department of Transportation/FAA, and send via electronic mail to
Federal Aviation Administration (FAA), DOT.
Notice.
The FAA invites public comments about our intention to request the Office of Management and Budget's (OMB) revision of a current information collection. The
Please submit comments by July 16, 2007.
Carla Mauney at
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to Nathan Lesser, Desk Officer, Department of Transportation/FAA, and sent via electronic mail to
Federal Aviation Administration (FAA), DOT.
Notice.
The FAA invites public comments about our intention to request the Office of Management and Budget's (OMB) revision of a current information collection. The
Please submit comments by July 16, 2007.
Carla Mauney at
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to Nathan Lesser, Desk Officer, Department of Transportation/FAA, and sent via electronic mail to
Federal Aviation Administration (FAA), DOT.
Notice.
The FAA invites public comments about our intention to request the Office of Management and Budget's (OMB) revision of a current information collection. The
Please submit comments by July 16, 2007.
Carla Mauney at
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to Nathan Lesser, Desk Officer, Department of Transportation/FAA, and sent via electronic mail to
Federal Aviation Administration (FAA), DOT.
Notice of implementation of previously assigned task item for the Aviation Rulemaking Advisory Committee (ARAC).
The FAA has assigned the Aviation Rulemaking Advisory Committee (ARAC) to disposition certain technical comments through the Transport Airplane and Engine Issues Group (TAEIG) and its Design for Security Harmonization Working Group (DSHWG). This notice is to inform the public of this ARAC activity.
Jeff Gardlin, Federal Aviation Administration, Transport Airplane Directorate (ANM-115), Northwest Mountain Region Headquarters, 1601 Lind Ave., SW., Renton, WA 98055-4056; telephone: (425) 227-2136; fax: 425-227-1320 e-mail:
The FAA established the Aviation Rulemaking Advisory Committee to provide advice and recommendations to the FAA Administrator on the FAA's rulemaking activities for aviation-related issues. This includes obtaining advice and recommendations on the FAA's commitments to harmonize Title 14 of the Code of Federal Regulations (14 CFR) with its partners in Europe and Canada.
In a tasking issued on October 20, 1999, (64 FR 57921, Oct. 27, 1999), the FAA assigned ARAC to provide advice and recommendations relative to the following issue:
Implementation of International Civil Aviation Organization (ICAO), Rules from Amendment 97 to Annex 8, Concerning Design for Security.
ARAC accepted the task, and the TAEIG chose to establish the Design for Security Harmonization Working Group. As a part of that task, ARAC agreed that “If the resulting recommendation is one or more notices of proposed rulemaking (NPRM) published by the FAA, the FAA may ask ARAC to recommend disposition of any substantive comments the FAA receives.”
This notice is to inform the public that the following specific technical comments are assigned to the DSHWG:
• Consideration of structural deflections for system integrity
• Flight/dispatch regimes under which smoke protection capability is required
• System separation requirements in relation to other regulations (
• Definition of the system separation distance measurement
• Definition of object size for interior search
Federal Aviation Administration (FAA), DOT.
Notice of petitions for exemption received.
This notice contains a summary of certain petitions seeking relief from specified requirements of 14 CFR. The purpose of this notice is to improve the public's awareness of, and participation in, this aspect of FAA's regulatory activities. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of any petition or its final disposition.
Comments on petitions received must identify the petition docket number involved and must be received on or before July 5, 2007.
You may send comments identified by Docket Number FAA-2007-28111 using any of the following methods:
• DOT Docket Web site: Go to
• Government-wide rulemaking Web site: Go to
• Mail: Send comments to the Docket Management Facility; U.S. Department of Transportation, 1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12-140, Washington, DC 20590.
• Fax: Fax comments to the Docket Management Facility at 202-493-2251.
• Hand Delivery: Bring comments to the Docket Management Facility in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
• Docket: To read background documents or comments received, go to
We will post all comments we receive, without change, to
Tyneka Thomas (202) 267-7626 or Frances Shaver (202) 267-9681, Office of Rulemaking, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85.
The Union Pacific Railroad Company (UP) has petitioned the Federal Railroad Administration (FRA) seeking relief from the requirements of the Rules, Standards and Instructions found in Title 49 Code of Federal Regulations (CFR) § 236.586, Daily or after-trip test. Specifically, UP is seeking to change the administration of the first sentence in paragraph (a) from “intervals of not more than 2 months” to “intervals of not more than 92 days” for all cab signal devices on locomotives operated by UP. This waiver application is identified as Docket Number FRA-2006-24646.
FRA issued a public notice seeking comments from interested parties on UP's petition. See 71 FR 36166; June 23, 2006. FRA also held a public hearing on this proposal on May 31, 2007, and extended the comment period to June 10, 2007. See 72 FR 19579; April 18, 2007. At the May 31 hearing, FRA requested that UP submit additional information to the docket to support its waiver application. In order to give all interested parties time to comment on the additional information, FRA is extending the comment period to July 2, 2007.
All communications concerning this waiver petition should identify the appropriate docket number (e.g., Waiver Petition Docket Number FRA-2006-24646) and may be submitted by one of the following methods:
Financial Management Service, Fiscal Service, Department of the Treasury.
This is Supplement No. 13 to the Treasury Department Circular 570, 2006 Revision, published June 30, 2006 at 71 FR 37694.
Surety Bond Branch at (202) 874-6850.
Notice is hereby given that the Certificate of Authority issued by the Treasury to the above-named company under 31 U.S.C. 9305 to qualify as an acceptable surety on Federal bonds was terminated effective May 31, 2007. Federal bond-approving officials should annotate their reference copies of the Treasury Department Circular 570 (“Circular”), 2006 Revision, to reflect this change.
With respect to any bonds currently in force with the above listed company, bond-approving officers may let such bonds run to expiration and need not secure new bonds. However, no new bonds should be accepted from this company, and bonds that are continuous in nature should not be renewed.
The Circular may be viewed and downloaded through the Internet at
Questions concerning this notice may be directed to the U.S. Department of the Treasury, Financial Management Service, Financial Accounting and Services Division, Surety Bond Branch, 3700 East-West Highway, Room 6F01, Hyattsville, MD 20782.
Office of Foreign Assets Control, Treasury.
Notice.
The Treasury Department's Office of Foreign Assets Control (“OFAC”) is publishing the names of four 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 Director of OFAC of the four entities identified in this notice pursuant to Executive Order 13382 is effective on June 8, 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 June 8, 2007, the Director of OFAC, in consultation with the Departments of State, Justice, and other relevant agencies, designated four entities whose property and interests in property are blocked pursuant to Executive Order 13382.
The list of additional designees follows:
Internal Revenue Service, Treasury.
Notice of Postponement of Closed Meeting of Art Advisory Panel.
The closed meeting of the Art Advisory Panel which was to be held in Washington, DC on June 20, 2007 has been postponed and will be rescheduled for Fall 2007. (The date to be determined.)
Karen Carolan, C:AP:AS, 1099 14th Street, NW., Washington, DC 20005. Telephone (202) 435-5609 (not a toll free number).
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to expand the comparable fuel exclusion under the rules implementing subtitle C of the Resource Conservation and Recovery Act (RCRA) for fuels that are produced from hazardous waste but which generate emissions that are comparable to emissions from burning fuel oil when such fuels are burned in an industrial boiler. Such excluded fuel would be called emission-comparable fuel (ECF). ECF would be subject to the same specifications that currently apply to comparable fuels, except that the specifications for certain hydrocarbons and oxygenates would not apply. The ECF exclusion would be conditioned on requirements including: Design and operating conditions for the ECF boiler to ensure that the ECF is burned under the good combustion conditions typical for oil-fired industrial boilers; and conditions for tanks storing ECF which conditions are typical of those for storage of commercial fuels, and are tailored for the hazards that ECF may pose.
Comments must be received on or before August 14, 2007. Under the Paperwork Reduction Act, comments on the information collection provisions must be received by OMB on or before July 16, 2007.
Submit your comments, identified by Docket ID No. EPA-HQ-RCRA-2005-0017, by one of the following methods:
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Mary Jackson, Hazardous Waste Minimization and Management Division, Office of Solid Waste, Mailcode: 5302P, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (703) 308-8453; fax number: (703) 308-8433; e-mail address:
Categories and entities potentially affected by this action include:
This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be impacted by this action. This table lists examples of the types of entities EPA is now aware could potentially be regulated by this action. Other types of entities not listed could also be affected. To determine whether your facility, company, business, organization, etc., is affected by this action, you should examine the applicability criteria in this proposed rule. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding
1. Submitting CBI. Do not submit this information to EPA through
2. Tips for Preparing Your Comments. When submitting comments, remember to:
• Identify the rulemaking by docket number and other identifying information (subject heading,
• Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
• Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
• Describe any assumptions and provide any technical information and/or data that you used.
• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
• Provide specific examples to illustrate your concerns, and suggest alternatives.
• Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
• Make sure to submit your comments by the comment period deadline identified.
3. Docket Copying Costs:
You may copy a maximum of 100 pages from any regulatory docket at no charge. Additional copies are 15 cents/page.
4. How Do I Obtain a Copy of This Document and Other Related Information?
In addition to being available in the docket, an electronic copy of today's proposed rule will also be available on the Worldwide Web (WWW). Following the Administrator's signature, a copy of this document will be posted on the WWW at
5. Index of Contents
The information presented in this preamble is organized as follows:
These regulations are proposed under the authority of sections 2002, 3001, 3002, 3003, and 3004 of the Solid Waste Disposal Act of 1970, as amended by the Resource Conservation and Recovery Act of 1976 (RCRA), as amended by the Hazardous and Solid Waste Amendments of 1984 (HSWA), 42 U.S.C. 6921, 6922, 6923, and 6924.
Section 40 CFR 261.38 states that secondary materials (
The quantity of waste fuels excluded under this approach would increase substantially the amount of hazardous waste fuels that would eligible for exclusion from the RCRA hazardous waste regulations. Specifically, we estimate that approximately 13,000 tons per year of waste fuels are currently excluded under the existing comparable fuel exclusion, while we project that up to an additional 107,000 tons per year may be excluded under the exclusion being proposed today.
These additional hazardous secondary materials could be burned for energy recovery without imposing unnecessary regulatory costs on generators, primarily the manufacturing sector. However, the expanded comparable fuel exclusion may not substantially increase the amount of hazardous waste burned for energy recovery because high Btu wastes, even though not currently excluded from RCRA, are currently burned in industrial furnaces and incinerators for their fuel value. Nonetheless, continuing to regulate these waste-derived fuels as hazardous wastes would treat a potentially valuable fuel commodity (especially considering the increasing value of fuels) as a waste without a compelling basis.
Entities that generate, burn, and store ECF are potentially affected by this proposal. The basic structure of the proposal is that ECF is no longer a solid (and hazardous) waste, and hence that each of these entities would not be subject to subtitle C regulation when managing ECF. Thus, generators of hazardous waste fuels that meet the conditions of the ECF exclusion could manage these fuels without being subject to subtitle C regulation assuming that the management conditions are satisfied. Burners, which are limited to certain industrial boilers (including utility boilers), could burn ECF provided the boilers meet the design and operating conditions in the proposed rule, as discussed in Part II, Section II. Generators would benefit from lower operating costs because of lower (or eliminated) waste management fees and because these fuels would substitute for fuels which would otherwise be purchased. In addition, entities storing ECF would not be subject to subtitle C standards provided they satisfy the management conditions tailored to ECF, as discussed in Part Two, Section IV.
Commercial hazardous waste combustors that are currently managing waste fuels that qualify as ECF, on the other hand, might find themselves unable to continue to charge hazardous waste management fees for the excluded waste fuels. Consequently, commercial hazardous waste combustors might lose the waste management revenues for those diverted fuels and may need to meet their heat input requirements by using other waste fuels or fossil fuels.
On June 19, 1998 (63 FR 33782 and § 261.38), EPA promulgated standards to exclude from the regulatory definition of solid waste certain hazardous waste-derived fuels that meet specification levels for hazardous constituents and physical properties that affect burning which are comparable to the same levels in fossil fuels. EPA's goal was to develop a comparable fuel specification which is useable by the regulated community, but assures that an excluded waste-derived fuel is similar in composition to commercially available fuel and therefore poses no greater risk than burning fossil fuel.
During the eight years that the comparable fuel exclusion has been part of the hazardous waste regulations, several stakeholders have pointed out that many hazardous wastes with fuel value do not satisfy the terms of the exclusion. Independently, in 2003, EPA began examining the effectiveness of the current comparable fuel program as part of an effort to promote the energy conservation component of the Resource Conservation Challenge
As part of this effort, we contacted the American Chemistry Council (ACC) in early 2003 to determine how much waste is currently excluded as comparable fuel and whether there were additional quantities of other high Btu wastes that could potentially be considered comparable fuel. ACC conducted a survey of its members and provided results to EPA in late 2003 indicating that approximately 13,000 tons per year of waste fuels are currently excluded, but that approximately 190,000 tons per year of additional waste fuels could potentially be excluded under revisions to the exclusion.
Therefore, ACC recommended that EPA consider approaches to address the following barriers perceived as excluding additional quantities of waste fuels:
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We are proposing in this action to expand the exclusion for comparable fuel to establish a new category of excluded fuel—emission-comparable fuel (ECF). This proposal would exclude waste fuels that generate emissions, when burned in an industrial boiler, which are comparable to emissions from burning fuel oil. ECF would be subject to the same hazardous constituent and other specifications in Table 1 to § 261.38 that currently apply to comparable fuels, except that the specifications for certain hydrocarbons and oxygenates would not apply. The exclusion would be based on the rationale that ECF has substantial fuel value, that the hydrocarbon and oxygenate constituents no longer subject to a specification add fuel value, and that emissions from burning ECF in an industrial boiler operating under good combustion conditions are likely not to differ from emissions from burning fossil fuels under those same conditions. As a result, the current specifications limiting the hydrocarbons and oxygenates appear to be unnecessary.
The exclusion would be conditioned on the ECF being burned and stored under certain conditions, including: (1) Design and operating conditions for the ECF boiler that ensure that the ECF is burned under the good combustion conditions typical for oil-fired industrial boilers; and (2) conditions for storage in tanks which are comparable to those for storage of fuels and organic liquids and which are tailored for the hazards that ECF may pose given that ECF can have higher concentrations of certain hydrocarbons and oxygenates than fuel oil and gasoline.
We are not proposing revisions to the comparable fuel exclusion to address the analytical and blending recommendations raised by ACC.
We believe that it would not be appropriate to consider increasing the specifications for all volatile organic compounds and base them on the higher levels of detection in gasoline rather than fuel oil levels of detection because most of the compounds would simply not be expected to be found in fuel oil or gasoline. Rather, only certain hydrocarbons would be expected to be in these fuels. We could potentially also consider oxygenates, however, because they are within a class of compounds that are added to fuels to enhance combustion. It appeared, however, that this revision would not likely result in additional hazardous waste fuel being conditionally excluded. There were very few, if any, waste fuels that meet the specifications for all volatile compounds, except for the enumerated hydrocarbons and oxygenates, and that also could meet revised, higher specifications for the hydrocarbons and oxygenates based on the levels of detection in gasoline. Consequently, we are not pursuing this approach further but, nonetheless, solicit comment on such an approach.
We believe, however, that blending to meet the specification for organic compounds that may be present in fuel oil or gasoline—hydrocarbons—or that are within a class of compounds that are added to fuels to enhance combustion—oxygenates—could be considered. These compounds would not be diluted to avoid treatment; they would still be treated by combustion. However, it appears that there were very few, if any, additional waste fuels that would be excluded under such a blending provision. Nonetheless, we solicit comment on such an approach and its applicability to additional waste fuels.
On December 15, 2005, EPA convened a public meeting of stakeholders to discuss potential revisions to the comparable fuel exclusion under 40 CFR 261.38.
Today's proposed rule would expand the comparable fuel exclusion by conditionally waiving the specifications for certain hydrocarbons and oxygenates listed in Table 1 to § 261.38. This excluded waste fuel would be called emission-comparable fuel. We are also proposing to clarify the regulatory status of existing comparable fuel that no longer meets the conditions of the exclusion.
ECF is a fuel derived from hazardous waste but which would be excluded from the RCRA hazardous waste regulations if it meets prescribed specifications and management conditions. The ECF specifications would be the same as those that are applicable to comparable fuel, except the specifications for particular hydrocarbons and oxygenates would not apply. See proposed § 261.38(a)(2). The exclusion would apply from the point that ECF meets the specifications.
Special conditions of the exclusion specific to ECF would include the following design and operating conditions for the ECF burner: (1) The burner must be a watertube steam boiler other than a stoker-fired boiler; (2) carbon monoxide (CO) must be monitored continuously, must be linked to an automatic ECF feed cutoff system, and must not exceed 100 ppmv on an hourly rolling average (corrected to 7% oxygen); (3) the boiler must fire at least 50% primary fuel on a heating value or volume basis, whichever results in a higher volume of primary fuel, and the primary fuel must be fossil fuel or tall oil with a heating value not less than 8,000 Btu/lb; (4) the boiler load must be 40% or greater; (5) the ECF must have an as-fired heating value of 8,000 Btu/lb or greater; (6) ECF must be fired into the primary fuel flame zone; (7) the ECF firing system must provide proper atomization; and (8) if the boiler is equipped with an electrostatic precipitator (ESP) or fabric filter (FF) and does not fire coal as the primary fuel, the combustion gas temperature at the inlet to the ESP or FF must be continuously monitored, must be linked to the automatic ECF feed cutoff system, and must not exceed 400 °F on an hourly rolling average. See proposed § 261.38(c)(2). (Please note that we specifically request comment on these proposed conditions, as discussed later.) The principal conditions that would apply to ECF boilers—waterwall steam boiler, low CO, burning high Btu primary fuel that is properly atomized, operating at boiler loads above 40%—reflect design and operating conditions typical for oil-fired industrial boilers that operate under good combustion conditions.
In addition, ECF must be stored in tanks, tank cars, or tank trucks. See proposed § 261.38(c)(1). These tank systems, tank cars, and tank trucks would be excluded from regulation if they meet conditions similar to those which apply to fuel oil (the product most analogous to ECF), along with additional conditions necessary to minimize the potential for releases to the environment accounting for the differences between ECF and fuel oil. These include: (1) Certain provisions of the Spill Prevention, Control, and Countermeasures (SPCC) requirements applicable to oil under §§ 112.2, 112.5, 112.7, and 112.8; (2) secondary containment and leak detection requirements for tank systems, including use of liners, vaults, or double-walled tanks; (3) preparedness and prevention, emergency procedures, and response to release provisions adopted from requirements applicable to tank systems that store hazardous waste, and (4) fugitive air emission technical controls adopted from Subpart EEEE, Part 63, for organic liquids distribution (which would apply not only to any hazardous air pollutants among the oxygenates and hydrocarbons, but also would apply to the 11 oxygenates for which there would be no specification in this proposed rule and which are hazardous constituents under RCRA having significant vapor pressure but which are not hazardous air pollutants under the CAA). Underground tanks storing ECF are subject to the applicable requirements of 40 CFR Part 280. A further condition of the exclusion is that the generator must document in the waste analysis plan how precautions will be taken to prevent mixing of ECF and other materials which could result in adverse consequences from incompatible materials. In addition, to be excluded, ECF would need to meet all of the conditions applicable to existing comparable fuel, including: (1) The specifications under Table 1 to 261.38, except for the specifications for certain hydrocarbons and oxygenates; (2) prohibition on blending to meet the specifications, except for viscosity;
ECF that has lost its exclusion because of failure to satisfy a condition of the exclusion must be managed as a hazardous waste from the point of ECF generation.
The proposed rule would restructure the current conditions for comparable fuel (and syngas fuel) to make the regulatory language more readable given that the regulation must accommodate the proposed exclusion for ECF. Consequently, we are redrafting the entire section for clarity. In addition, we are making technical corrections to several provisions of the rule.
We are, however, proposing to amend several provisions that apply to comparable fuel for the same reasons that we are proposing to apply the amended provisions to ECF. We specifically request comment on whether these clarifications and conforming amendments are appropriate:
• We are proposing to clarify the consequences of failure to satisfy the conditions of the existing comparable fuel exclusion. The material must be managed as hazardous waste from the point of generation. In addition, we are proposing to clarify that excluded fuel that is spilled or leaked and that no longer meets the conditions of the exclusion must be managed as a hazardous waste if it exhibits a characteristic of hazardous waste or if it was derived from a listed hazardous waste when the exclusion was claimed. See proposed § 261.38(d).
• We are proposing to clarify the status of tanks that cease to be operated as comparable fuel storage tanks. The tank system becomes subject to the RCRA hazardous waste facility standards if not cleaned of liquids and accumulated solids within 90 days of ceasing operations as a comparable fuel tank. In addition, we are proposing to clarify that liquids and accumulated solids removed from the tank after the tank ceases to be operated as a comparable fuel product tank must be managed as hazardous waste if they exhibit a characteristic of hazardous waste or if they were derived from a listed hazardous waste when the exclusion was claimed. See proposed § 261.38(b)(13).
• We are proposing to waive the RCRA closure requirements for tank systems that are used only to store hazardous wastes that are subsequently excluded as comparable fuel. See proposed § 261.38(b)(14).
• We are proposing to clarify the regulatory status of boiler residues, including bottom ash and emission control residue. Burning excluded fuel that was derived from a listed hazardous waste does not subject boiler residues to regulation as derived-from hazardous waste. See § 261.38(b)(12).
• We are proposing that the one-time notice by the generator to regulatory officials include an estimate of the average and maximum monthly and annual quantity of waste for which an exclusion would be claimed.
Emission-comparable fuel (ECF) is a fuel derived from hazardous waste, but which would be excluded from RCRA hazardous waste regulation if it meets prescribed specifications and management conditions. The ECF specifications would be the same as those that currently apply to existing comparable fuel, except the specifications for particular hydrocarbons and oxygenates would not apply. See proposed § 261.38(a)(2).
The exclusion would be based on the rationale that ECF has fuel value, that the hydrocarbon and oxygenate constituents no longer subject to a specification themselves have fuel value, and that emissions from burning ECF in an industrial boiler operating under good combustion conditions are likely not to differ from emissions from burning fossil fuels under those same conditions. Emissions from burning ECF in an industrial boiler operating under good combustion conditions would be comparable to emissions from burning fuel oil in an industrial boiler operating under the same good combustion conditions because operating a boiler under good combustion conditions, evidenced by carbon monoxide (CO) emissions below 100 ppmv (on an hourly rolling average), assures the destruction of organic compounds generally to trace levels, irrespective of the type or concentration of the organic compound in the feed.
EPA has discretion to classify such material as a fuel product, and not as a waste. See generally
The conditional exclusion would be an exclusion only from the RCRA subtitle C regulations, and not from the emergency, remediation and information-gathering sections of the RCRA statute [sections 3007, 3013, and 7003]. This is consistent with the principle already codified for other excluded hazardous secondary materials—that the exclusion is only from the RCRA regulatory provisions, and not from these statutory authorities. See § 261.1(b). We are restating this principle here in the interest of clarity, not to reopen the issue. The legal basis for the distinction of the Agency's authority under these provisions is that they use the broader statutory definition of solid waste (and hazardous waste, as well) and so need not (and should not) be read as being limited by the regulatory definition. See, for example, 50 FR at 627. See also
Although ECF could have higher concentrations of particular hydrocarbons and oxygenates than the benchmark fossil fuels—fuel oil and gasoline—that EPA used to establish the specifications in Table 1 to § 261.38, higher levels of hydrocarbons and oxygenates in ECF do not imply that burning ECF for energy recovery constitutes waste management because: (1) Hydrocarbons naturally occur in virgin fuels
We note, however, that ECF can pose a greater hazard during storage than fuel oil given that ECF can contain higher concentrations of certain hazardous, volatile hydrocarbons and oxygenates. We are consequently proposing to condition the exclusion on certain storage conditions similar to those applicable to commercial products and commodities analogous to ECF, namely fuel oil and other commercial organic liquids. See discussion below in Part Two, Section IV.
In addition, we are proposing to condition the exclusion on requirements for the design and operation of the ECF burner to ensure that ECF is burned under the good combustion conditions typical of most fossil fuel boilers. See discussion below in Part Two, Section II. These conditions should ensure that emissions from burning ECF remain comparable to emissions from burning fossil fuels.
We are proposing not to apply the specifications for certain hydrocarbons and oxygenates, but are proposing to retain the specifications for metals and the other categories of organic compounds for which specifications are provided under § 261.38. We would not apply the specifications for these hydrocarbons
We also would not apply the specifications for the listed oxygenates because they are a class of organic compounds that are added to fuels to enhance combustion.
It is appropriate to retain the specifications for metals since they do not contribute energy and are not destroyed during the combustion process. Given that the metal specifications in Table 1 to § 261.38 reflect levels that can be present in fuel oil, excess, noncontributing metals are “along for the ride,” suggesting discarding. Moreover, metals emissions would necessarily be higher than emissions from fuel oil if the metals specifications do not apply because oil-fired boilers typically lack optimized particulate control due to low metal content of commercially available fuel oils.
Also, it is appropriate to retain the specifications for the other categories of organic compounds listed under Table 1 to § 261.38—sulfonated organics, nitrogenated organics, and halogenated organic compounds. These organic compounds, for the most part, are not likely to be found in the benchmark fuels—fuel oil and gasoline—we used to establish the specifications. And, unlike oxygenates, these organic compounds are not within a class of compounds that are added to fossil fuels to enhance combustion. These hazardous compounds also would appear to be along for the ride when present at concentrations higher than benchmark
We investigated whether emissions from burning ECF in an industrial boiler operating under prescribed good combustion conditions would be comparable to emissions from burning fuel oil in an industrial boiler operating under good combustion conditions. We evaluated organic emissions data from watertube steam boilers (other than stoker-fired boilers) burning hazardous waste and compared those emissions against emissions from oil-fired industrial boilers. In addition, we conducted two qualitative analyses of the risk that ECF emissions may pose: (1) Evaluation of RCRA risk assessments for watertube steam boilers burning hazardous waste to determine if organic emissions had been found to pose a hazard to human health and the environment; and (2) a limited comparative risk assessment for dioxin/furan emissions.
As discussed below, we believe that available data and information indicate that emissions from burning ECF under the proposed, prescribed conditions would be comparable to emissions from an oil-fired industrial watertube steam boiler operating under good combustion conditions.
In the absence of emissions data from boilers burning ECF, we evaluated organic emissions data from watertube steam boilers burning hazardous waste and compared those emissions against emissions from oil-fired industrial boilers. Using hazardous waste boiler emissions as a surrogate for ECF boiler emissions is a reasonable worst-case because the exclusion would be conditioned on the ECF boiler operating under conditions relating to assuring good combustion conditions that are at least as stringent as those required of boilers burning hazardous waste.
We obtained organic emissions data for 26 hazardous waste watertube steam boilers which data were generated during risk-burn testing required under RCRA omnibus authority codified at § 270.32(b)(2). EPA requires this testing as necessary on a site-specific basis to ensure that emissions are protective of human health and the environment. We have data for 28 test conditions for the 26 boilers that provide 175 detected measurements of organic compounds, where a measurement is a three-run set.
We have emissions data for both hazardous waste boilers and oil-fired industrial boilers for 26 hazardous organic compounds. We also have hazardous waste boiler emissions data for another 33 hazardous organic compounds for which we do not have oil-fired boiler emissions data for comparison. We discuss our investigation of these data below.
For 12 of the 24 exceedances, laboratory contamination of the sample was known or suspected. Specifically, for nine exceedances—six for dichloromethane, two for benzene, and one for toluene—the constituent being measured was found in the blank, while there were three additional exceedances for dichloromethane, a common lab contaminant that is frequently found in laboratory samples and in the environment. For one of these test conditions, the report indicated that dichloromethane is a common laboratory contaminant, implying that the data may be suspect. For the other two test conditions, laboratory contamination was not discussed in the test reports. Even if laboratory contamination were not an issue for these two tests, however, we note that these hazardous waste boilers were not operating under the conditions that are proposed for an ECF boiler. Both boilers were burning waste fuels with a heating value below the 8,000 Btu/lb minimum heating value that is proposed for ECF. In addition, it is unclear if one boiler was burning vent gas or natural gas as the primary fuel. ECF must be burned with at least 50% primary fuel that is fossil fuel. Operating under conditions less stringent than proposed for ECF boilers could result in higher emissions of organic compounds.
For seven exceedances, hazardous waste boiler emissions were at trace levels
In addition, an exceedance for acetaldehyde was at an emissions level of 100 μg/dscm, while oil emission levels for acetaldehyde are virtually comparable at 70 μg/dscm. However, the hazardous waste boiler emissions for acetaldehyde were well below the 95th percentile emissions for natural gas boilers, 635 μg/dscm. This is relevant because ECF may be burned with natural gas as the primary fuel. Further,
Finally, there were four exceedances for benzene that we nonetheless believe are comparable to fuel oil emissions. Three of the exceedances were below the highest fuel oil emission test run level of 200 μg/dscm, while the fourth exceedance was at a level of 260 μg/dscm, just somewhat higher. More importantly, for all four exceedances, the hazardous waste boiler was not operating under the conditions proposed for an ECF boiler. For all four exceedances, the hazardous waste fuel had a heating value below 2,000 Btu/lb compared to 8,000 Btu/lb that is proposed for ECF. And, for one of the exceedances, the hazardous waste fuel had a viscosity of 165 cSt, while the maximum viscosity for ECF would be 50 cSt. To reiterate, operating under conditions less stringent than proposed for ECF boilers could result in higher emissions of organic compounds.
Notwithstanding this analysis of available emissions data, we acknowledge that, when ECF with higher concentrations of certain hydrocarbons and oxygenates than fuel oil is burned even under good combustion conditions, emissions of hazardous organics may be somewhat higher than those from burning fossil fuel. This is because combustion is generally a percent-reduction process. Thus, even though good combustion conditions may ensure a very high destruction efficiency (e.g., 99.9999% reduction), emission concentrations may nonetheless increase as the feedrate of an organic compound increases. We believe, however, that these increases would be
We have bis(2-ethylhexyl)phthalate emissions data for 15 test conditions (generally comprised of three runs) representing 15 different boilers. Test condition average emissions ranged from 0.34 μg/dscm to 600 μg/dscm for the boilers, with an average of 69 μg/dscm. Although the highest test condition average—600 μg/dscm—appeared to be an outlier given that the second highest average was 130 μg/dscm and 12 test conditions were below 42 μg/dscm, we determined that it is not a statistical outlier.
For chloroform, we have emissions data for 9 test conditions (generally comprised of three runs) representing 9 different boilers. Test condition average emissions ranged from 0.28 μg/dscm to 270 μg/dscm for the boilers, with an average of 45 μg/dscm. Although the highest test condition average—270 μg/dscm—appeared to be an outlier given that the second highest average was 85 μg/dscm and the remaining test conditions did not exceed 16 μg/dscm, we determined that it is not a statistical outlier. We note, however, that the boiler with the highest emissions—270 μg/dscm—was not operating under the conditions that are proposed for an ECF boiler—it burned a waste fuel with a heating value below 8,000 Btu/lb and it is not clear whether the boiler burned process vent gas or natural gas as primary fuel.
In addition to the analysis of emission concentrations discussed above, we reviewed the RCRA risk assessments
The first facility operated several boilers equipped with a common electrostatic precipitator. Risk-based dioxin emission limitations and associated testing and temperature monitoring requirements were established in the permit based upon a finding that dioxin/furan emissions during an isolated test event exceeded risk levels of concern. During that test event, artificial chlorine spiking into the waste feed was conducted. During subsequent testing under the permit terms, chlorine spiking did not take place and compliance with the risk-based dioxin/furan emission limitations was demonstrated. Electrostatic precipitator operating temperatures during the subsequent tests ranged from 396 °F to 418 °F. We note, however, that the chlorine specification proposed for ECF would prohibit chlorine concentrations from approaching the levels present during the instances of chlorine spiking at this facility. In addition, we also note that today's proposal would require that ECF boilers (other than coal-fired boilers) equipped with an ESP or FF maintain a gas temperature below 400 °F as a condition of the exclusion. See discussion in Section II below.
For the second facility where omnibus permit conditions were imposed, there was no finding of excess risk associated with any organic constituents. Rather, the omnibus permit conditions serve as a trigger for a reassessment of risk if emissions levels higher than those considered in the initial risk assessment were measured.
This analysis confirms our view that organic emissions from hazardous waste
Finally, we also conducted an abbreviated comparative risk assessment for dioxin/furan emissions from boilers burning hazardous waste and that meet the design conditions for an ECF boiler discussed below in Section II—a watertube steam boiler that is not stoker-fired. The abbreviated evaluation used one component of the comparative risk evaluation used to support the Phase II hazardous waste combustor MACT for boilers
Based on this information—comparison of emissions concentrations from hazardous waste boilers and oil-fired boilers; evaluation of omnibus risk assessments; and evaluation of dioxin/furan risk—we conclude that emissions from burning ECF in a boiler under the conditions proposed today would be comparable to fuel oil emissions and would be generally protective of human health and the environment. We specifically request additional data and comment on our analyses and conclusions.
The ECF exclusion proposed today would be conditioned on burning ECF under conditions typical of a fuel oil-fired industrial boiler operating under good combustion conditions. The ECF conditions would ensure that the boiler maintains a hot, stable flame, and that ECF is properly atomized and fired into that flame. In addition, post-combustion conditions would minimize the potential for dioxin/furan formation by controlling the combustion gas temperature at the inlet to a dry particulate matter control device for boilers so-equipped. Accordingly, we propose the following conditions: (1) The burner must be a watertube steam boiler other than a stoker-fired boiler; (2) carbon monoxide (CO) must be monitored continuously, must be linked to an automatic ECF feed cutoff system, and must not exceed 100 ppmv on an hourly rolling average (corrected to 7% oxygen); (3) the boiler must fire at least 50% primary fuel on a heat input or volume basis, whichever results in a higher volume of primary fuel, and the primary fuel must be fossil fuel or tall oil with a heating value not less than 8,000 Btu/lb; (4) the boiler load must be 40% or greater; (5) the ECF must have an as-fired heating value of 8,000 Btu/lb or greater; (6) ECF must be fired into the primary fuel flame zone; (7) the ECF firing system must provide proper atomization; and (8) if the boiler is equipped with an electrostatic precipitator (ESP) or fabric filter (FF) and does not fire coal as the primary fuel, the combustion gas temperature at the inlet to the ESP or FF must be continuously monitored, must be linked to the automatic ECF feed cutoff system, and must not exceed 400 °F on an hourly rolling average. These conditions are consistent with oil-fired industrial boiler design and operating conditions that ensure good combustion (and post-combustion control of dioxin/furan) and ensure that emissions from burning ECF are comparable to fuel oil emissions.
The boiler design and operating conditions that ensure a hot, stable flame and good combustion of ECF (i.e., all of the conditions, except the condition to minimize post-combustion formation of dioxin/furan by limiting the gas temperature at the inlet to the ESP or FF) derive from extensive testing that EPA conducted in the mid-1980's to identify design and operating parameters that affect the combustion of hazardous organic compounds in waste fuels fired as supplementary fuel in boilers. See 52 FR at 16995-96 (May 6, 1987). EPA used the results of that testing to identify design and operating conditions that would ensure that waste fuel is properly atomized and fired into a hot, stable flame to ensure destruction of hazardous organics in the waste fuel to trace levels and to minimize formation of products of incomplete combustion (PICs) to levels that would not pose a hazard to human health or the environment.
Those operating conditions also reflect typical operations for an oil-fired industrial boiler operating under good combustion conditions: (1) As discussed below, CO levels below 100 ppmv are typically achieved by oil-fired industrial boilers; (2) the oil fuel provides a hot, stable flame; and (3) boilers generally operate at loads greater than 40% and can experience poor combustion conditions at lower loads. The design conditions—the boiler must be a watertube steam boiler that is not stoker-fired—also reflect industrial
EPA concluded from the boiler testing discussed above that: (1) Boilers cofiring hazardous waste fuels with fossil fuels where the hazardous waste provides less than 50 percent of the boiler's fuel requirements can achieve 99.99 percent destruction and removal efficiency (DRE) of POHCs (principal organic hazardous constituents) under a wide range of operating conditions (e.g., load changes, waste feed rate changes, excess air rate changes); (2) when boilers are operated at high combustion efficiency, as evidenced by flue gas carbon monoxide (CO) levels of less than 100 ppmv, DRE exceeds 99.99 percent; (3) boilers clearly operating under poor combustion conditions, as evidenced, for example, by smoke emissions, still achieved 99.99 percent DRE: (4) emissions of PICs appeared generally to increase as combustion efficiency decreased as evidenced by increased flue gas CO levels; and (5) emission of total unburned hydrocarbons (i.e., quantified Part 261, Appendix VIII pollutants, as well as unburned POHCs and other unburned organic compounds) may increase as combustion efficiency decreases as evidenced by an increase in flue gas CO levels. See 52 FR at 16995.
These results confirm that a 99.99% DRE regulatory requirement (coupled with compliance with limits on operating conditions established during the DRE performance test) has limited utility for ensuring that a combustor operates under the good combustion conditions necessary to destroy both hazardous organics in the fuel feed and PICs to levels that are protective of human health.
From the discussion above, it could be argued that the only controls needed to ensure good combustion conditions and destruction of hazardous organics in ECF would be continuous monitoring of carbon monoxide and a requirement to fire ECF into the flame zone to avoid total ignition failure. Notwithstanding this view, we believe it is appropriate to apply additional controls to help ensure that an ECF boiler operates under the good combustion conditions typical of an oil-fired industrial boiler given that ECF would be burned under a conditional exclusion absent a RCRA permit and the regulatory oversight typical for a RCRA hazardous waste combustor. The proposed conditions would help ensure good combustion conditions by requiring that ECF has substantial heating value and that it is fired into a hot, stable flame. There are many industrial boilers that meet the design criteria (i.e., watertube steam boiler that is not stoker-fired) and the operating conditions generally reflect standard operating practice. The proposed conditions consequently are analogous to conditions under which fuel oil, the commercial product for which ECF substitutes, are burned. Furthermore, more than 90% of the candidate waste fuel streams identified by generators had heating values greater than 8,000 Btu/lb.
The rationale for each of the proposed burner conditions is discussed below. We specifically request comment on each of these proposed conditions.
A condition of the proposed exclusion would require the ECF burner to be a watertube steam boiler that does not fire fuels using a stoker or spreader-stoker feed system.
The boiler must be a watertube, nonstoker boiler because there is a greater potential for poor distribution of combustion gases and localized cold spots in firetube and stoker boilers that can result in poor combustion conditions. In particular, stoker and spreader-stoker boilers generally burn solid fuels with a relatively large particle size on a bed, thus making even distribution of combustion air difficult. See 56 FR at 7148.
The boiler must be a steam boiler rather than a process heater because process heaters can have a primary purpose other than to burn fuels under optimum combustion conditions. An example is a process heater that quenches combustion gases to reduce gas temperatures to avoid overheating a process fluid. Such operating conditions could adversely affect combustion efficiency by interrupting the complete combustion of organic compounds.
Finally, the boiler must be an industrial or utility boiler as currently
We request comment on whether there are other types of combustors (e.g., thermal oxidizer) that may be able to burn ECF under the good combustion conditions comparable to an industrial watertube steam boiler (that is not of stoker design). Any suggestions for other types of combustors must include supporting information in order for the Agency to be able to consider it for final action.
A condition of the proposed exclusion would require that combustion gas CO be monitored continuously, that the CO recordings be linked to an automatic ECF feed cutoff system, and that CO emissions not exceed 100 ppmv on an hourly rolling average (corrected to 7% oxygen). As discussed above, low CO emissions, coupled with firing ECF in the primary fuel flame zone, are the primary controls for ensuring that the boiler is operating under good combustion conditions.
EPA has used continuous CO monitoring as an indicator of good combustion for various types of combustors, including boilers that burn hazardous waste and boilers that do not burn hazardous waste. See 70 FR at 59463-64 for a discussion of using CO to control organic HAP under the NESHAP for hazardous waste boilers,
Notwithstanding the 400 ppmv CO limit (based on a 30-day average or periodic performance testing
We similarly do not believe that periodic rather than continuous CO monitoring would be appropriate for ECF boilers, even though periodic CO monitoring is allowed under the Industrial Boiler NESHAP to boilers in the size range of 10 MM Btu/hr to 100 MM Btu/hr. As discussed above, low CO emissions, combined with the requirement to fire ECF into the primary fuel flame zone, is the principal indicator of good combustion conditions. Periodic CO monitoring would ensure good combustion conditions only periodically—combustion conditions could deteriorate an hour, day, or week after the periodic performance test. Given the potential hazards that burning ECF under poor combustion conditions can pose compared to fossil fuels and nonhazardous waste fuels, and given the variability in combustion characteristics that ECF may have over time relative to the primary fuel, it is reasonable to condition the exclusion on continuous CO monitoring.
Finally, we propose to specify that the CO monitor must be linked to an automatic ECF feed cutoff system to ensure that ECF is fired only when the boiler is operating under good combustion conditions—when CO levels are below 100 ppmv on an hourly rolling average. Linking the CO monitor to an automatic ECF feed cutoff system is appropriate given that emissions may be neither comparable to fuel oil nor protective if the boiler is not operating under good combustion conditions. An automatic feed cutoff system does not appear to be cost-prohibitive and would help assure effective combustion. We propose to adopt the provisions for automatic feed cutoff systems that apply to boilers that burn hazardous waste—§ 63.1206(c)(3)—and for the same reasons. See USEPA, “Technical Support Document for HWC MACT Standards, Volume IV: Compliance with the HWC MACT Standards,” July 1999, Chapter 11.
A condition of the proposed exclusion would require an ECF boiler to fire at least 50% primary fuel on a heat input or volume basis, whichever results in a higher volume of primary fuel, and the primary fuel must be fossil fuel or tall oil with a heating value not less than 8,000 Btu/lb. These conditions would ensure that a hot, stable flame is provided to help ensure optimum combustion conditions. Although a primary fuel firing rate of 50% is at the lower end of the range of reasonable values—50% to 75% primary fuel—that could have been selected, we believe it is a reasonable condition because it would ensure that the boiler is burning primarily fossil fuel (or equivalent) and so ensures a hot, stable flame.
The primary fuel would be required to have a minimum heating value of 8,000 Btu/lb to reflect the low end of the range of heating values for fossil fuels normally fired in industrial boilers. Most coal-fired industrial boilers burn either subbituminous coal (with heating values ranging from 8,300-11,500 Btu/lb) or bituminous coal (with heating values ranging from 10,500 to 14,000 Btu/lb). Lignite, a low-rank coal that typically has a heating value below 8,000 Btu/lb, is not commonly burned in industrial boilers.
Although we believe that the primary fuel would generally be fossil fuel—oil, natural gas, or coal (i.e., pulverized coal burned in suspension)—it is reasonable to allow other high-quality fuels as the primary fuel. Consequently, tall oil would also be allowed as a primary fuel. Tall oil is fuel derived from vegetable and rosin fatty acids and has a heating value comparable to fuel oil.
We specifically request comment on whether a condition to require a minimum of 50% primary (generally fossil) fuel is appropriate to maintain a hot, stable flame to ensure good combustion of ECF. Any comments recommending an alternative minimum limit for the primary fuel firing rate must include supporting information in order for the Agency to be able to consider it for final action.
A condition of the proposed exclusion would require the ECF boiler to operate at 40% load (i.e., the heat input at any time when ECF is fired must be at least 40% of the maximum rated boiler heat input) or greater to ensure a hot, stable flame. At low loads, higher excess air rates are used to improve fuel/air mixing. The increased excess air rates, however, can also cool the flame zone and even make the flame unstable (e.g., as a candle flame flickers in a breeze), thereby increasing the likelihood of flameout. These conditions can result in reduced combustion efficiency. Although a lower boiler load could have been selected within the reasonable range of 25% to 40% of maximum load, we believe it is appropriate to adopt a value at the high end of the range to be conservative given that ECF can contain concentrations of certain hydrocarbons and oxygenates higher than the specifications listed in Table 1 to § 261.38. We also note that a minimum load requirement of 40% would be consistent with the requirement for hazardous waste boilers under § 266.110 that elect to waive the DRE performance standard under operating conditions that ensure optimum combustion efficiency.
We specifically request comment on whether a condition on minimum boiler load of 40 percent is appropriate to maintain a hot, stable flame and thus ensure good combustion conditions. Any comments recommending an alternative minimum boiler load must include supporting information in order for the Agency to be able to consider it for final action.
A condition of the proposed exclusion would require the ECF to have an as-fired heating value of 8,000 Btu/lb or greater. This is a reasonable minimum heating value that could have been selected within the range of 5,000 Btu/lb to 10,000 Btu/lb because: (1) It is the minimum heating value of fossil fuels normally fired in industrial boilers (i.e., subbituminous coal); and (2) it would help ensure that a hot, stable primary fuel flame is maintained. We also note that more than 90% of the candidate waste fuel streams identified by generators had heating values greater than 8,000 Btu/lb.
Although ECF, like comparable fuel, would need to have a heating value of 5,000 Btu/lb as-generated (or after bona fide treatment as a hazardous waste), it must have a minimum heating value of 8,000 Btu/lb as-fired. Accordingly, ECF may be blended with fuels (including comparable fuel) other than hazardous waste to achieve an as-fired heating value of at least 8,000 Btu/lb. However, any fossil fuel used to blend ECF to achieve the minimum 8,000 Btu/lb heating value requirement could not be counted to achieve the proposed condition that the boiler must have a minimum firing rate of 50% primary fuel.
We specifically request comment on whether a condition to require that ECF have an as-fired heating value of 8,000 Btu/lb or greater is appropriate to help ensure that the hazardous compounds that may be present in the ECF at high concentrations are destroyed to levels comparable to oil-fired boiler emissions. Any such comments on alternative ECF heating values must include supporting
As a condition of the proposed exclusion, ECF must be fired into the primary fuel flame zone to avoid, potentially, total ignition failure—a combustion failure mode characterized by poor combustion, high emissions of unburned organic compounds, but potentially low CO emissions. Under this combustion failure mode, organic compounds in ECF would not be exposed to the hot flame zone and may be simply volatilized absent combustion. Thus, under this failure mode, low CO emissions may not be indicative of good combustion conditions.
As a practical matter, firing waste fuels (or any fuels) directly into the flame zone of the boiler is standard operating practice. Directing the fuel burner in a direction that avoided the flame zone would normally occur only inadvertently. Nonetheless, we believe it is prudent to propose this condition to highlight its importance in achieving good combustion conditions.
We specifically request comment on whether a condition to require that ECF be fired into the primary fuel flame zone is appropriate to help ensure that the hazardous compounds that may be present in the ECF at high concentrations are destroyed to levels comparable to oil-fired boiler emissions. Any such comments must include supporting information in order for the Agency to be able to consider it for final action.
As a condition of the proposed exclusion, the ECF firing system must provide proper atomization to ensure that the ECF droplets are not too large for optimum volatilization. An organic compound must be vaporized and mixed with air before combustion can occur. The quicker ECF and its constituents are vaporized and the more completely the volatilized compounds are mixed with air, the more rapid and efficient the combustion and destruction of organic constituents. Firing systems that atomize liquid fuels to form small droplets increase the rate of vaporization by providing a larger surface area per volume of fuel to absorb heat from the flame.
We are proposing to allow the use of virtually all atomization systems commonly used to fire liquid fuels.
The size of the droplets produced by mechanical atomization is a function principally of the fuel viscosity and the fuel pressure at the atomizing nozzle. The pressure required to produce a droplet size conducive to optimum combustion efficiency depends on the volatility of the fuel. Highly volatile materials can volatilize rapidly, even from larger droplets, and, thus, can be fired at pressures of 75 to 150 psig. Less volatile fuels may require an atomization pressure as high as 1,000 psig to form droplets small enough to rapidly volatilize.
Given that fuel pressure is an important factor in determining droplet size, we considered whether it would be appropriate to propose to limit the minimum fuel pressure as a condition of the exclusion.
Rotary cup atomizers are typically used on smaller boilers (e.g., less than 30 MM Btu/hr heat input) because the maximum capacity of the largest unit is about 1,400 pounds of fuel per hour. In addition, rotary cup atomizers are not often installed on new boilers because it is difficult to achieve optimum fuel/air mixing over a wide range of fuel flow rates. Rotary cup atomizers are used because they are relatively inexpensive, they can handle fuels with relative high viscosities ranging up to 40 to 72 cSt,
Droplet size is related primarily to the viscosity and flow rate of the fuel and rotational speed of the cup. Resulting combustion efficiency is related to volatility of the fuel and fuel/air mixing. Although it is impracticable to control these variables in a regulatory context, manufacturers and boiler owners and operators have ample experience with rotary cup atomizers to design units that achieve efficient combustion. Thus, we are proposing that owners and operators demonstrate that the as-fired fuel has a volatility within the design parameters of the firing system and limit fuel flow rates consistent with the design parameters of the firing system. As discussed above, relative to mechanical atomization systems, if, in fact, the device does not produce droplet sizes and fuel/air ratios conducive to maintaining high combustion efficiency, the boiler may not be able to achieve CO levels below 100 ppmv.
We specifically request comment on whether these conditions for atomization of ECF are appropriate to help ensure that the hazardous compounds that may be present in the ECF at high concentrations are destroyed to levels comparable to oil-fired boiler emissions. Any such comments must include supporting information in order for the Agency to be able to consider it for final action.
If a boiler is equipped with an electrostatic precipitator (ESP) or fabric filter (FF) and does not fire coal as the primary fuel,
We are basing these proposed conditions on information and data gathered from the recently promulgated NESHAP standards for hazardous waste combustors. See 70 FR 59402. Specifically, we have determined that the surface-catalyzed formation of dioxins/furans across an ESP or FF can be significant when gas temperatures exceed 400 °F.
Boilers burning coal as the primary fuel would not be required to monitor combustion gas temperature at the inlet to an ESP or FF as a condition of the exclusion, however. We determined during development of the NESHAP for coal-fired boilers that burn hazardous waste that sulfur contributed by the coal is a dominant control mechanism because the sulfur inhibits formation of dioxins/furans.
We are further proposing an hourly averaging period for the temperature limit, rather than a longer averaging period, because there is a nonlinear relationship between gas temperature at the ESP or FF and dioxin/furan emissions. Consequently, a longer averaging period would allow higher temperatures to be offset by lower temperatures, even though dioxin/furan emissions at the higher temperatures could be exponentially higher than emissions at the lower temperatures, and, thus, average dioxin/furan emissions would be substantially higher than if temperatures had been maintained at the average temperature.
We also believe that there are factors other than high gas temperature at the inlet to an ESP or FF that may contribute to the post-combustion formation of dioxin/furan in boilers, but these situations would not occur for boilers burning ECF under the proposed conditions. For example, we have dioxin/furan emissions data for nine three-run test conditions for eight boilers burning liquid hazardous waste fuel and equipped with wet scrubbers, and two of the boilers have emissions exceeding 0.40 ng TEQ/dscm.
We also have dioxin/furan emissions data for 11 three-run test conditions for six different boilers that burn hazardous waste and that are equipped with an ESP or FF. Gas temperatures at the ESP or FF were generally below 400 °F.
Therefore, based on the data described above, we believe that the scenarios that resulted in high dioxin/furan emissions when burning hazardous waste fuels would not occur for ECF boilers and that a proposed condition that would limit the gas temperatures at the inlet to a dry particulate matter control device to 400 °F should control dioxin/furan emissions generally to below 0.40 ng TEQ/dscm.
The toxicity, persistence and bioaccumulation potential for the 37 hydrocarbons and oxygenates for which specifications have been established in Table 1 to § 261.38 varies over a wide range. In addition, we acknowledge that when ECF with potentially higher concentrations of certain hydrocarbons and oxygenates than fuel oil is burned, even under good combustion conditions, emissions of hazardous organics maybe somewhat higher than those from burning fossil fuel because combustion is generally a percent-reduction process. Therefore, to ensure that the emissions from burning ECF as a fuel under the conditions proposed today remain protective, we propose to retain the specifications for compounds that can pose a high hazard—naphthalene and PAHs—and to restrict the firing rate of ECF containing concentrations of compounds that can pose a lower, but substantial hazard—benzene and acrolein. See
We explain below the rationale for the approach we use to categorize the 37 hydrocarbons and oxygenates for which specifications are established in Table 1 to § 261.38, according to their relative hazard to human health and the environment.
We categorized the 37 hydrocarbons and oxygenates for which specifications have been established in Table 1 to § 261.38 as to their relative hazard.
First, we used the Waste Minimization Prioritization Tool (WMPT)
The WMPT scoring method produces chemical-specific scores for a screening-level risk-based ranking of chemicals.
We then applied the procedures the Agency used to develop the Priority
Next, we considered whether any of the remaining constituents, those that did not receive a WMPT score of 8 or 9, present additional concerns for materials managed as comparable fuels. We did this by further analyzing the data that WMPT used to generate Human Toxicity scores for the remaining constituents. We first identified constituents that had WMPT human toxicity scores based on inhalation as the driving exposure pathway. This is an appropriate screening criterion given that the inhalation pathway is particularly important for evaluating the hazard posed by air emissions. For such constituents, we then determined whether they posed a relatively high human toxicity hazard or were a known human carcinogen. If so, we assigned the constituent to hazard Category B.
We assigned all other constituents to hazard Category C.
We assigned 11 constituents to Category A—the high hazard constituents. These are constituents that had WMPT scores of eight or nine, consistent with the Agency's procedures for identifying priority chemicals. Because the WMPT methodology assigns all PAHs the highest score for any PAH, we assigned a score of nine to all PAHs. Ten of the 11 Category A constituents are PAHs. The only Category A constituent that is not a PAH, but that scored an eight or nine, was naphthalene.
In evaluating constituents to assign to hazard Category B, we identified three constituents that have WMPT human toxicity scores based on inhalation as the driving exposure pathway: Benzene, acrolein, and phenol.
Benzene is a known human carcinogen via the inhalation exposure pathway. There are some chemicals with sufficiently robust toxicological databases that the Agency not only generates a carcinogenic slope factor, but also designates them “known human carcinogens.” Consequently, we believe it is reasonable to assign benzene to Category B to restrict the feedrate (and thus emissions) of this compound.
Acrolein has a WMPT human toxicity score of three because it has very high inhalation toxicity. Acrolein did not have a higher aggregate WMPT score because it had a low bioaccumulation score. Nonetheless, exposure via inhalation is of particular importance in the context of assessing the hazard posed by emissions from burning ECF. Consequently, we believe it is reasonable to assign acrolein to Category B.
We did not assign phenol to Category B because it has significantly lower toxicity than benzene and acrolein. Phenol has a WMPT human toxicity score of two, rather than the highest score of three. Further, phenol is not known to be a carcinogen. EPA has classified phenol as a Group D carcinogen—not classifiable as to human carcinogenicity, based on a lack of data concerning carcinogenic effects in humans and animals. Consequently, we do not believe that phenol should be assigned to hazard Category B even though its WMPT human toxicity score is based on the inhalation pathway. The remaining constituents were assigned to Category C.
As discussed above, we believe that benzene and acrolein pose a lower hazard than PAHs and naphthalene, but a greater hazard than the other hydrocarbons and oxygenates for which the specifications would not apply for ECF. Accordingly, we propose to restrict the firing rate of ECF that has benzene or acrolein concentrations exceeding 2% by weight, as-fired, to 25% of the heat input to the boiler (on a heat input or volume input basis, which ever results in the lower volume of ECF).
This ECF firing rate restriction would reduce the feedrate of benzene and acrolein and thus ensure that emissions of these compounds remain at levels comparable to emissions from burning fuel oil in industrial boilers and protective of human health and the environment. Absent this firing rate restriction, ECF with high concentrations of benzene or acrolein could be fired at a 50% firing rate—the remaining 50% of the fuel must be primary fossil fuel or equivalent. Thus, the 25% firing rate restriction would reduce the feedrate of benzene and acrolein by half.
We selected a 25% firing rate restriction because it is in the middle of the range of values that could have been reasonably considered—10% to 40%—given that the maximum firing rate for any ECF is 50%. We selected a 2% or greater benzene concentration as the criterion for applying the firing rate restriction because selecting a lower concentration cutpoint would restrict the composite benzene concentration in total fuels to levels lower than would be allowed if comparable fuel were burned as 100% of the boiler fuel. Specifically, we assumed that comparable fuel would generally have a heating value of at least 10,000 Btu/lb if it were to comprise 100% of the boiler's fuel. The comparable fuel specification would allow a benzene concentration of 4,100 mg/kg (or 0.41%) for a 10,000 Btu/lb fuel. We further assumed the upper range of heating values for the comparable fuel would be 18,000 Btu/lb. At that heating value, the comparable fuel could contain 7,400 mg/kg (or 0.74%) benzene.
We then determined the benzene concentration in ECF fired at a 25% firing rate as a supplement to fuel oil that would result in a composite fuel benzene concentration equivalent to the levels allowed if existing comparable fuel were 100% of the boiler fuel. Virtually all of the benzene would be contributed by the ECF because fuel oil contains negligible benzene.
Consequently, the reasonable range of ECF benzene concentrations for selecting the cutpoint to apply the 25% firing rate restriction is 1.6% to 3%.
We then considered what cutpoint we should propose for acrolein. We are proposing a 2% concentration cutpoint for acrolein as well because: (1) Acrolein poses hazards similar to benzene and there is no basis for being more or less stringent on the allowable composite fuel concentrations; and (2) a 2% cutpoint would not control acrolein in ECF more stringently than it is controlled in comparable fuel (i.e., ECF fired at a 25% firing rate as a supplement to fuel oil and with an acrolein concentration of 2% would not result in a composite fuel acrolein concentration lower than that allowed if the boiler burned 100% existing comparable fuel at the maximum allowable acrolein concentration).
We specifically request comment on whether ECF firing rate restrictions are warranted for benzene and acrolein, and if so, whether the proposed restrictions are appropriate. Any such comment must include an appropriate rationale and supporting information in order for the Agency to be able to consider it for final action.
The proposed exclusion for ECF would also be conditioned on meeting the storage controls applicable to the closest analogous raw material/product—fuel oil—plus a few additional controls considered appropriate to minimize the potential for releases to the environment. The additional controls would include “engineered” secondary containment and fugitive air emission controls.
Although we are proposing generally to apply storage controls applicable to the closest analogous raw material/product—fuel oil, the exclusion would be conditioned on more substantial “engineered” secondary containment than several of the permissible secondary containment methods for oil under the Spill Prevention, Control, and Countermeasure (SPCC) provisions. Examples of SPCC secondary containment provisions applicable to oil include the use of dikes, berms, retaining walls, spill diversion ponds and sorbent materials. We are proposing to apply a more substantial “engineered” secondary containment condition, such as double-walled tanks because we believe it important that such secondary containment address potential releases to groundwater. Today's proposed controls on air releases are based on those applicable to another comparable product, organic liquids at the chemical plants which often generate ECF.
These controls are appropriate considering that ECF can contain higher concentrations of certain hazardous, volatile hydrocarbons and oxygenates than fuel oil, and so though product-like, is not precisely analogous. Consequently, ECF has a higher potential for releases to the environment and a higher potential for those releases to cause environmental harm. Therefore, we are proposing storage and recordkeeping controls to ensure that ECF is not managed so as to become “part of the waste disposal problem”.
We are also proposing that ECF be stored only in tanks (including USTs), tank cars, and tank trucks. ECF could not be stored in other containers (e.g., portable devices, such as 55 gallon drums) because: (1) We believe that ECF would be generated in quantities that would make storage in portable devices other than tank cars and tank trucks impractical; and (2) providing conditions to ensure adequate monitoring, inspections and air emission controls for storage in other containers would unnecessarily complicate the rule. Nonetheless, we request comment on whether ECF would likely be stored in vessels other than tanks, tank cars and tank trucks (e.g., drums positioned to collect process drippage that is eventually consolidated with ECF in acceptable tank, tank car, or tank truck). If so, and if a final rule were to allow storage in containers other than tank cars and tank trucks, we would subject those units to management conditions similar to those that apply to hazardous waste containers under subpart I, Part 265, control releases.
The SPCC requirements under Part 112 include both discharge prevention requirements and requirements to ensure effective responses to discharges. The discharge prevention requirements for onshore petroleum oil tanks are implemented under a SPCC Plan and associated requirements under §§ 112.1 through 112.8, and the discharge response requirements are implemented under a Facility Response Plan (FRP) and associated requirements under §§ 112.20 and 112.21. We propose to adopt specific provisions of the discharge prevention requirements—the SPCC Plan—under §§ 112.3, 112.5, 112.7, and 112.8 only. We are not proposing to adopt the FRP and associated requirements, as discussed below in Section IV.A.1.c. In lieu of the FRP requirements, we are proposing to adopt more appropriate provisions that apply to hazardous waste tank systems and that achieve the same objective as the FRP requirements—specifying proactive measures to respond to a release of ECF.
We propose to adopt the following SPCC Plan requirements under § 261.38(c)(1)(iii) to prevent ECF releases from tank systems:
• Section 112.2, Definitions.
• Sections 112.3(d) and 112.3(e), Requirements to Prepare and Implement an SPCC Plan. Paragraph (d) requires that a licensed Professional Engineer must review and certify the Plan, and paragraph (e) requires that a copy of the Plan must be maintained at the facility and be available to the Regional
• Sections 112.5(a) and 112.5(b), Amendment of SPCC Plan by Owners or Operators. This section requires that the Plan be amended by the owner or operator in accordance with the general requirements in § 112.7 when there is a change in the facility design, construction, operation, or maintenance that materially affects its potential for a discharge. This section also states that owners or operators must complete a review and evaluation of the SPCC Plan at least once every five years from the date the facility becomes subject to this part, and that any technical amendments to the Plan must be certified by a Professional Engineer. We propose to adopt paragraphs (a) and (b), but not paragraph (c). Paragraph (c) requires certification of technical amendments to the Plan and references § 112.6 which allows self-certification in lieu of certification by a Professional Engineer. Given that we propose not to adopt § 112.6 as discussed above, we propose a condition that would require technical amendments to be certified by a Professional Engineer.
• Section 112.7, General Requirements for Spill Prevention, Control, and Countermeasure Plans. We propose to adopt § 112.7, except for paragraph (c) secondary containment, paragraph (d) alternative requirements in lieu of secondary containment, and paragraph (k) alternative requirements in lieu of secondary containment for qualified oil-filled operational equipment. These paragraphs would not be applicable because they pertain to secondary containment which we propose to require under separate conditions. See discussion below. The § 112.7 conditions we are proposing to adopt are paragraph (a) which requires a discussion of the facility's conformance with the requirements included in § 112.7, and development of the Plan; paragraph (b) which requires a prediction of the direction, rate of flow and total quantity of material which could be discharged when experience indicates a potential for equipment failure, overflow, rupture or leakage; paragraph (e) which addresses conducting inspections and tests and keeping records; paragraph (f) which addresses personnel, training, and discharge prevention procedures; paragraph (g) which addresses security requirements; paragraph (h) which addresses facility tank car and tank truck loading/unloading rack requirements; paragraph (i) which requires a brittle fracture evaluation
• Section 112.8, Spill Prevention, Control, and Countermeasure Plan Requirements for Onshore Facilities (excluding production facilities). We are proposing to adopt § 112.8, except for: Paragraph (b), facility drainage; paragraph (c)(2), secondary containment for bulk storage containers; paragraph (c)(9), prevention of releases from effluent treatment facilities; and paragraph (c)(11), secondary containment for mobile and portable containers. These provisions are not warranted because we are proposing separate conditions for secondary containment, as discussed below. The conditions we are proposing to adopt from this section are paragraph (a) which states that the owner or operator meet the general requirements for the Plan listed under § 112.7, and the specific discharge prevention and containment procedures listed in this section; paragraph (c)(1) which states that a tank not be used for storage unless its material and construction are appropriate; paragraph (c)(3) which addresses the drainage of uncontaminated rainwater or effluent bypassing the facility treatment system; paragraph (c)(4) which states that any completely buried metallic storage tank installed on or after January 10, 1974 be protected from corrosion and regularly leak test such storage tanks;
We are not proposing to adopt § 112.4, Amendment of Spill Prevention, Control, and Countermeasure Plan by Regional Administrator. That section requires the owner/operator of a facility that has discharged more than 1000 gallons of oil in a single discharge or more than 42 gallons of oil in each of two discharges in any 12 month period to submit a report to the Regional Administrator (RA) that provides information including the corrective action and countermeasures taken, the cause of the discharge, and preventive measures to minimize the possibility of recurrence. That section also allows the RA to require the owner/operator to amend the Plan if the RA determines that the Plan does not meet the requirements of Part 112 or amendment is necessary to prevent and contain discharges from the facility. Finally, that section prescribes procedures that the owner/operator may use to appeal the RA's decision to require an amendment to the Plan. We are not proposing to adopt § 112.4 because: (1) Given that ECF tanks would be required to be equipped with engineered secondary containment (as discussed below), we would not expect releases from ECF tanks of the magnitude that would trigger a report under § 112.4; (2) the proposal already contains a provision that the owner/operator must amend the Plan upon a finding by the RA that amendment is necessary to prevent and contain releases of emission-comparable fuel (see proposed § 2613.8(c)(1)(iii)(B)(
Engineered secondary containment means the use of an external liner, vault, or double-walled tank. We note that two states—Florida and Minnesota—require some form of engineered secondary containment for fuel oil and do not allow the “non-engineered” options allowed by SPCC (e.g., ponds, weirs, and absorbent materials).
We propose to adopt the following requirements:
• Section 264.193(b), which prescribes general performance standards for secondary containment systems;
• Section 264.193(c), which prescribes minimum requirements for secondary containment systems;
• Sections 264.193(d)(1-3), which prescribe permissible secondary containment devices—external liner, vault, or double-walled tank. We are not proposing to adopt § 264.193(d)(4), which allows approval by the Regional Administrator of an equivalent device, because the exclusion is designed to be self-implementing. Nevertheless, we request comment on whether the final rule should allow approval of equivalent means of secondary containment to avoid stifling innovation (and potentially having to revise the rule to allow alternative means we believe are appropriate). In providing comments on this issue, we would ask that commenters specifically describe how this provision could work, considering that the rule is designed to be a self-implementing regulation;
• Section 264.193(e), which prescribes design and operating requirements for the permissible secondary containment devices; and
• Section 264.193(f), which prescribes secondary containment requirements for ancillary equipment.
To comply with the adopted hazardous waste tank secondary containment provisions, we propose that the term “emission-comparable fuel” be substituted for the term “waste,” and that the term “document in the record” be substituted for the term “demonstrate to the Regional Administrator.” Demonstrations to the Regional Administrator to obtain a waiver are allowed for hazardous waste tank systems in the following situations:
• Section 264.193(c)(3), where the owner or operator can demonstrate to the Regional Administrator that the leak detection system or site conditions will not allow detection of a release within 24 hours;
• Section 264.193(c)(4), where the owner or operator can demonstrate to the Regional Administrator that removal of released materials or accumulated precipitation cannot be accomplished within 24 hours; and
• Section 264.193(e)(3)(iii), where the owner or operator can demonstrate to the Regional Administrator that the leak detection technology for a double-walled tank or site conditions would not allow detection of a release within 24 hours.
As mentioned above, site-specific approval of an alternative provision is inconsistent with the self-implementing provisions of a regulatory exclusion. Consequently, we propose to require the owner or operator to document in the record the basis for not being able to comply with those provisions within 24 hours, as nominally required. This information will be available for review by the Regional Administrator.
We are not proposing to adopt §§ 264.193(g) and 264.193(h) because those provisions provide procedures to support and request a variance from secondary containment. Again, substantive variance provisions cannot be implemented under a self-implementing regulatory exclusion.
Finally, we are not proposing to adopt § 264.193(i) which allows for alternative secondary containment until a facility can comply with the requirements of §§ 264.193(b-f). We do not believe that § 264.193(i) is appropriate because the
c.
We propose to adopt certain provisions of Subparts C and D of Part 264 and § 264.196
The Part 64, Subpart C and D provisions are similar to some of the proactive requirements under the Part 112 FRP and in some cases are virtually identical to the FRP provisions. The specific Subpart C (Preparedness and Prevention) provisions we propose to adopt are discussed below. These are commonsense provisions that should represent standard operating practice for facilities that store liquid fuels:
• Section 264.32, Required Equipment. All provisions of this section are appropriate for ECF tank systems: requirements for an internal communications or alarm system capable of providing immediate emergency instruction to facility personnel; a device such as a telephone or two-way radio capable of summoning emergency assistance; portable fire extinguishers, fire control equipment, spill control equipment and decontamination equipment; and water at adequate volume and pressure, or foam producing equipment, or automatic sprinklers, or water spray systems.
• Section 264.33, Testing and Maintenance of Equipment. This section requires that all communications or alarm systems, fire protection equipment, spill control equipment, and decontamination equipment must be tested and maintained as necessary to assure its proper operation in case of emergency.
• Section 264.34, Access to Communications or Alarm System. We propose to adopt this section to specify that, whenever ECF is distributed into or out of a tank system, all personnel involved in the operation must have access to an internal alarm or emergency communication device, either directly or through visual or voice contact with another employee.
• Section 264.37, Arrangements with Local Authorities. We propose to adopt this section to specify that the owner or operator must attempt to make arrangements with the appropriate local authorities (fire departments, emergency response teams, police departments, hospitals, etc.) to familiarize the authorities with the layout of the facility, properties of the ECF being managed at the facility, possible evaluation routes, and types of injuries which could result from fires, explosions, or releases at the facility. If State or local authorities decline to enter into such arrangements, the owner or operator must document this refusal in the facility's record.
The specific Part 264, Subpart D (Contingency Plan and Emergency Procedures) provisions we propose to adopt are:
• Section 264.55, Emergency Coordinator. We propose to adopt this provision to specify that, at all times, there must be at least one employee either on the facility premises or on call (i.e., available to respond to an emergency by reaching the facility within a short period of time) with the responsibility for coordinating all emergency response measures. This emergency coordinator must be thoroughly familiar with all aspects of the facility's Spill Prevention, Control, and Countermeasures (SPCC) Plan, all ECF operations and activities at the facility, the location and characteristics of ECF handled, the location of all records within the facility pertaining to ECF, and the facility layout. In addition, this person must have the authority to commit the resources needed to carry out the SPCC Plan.
• Section 264.56, Emergency Procedures. We propose to adopt this provision to specify that: (1) Whenever there is an imminent or actual emergency situation relating to the ECF tank system, the emergency coordinator must immediately activate internal facility alarms or communication systems, where applicable, to notify all facility personnel and notify appropriate State or local agencies with designated response roles if their help is needed; (2) whenever there is a release, fire, or explosion relating to the ECF tank system, the emergency coordinator must immediately identify the character, exact source, amount, and aerial extent of any released materials; (3) the emergency coordinator must assess possible hazards to human health or the environment that may result from the release, fire, or explosion; (4) if the emergency coordinator determines that the facility has had a release, fire, or explosion associated with the ECF tank system which could threaten human health, or the environment outside the facility, he must report his findings to the government official designated as the on-scene coordinator for that geographical area or the National Response Center; (5) if the emergency coordinator's assessment indicates that evacuation of local areas may be advisable, he must immediately notify appropriate local authorities; (6) during an emergency, the emergency coordinator must take all reasonable measures necessary to ensure that fires, explosions, and releases do not occur, recur, or spread to other materials at the facility; (7) if the ECF tank system stops operations in response to a fire,
We propose to adopt the provisions under § 264.196 (Response to Leaks or Spills and Disposition of Leaking or Unfit-for-Use Tank Systems), except for §§ 264.196(e)(1) and (e)(4), for all ECF tank systems not subject to the hazardous substance underground storage tank requirements of § 280.42(b). To comply with the adopted provisions of § 264.196, you would substitute the term “emission-comparable fuel” for the terms “hazardous waste” and “waste,” and the term “record” for the term “operating record.” The adopted provisions would specify that an ECF tank system or secondary containment system from which there has been a leak or spill, or which is unfit for use, must be removed from service immediately, and the owner or operator must satisfy the following conditions: (1) The owner or operator must immediately stop the flow of ECF into the tank system or secondary containment system and inspect the system to determine the cause of the release; (2) if the release was from the tank system, the owner/operator must, within 24 hours after detection of the leak or, if the owner/operator demonstrates that it is not possible, at the earliest practicable time, remove as much of the ECF as is necessary to prevent further release of ECF to the environment and to allow inspection and repair of the tank system to be performed; (3) if the ECF released was to a secondary containment system, all released ECF must be removed within 24 hours or in as timely a manner as is possible to prevent harm to human health and the environment; (4) the owner/operator must immediately conduct a visual inspection of the release and, based upon that inspection prevent further migration of the leak or spill to soils or surface water and remove, and properly dispose of, any visible contamination of the soil or surface water; (5) any release to the environment, except de minimis leaks (i.e., less than or equal to one pound) that are immediately contained and cleaned-up must be reported to the Regional Administrator within 24 hours of its detection; (6) within 30 days of detection of a release to the environment, a report containing the following information must be submitted to the Regional Administrator—likely route of migration of the release, characteristics of the surrounding soil (soil composition, geology, hydrogeology, climate), results of any monitoring or sampling conducted in connection with the release (if available), proximity to downgradient drinking water, surface water, and populated areas, and description of response actions taken or planned; (7) the tank system must be closed unless the cause of the release was a spill that has not damaged the integrity of the system and the released material is removed and repairs, if necessary, are made, or unless the cause of the release was a leak from the primary tank system into the secondary containment system and the system is repaired; and (8) if the owner/operator has repaired a tank system and the repair has been extensive (e.g., installation of an internal liner; repair of a ruptured primary containment or secondary containment vessel), the tank system must not be returned to service unless the owner/operator has obtained a certification by a qualified Professional Engineer that the repaired system is capable of handling ECF without release for the intended life of the system.
We are not proposing to adopt § 264.196(e)(1) because that paragraph would require the tank to be closed under the § 264.197 provisions for closure of a hazardous waste tank. Those provisions are inappropriate for closure of a tank that stored a product—ECF. As provided under proposed § 261.38(b)(13), when ECF operations cease, liquid and accumulated solid residues that remain in a tank system for more than 90 days after the tank system ceases to be operated for storage of ECF are subject to regulation under Parts 262 through 265, 268, 270, 271, and 124. In addition, liquid and accumulated solid residues that are removed from an ECF tank system after the tank system ceases to be operated for storage of ECF are solid wastes subject to regulation as hazardous waste if the waste exhibits a characteristic of hazardous waste under §§ 261.21-261.24 or if the ECF was derived from a hazardous waste listed under §§ 261.31-261.33 when the exclusion was claimed.
Finally, we are not proposing to adopt § 264.196(e)(4) because that paragraph addresses tanks that are not equipped with secondary containment. We are proposing that all ECF tanks must be equipped with secondary containment prior to managing ECF.
ECF would already be subject to the OLD NESHAP if certain applicability requirements are met, including: (1) The facility must be a major source; (2) the ECF must contain greater than 5% of the organic HAP listed in Table 1 to Subpart EEEE; (3) the facility is not subject to another NESHAP;
For tanks that are not already subject to the OLD controls under § 63.2346, we are proposing to adopt appropriate Subpart EEEE provisions under § 261.38 as a condition of the ECF exclusion. See discussion below where we propose to adopt virtually all of the Subpart EEEE provisions. These adopted provisions would in no way affect Subpart EEEE and would be implemented and enforced under RCRA authority (e.g., controls under the adopted provisions would not be included in a facility's Title V permit, and a facility would not be required to obtain a Title V permit to comply with these provisions).
We discussed above that 11 of the hazardous RCRA oxygenates for which the comparable fuel specifications would no longer apply and that are not classified as CAA HAP can potentially contribute significantly to the vapor pressure of ECF. Given that vapor pressure of the hazardous organic constituents is a criterion for determining whether the ECF meets the OLD definition of organic liquid (which we propose to adopt in revised form under § 261.38(c)(1)(ii)(C) as discussed below) and the level of emission control required under § 63.2346 (which we also propose to adopt), it is appropriate to require owners and operators to consider these 11 RCRA oxygenates when complying with the adopted OLD provisions.
We also reviewed the OLD provisions to determine whether the controls would be comparable to those currently required for the hazardous waste from which the ECF will be derived. Assurance of comparable controls is warranted given that air emissions from storage and handling of ECF can pose the same hazards as storage and handling of the parent hazardous waste. We determined that adopting the OLD provisions would result in air emission controls comparable to current controls in most situations, with four exceptions: (1) ECF tanks at facilities that are area sources; (2) existing, reconstructed, or new ECF tanks with a capacity less than 5,000 gallons handling ECF with a RCRA oxygenate and organic HAP vapor pressure equal to or greater than 76.6 kPa; (3) existing ECF tanks with a capacity in the range of 5,000 gallons to 50,000 gallons handling ECF with a RCRA oxygenate and organic HAP vapor pressure in the range of 5.2 kPa to 76.6 kPa; and (4) ECF tanks at facilities that are subject to a NESHAP other than Subpart EEEE, unless the tanks at these facilities have comparable air emission controls.
• The OLD provisions apply only to major sources.
• OLD does not require controls for the two tank size/vapor pressure scenarios listed above, while substantive tank air emission controls (under § 264.1084) are required for the hazardous waste from which the ECF is derived. Consequently, we propose to apply the adopted OLD controls as conditions for ECF tanks with those two tank size/vapor pressure scenarios so that they comply with the same OLD controls applicable to tanks with a capacity greater than 5,000 gallons and a vapor pressure below 76.6 kPa. See proposed § 261.38(c)(1)(ii)(C)(
• As mentioned above, the OLD provisions do not apply to storage and handling of organic liquids at facilities that are subject to another NESHAP. This is the case irrespective of whether the other NESHAP establishes controls for air emissions from organic liquid distribution. Consequently, we propose to apply the adopted OLD controls to tanks (and associated equipment) at ECF tanks at a facility subject to another NESHAP, unless the owner/operator documents that the controls (on tanks that store or handle ECF) provided by the other NESHAP are at least equivalent to the controls adopted from OLD for ECF. See proposed § 261.38(c)(1)(ii)(C).
In addition, we are proposing conforming changes to implement the provisions discussed above, and specifically request comment on these proposed provisions. Specifically:
• To implement consideration of the RCRA oxygenates, substitute the term “RCRA oxygenates as well as organic HAP” for each occurrence of the term “organic HAP”; the term “RCRA oxygenates as well as organic HAP listed in Table 1” for each occurrence of the term “organic HAP listed in Table 1”; and the term “RCRA oxygenates as well as Table 1 organic HAP” for each occurrence of the term “Table 1 organic HAP.” See proposed § 261.38(c)(1)(ii)(C)(
• To implement consideration of RCRA oxygenates, we are proposing to adopt the following definition of organic liquid—Organic liquid means emission-comparable fuel that: (1) Contains 5 percent by weight or greater of the RCRA oxygenates as well as organic HAP listed in Table 1 to this subpart, as determined using the procedures specified in § 63.2354(c); and (2) has an annual average true vapor pressure of 0.7 kilopascals (0.1 psia) or greater. See proposed § 261.38(c)(1)(ii)(C)(
• Defining an affected source as the collection of activities and equipment used to distribute emission-comparable fuel into, out of, or within a facility. This would simplify the Part 63 definition of affected source for purposes of the OLD provisions we propose to adopt under § 261.38. See proposed § 261.38(c)(1)(ii)(C)(
• Substituting the term “subject to § 261.38(c)(1)(ii)(C)(
Finally, we are proposing that all notifications, reports, and communications required to implement the OLD provisions that we adopt under § 261.38 be submitted to the RCRA regulatory authority rather than the CAA regulatory authority. This is because the conditions for air emission controls are RCRA provisions adopted from the CAA OLD NESHAP. As such, they should be implemented (and enforced) under RCRA authority. We specifically request comment on this proposed provision.
As mentioned above, we propose to adopt virtually all of the provisions of the OLD NESHAP as RCRA conditions to control air emissions from storage and handling of ECF.
We acknowledge that this attempt to adopt the provisions of the OLD NESHAP to cover ECF tanks substantially complicates the conditions of the ECF exclusion. This is primarily because the OLD NESHAP does not address hazardous RCRA oxygenates that have significant vapor pressure, and the OLD NESHAP does not address ECF tanks that are currently subject to hazardous waste tank air emission controls that address hazards that remain after the ECF exclusion is claimed. In retrospect, stakeholders may conclude it is less problematic to simply comply with the controls provided for hazardous waste tanks under Subparts AA, BB, and CC of Part 264 or 265. We specifically request comment on: (1) Whether adopting provisions of the OLD NESHAP as conditions of the ECF exclusion is appropriate to address the hazards posed by fugitive air emissions from storage and handling of ECF; (2) whether adopting the OLD NESHAP provisions in the manner proposed is appropriate; and (3) whether it would be equally protective, but less problematic, to simply comply with the air emission controls for hazardous waste tanks in lieu of the adopted OLD NESHAP provisions. Any such comments must include an appropriate rationale and supporting information in order for the Agency to be able to consider it for final action.
ECF storage tank systems that are subject to the requirements under 40 CFR Part 280, Technical Standards and Corrective Action Requirements for Owners and Operators of Underground Storage Tanks would not be subject to the proposed ECF storage tank conditions.
If an ECF tank system, tank car, or tank truck ceases to be operated to store ECF product, but has not been cleaned by removing all liquids and accumulated solids within 90 days of cessation of ECF storage operations, the tank system, tank car, and tank truck would become subject to the RCRA
A hazardous waste which is generated in a product or raw material storage tank, a product or raw material transport vehicle or vessel, a product or raw material pipeline, or in a manufacturing process unit or an associated non-waste-treatment-manufacturing unit, is not subject to regulation under parts 262 through 265, 268, 270, 271 and 124 of this chapter or to the notification requirements of section 3010 of RCRA until it exits the unit in which it was generated, unless the unit is a surface impoundment, or unless the hazardous waste remains in the unit more than 90 days after the unit ceases to be operated for manufacturing, or for storage or transportation of product or raw materials.
Thus, like any other product storage unit which goes out of service, tank systems, tank cars or tank trucks that store or transport ECF would not be required to undergo closure according to the RCRA hazardous waste regulations (unless liquids or accumulated solids were not cleaned from the tank system within 90 days of cessation of operation as an ECF storage/transportation unit), when the unit ceases operation as a product storage/transportation unit. However, the Agency expects that the owner/operators will take common-sense steps to decontaminate and decommission the ECF storage unit if and when it goes out of service. We also encourage the owner/operators in these situations to consult with the regulatory authority as to the best way to ensure that the unit is cleaned properly.
Liquids and accumulated solids removed from a tank system, tank car, or tank truck that ceases to be operated for storage/transport of ECF product are solid wastes. They are hazardous waste if they exhibit a characteristic of hazardous waste or if the ECF were derived from a listed hazardous waste because the ECF is no longer meeting the conditions of the exclusion.
Interim status and permitted storage units, and generator accumulation units exempt from permit requirements under § 262.34 of this chapter, are currently subject to the closure requirements in 40 CFR Parts 264 and 265, including the requirement to close the unit within 90 days of receiving the final volume of hazardous waste (see 264.113(a) and 265.113(a)). However, we are proposing in this rulemaking not to subject these units to these closure requirements provided that the storage units have been used to store only hazardous waste that is subsequently excluded under the conditions of § 261.38, and that afterward will be used only to store fuel excluded under § 261.38. See proposed § 261.38(b)(14).
This provision is intended to address situations where units such as tanks that have been used to store hazardous wastes, would be required under the existing regulations to go through RCRA closure before storage of the excluded material could commence. In the case of facilities that would be affected by today's proposed rule, this would mean that, for tanks that have been storing hazardous waste for which the generator claims an ECF exclusion, the owner/operator would need to remove all waste residues and other contamination from the tank system in order for the unit to then commence storing the identical material under the terms of the conditional exclusion for ECF. We believe that requiring closure under these circumstances would serve little, if any, environmental purpose, and so propose to explicitly provide in these situations that the storage tank system would not be subject to RCRA closure requirements. As discussed above, however, although an ECF tank system would not be required to undergo closure according to the RCRA hazardous waste regulations, the Agency expects that the owner/operators will take common-sense steps to decontaminate and decommission the tank system if and when it ultimately ceases to operate as an ECF storage tank system. We also note that tank cars/trucks need not meet the definition of an empty HW container before managing the same material as ECF (if that is the only material the container has managed).
In today's proposal, ECF generators would need to take precautions to prevent the mixing of ECF and other materials which could result in reactions which could: (1) Generate extreme heat or pressure, fire or explosions, or violent reactions; (2) produce uncontrolled hazardous mists, fumes, dusts, or gases; (3) produce uncontrolled flammable fumes or gases; or (4) damage the structural integrity of the storage unit or facility. See proposed § 261.38(c)(1)(iv). Appropriate documentation is also proposed to be kept by ECF generators to document how they will take precautions to avoid these situations. This documentation must be kept on-site for three years. Tanks, tank cars and tank trucks holding incompatible materials should be separated by means of a dike, berm, wall or other device.
In evaluating possible storage controls for ECF, we considered two other options. One option would impose no specific new controls, but rather would rely on currently applicable controls for commercial products. The other option would apply full RCRA Subtitle C provisions until the ECF leaves the burner storage system—that is, the waste would remain hazardous until it was fed into the boiler.
In considering the first option, we determined that it would be difficult to assure the safe management of ECF because it is not clear what, if any, existing controls would apply to a hazardous waste that becomes an excluded product/fuel. There is a patchwork of Federal and State controls that apply to various products and fuels, but no one set of controls that we would be confident would apply across the board and ensure that ECF would be properly managed, particularly given that ECF can contain higher concentrations of particular hazardous, volatile hydrocarbons and oxygenates. We also believe it would complicate the implementation of this rule, and persons who handled ECF would not necessarily know what conditions must be followed to assure exclusion of the ECF. Consequently, we did not consider this option further.
The other option we considered, applying RCRA Subtitle C provisions until the ECF leaves the burner storage system, would in effect, move the point of exclusion to the ECF boiler. Storage and transportation of ECF would be subject to Subtitle C standards (which could include permits for burner storage units and for those generators that accumulate ECF for more than 90 days). We believe this option would be inappropriate because it would overregulate a material that has substantial fuel value and is inconsistent with the idea that ECF is an
As a separate issue, we considered whether to propose storage conditions for the currently excluded comparable fuel. The existing comparable fuel exclusion was promulgated in June 1998 and was not conditioned on meeting any particular storage controls. The comparable fuel exclusion was based on the principle that the excluded fuel would be comparable to fuel oil in concentration of hazardous constituents and physical properties that affect combustion, and thus can pose the same hazards as fuel oil during storage.
Comparable fuel does not meet the definition of oil, however, and so is not subject to the SPCC requirements applicable to fuel oil. See 40 CFR Part 112. Consequently, we considered whether to propose to apply the SPCC requirements to comparable fuel. We do not believe that applying the SPCC controls is warranted at this time because we are not aware of evidence of improper storage of these comparable fuels. Nonetheless, we request comment on whether there is evidence of improper storage of comparable fuel and whether the SPCC controls (or other storage controls) should be included as a condition for the existing comparable fuel exclusion.
We believe it is appropriate to propose that ECF generators and burners satisfy the same recordkeeping, notification and certification conditions that apply to existing comparable fuel generators and burners, as well as additional conditions that reflect that ECF is not physically identical to comparable fuels. In today's preamble, we provide a brief description of our rationale for proposing these provisions as part of the exclusion. However, persons should also refer to the proposed rule for comparable fuels (see 61 FR 17358) and the final rule (see 63 FR 33782) for further discussion.
We are proposing the same waste analysis plan conditions for ECF as existing comparable fuel because ECF must also meet all of the specifications for comparable fuel, except the specifications for particular hydrocarbons and oxygenates. See existing § 261.38(c)(7) renumbered as proposed § 261.38(b)(4). These conditions require that generators develop a waste analysis plan prior to sampling and analysis of their ECF to determine if the waste fuel meets the exclusion specifications.
In addition, burners of ECF would need to address a number of the other conditions to ensure that the ECF is in compliance with the exclusion. Specifically, burners would need to ensure that the heating value of the fuel, as-fired, is 8,000 Btu/lb, as well as whether the concentration of benzene or acrolein exceeds two percent, the cutpoint for firing rate restrictions on the ECF. If the generator does not provide this information to the burner for each shipment of ECF, today's proposal would require the burner to develop and implement an ECF waste analysis plan to obtain the information. In addition, if a burner blends or treats ECF to achieve an as-fired heating value of 8,000 Btu/lb or greater or an as-fired concentration of benzene or acrolein of two percent or lower, we are proposing that the burner must analyze the fuel as received from the generator and again after blending or treatment to determine the heating value, benzene concentration, or acrolein concentration, as relevant. See proposed § 261.38(b)(5).
The generator (and burners required to develop a sampling and analysis plan) also must have documentation of the: (1) Sampling, analysis, and statistical analysis protocols that were employed; (2) sensitivity and bias of the measurement process; (3) precision of the analytical results for each batch of waste/fuel tested; and (4) results of the statistical analysis. More information on developing these elements of a waste/fuel analysis plan is found in the SW-846 guidance document. These are the same requirements that exist in the existing comparable fuels exclusion waste analysis plans.
As discussed above, we are proposing that ECF must meet all of the specifications for comparable fuel, except the specifications for particular hydrocarbons and oxygenates. Therefore, we are proposing the same conditions regarding sampling and analysis for ECF that are part of the existing comparable fuel exclusion, except the condition to determine the concentrations of particular hydrocarbons and oxygenates.
The sampling and analysis provisions allow process knowledge to be used under certain circumstances to determine which constituents to test for in the initial scan and any follow up testing. Generators of ECF should have adequate knowledge of this hazardous secondary material to allow the use of process knowledge in determining which constituents may and may not be present in their waste. The use of process knowledge may only be used by the original generator of the hazardous waste. We are proposing that testing be required for all constituents, except the particular hydrocarbons and oxygenates for which the specifications do not apply, and those compounds that the initial generator determines are not present in the waste. We are also proposing that the following cannot be determined to “not be present” in the waste: (1) A hazardous constituent that causes it to exhibit the toxicity characteristic for the waste or hazardous constituents that were the basis for the waste code in 40 CFR 268.40; (2) a hazardous constituent detected in previous analysis of the waste; (3) a hazardous constituent introduced into the process that generates the waste; or (4) a hazardous constituent that is a byproduct or side reaction to the process that generates the waste. This condition is also in the existing comparable fuels exclusion.
Furthermore, we are proposing that the original generator has the responsibility to document their claim that specific hazardous constituents meet the exclusion specifications based on process knowledge. Regardless of which method a generator uses, testing or process knowledge, the generator is responsible for ensuring that the ECF meets all constituent specifications at all times. If at any time the ECF fails to meet any of the specifications, or other conditions contained in the proposed exclusion, any facility that treats (including burning in a boiler), stores or disposes of the ECF is in violation of Subtitle C hazardous waste requirements.
We are proposing to adopt for ECF the same speculative accumulation provisions that apply to existing comparable fuel and to any recycled hazardous waste under § 261.2(c)(4). See proposed § 261.38(b)(7). Generators and burners must actually put a given volume of the fuel to its intended use during a one-year period, namely 75 percent of what is on hand at the beginning of each calendar year commencing on January 1. See also the definition of “accumulated speculatively” in § 261.1(c)(8). Prohibiting speculative accumulation is warranted because over-accumulation of hazardous waste-derived recyclables has led to severe hazardous waste damage incidents. See 50 FR at 658-61 and 634-37 (January 4, 1985). There is no formal recordkeeping requirement associated with the speculative accumulation provision, but the burden of proof is on the generator and burner to demonstrate that the material has not been speculatively accumulated.
We are proposing the same notification requirements for ECF generators that comparable fuel generators must comply. Also, ECF burners would be subject to the same notification conditions as comparable fuel burners, as well as additional notification conditions.
Just as for comparable fuel generators, we are proposing that an ECF generator submit a one-time notification to regulatory officials (i.e., State RCRA and CAA officials). To be excluded, the generator must send a notification to the EPA Regional RCRA and CAA Directors in States without final RCRA program authorization, and to the State RCRA and CAA Directors in authorized States. Notification of the RCRA and CAA Directors will provide notification of the exclusion and appropriate documentation to both the RCRA and CAA implementing officials. The Agency's intent is for the notification to be sent to both the RCRA and CAA implementing officials because of the nature of this exclusion—a RCRA excluded waste being burned in the CAA regulated unit. Also, if the ECF is burned in a State other than the generating State, then we are proposing that the ECF generator also provide notification to that State's or Region's RCRA and CAA Directors.
Since this would be a self-implementing exclusion, in order to ensure delivery, we are proposing that the notification be sent by certified mail, or other mail service that provides written confirmation of delivery and until the notification of exclusion is received and the ECF generator is informed of such receipt, the waste is still a hazardous waste and must be managed as such. Only after the receipt of such notification by the regulatory officials would the hazardous waste be excluded, provided it was managed in accordance with the conditions proposed today for ECF. If an ECF loses the exclusion, the waste fuel is subject to regulation as a hazardous waste until it returns to compliance with the conditions and a new notification is provided by the generator or another subsequent handler.
Just as for the one-time generator notification in the existing comparable fuels exclusion, we are proposing that the notification contain the following information: (1) The name, address, and RCRA ID number of the person/facility claiming the exclusion; (2) the applicable EPA Hazardous Waste Codes for the ECF if it were not excluded from the definition of solid waste; (3) the name and address of the units, meeting the requirements of proposed § 261.38(c)(2), that will burn the ECF; and (4) the following statement signed and submitted by the person claiming the exclusion or his authorized representative:
Under penalty of criminal and civil prosecution for making or submitting false statements, representations, or omissions, I certify that the requirements of 40 CFR 261.38 have been met for all emission-comparable fuel/comparable fuel (specify which) identified in this notification. Copies of the records and information required at 40 CFR 261.38(b)(8) are available at the generator's facility. Based on my inquiry of the individuals immediately responsible for obtaining the information, the information is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations.
We are proposing the same burner certification for ECF burners as exist for comparable fuel with a few additional conditions. This burner certification is intended to protect the generator by having the ECF burner certify to the generator that he will comply with all applicable storage and burning conditions. Specifically, generators intending to ship the ECF off site for burning would obtain a one-time written, signed statement from the burner that includes the following: A certification that the burner will comply with the storage conditions, burner conditions, and the notification, reporting, recordkeeping and other conditions of the exclusion of ECF under 40 CFR 261.38; the name and address of the facility that will use the ECF as a fuel; and a certification that the state in which the burner is located is authorized to exclude wastes as
More specifically, we are proposing that ECF generators maintain the following files (see proposed § 261.38 (b)(8)) at the facility generating the fuel: (1) All information required to be submitted to the State RCRA and CAA Directors as part of the notification of the claim of exclusion; (2) a brief description of any process used to convert the hazardous waste to ECF; (3) an estimate of the average and maximum monthly and annual quantities of each hazardous waste claimed to be excluded; (4) documentation for any claim that a constituent is not present in the hazardous waste pursuant to § 261.38(b)(8)(iv); (5) the results of all fuel analyses with quantitation limits; (6) documentation as required for the treatment or blending of a waste to meet the exclusion specifications
In addition, we believe that an ECF burner should also keep a record of each shipment to assist with compliance assurance given that there are conditions on burning that relate to the heating value of the ECF and the concentration of benzene and acrolein. Accordingly, we are proposing that ECF burners keep records of the following information for each shipment received from an off-site generator: (1) The name, address, and RCRA ID number of the generator shipping the ECF; (2) the quantity of ECF delivered; and (3) the date of delivery.
Finally, we are proposing that ECF generators that ship ECF off-site must ship directly to the burner. ECF could not be handled by a broker or intermediate handler. This would help ensure that the ECF is received by the generator's designated burner and stored under the prescribed conditions prior to burning. This is important because ECF can pose greater hazard when stored than comparable fuel, and may not have emissions comparable to fossil fuel if not burned by the designated burner under the prescribed conditions. ECF must be burned under the specified burner conditions to ensure conformance with the basic principle of the exclusion—that emissions are comparable to those from burning fuel oil.
We believe that the Department of Transportation (DOT) requirements, which govern the transportation of hazardous materials, will ensure the safe transportation of ECF. It should be noted that DOT requirements are self-implementing and ECF transporters are required to comply with all applicable requirements under the DOT regulations in 49 CFR parts 171 through 180.
Consistent with the current comparable fuel exclusion, we are not proposing to restrict the ECF exclusion to particular waste codes, except that wastes listed for the presence of dioxins or furans would not be eligible for the ECF exclusion. See § 261.38(b)(11). However, we do not expect that corrosive or reactive wastes would be candidates for ECF because of the detrimental impacts on the burning unit that would occur.
It is the responsibility of the generator claiming the exclusion to demonstrate eligibility.
After the exclusion for a waste has become effective, the conditions of the exclusion must continue to be met in order to maintain the exclusion.
We request comment, however, on whether the final rule should include a “reasonable efforts” provision that would provide that the failure of an off-site, unaffiliated burner to meet the proposed conditions or restrictions of the exclusion would not mean the material was considered waste when handled by the generator, as long as the generator can adequately demonstrate that he has made reasonable efforts to ensure that the material will be managed by the burner under the conditions of the exclusion.
We also request comment on whether a reasonable efforts provision should include criteria that define reasonable efforts, and what those criteria should be. For example, a reasonable efforts provision could prescribe that the generator must evaluate by site visits, prior to the first shipment and every six months thereafter, the ECF storage and boiler design and operation at off-site unaffiliated facilities (e.g., an off-site facility that is not corporately affiliated with the generator) that they do business with.
In addition, we request comment on whether to require the generator to maintain records at the generating facility documenting the reasonable efforts made before transferring ECF to the burner. Such records would presumably include copies of audit reports, and/or other relevant information that was used as the basis for the generator's determination that the burner will manage the material under the conditions of the exclusion. Requiring specific documentation would help EPA or the authorized state to determine whether the generator did make reasonable efforts to ensure that his ECF was managed appropriately.
We also request comment on whether, as part of the documentation, the generator should also be required to maintain at the generating facility a certification statement, signed and dated by an authorized representative of the generator company, that for each burner to which the generator transferred ECF, that the generator made reasonable efforts to ensure that the ECF was properly managed. Such certification statement could, for example, be worded as follows: “I hereby certify in good faith and to the best of my knowledge that, prior to arranging for transport of excluded hazardous secondary materials to [insert burner name], reasonable efforts were made to ensure that the ECF will be managed under the conditions of the exclusion found at 40 CFR 261.38, and that such efforts were based on current and accurate information.”
Finally, we also solicit comment on whether the frequency of periodic updates of the “reasonable efforts” should be identified in the regulations, or whether that question should be left to individual situations applying an objectively reasonable belief standard. Information on industry standards for facility audits of off-site activities, including how frequently they are conducted, would be especially helpful.
Under the reasonable efforts provision, a generator who met his reasonable efforts obligations might ship his ECF to an unaffiliated burner where, due to circumstances beyond the generator's control, the burner failed to comply with the conditions of the exclusion. In such situations, and where the generator's decision to ship to that burner is based on an objectively reasonable evaluation that the burner would manage the ECF under the conditions of the exclusion consistent with this proposed rule, the generator would not have violated the terms of the exclusion.
ECF that is spilled or leaked, not cleaned up immediately and no longer meets the conditions of the exclusion is “discarded.” Thus, it is a solid waste. In addition, spilled or leaked ECF is a hazardous waste if it exhibits a characteristic of hazardous waste or if the ECF were derived from a listed hazardous waste.
Furthermore, the exclusion would not affect the obligation to promptly respond to and remediate any releases of ECF that may occur. Management of the released material not in compliance with applicable Federal and State hazardous waste requirements could result in an enforcement action. For example, a person who spilled or released ECF and failed to immediately clean it up could potentially be subject to enforcement for illegal disposal of the waste. See, for example, 40 CFR 264.1(g)(8). In addition, the release could potentially be addressed through enforcement orders, such as orders under RCRA sections 3013 and 7003.
Because this is an optional and conditional exclusion, we are proposing that all conditions in § 261.38 must be
We are proposing to clarify the consequences of failure to maintain compliance with the conditions of the exclusion for comparable fuel and the status of tanks that cease to be operated as comparable fuel storage tanks.
As discussed in Section V in the context of ECF and for the same reasons, comparable fuel that has lost its exclusion because of failure to comply with one or more conditions of the exclusion must be managed as hazardous waste from the point of generation. See proposed § 261.38(d). As examples, comparable fuel that is spilled or leaked and cannot be burned under the conditions of the exclusion (i.e., in a burner listed under proposed § 261.3(b)(3)(i)), and comparable fuel that is speculatively accumulated must be managed as hazardous waste.
In addition, consistent with the discussion in Section IV.A.3 in the context of ECF and for the same reasons, we propose to clarify that, if a comparable fuel tank system, tank car or tank truck ceases to be used to store comparable fuel product, but has not been cleaned by removing all liquids and accumulated sludge within 90 days of cessation of comparable fuel storage operations, that such systems would become subject to the RCRA Subtitle C regulation as a hazardous waste storage unit.
Finally, we are proposing today that interim status and permitted storage units, and generator accumulation units exempt from permitting under § 262.34, are not subject to the closure requirements of 40 CFR Parts 264 and 265 provided that the storage units have been used to store only hazardous waste that is subsequently excluded under the conditions of § 261.38, and that afterward will be used only to store fuel excluded under § 261.38. This is consistent with the proposed waiver of RCRA closure requirements for ECF, as discussed in Section IV.A.4, and is based on the same rationale. See proposed § 261.38(b)(14). However, as we noted in Section IV.A.4, the Agency expects that the owner/operator take common-sense steps to decontaminate and decommission the units and encourage them to consult with the regulatory authority as to the best way to ensure that the tank system is cleaned properly. See proposed § 261.38(b)(13).
In April 2007, EPA assembled two panels of expert scientists to review the significant scientific information used to support the proposed rule. One panel addressed questions regarding support for the comparable emissions rationale, and the other panel addressed questions regarding support for the procedure we used to rank the relative hazard of the 37 hydrocarbons and oxygenates for which specifications have been established in Table 1 to existing § 261.38.
Syracuse Research Corporation, under contract to USEPA, selected reviewers for both independence and scientific/technical expertise. Each panel member was selected for his/her recognized technical expertise that bears on the subject matter under discussion. The evaluation of real or perceived bias or conflict of interest is an important consideration and every effort was made to avoid conflicts of interest and significant biases.
The peer review reports, which contain the resumes of the peer reviewers, are available in the docket to the proposed rule (Docket ID No. EPA-HQ-RCRA-2005-0017):
• Syracuse Research Corporation, “Rationale for Exclusion of Emission-Comparable Fuel,” April 2007; and
• Syracuse Research Corporation, “Application of WMPT to Rank Comparable Fuels Constituents,” April 2007.
In this section of the preamble, we summarize the major comments by the peer reviewers and provide responses. We respond to other comments in separate documents available in the docket to the proposed rule:
• USEPA, “Response to Peer Review Comments on the Rationale for Exclusion of Emission-Comparable Fuel,” May 2007; and
• USEPA, “Response to Peer Review Comments on the Application of WMPT to Rank Comparable Fuels Constituents, May 2007.
The reviewer notes that hazardous waste boilers are subject to operating requirements in addition to CO monitoring to control emissions of non-dioxin/furan organic HAP. Thus, the reviewer questions whether ECF boilers would be controlled as stringently as hazardous waste boilers. Those additional operating requirements (e.g., minimum combustion chamber temperature; maximum waste feedrate), however, are designed to ensure that a hazardous waste boiler maintains 99.99% DRE. Operating limits on those parameters are established during the DRE emissions test. For ECF boilers, the
Nonetheless, in retrospect, we agree with the reviewer. In fact, we have substantial oil emissions data representing many test conditions for several compounds, such as benzene, formaldehyde, naphthalene, and toluene. And, although we have limited data for several other compounds that comprise only one to three test conditions, we also have hazardous waste boiler data for several compounds that comprise only a few test conditions.
We have reanalyzed our data base to compare hazardous waste boiler emission test condition averages to the 95th percentile oil-fired boiler emission test condition averages. The results of that reanalysis support the proposed rule. See Section I.B.1 in Part Two above.
The 95th percentile test condition average benchmark levels for oil-fired boiler emissions are lower than the 95th percentile run benchmark levels, as expected. This results in additional hazardous waste boiler emissions exceeding the oil-fired boiler emissions benchmark.
Specifically, there is one additional exceedance each for benz(a)anthracene and fluorine, and two additional exceedances for ethylbenzene. All of these are
There is also one additional exceedance for benzene, but the exceedance is
Finally, there are three additional exceedances for methylene chloride. The revised oil emissions benchmark is 40 μg/dscm, rather than the previous benchmark of 58 μg/dscm based on run data, but is based on only two test conditions. Thus, we believe it is not representative of the range of oil-fired boiler emissions. The three additional hazardous waste boiler emissions exceedances are at 54 μg/dscm, 52 μg/dscm, and 50 μg/dscm. Test reports for two of the three boilers indicate that methylene chloride contamination is known or suspected. The third test report is silent on the potential for contamination, but methylene chloride is commonly recognized as a sample and lab contaminant. Thus, we do not consider the remaining exceedance an indication that hazardous waste boiler emissions of methylene chloride are not comparable to oil emissions, considering also the limited oil emissions data and the
We believe, however, that the hazardous waste boiler emissions data that we use as a surrogate for ECF emissions
Nonetheless, we acknowledge that the ECF exclusion would allow benzene, toluene, and the listed oxygenates to be fed into industrial boilers at much higher rates than they may be actually fired in practice. For example, the maximum concentrations of many of these compounds in waste fuels that have been identified as candidate fuels for exclusion are relatively low: 0.05% for acrolein; 10% for methyl ethyl ketone; 15% for isobutyl alcohol and acetophenone; and 25% for benzene.
Notwithstanding current actual practice regarding the concentrations of compounds in ECF and ECF firing rates, it is reasonable to question whether the exclusion would allow such high feedrates of the compounds of concern that ECF emissions may not meet the criterion of being comparable to the emissions from burning oil. For example, if we assumed that a DRE of only 99.99% were achieved when feeding ECF with a 90% concentration of a compound of concern at the maximum firing rate (i.e., 25% for benzene and acrolein and 50% for the other compounds), the residual emissions of the compound would far exceed the emissions from burning oil.
Consequently, we request comment on an approach that would limit the feedrate of benzene, toluene, and the listed oxygenates to ensure that ECF emissions are comparable to the emissions from burning oil. Under the approach, we would identify a target emission level for each of these hazardous compounds, estimate a destruction and removal efficiency (DRE) for the compound, and calculate a maximum ECF firing rate as a function of the concentration of the compound in the ECF.
We would identify the target emission levels as:
• For each hazardous compound for which we have emissions data from oil-fired industrial boilers, the target level would be the highest test condition average (after screening out high apparent outliers) or a
• For each hazardous compound for which we have only hazardous waste boiler emissions data, the target level would be the highest test condition average (after screening out high statistical outliers)
• For each hazardous compound for which we have neither oil-fired boiler nor hazardous waste boiler emissions data, the target level would be a
The target emission levels for the three hazardous compounds for which we have oil emissions data—acrolein, benzene, and toluene—would range from a
We specifically request comment on whether these target emission levels are appropriate.
We believe it is reasonable to estimate a default DRE (i.e., DRE achievable at low compound feedrates) of 99.99% for the hazardous compounds that have a Thermal Stability
It is also reasonable to conclude that DRE increases with an increase in feedrate of the target compound. It is common knowledge that feedrates of POHCs must be high enough to avoid DRE failures attributable to stack method or analytical method imprecision and the baseline level of products of incomplete combustion.
It appears that, when MTECs exceed 1.0E+07 μg/dscm, DRE exceeds 99.999% for all compounds. Additionally, it appears that, for MTECs in the range of 5.0E+06 to 1.0E+07, DRE exceeds 99.995% for all hazardous compounds. Consequently, it may be appropriate to consider this feedrate/DRE relationship to identify potential ECF firing rate limits.
We specifically request comment on our views regarding the relationship between DRE and compound feedrate.
We also have considered the potential concentrations of the hazardous compounds in ECF to calculate potential ECF firing rate limits
We noted an anomalous situation for most hazardous compounds, however, where the firing rate limit first decreased as feedrate increased (as expected), but then at higher feedrates, the firing rate limit began to increase. This was caused by our assumption that DRE increases in a step-wise function rather than, as likely, in a smooth progression as feedrate increases. For example, we estimated DRE at 99.995% when the MTEC is 9.9E+06, and at 99.999% when the MTEC is 10E+06 (1.0E+07).
Clearly, this is not a realistic representation of how DRE relates to MTEC. To address this concern, we could, for example, consider whether it is appropriate to use a best-fit curve of the benzene data to develop a relationship between DRE and MTEC. Benzene may be an appropriate hazardous compound to select to define the relationship because it ranks the highest on the thermal stability index of the compounds for which we have DREs over a range of feedrates, it has the highest ranking for the hazardous compounds, and it is the third highest ranking compound in the Thermal Stability index, ranking higher than 341 other compounds.
We specifically request comment on whether feedrate limits for the hazardous compounds may be necessary to ensure that the target emission levels are not exceeded, and on the approach described above for potentially establishing ECF firing rate limits.
We have dioxin/furan data for 17 coal-fired boilers that are equipped with an ESP or FF.
Nine sources operate the ESP or FF above a (estimated) gas temperature of 400 F, with a range of 401 °F to 500 °F. All of these boilers have dioxin/furan emissions below 0.2 ng TEQ/dscm. At least one of these boilers burns low sulfur coal.
Nonetheless, given the limited data, we specifically request comment and supporting information on the potential for dioxin/furan formation across the ESP or FF of a coal-fired boiler when the APCD is operated above 400 F, and thus whether a temperature limit is warranted as a condition of the ECF exclusion for those boilers burning coal as the primary fuel.
Nonetheless, we request comment on whether additional conditions on the ECF burner design, location, or operation may be warranted to ensure good combustion of ECF. Any such comments must include supporting information in order for the Agency to be able to consider it for final action.
We note, however, that if more data were available, the emissions benchmark levels would generally increase rather than decrease as the range of emission levels is better represented. Counter-balancing this, however, is the fact that if we had additional hazardous waste boiler emissions data, some data would likely be higher than those that are currently in our data base.
• PCDD/PCDF Emissions from Coal Fired Power Plants, Riggs, Karen B. et al., Battelle, Columbus, OH, 15th International Symposium on
• A Comprehensive Assessment of Toxic Emissions from Coal-Fired Power Plants, Phase 1 Results, from the U.S. Department of Energy Study. Prepared for Pittsburgh Energy Technology Center, U.S. Department of Energy. September 1996.
• The EPA National Air Quality and Emissions Trends Report, 2003 Special Study Edition, has Volatile Organic Compounds Emissions Estimates given in Table A-5 for coal, gas and oil. Later reports may be available.
The current effort is not a full quantitative risk assessment, but rather a screening-level ranking of chemicals based on potential chronic (i.e., long-term) risks to human health and the environment. As such, we consider it appropriate to make the protective assumption, as in the WMPT, of using the highest half-life data of the relevant media to derive Persistence scores for the 37 constituents.
Interestingly, the peer reviewers did not agree on the implications of using the air half-life to derive benzene's Persistence score: One peer reviewer thought it would lower the Persistence score, while another peer reviewer saw it as grounds for a high Persistence score. Also, the three peer reviewers do not agree on the final disposition of benzene's ranking. One peer reviewer recommends moving benzene to Category C, another peer reviewer recommends leaving benzene in category B, while the third peer reviewer, due to benzene's toxicity, recommends elevating it to Category A.
Nevertheless, we recognize that as one peer reviewer puts it, “* * * although the WMPT is a useful screening tool for evaluating the hazard of particular compounds, it should not be used blindly.” We thus request public comment on this issue.
We also remained consistent with the WMPT methodology and the toxic release inventory (TRI) by grouping PAHs together, and classifying them as high hazard. Most PAHs scored an 8 or 9; benzo(a)anthracene and chrysene, however, scored 7.
We specifically request comment on adopting the WMPT (and TRI) policy of classifying PAHs as a group, and being consistent with the Agency's priority to reduce the environmental release of chemicals on EPA's list of priority chemicals. Any comment suggesting an alternative approach must include an appropriate rationale and supporting information in order for the Agency to be able to consider it for final action.
Therefore, we disagree with the opinion that only human toxicity concerns were considered. As detailed in the technical support document,
EPA would strongly encourage states to adopt the regulations being proposed today. Under section 3006 of RCRA, EPA may authorize qualified states to administer their own hazardous waste programs in lieu of the federal program within the state. When EPA authorizes a state to implement the RCRA hazardous waste program, EPA determines whether the state program is consistent with the federal program, and whether it is no less stringent. This process, codified in 40 CFR 271, ensures national consistency and minimum standards, while providing flexibility to states in implementing rules. Following authorization, EPA retains enforcement authority under sections 3008, 3013, and 7003 of RCRA, although authorized states have primary enforcement responsibility. In making this determination, EPA evaluates the state requirements to ensure they are no less stringent than the federal requirements.
Prior to enactment of the Hazardous and Solid Waste Amendments of 1984 (HSWA), a State with final RCRA authorization administered its hazardous waste program entirely in lieu of EPA administering the federal program in that state. The federal requirements no longer applied in the authorized state, and EPA could not issue permits for any facilities in that state, since only the state was authorized to issue RCRA permits. When new, more stringent federal requirements were promulgated, the state was obligated to enact equivalent authorities within specified time frames. However, the new federal requirements did not take effect in an authorized state until the state adopted the federal requirements as state law.
In contrast, under RCRA section 3006(g) (42 U.S.C. 6926(g)), which was added by HSWA, new requirements and prohibitions imposed under HSWA authority take effect in authorized states at the same time that they take effect in unauthorized states. EPA is directed by the statute to implement these requirements and prohibitions in authorized states, including the issuance of permits, until the state is granted authorization to do so. While states must still adopt HSWA related provisions as state law to retain final authorization, EPA implements the HSWA provisions in authorized states until the states do so.
RCRA section 3009 allows the states to impose standards more stringent than those in the federal program (see also 40 CFR 271.1). Therefore, authorized states are required to modify their programs only when EPA enacts federal requirements that are more stringent or broader in scope than existing federal requirements. Authorized states may, but are not required to, adopt federal regulations that are considered less stringent than previous federal regulations. Because today's rule would eliminate specific requirements for materials that are currently managed as hazardous waste, state programs would no longer need to include those specific requirements in order to be consistent with EPA's regulations, when and if today's rule is finalized.
Today's notice proposes regulations that would not be promulgated under the authority of HSWA. Thus, the standards proposed today would be applicable on the effective date only in those States that do not have final RCRA authorization. Moreover, authorized States are required to modify their program only when EPA promulgates Federal regulations that are more stringent or broader in scope than the authorized State regulations. For those changes that are less stringent or reduce the scope of the Federal program, States are not required to modify their program. This is a result of section 3009 of RCRA, which allows States to impose more stringent regulations than the Federal program. Today's proposal is considered to be less stringent than the current standards. Therefore, authorized States would not be required to modify their programs to adopt regulations consistent with and equivalent to today's proposed standards, although EPA would encourage States to do so.
Some states incorporate the federal regulations by reference or have specific state statutory requirements that their state program can be no more stringent than the federal regulations. In those cases, EPA anticipates that the exclusions in today's proposal, when and if finalized, would be adopted by these states, consistent with state laws and state administrative procedures, unless they take explicit action as specified by their respective state laws to decline the proposed revisions.
The value of any regulatory action is traditionally measured by the net change in social welfare that it generates. The Agency's economic assessment conducted in support of today's proposed action evaluates costs, cost savings (benefits), waste quantities affected, and other impacts, such as environmental justice, children's health, unfunded mandates, regulatory takings, and small entity impacts. To conduct this analysis, we prepared a baseline characterization for ECF, developed and implemented a methodology for examining impacts, and followed appropriate guidelines and procedures for examining equity considerations, children's health, and other impacts. Because EPA's data were limited, the estimated findings from these analyses should be viewed as national, not site-specific impacts.
Proper baseline specification is vital to the accurate assessment of incremental costs, benefits, and other economic impacts associated with a rule that would expand the exclusion for waste fuels. The baseline essentially describes the world absent any expanded exclusion. The incremental impacts of today's action are evaluated by predicting post-rule responses with respect to baseline conditions and actions. The baseline, as applied in this analysis, is assumed to be the point at which the proposal is published. A full discussion of baseline specification is presented in the Assessment
We developed a simplified four-step approach for assessing the cost and economic impacts associated with this action. First, we identified all potentially eligible waste streams currently generated in the U.S. We next determined the tonnage of waste that is likely to qualify for the proposed exclusion. An economic threshold analysis was next applied to the likely eligible waste to determine which facilities could be expected to benefit from the exclusion. For example, for a generator with an eligible nonhazardous boiler on-site, the model assumes that the facility will use the exclusion if the total benefits (cost savings) realized by the generator are projected to exceed the total costs incurred to take advantage of the exclusion. Finally, we aggregated all facilities that are likely to use the exclusion to derive estimates for total
The analytical model for this analysis derives both cost savings and costs associated with the exclusion. Cost savings include: Fuel cost savings (net of baseline fuel recovery), avoided hazardous waste management costs, transportation cost savings, tracking cost savings, and storage cost savings. These factors may be considered economic benefits of the proposed action. The model also assesses relevant costs of the exclusion. These are: Burner storage costs, boiler retrofit costs, waste stream analytical costs, raw materials replacement cost (related to waste that is recycled in the baseline), recordkeeping costs, and transport costs.
The net social benefits are calculated as the difference between the social benefits (cost savings) and social costs. The total net social benefits of the proposed rule are then calculated by aggregating the net social impacts associated with each facility expected to use the exclusion. Impacts to human health and the environment are assumed to be unchanged and are therefore not included in our monetized assessment.
The primary data sources used in this analysis are the 2003 Biennial Report (2003 BR)
Data limitations have required us to apply several assumptions in our analysis. The most critical assumptions are:
• The ECF is assumed to be burned in nonhazardous waste boilers that meet the conditions of the exclusion.
• The ECF is assumed to have an average heating value of 12,200 Btu/lb. This is based on our assessment of the National Hazardous Waste Constituent Survey.
• That a facility that can use the exclusion, and has a nonhazardous waste boiler on-site that could burn ECF, would burn the fuel on-site rather than sending it off-site.
• The number of facilities purchasing ECF is assumed to equal the number of generating facilities expected to send their ECF off-site.
• That all ECF generated in a particular state would be shipped the same distance. Average shipment distances for each state are derived from hazardous waste shipped off-site, as reported in the 2003 BRS.
Our primary analytical limitations are associated with our estimate of the availability of on-site boilers, and our estimate of ECF qualifying for the exclusion. Nationwide data were not available to indicate whether each affected generating facility has a boiler on-site that can burn ECF. Using the National Emissions Inventory (NEI) data, we made a determination of whether an eligible boiler is located at each facility. This determination may misrepresent which boilers could burn ECF and which boilers could not. To estimate how much waste qualifies as ECF, we used the ACC survey data, and data derived from the NHWCS. The data presented in the NHWCS are the most comprehensive nationwide data available. However, these data are from 1993, and may not fully reflect the characteristics of today's waste streams.
This rule, as proposed, is projected to result in a benefit to society in the form of net cost savings to the private sector, on a nationwide basis, thereby allowing for the more efficient use of limited resources elsewhere in the market. This is accomplished without compromising protection of human health and the environment by ensuring comparable emissions from the burning of high Btu value waste.
The total net social benefits projected as a result of this rule, as proposed, are estimated at approximately $23 million per year. Avoided management and fuel costs represent the vast majority of all benefits (cost savings). Transportation, boiler retrofits, and analytical costs represent the majority of the costs. This estimate assumes all States adopt the rule, and incorporates all cost savings to affected generators, less all associated costs. Nearly 183,000 tons (U.S.) of waste are expected to initially qualify for the exclusion with approximately 107,000 tons/year actually excluded. Of this total, we estimate that approximately 34,000 tons are not currently burned for energy recovery.
We also analyzed various scenarios under the two primary regulatory options for the storage of ECF considered by the Agency. Annual net social benefits under the first option were found to be $603,000 to $1,396,000 greater than the net benefits of our proposed approach. The additional cost savings reflect reduced storage requirements. In addition, this scenario assumes that the specification for naphthalene and PAHs would not apply, which would increase the percentage of waste qualifying for the exclusion. Under the second option, annual net social benefits were found to range from $15 million to $20 million per year. These reduced savings largely reflect additional RCRA Subtitle C storage and tracking requirements. Furthermore, this option assumes that generating facilities would not send any of their ECF offsite. This assumption results in a significant reduction in annual fuel cost savings and avoided management costs.
We believe that it is important to not only understand the change in economic efficiency, as presented above, but to also understand the primary distributional effects associated with this change. Hazardous waste commercial incinerators and cement kilns are projected to experience negative distributional impacts associated with this action. These effects include revenue losses for both groups, plus fuel replacement costs for commercial kilns. Revenue losses to commercial incinerators are estimated at $3 million/year, while commercial kilns may experience combined revenue and fuel replacement losses of approximately $13.5 million per year. These impacts represent between one and 1.7 percent of the total estimated annual gross revenues for these sectors. Although impacts to these groups may be considered a cost in accounting
The findings presented here reflect numerous analytical assumptions and limitations. Furthermore, we have analyzed additional scenarios and sensitivity analyses that are not presented in this Preamble. The reader is strongly encouraged to read the
Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), this action is a “significant regulatory action.” This action may raise novel legal or policy issues [3(f)(4)] due to our determination of Emission-Comparable Fuel (ECF), as applied in this proposed rulemaking. Accordingly, EPA submitted this action to the Office of Management and Budget (OMB) for review under EO 12866. Any changes made in response to OMB recommendations have been documented in the docket for this action.
This rule, as proposed, is projected to result in benefits to society in the form of cost savings. The total net cost savings are estimated at $23 million per year. This figure is significantly below the $100 million threshold
The information collection requirements in this proposed rule have been submitted for approval to the Office of Management and Budget (OMB) under the
Today's proposed rule is deregulatory. The respondents generating and burning excluded emission-comparable fuel would be subject to an annual public reporting and recordkeeping burden for the collection of information required under this proposed rule of 75,284 hours, and a cost of $4,071,341. However, because the excluded fuel would no longer be considered hazardous waste, the generator would not be required to comply with the paperwork, reporting, and recordkeeping requirements for hazardous wastes under RCRA. Therefore, the reporting and recordkeeping burden reduction associated with the reduced requirements for emission-comparable fuel would result in a net annual burden reduction of 21,206 hours and savings of $3,186,590 in capital and operation and maintenance costs.
Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, 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, verifying, processing, maintaining, disclosing and providing information; adjust existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information, unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR Part 9.
To comment on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, including the use of automated collection techniques, EPA has established a public docket for this proposed rule, which includes this ICR, under Docket ID number EPA-HQ-RCRA-2005-0017. Submit any comments related to the ICR for this proposed rule to EPA and OMB. See
The Regulatory Flexibility Act (RFA) as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601
The RFA provides default definitions for each type of small entity. Small entities are defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
After considering the economic impacts of today's proposal on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on small entities, since the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives “which minimize any significant economic impact of the rule on small entities.” 5 U.S.C. 603 and 604. Thus, an agency may certify that a rule
This rule, as proposed, is projected to result in benefits in the form of cost savings to facilities that use the exclusion. As a result, the rule would not result in adverse impacts for any small businesses that generate ECF. The reader is encouraged to review our regulatory flexibility screening analysis prepared in support of this determination. This analysis is incorporated in the
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. In addition, before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, 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.
Today's proposal contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, or tribal governments or the private sector. The UMRA generally excludes from the definition of “Federal intergovernmental mandate” duties that arise from participation in a voluntary federal program. This rule, as proposed, may be considered a voluntary program because the States are not required to adopt these requirements.
In any event, EPA has determined that this rule, as proposed, does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. The total net benefits (cost savings) of this action are estimated to be $23 million per year.
EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. Small governments are not affected by this action, as proposed.
Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
This proposed rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. The proposed rule focuses on modified requirements for facilities generating ECF, without affecting the relationships between Federal and State governments. Thus, Executive Order 13132 does not apply to this rule.
Although section 6 of Executive Order 13132 does not apply to this proposed rule, EPA did consult with representatives of state governments in developing it. Representatives from the States of North Carolina, Georgia, Missouri, Louisiana, and Oregon provided valuable input and review.
In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA specifically solicits comment on this proposed rule from State and local officials.
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This proposed rule does not have tribal implications, as specified in Executive Order 13175. No Tribal governments are known to own or operate hazardous waste generating facilities that generate ECF subject to this proposal. Thus, Executive Order 13175 does not apply to this proposed rule.
EO 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is determined to be “economically significant” as defined under EO 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.
This final rule is not subject to the Executive Order because it is not economically significant as defined in Executive Order 12866, and because the Agency does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children.
This rule is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.
This rule, as proposed, will not seriously disrupt energy supply, distribution patterns, prices, imports or exports. Furthermore, this proposed rule is designed to improve economic efficiency by expanding the use of ECF.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.
This proposed rulemaking involves environmental monitoring or measurement. Consistent with the Agency's Performance Based Measurement System (“PBMS”), EPA proposes not to require the use of specific, prescribed analytic methods. Rather, the Agency plans to allow the use of any method that meets the prescribed performance criteria. The PBMS approach is intended to be more flexible and cost-effective for the regulated community; it is also intended to encourage innovation in analytical technology and improved data quality. EPA is not precluding the use of any method, whether it constitutes a voluntary consensus standard or not, as long as it meets the performance criteria specified.
EPA welcomes comments on this aspect of the proposed rulemaking and, specifically, invites the public to identify potentially-applicable voluntary consensus standards and to explain why such standards should be used in this regulation.
Executive Order (EO) 12898 (59 FR 7629 (Feb. 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 proposed rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. This proposal is designed to allow for the use of waste as fuel under emission comparable standards, resulting in no increased risk to human health and the environment, when compared to the burning of fossil fuels.
Hazardous waste, Recycling, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, title 40, chapter I, of the Code of Federal Regulations is proposed to be amended as follows:
1. The authority citation for part 261 continues to read as follows:
42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.
2. Section 261.4 is amended by revising paragraph (a)(16) to read as follows:
(a) * * *
(16) Comparable fuels, emission-comparable fuels, or comparable syngas fuels that meet the requirements of § 261.38.
3. Section 261.38 is revised to read as follows:
(a)
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(B)
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(i) Have a minimum Btu value of 100 Btu/Scf;
(ii) Contain less than 1 ppmv of total halogen;
(iii) Contain less than 300 ppmv of total nitrogen other than diatomic nitrogen (N
(iv) Contain less than 200 ppmv of hydrogen sulfide; and
(v) Contain less than 1 ppmv of each hazardous constituent in the target list of appendix VIII constituents of this part.
(4)
(i)
(A) As generated and prior to any blending, manipulation, or processing, meet the constituent and heating value specifications of paragraphs (a)(1)(i)(A) and (a)(1)(ii) of this section for comparable fuel, and, for emission-comparable fuel, the specifications of paragraphs (a)(2)(i)(A) and (a)(2)(ii) of this section;
(B) Be blended at a facility that is subject to the applicable requirements of parts 264 and 265, or § 262.34 of this chapter; and
(C) Not violate the dilution prohibition of paragraph (a)(7) of this section.
(ii)
(5)
(A) Destroys or removes the constituent listed in the specification or raises the heating value by removing or destroying hazardous constituents or materials;
(B) Is performed at a facility that is subject to the applicable requirements of parts 264 and 265, or § 262.34 of this chapter; and
(C) Does not violate the dilution prohibition of paragraph (a)(7) of this section.
(ii) Residuals resulting from the treatment of a hazardous waste listed in subpart D of this part to generate a comparable fuel remain a hazardous waste.
(6)
(A) Destroys or removes the constituent listed in the specification or raises the heating value by removing or destroying constituents or materials;
(B) Is performed at a facility that is subject to the applicable requirements of parts 264 and 265, or § 262.34 of this chapter or is an exempt recycling unit pursuant to § 261.6(c); and
(C) Does not violate the dilution prohibition of paragraph (a)(7) of this section.
(ii) Residuals resulting from the treatment of a hazardous waste listed in subpart D of this part to generate a syngas fuel remain a hazardous waste.
(7)
(b)
(ii) The person who generates the excluded fuel must claim the exclusion by compliance with the conditions of this section and keep records necessary to document compliance with those conditions.
(2)
(A) The name, address, and RCRA ID number of the person/facility claiming the exclusion;
(B) The applicable EPA Hazardous Waste Codes for the hazardous waste;
(C) The name and address of the units meeting the requirements of paragraphs (b)(3) and (c) of this section, that will burn the excluded fuel;
(D) An estimate of the average and maximum monthly and annual quantity of waste for which an exclusion would be claimed; and
(E) The following statement, which shall be signed and submitted by the person claiming the exclusion or his authorized representative:
Under penalty of criminal and civil prosecution for making or submitting false statements, representations, or omissions, I certify that the requirements of 40 CFR 261.38 have been met for all emission-comparable fuel/comparable fuel (specify which) identified in this notification. Copies of the records and information required at 40 CFR 261.38 are available at the generator's facility. Based on my inquiry of the individuals immediately responsible for obtaining the information, the information is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations.
(ii)
(A) Name, address, and RCRA ID number of the generating facility(ies);
(B) Name and address of the burner and identification of the unit(s) that will burn the excluded fuel;
(C) A brief, general description of the manufacturing, treatment, or other process generating the excluded fuel;
(D) An estimate of the average and maximum monthly and annual quantity of the excluded waste to be burned; and
(E) Name and mailing address of the Regional or State Directors to whom the generator submitted a claim for exclusion.
(3)
(A) Industrial furnaces as defined in § 260.10 of this chapter;
(B) Boilers, as defined in § 260.10 of this chapter, that are further defined as follows:
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(C) Hazardous waste incinerators subject to regulation under subpart O of parts 264 or 265 of this chapter or applicable CAA MACT standards.
(D) Gas turbines used to produce electric power, steam, heated or cooled air, or other gases or fluids for sale.
(ii)
(4)
(i) At a minimum, the plan must specify:
(A) The parameters for which each hazardous waste will be analyzed and the rationale for the selection of those parameters;
(B) The test methods which will be used to test for these parameters;
(C) The sampling method which will be used to obtain a representative sample of the waste to be analyzed;
(D) The frequency with which the initial analysis of the waste will be reviewed or repeated to ensure that the analysis is accurate and up to date; and
(E) If process knowledge is used in the waste determination, any information prepared by the generator in making such determination.
(ii) For each analysis, the generator shall document the following:
(A) The dates and times that samples were obtained, and the dates the samples were analyzed;
(B) The names and qualifications of the person(s) who obtained the samples;
(C) A description of the temporal and spatial locations of the samples;
(D) The name and address of the laboratory facility at which analyses of the samples were performed;
(E) A description of the analytical methods used, including any clean-up and sample preparation methods;
(F) All quantitation limits achieved and all other quality control results for the analysis (including method blanks, duplicate analyses, matrix spikes, etc.), laboratory quality assurance data, and the description of any deviations from analytical methods written in the plan or from any other activity written in the plan which occurred;
(G) All laboratory results demonstrating whether the exclusion specifications have been met for the waste; and
(H) All laboratory documentation that support the analytical results, unless a contract between the claimant and the laboratory provides for the documentation to be maintained by the laboratory for the period specified in paragraph (b)(7) of this section and also provides for the availability of the documentation to the claimant upon request.
(iii) Syngas fuel generators shall submit for approval, prior to performing sampling, analysis, or any management of a syngas fuel as an excluded waste, a waste analysis plan containing the elements of paragraph (b)(3)(i) of this section to the appropriate regulatory authority. The approval of waste analysis plans must be stated in writing and received by the facility prior to sampling and analysis to demonstrate the exclusion of a syngas. The approval of the waste analysis plan may contain such provisions and conditions as the regulatory authority deems appropriate.
(5)
(i) The burner has not received information from the generator for each shipment documenting the heating value of the fuel and the concentration of benzene and acrolein;
(ii) The burner blends or otherwise treats emission-comparable fuel to achieve the 8,000 Btu/lb, as-fired criterion under paragraph (c)(2)(ii)(B) of this section; or
(iii) The burner blends or otherwise treats emission-comparable fuel to achieve a concentration of benzene or acrolein of two percent or less, as-fired, to avoid the emission-comparable fuel firing rate restrictions of paragraph (c)(2)(ii)(I) of this section.
(6)
(A) A constituent that triggered the toxicity characteristic for the waste constituents that were the basis of the listing of the waste stream, or constituents for which there is a treatment standard for the waste code in 40 CFR 268.40;
(B) A constituent detected in previous analysis of the waste/syngas;
(C) Constituents introduced into the process that generates the waste/syngas; or
(D) Constituents that are byproducts or side reactions to the process that generates the waste/syngas.
Note to paragraph (b)(6)(i): Any claim under this section must be valid and accurate for all hazardous constituents; a determination not to test for a hazardous constituent will not shield a generator from liability should that constituent later be found in the waste/syngas above the exclusion specifications.
(ii) For each waste for which the exclusion is claimed where the generator of the excluded fuel is not the original generator of the hazardous waste, the generator of the excluded fuel
(iii) The excluded fuel generator may use any reliable analytical method to demonstrate that no constituent of concern is present at concentrations above the specification levels. It is the responsibility of the generator to ensure that the sampling and analysis are unbiased, precise, and representative of the waste/syngas. For the waste/syngas to be eligible for exclusion, a generator must demonstrate that:
(A) The 95% upper confidence limit of the mean concentration for each constituent of concern is not above the specification level; and
(B) The analyses could have detected the presence of the constituent at or below the specification level.
(iv) Nothing in this paragraph preempts, overrides or otherwise negates the provision in § 262.11 of this chapter, which requires any person who generates a solid waste to determine if that waste is a hazardous waste.
(v) In an enforcement action, the burden of proof to establish conformance with the exclusion specification shall be on the generator claiming the exclusion.
(vi) The generator must conduct sampling and analysis in accordance with the waste analysis plan developed under paragraph (b)(4) of this section.
(vii) Excluded fuel that has not been blended to meet the kinematic viscosity specification shall be analyzed as generated.
(viii) If hazardous waste is blended to meet the kinematic viscosity specification, the generator shall:
(A) Analyze the waste as generated to ensure that it meets the constituent and heating value specifications, except that emission comparable fuel need not meet the 8,000 Btu/lb, as-fired heating value criterion of paragraph (a)(2)(i)(A) of this section; and
(B) After blending, analyze the fuel again to ensure that the blended fuel continues to meet all excluded fuel specifications.
(ix) Excluded fuel must be re-tested, at a minimum, annually and must be retested after a process change that could change the chemical or physical properties of the waste.
(x) If an emission-comparable fuel burner has not received information from the generator for each shipment documenting the heating value of the fuel and the concentration of benzene and acrolein, the burner must sample and analyze the fuel to determine the heating value and the concentration of benzene and acrolein.
(xi) If a burner blends or treats emission-comparable fuel to achieve an as-fired heating value of 8,000 Btu/lb or greater or an as-fired concentration of benzene or acrolein of two percent or lower, the burner shall determine the heating value, benzene concentration, or acrolein concentration, as relevant, by analysis or information from the generator prior to blending and must analyze the fuel after blending or treatment to determine the heating value, benzene concentration, or acrolein concentration, as relevant.
(7)
(8)
(i) All information required to be submitted to the implementing authority as part of the notification of the claim:
(A) The owner/operator name, address, and RCRA facility ID number of the person claiming the exclusion;
(B) The applicable EPA Hazardous Waste Codes for each hazardous waste excluded as a fuel; and
(C) The certification signed by the person claiming the exclusion or his authorized representative.
(ii) A brief description of the process that generated the hazardous waste and process that generated the excluded fuel, if not the same;
(iii) The monthly and annual quantities of each waste claimed to be excluded;
(iv) Documentation for any claim that a constituent is not present in the hazardous waste as required under paragraph (b)(6) of this section;
(v) The results of all analyses and all detection limits achieved as required under paragraph (b)(4) of this section;
(vi) If the excluded waste was generated through treatment or blending, documentation of compliance with the applicable provisions of paragraphs (a)(4) and (a)(5) of this section;
(vii) If the waste is to be shipped off-site, a certification from the burner as required under paragraph (b)(10) of this section;
(viii) The waste analysis plan and documentation of all sampling and analysis results as required by paragraph (b)(4) of this section; and
(ix) If the generator ships excluded fuel off-site for burning, the generator must retain for each shipment the following information on-site:
(A) The name and address of the facility receiving the excluded fuel for burning;
(B) The quantity of excluded fuel shipped and delivered;
(C) The date of shipment or delivery;
(D) A cross-reference to the record of excluded fuel analysis or other information used to make the determination that the excluded fuel meets the specifications as required under paragraph (b)(4) of this section; and
(E) A one-time certification by the burner as required under paragraph (b)(10) of this section.
(9)
(10)
(A) Certifying that the excluded fuel will only be burned in an industrial furnace, industrial boiler, utility boiler, or hazardous waste incinerator, as required under paragraph (b)(3) of this section;
(B) Identifying the name and address of the facility that will burn the excluded fuel; and
(C) Certifying that the state in which the burner is located is authorized to exclude wastes as excluded fuel under the provisions of this section.
(ii)
(A) Certifying that the excluded fuel will be stored under the conditions of paragraph (c)(1) of this section and burned in a boiler under the conditions of paragraph (c)(2) of this section, and that the burner will comply with the notification, reporting, and recordkeeping conditions of paragraph (c)(4) of this section;
(B) Identifying the name and address of the facility that will burn the excluded fuel; and
(C) Certifying that the state in which the burner is located is authorized to exclude wastes as excluded fuel under the provisions of this section.
(11)
(12)
(13)
(ii) Liquid and accumulated solid residues that are removed from a container or tank system after the container or tank system ceases to be operated for storage or transport of excluded fuel product are solid wastes subject to regulation as hazardous waste if the waste exhibits a characteristic of hazardous waste under §§ 261.21 through 261.24 or if the emission-comparable fuel was derived from a hazardous waste listed under §§ 261.31 through 261.33 when the exclusion was claimed.
(14)
(15)
(16) Nothing in this section preempts, overrides, or otherwise negates the provisions in CERCLA Section 103, which establish reporting obligations for releases of hazardous substances, or the Department of Transportation requirements for hazardous materials in 49 CFR parts 171 through 180.
(c)
(1)
(ii)
(iii)
(A) Section 112.2, Definitions. These definitions apply to the adopted SPCC requirements under paragraph (c)(1)(iii)(B) through (c)(1)(iii)(D) of this section.
(B) Sections 112.3(d) and 112.3(e) of this chapter, Requirement to Prepare and Implement a Spill Prevention, Control, and Countermeasure Plan.
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(C) Sections 112.5(a) and 112.5(b) of this chapter, Amendment of Spill Prevention, Control, and Countermeasures Plan by Owners or Operators.
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(D) Section 112.7 of this chapter, General Requirements for Spill Prevention, Control, and Countermeasure Plans.
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(E) Section 112.8 of this chapter, Spill Prevention, Control, and Countermeasure Plan Requirements for Onshore Facilities, except for paragraph (b) of this section (facility drainage), paragraph (c)(2) of this section (secondary containment for bulk storage containers), and paragraph (c)(11) of this section (secondary containment for mobile containers). In addition, § 112.8(d)(1) of this chapter applies to all buried piping irrespective of the installation or replacement date.
(iv)
(A) Section 264.193(b) of this chapter, which prescribes general performance standards for secondary containment systems;
(B) Section 264.193(c) of this chapter, which prescribes minimum requirements for secondary containment systems;
(C) Section 264.193(d)(1) through (3), which prescribe permissible secondary containment devices;
(D) Section 264.193(e) of this chapter, which prescribes design and operating requirements for the permissible secondary containment devices; and
(E) Section 264.193(f) of this chapter, which prescribes secondary containment requirements for ancillary equipment.
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(B) Incompatible materials must not be placed in the same tank.
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(A) Providing the name, address, and EPA identification number of the burner
(B) Certifying that the excluded fuel will be stored under the conditions of paragraph (c)(1) of this section and burned in a boiler under the conditions of paragraph (c)(2) of this section, and that the burner will comply with the notification, reporting, and recordkeeping conditions of paragraph (c)(3) of this section;
(C) Identifying the specific units that will burn the excluded fuel; and
(D) Certifying that the state in which the burner is located is authorized to exclude wastes as excluded fuel under the provisions of this section.
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(B)
(C)
(d)
Notice is hereby given pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C. 16(b)-(h), that a Complaint, proposed Final Judgment, Hold Separate and Preservation of Assets Stipulation and Order, and Competitive Impact Statement have been filed with the United States District Court for the District of Columbia in
Copies of the Complaint, proposed Final Judgment, Hold Separate and Preservation of Assets Stipulation and Order, and Competitive Impact Statement are available for inspection at the Department of Justice, Antitrust Division, 325 7th Street, NW., Suite 215, Washington, DC 20530 (202-514-2481), on the Internet at
Public comment is invited within sixty (60) days of the date of this notice. Such comments, and responses thereto, will be published in the
United States of America, Department of Justice, Antitrust Division, 325 7th Street, NW., Suite 500, Washington, DC 20530, Plaintiff, v. Monsanto Company, 800 North Lindbergh Boulevard, St. Louis, MO 63167, and Delta and Pine Land Company, 1 Cotton Row, Scott, MS 38772, Defendants
Civil Case No.:
The United States of America, acting under the direction of the Attorney General of the United States, brings this civil action to enjoin the merger of defendants Monsanto Company (“Monsanto”) and Delta and Pine Land Company (“DPL”) and allege as follows:
1. In 2006, cottonseed was planted on more than 15 million acres in the United States and generated more than $5 billion in annual revenues for United States farmers. Cotton is grown across the Southern United States from Virginia, the Carolinas, Georgia, and Florida on the East Coast to California on the West Coast.
2. Farmers grow substantially all of this important crop from cottonseed that has been enhanced through the introduction of biotechnology traits (“traited cottonseed”). Traited cottonseed results from combining cottonseed stock that has attractive growing characteristics (such as producing a high yield of cotton per acre) with performance traits foreign to cotton that are inserted through genetic engineering.
3. Monsanto is the largest producer and supplier of biotechnology traits sold in cottonseed in the United States, with over 96% of United States traited cottonseed containing Monsanto traits. Monsanto is also one of the largest sellers of traited cottonseed in the United States, primarily through its Stoneville Pedigreed Seed Company (“Stoneville”).
4. DPL is the largest producer of cottonseed in the United States. DPL is the leading seller in the MidSouth (Mississippi, Arkansas, Louisiana, Missouri, and Tennessee), where DPL sells 79% of all traited cottonseed, and the Southeast (Alabama, Georgia, Florida, South Carolina, North Carolina, and Virginia), where DPL sells 87% of all traited cottonseed.
5. In the 1980s, Monsanto partnered with DPL to introduce cottonseed containing Monsanto traits. DPL's experienced and knowledgeable cotton breeders and large collection of high-quality germplasm (the genetic material of a cottonseed that gives the plant its characteristics) provided Monsanto with an unparalleled avenue through which to commercialize and market its traits. The combination of Monsanto traits and DPL cottonseed has been highly successful, particularly in the MidSouth and Southeast, due to the performance of DPL's cottonseed and the value of Monsanto's biotechnology traits in those regions.
6. Monsanto's position as the dominant supplier of traits used in cottonseed was jeopardized in the early 2000s when DPL began to partner with other biotechnology companies. Through these partnerships, DPL's germplasm library and breeding capabilities were available to alternative trait developers, allowing them to work toward introducing new traits in DPL cottonseed that would compete with Monsanto's traits. DPL publicly stated its intent to replace Monsanto traits in its products and planned to launch products with non-Monsanto traits as early as the 2009 growing season, with additional products to follow.
7. Spurred by this competitive threat and recognizing the potential for a successful pairing of DPL's cottonseed with competing traits, Monsanto purchased Stoneville to position Monsanto to compete vigorously with DPL. Monsanto aggressively worked to develop Stoneville's germplasm and its traited cottonseed sales and also continued its efforts to develop germplasm and expand traited cottonseed sales through its Cotton States business unit.
8. The proposed merger will consolidate Monsanto's and DPL's traited cottonseed sales, eliminating competition between these firms in the sale of cottonseed. DPL and Monsanto
9. This action is filed by the United States under Section 15 of the Clayton Act, as amended, 15 U.S.C. 25, to prevent and restrain Defendants from violating Section 7 of the Clayton Act, 15 U.S.C. 18.
10. Monsanto and DPL are engaged in interstate commerce and in activities substantially affecting interstate commerce. The Court has jurisdiction over this action and the parties pursuant to Sections 15 and 16 of the Clayton Act, 15 U.S.C. 25, 26; and 28 U.S.C. 1331, 1337.
11. The Defendants have consented to personal jurisdiction and venue in this judicial district.
12. Defendant Monsanto is a Delaware corporation, with its headquarters located in St. Louis, Missouri. Monsanto is a leading global provider of agricultural products for farmers, including seeds for cotton, soybeans, and corn; traits that help farmers control insects and weeds; and crop protection chemicals such as the herbicide Roundup, a branded version of the chemical glyphosate. Monsanto had total company revenues of more than $7.3 billion in 2006.
13. Defendant DPL is a Delaware corporation, with its headquarters located in Scott, Mississippi. DPL is the largest cottonseed producer in the world. DPL's sales in the United States in 2006 exceeded $400 million.
14. Cottonseed varieties differ in their performance, including the yield, the strength and the length of the cotton fibers, and the adaptability of the cottonseed to specific weather conditions and soil types. Varieties that perform best in certain regions of the country, such as the drier areas of the Southwest (including West Texas, Kansas, and Oklahoma) do not typically perform well in other regions, such as the MidSouth and the Southeast. Farmers select cottonseed varieties that have the best performance characteristics for the area in which the cottonseed will be planted, with the primary focus on yield.
15. To be competitive, cottonseed companies must continually work on developing new and improved cottonseed varieties through their breeding programs. Cotton breeding is a costly and time-consuming process in which the cottonseed company selects lines to breed together (or “cross”), plants the cottonseed produced from that initial cross, and then selects the best plants for further crossing to create a variety with the desired characteristics. In most cases, it takes eight to ten years from the initial cross until a new cottonseed variety is ready for market.
16. The success of a cottonseed company's breeding program is dependent on many factors, the most important of which is the quantity and quality of available breeding materials, i.e. germplasm. A company with a large collection of high quality, or elite, germplasm has a competitive advantage because the company has the ability to identify the best genetic material and use it in a wide variety of possible crossing combinations, resulting in a greater likelihood of developing a successful variety.
17. DPL has the largest cotton germplasm collection, with by far the greatest track record of success in the important MidSouth and Southeast regions, and an extensive breeding program for cottonseed. It has eight research or breeding facilities in the United States and five located elsewhere in the world. It has more breeding capabilities than any competitor and over ninety years of germplasm development.
18. Historically, farmers grew cotton from conventional cottonseed that contained naturally occurring characteristics. Cotton farming with conventional cottonseed involved labor intensive and costly herbicide and insecticide spraying programs that required multiple applications at very specific times in the growing season. Failure to spray or to correctly time the applications could result in substantial crop damage.
19. In the 1980s, Monsanto developed a trait that could be inserted into cotton plants to make plants resistant to certain insects. It also developed an herbicide-tolerant trait that would make cotton plants grown from cottonseed with the trait resistant to certain herbicides sprayed to kill weeds, allowing farmers to spray herbicides less precisely without killing the young plants.
20. To gain acceptance by farmers, the traits had to be delivered in cottonseed lines that performed well in the growing area where the farmer was located. In 1988, Monsanto approached DPL to develop and commercialize cottonseed with the Monsanto insect-resistant and herbicide-tolerant traits. DPL was then, and still is, the market leader in cottonseed, with what was considered the best germplasm and the most sought-after varieties.
21. The companies proceeded with the development and commercialization process, which involved inserting the Monsanto trait into DPL germplasm, evaluating plant lines grown from that germplasm, and breeding promising candidate plants to produce varieties with desired characteristics. In 1996, DPL began to sell the first cottonseed with Monsanto's initial insect-resistant trait (marketed under the name “Bollgard”), and, the following year, it introduced a variety with Monsanto's initial herbicide-tolerant trait (marketed under the name “Roundup Ready”).
22. Farmers, particularly those in the MidSouth and Southeast, quickly adopted traited cottonseed because its use significantly lowered overall farming costs, increased yields, and reduced the risk of crop loss. Today, almost all cottonseed varieties planted in the United States are traited, and, in 2006, over 96% of the traited cottonseed sold in the United States contained traits developed by Monsanto.
23. When farmers acquire traited cottonseed, they pay a price per bag to the seed distributor, who pays the seed manufacturer for the seed, and a separate license fee (commonly referred to as the “technology fee”) to the developer of the trait. Typically, the trait developer shares a portion of the technology fee with the seed manufacturer. The technology fee can constitute as much as 80% of farmers' total costs for a bag of traited cottonseed.
24. Following Monsanto's and DPL's successful introduction oftraited cottonseed, they agreed in 1998 that Monsanto would acquire DPL. The Antitrust Division of the United States Department of Justice investigated the proposed transaction. In late 1999, while the transaction was still under review, Monsanto decided to abandon
25. Despite ensuing litigation from the companies' failed attempt to merge, DPL continued to develop and market cottonseed varieties with Monsanto's traits. DPL also commenced a strategy to replace (or “trade-out”) the Monsanto traits in DPL cottonseed with traits of other companies. DPL believed that this strategy would be profitable for DPL because competing trait developers would offer DPL a higher percentage of the technology fee for traits than would Monsanto. In DPL's suit against Monsanto for breach of the merger agreement, DPL alleged significant financial losses resulting from the delay that the failed merger caused to DPL's efforts to develop traits with companies other than Monsanto.
26. Pursuant to the trade-out strategy, DPL has worked with several other biotechnology companies, including Dow AgroSciences, DuPont, Syngenta Crop Protection AG and Bayer CropScience, to develop and commercialize cottonseed containing the traits developed by these companies that would compete with cottonseed containing Monsanto's traits. DPL is an attractive partner that is well suited to quickly introduce new trait technologies due to the strength and breadth of its germplasm base and breeding programs as well as its technical service capabilities, know-how, brand recognition and market position.
27. DPL's trait license with Monsanto also makes DPL an attractive partner for competing trait developers. Most farmers in the United States buy cottonseed containing traits that provide both herbicide tolerance and insect resistance. In the MidSouth and Southeast United States, the vast majority of farmers use both traits. DPL's trait licenses with Monsanto allow DPL to offer competing trait developers the ability to combine or “stack” their traits in DPL cottonseed along with Monsanto traits. This stacking right would allow, for example, the developer of an insect-resistant trait to bring that trait to market in cottonseed that also contains a Monsanto herbicide-tolerant trait (
28. Even with the advantages that partnering with DPL offers Monsanto's competing trait developers, the process to develop, breed and commercialize cotton varieties with traits typically takes eight to twelve years and costs over $40 million. The process often requires thousands of attempts before developing a traited cottonseed that then can be used to breed commercial varieties. In addition, extensive regulatory approvals, both in the United States and abroad, are required.
29. DPL's trait-development work with Monsanto's competitors has recently begun to show results. DPL's developmental work with Syngenta resulted in a 2004 agreement to commercialize cottonseed with Syngenta's VipCot insect-resistant traits. DPL expects to begin marketing such cottonseed as early as 2009. The DPL/Syngenta agreement provides that DPL will receive 70% of the net trait technology fees earned through sales of this product, compared with the 30% that DPL earns pursuant to its Monsanto agreement.
30. Monsanto recognized that its and DPL's “paths will continue to diverge” as DPL continues its strategy to replace Monsanto traits in DPL cottonseed with traits developed by Monsanto's competitors. Driven by the competitive threat posed by DPL's work with these other companies, Monsanto set about building its own cottonseed business.
31. In 2002, Monsanto began Cotton States, through which Monsanto obtains licenses on germplasm developed by private breeders and universities, breeds its traits into the germplasm, and out-licenses the resulting traited varieties to sellers of cottonseed for sale under their private labels.
32. In 2005, Monsanto repurchased Stoneville, the second-largest traited cottonseed company in the MidSouth and Southeast United States. Monsanto had previously owned Stoneville but sold it in 1999 before abandoning its attempt to acquire DPL. Upon reacquiring Stoneville, Monsanto immediately invested capital to improve Stoneville's competitive position.
33. Monsanto aggressively worked to strengthen its cottonseed business by, among other things, focusing on advanced breeding techniques and germplasm development and investing in breeding facilities. Monsanto predicted internally that these investments would enable Monsanto to increase its share of the cottonseed business at the expense of DPL and other companies.
34. Across regions such as the MidSouth and Southeast, growing conditions for cotton differ due to weather conditions, soil type, and varied demands for weed and insect control. Fanners demand cottonseed varieties that produce high yield for their particular growing conditions. Monsanto and DPL recognize this demand and market cottonseed varieties by region.
35. In many regions of the country, including the MidSouth and Southeast, farmers demand that cottonseed have traits to provide insect resistance and herbicide tolerance. Monsanto prices traits by region.
36. Cotton fanners consider cotton the most valuable crop for their land, and the cost of the traited cottonseed amounts to only a fraction of the total cost of growing cotton. If there were a small but significant increase in price of traited cottonseed within regions such as the MidSouth and Southeast, it is not likely that farmers would switch to other crops or switch purchases to conventional (non-traited) cottonseed or cottonseed varieties not well suited for their regions in sufficient volumes to make the price increase unprofitable. The development, commercialization, and sale of traited cottonseed constitutes a line of commerce or product market, and the MidSouth and Southeast United States are sections of the country or geographic markets, within the meaning of Section 7 of the Clayton Act.
37. DPL is the largest firm in the traited cottonseed market in the United States. It is even more dominant in the MidSouth United States market, with 79% of the traited cottonseed sales, and the Southeast United States market, with over 87% of the traited cottonseed sales.
38. Monsanto is the second-largest traited cottonseed company in the MidSouth and Southeast United States markets, with 17% of sales in the MidSouth United States market and 8% of sales in the Southeast United States market.
39. After the merger, Monsanto would account for more than 95% of sales of traited cottonseed in the MidSouth United States market and 95% of sales in the Southeast United States market.
40. Using a measure of market concentration called the Herfindahl-
41. The merger will eliminate competition between DPL and Monsanto for the development, breeding, and sale of traited cottonseed. As a result, farmers likely will have fewer choices of, and face higher prices for, traited cottonseed.
42. The merger will also eliminate DPL as a partner independent of Monsanto for developers of traits that would compete against Monsanto. DPL's current efforts to develop and commercialize cottonseed with Syngenta's VipCot insect-resistant technology, which would be competitive with Monsanto's Bollgard and more-recent Bongard II traits, will be substantially delayed or prevented. Further, the merger will likely delay if not deter efforts to develop other traits that would compete with Monsanto traits and that would provide benefits to United States cotton farmers, including other insect-resistant traits, herbicide-tolerant traits, and potentially other cottonseed traits. As a result, farmers likely will have fewer choices of, and face higher prices for, traited cottonseed.
43. Entry into the traited cottonseed business requires the assets and expertise both to breed high-performing varieties of cottonseed and to develop or access herbicide-tolerant and insect-resistant traits to breed into the cottonseed. Each of those steps requires many years and the investment of tens of millions of dollars.
44. Entry into the traited cottonseed business would not be timely, likely, or sufficient in its magnitude, character, and scope to deter or counteract an anticompetitive increase in the price of traited cottonseed by the merged Monsanto or DPL.
45. The effect of Monsanto's merger with DPL may be substantially to lessen competition in the market for the development, production, and sale of traited cottonseed in violation of Section 7 of the Clayton Act. Unless restrained, the transaction would likely have the following effects, among others:
a. Competition in the market for the development, production, and sale of traited cottonseed in the MidSouth and Southeast United States would be substantially lessened; and
b. Cotton farmers will suffer harm as a result of fewer choices and higher prices for traited cottonseed.
Plaintiff requests that this Court adjudicate and decree as follows:
1. That Monsanto's proposed merger with DPL would violate Section 7 of the Clayton Act, as amended, 15 U.S.C. 18;
2. That Monsanto and DPL be permanently enjoined from carrying out their proposed merger, or from entering into or carrying out any agreement, understanding, or plan, the effect of which would be to combine the businesses or assets of Monsanto and DPL;
3. That Plaintiff be awarded the costs of this action; and
4. Such other relief as the Court may deem just and proper.
Dated: May 31, 2007.
Respectfully submitted,
“HHI” means the Herfindahl-Hirschman Index, a commonly accepted measure of market concentration. It is calculated by squaring the market share of each firm competing in the market and then summing the resulting numbers. For example, for a market consisting of four firms with shares of 30, 30, 20, and 20 percent, the HHI is 2,600 (30
Markets in which the HHI is between 1,000 and 1,800 points are considered to be moderately concentrated, and those in which the HHI is in excess of 1,800 points are considered to be highly concentrated.
United States of America, Plaintiff, Monsanto Company and Delta and Pine Land Company, Defendants.
Whereas, Plaintiff United States of America filed its Complaint on May 31, 2007, Plaintiff and Defendants, Monsanto Company (“Monsanto”) and Delta and Pine Land Company (“DPL”), by their respective attorneys, have consented to the entry of this Final Judgment without trial or adjudication of any issue of fact or law, and without this Final Judgment constituting any evidence against or admission by any party regarding any issue of fact or law;
And whereas, Defendants agree to be bound by the provisions of this Final Judgment pending its approval by the Court;
And whereas, the essence of this Final Judgment is the prompt and certain divestiture of certain rights and assets and alterations of certain existing license terms by Defendants to assure that competition is not substantially lessened;
And whereas, Plaintiff requires Defendants to make certain divestitures and alter certain existing license terms for the purpose of remedying the loss of competition alleged in the Complaint;
And whereas, Defendants have represented to Plaintiff that the divestitures and license term alterations required below can and shall be made and that Defendants shall later raise no claim of hardship or difficulty as grounds for asking the Court to modify any of the divestiture or license alteration provisions contained below;
Now therefore, before any testimony is taken, without trial or adjudication of any issue of fact or law, and upon consent of the parties, it is
This Court has jurisdiction over the subject matter of and each of the parties to this action. The Complaint states a claim upon which relief may be granted against Defendants under Section 7 of the Clayton Act, 15 U.S.C. 18.
As used in this Final Judgment:
A. “Acquirer of the Enhanced Stoneville Assets” means the entity or entities to whom Defendant Monsanto divests the Enhanced Stoneville Assets.
B. “Cotton States” means Defendant Monsanto's cotton variety licensing business pursuant to which Defendant Monsanto licenses other cottonseed companies to produce or sell Defendant Monsanto's own cotton varieties, cotton varieties Defendant Monsanto in-licenses from other breeders, or cotton varieties Defendant Monsanto produces from such varieties.
C. “DPL” means Defendant Delta and Pine Land Company, a Delaware corporation with its headquarters in Scott, Mississippi, its successors and assigns, and its subsidiaries, divisions, groups, affiliates, interests in partnerships and joint ventures, and their directors, officers, managers, agents, and employees.
D. “DPL Acquirer” means the entity to whom Defendant Monsanto divests Defendant DPL.
E. “Monsanto” means Defendant Monsanto Company, a Delaware corporation with its headquarters in St. Louis, Missouri, its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships and joint ventures, and their directors, officers, managers, agents, and employees.
F. “Stoneville” means all assets used exclusively or primarily in, or to support, the U.S. business of Stoneville Pedigreed Seed Company, including, but not limited to the assets described in Schedule A.
G. “Enhanced Stoneville Assets” means Stoneville and the additional assets, properties, and rights listed in Schedule B.
H. “Syngenta” means Syngenta Crop Protection AG, a Swiss corporation with its headquarters in Basel, Switzerland, its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships and joint ventures, and their directors, officers, managers, agents, and employees.
I. “Vip Cot Assets” means the assets, properties, and rights listed in Schedule C.
A. This Final Judgment applies to Defendants Monsanto and DPL, as defined above, and all other persons in active concert or participation with any of them who receive actual notice of this Final Judgment by personal service or otherwise.
B. If, prior to complying with Sections IV and V of this Final Judgment, Defendants sell or otherwise dispose of all or substantially all of their assets that include the Enhanced Stoneville Assets or the VipCot Assets, they shall require, as a condition of the sale or other disposition, that the purchaser(s) agree to be bound by the provisions of this Final Judgment. Defendants need not obtain such an agreement from the acquirers of the assets divested pursuant to this Final Judgment.
A. Defendants are ordered and directed, in accordance with the terms of this Final Judgment, within ninety (90) calendar days after the filing of the Complaint in this matter, to divest the Enhanced Stoneville Assets to an acquirer acceptable to Plaintiff in Plaintiff's sole discretion. Defendants shall use their best efforts to accomplish the divestiture of the Enhanced Stoneville Assets as expeditiously as possible. Plaintiff, in its sole discretion, may grant one or more extensions of this time period, not to exceed sixty (60) calendar days in total, and shall notify the Court in each such circumstance.
B. Within two (2) business days following execution of a definitive agreement or agreements for the divestiture of the Enhanced Stoneville Assets, or the filing of this Final Judgment, whichever is later, Defendants shall notify Plaintiff in writing of the proposed divestiture. The notice shall set forth the details of the proposed divestiture, including a list of the name, address, and telephone number of each person who offered, or expressed an interest in or desire, to acquire any ownership interest in the Enhanced Stoneville Assets, together with full details of the same. Defendants need not include in this notice information about any persons previously identified in an affidavit filed in compliance with this Final Judgment as offering, or expressing an interest in or desiring, to acquire any ownership interest in the Enhanced Stoneville Assets. Defendants shall include with the notice a copy of the divestiture agreement or agreements and copies of any other agreements entered into by either or both of the Defendants and the proposed Acquirer of the Enhanced Stoneville Assets since the Complaint in this matter was filed, or up to three (3) months before the filing of the Complaint in this matter. Defendants may incorporate by reference in this notice any responsive information or documents previously provided to Plaintiff, provided that Defendants identify with specificity when the information or documents were previously provided and, if the information or documents were part of a larger submission, where in the submission the information or documents may be located.
C. Within fifteen (15) calendar days of receipt by Plaintiff of such notice, Plaintiff may request from Defendants, the proposed Acquirer of the Enhanced Stoneville Assets, or any other third party, additional information concerning the proposed divestiture, the proposed Acquirer of the Enhanced Stoneville Assets, and any other potential acquirer. Defendants shall furnish any additional information requested of Defendants within fifteen (15) calendar days of the receipt of the request, unless Defendants and Plaintiff shall otherwise agree.
D. Within fifteen (15) calendar days after receipt of the notice or within ten (10) calendar days after Plaintiff has been provided the additional information requested from Defendants, the proposed Acquirer of the Enhanced Stoneville Assets, and any third party, whichever is later, Plaintiff shall provide written notice to Defendants stating whether or not it objects to the proposed divestiture. If Plaintiff provides written notice that it does not object, the divestiture may be consummated. Absent written notice that Plaintiff does not object to the proposed Acquirer of the Enhanced Stoneville Assets or upon objection by Plaintiff, the divestiture of the Enhanced Stoneville Assets to that proposed Acquirer shall not be consummated.
E. The divestiture of the Enhanced Stoneville Assets shall be accomplished in such a way as to satisfy Plaintiff, in its sole discretion, that the Enhanced Stoneville Assets can and shall be used by the Acquirer of the Enhanced Stoneville Assets to operate a viable, ongoing business engaged in the development, production and sale of traited cottonseed. The divestiture of the Enhanced Stoneville Assets:
(1) Shall be made to an Acquirer of the Enhanced Stoneville Assets that, in Plaintiff's sole judgment, has the intent and capability (including the necessary
(2) Shall be accomplished so as to satisfy Plaintiff, in its sole discretion, that the divestiture shall not result in the substantial lessening of competition for the development, production, and sale of traited cottonseed in any geographic area; and
(3) Shall be accomplished so as to satisfy Plaintiff, in its sole discretion, that none of the terms of any agreement between an Acquirer of the Enhanced Stoneville Assets and Defendants give Defendants the ability unreasonably to raise the Acquirer's costs, to lower the Acquirer's efficiency, or otherwise to interfere in the ability of the Acquirer to compete effectively.
F. Defendants shall provide to the Acquirer of the Enhanced Stoneville Assets and Plaintiff information relating to the personnel primarily involved in the operation of Stoneville to enable the Acquirer of the Enhanced Stoneville Assets to make offers of employment. Defendants shall not interfere with any negotiations by the Acquirer of the Enhanced Stoneville Assets to employ any such personnel.
G. For a period of two (2) years from the filing of the Complaint in this matter, Defendants shall not solicit to hire, or hire, any individual primarily involved in the operation of Stoneville on the date of the filing of the Complaint in this matter who receives a substantially equivalent offer of employment from the Acquirer, unless such individual is terminated or laid off by the Acquirer, or the Acquirer agrees that Defendants may solicit and employ that individual.
H. Defendants shall not take any action that shall impede in any way the operation, use or divestiture of the Enhanced Stoneville Assets.
I. Defendants shall warrant to the Acquirer of the Enhanced Stoneville Assets that there are no material defects in the environmental, zoning or other permits pertaining to the operation of each asset that shall have a material adverse effect on the operation of the Enhanced Stoneville Assets, and that following the sale of the Enhanced Stoneville Assets, Defendants shall not undertake, directly or indirectly, any challenges to the environmental, zoning, or other permits relating to the use or operation of the Enhanced Stoneville Assets based on actions or inactions that existed prior to the date of divestiture.
A. Defendants are ordered and directed, in accordance with the terms of this Final Judgment, to offer Syngenta the VipCot Assets listed in the attached Schedule C within thirty (30) calendar days of the filing of the Complaint in this matter. The offer shall remain open for at least six (6) months. Defendants shall use their best efforts to accomplish the divestiture of the VipCot Assets as expeditiously as possible, but in any event no later than ninety (90) calendar days after the divestiture of the Enhanced Stoneville Assets or thirty (30) calendar days after Syngenta accepts the offer, whichever is latest. Plaintiff, in its sole discretion, may extend the time period for Defendants to divest the VipCot Assets to Syngenta by granting one or more extensions, not to exceed ninety (90) calendar days in total, and shall notify the Court in each such circumstance.
B. Prior to transmitting to Syngenta the offer for the assets described in the attached Schedule C, Defendants shall provide Plaintiff with copies of the offer for the approval of the Plaintiff in its sole discretion. Along with the offer, Defendants shall provide Plaintiff copies of any other agreements not previously provided to Plaintiff entered into by either or both of the Defendants and Syngenta since the Complaint in this matter was filed, or up to three (3) months before the filing of the Complaint in this matter. Within five (5) business days following receipt of the offer, Plaintiff shall provide written notice to Defendants stating whether the offer must be amended to meet the objectives of the divestiture of the VipCot Assets. Absent written notice that Plaintiff does not object to the offer, the divestiture of the VipCot Assets to Syngenta pursuant to the offer shall not proceed. Upon objection by Plaintiff, Defendants shall alter the terms of the offer to satisfy Plaintiff in its sole discretion.
C. Defendants shall permit Syngenta to have reasonable access to personnel and to any and all financial, operational, or other documents and information relating to the VipCot Assets customarily provided as part of a due diligence process.
D. Defendants shall not take any action that shall harm the VipCot Assets or impede in any way the divestiture of the VipCot Assets.
A. Defendant Monsanto agrees to offer to its licensees, within thirty (30) calendar days of the date of the sale of the Enhanced Stoneville Assets, to make the following changes to its third-party cottonseed trait and Cotton States licenses, subject to the approval of Plaintiff in its sole discretion:
1. Current Cotton Insect Resistance and Herbicide Tolerance Trait Licensing—Agreements: Defendant Monsanto shall modify its current cottonseed trait licenses to provide the licensees with the flexibility Defendant DPL currently has to develop, market or sell cottonseed containing non-Monsanto traits by removing any provisions that require or incentivize the licensee to develop, market or sell cottonseed containing only traits from Defendant Monsanto.
2. Cotton States Licenses: Defendant Monsanto shall modify its Cotton—States licenses to eliminate any provision that allows Defendant Monsanto to terminate the license if the licensee sells cottonseed containing non-Monsanto traits in brands not licensed under the Cotton States license.
B. Prior to making the offers, and no later than five (5) days after the date of sale of the Enhanced Stoneville Assets, Defendant Monsanto shall provide Plaintiff with copies of the offers for the approval of Plaintiff in its sole discretion. Within five (5) days of receipt of the offers to modify the license agreements, Plaintiff shall provide written notice to Defendant Monsanto stating whether the offers must be amended. Absent written notice that Plaintiff does not object to the offers, Defendant Monsanto may not proceed with offering the modifications to the licensees. Upon objection by Plaintiff, Defendant Monsanto shall alter the terms of the offers to satisfy Plaintiff in its sole discretion. In the event any of the licensees do not accept the offer containing the modifications described in Section VI.A. as approved by Plaintiff in its sole discretion, Defendant Monsanto shall act as though such modification has been made and shall not enforce any license provision that is the subject of any such modification.
A. If Defendants have not divested the Enhanced Stoneville Assets by the end of the time period permitted by this Final Judgment, Defendants shall notify Plaintiff of that fact in writing. Defendant Monsanto shall then divest DPL within sixty (60) days. If Defendant Monsanto has not divested Defendant DPL by the end of the sixty-day period, Defendant Monsanto shall notify Plaintiff of that fact in writing. Upon application of Plaintiff, the Court shall appoint a trustee selected by Plaintiff and approved by the Court to effect the divestiture of Defendant DPL.
B. Defendant Monsanto shall use its best efforts to assist the trustee in accomplishing the required divestiture of Defendant DPL, including its best efforts to effect all necessary regulatory approvals. The trustee and any consultants, accountants, attorneys, and other persons retained by the trustee shall have full and complete access to the personnel, books, records, and assets at the facilities to be divested, and Defendant Monsanto shall develop financial or other information relevant to the assets to be divested customarily provided in a due diligence process as the trustee may reasonably request, subject to reasonable protection for confidential commercial information. In addition, Defendant Monsanto shall:
(1) Permit prospective acquirers of Defendant DPL who have been invited to submit binding bids for Defendant DPL to have reasonable access to Defendant DPL's personnel and to make such inspection of Defendant DPL and any and all financial, operational, or other documents and other information as may be relevant to the divestiture of Defendant DPL, subject to reasonable protection for confidential commercial information;
(2) Provide the DPL Acquirer and Plaintiff information relating to the personnel of Defendant DPL to enable the DPL Acquirer to make offers of employment;
(3) Take no action to interfere with any negotiations by the DPL Acquirer to employ any Defendant DPL employee;
(4) Take no action to interfere with or to impede the trustee's accomplishment of the divestiture of Defendant DPL;
(5) Warrant to the DPL Acquirer that on the date of sale each asset shall be in the same condition as when Defendant Monsanto acquired Defendant DPL, except for the harvesting of cotton plants and selection lines in the ordinary course of business, and ordinary wear and tear of assets and facilities;
(6) Warrant to the DPL Acquirer that there are no material defects in the environmental, zoning or other permits pertaining to the operation of each asset that have arisen since Defendant Monsanto acquired Defendant DPL; and
(7) Shall not, following divestiture of Defendant DPL, undertake, directly or indirectly, any challenges to the environmental, zoning, or other permits relating to the operation of Defendant DPL, or otherwise take any action that shall impede in any way the permitting, operation, or divestiture of Defendant DPL.
C. Unless Plaintiff otherwise consents in writing, the divestiture of Defendant DPL pursuant to this Section of the Final Judgment, whether accomplished by Defendant Monsanto or a trustee, shall include the entirety of Defendant DPL, and shall be accomplished in such a way as to satisfy Plaintiff, in its sole discretion, that (a) Defendant DPL shall remain no less viable than when Defendant Monsanto acquired it, (b) the divestiture of Defendant DPL shall remedy the competitive harm alleged in the Complaint, and (c) none of the terms of any agreement between a DPL Acquirer and Defendant Monsanto give Defendant Monsanto the ability unreasonably to raise that person's costs, to lower that person's efficiency, or otherwise to interfere in the ability of that person to compete effectively.
D. The trustee shall have the power and authority to accomplish the divestiture of Defendant DPL at the earliest possible time to an acquirer acceptable to Plaintiff, in its sole discretion, at such price and on such terms as are then obtainable upon reasonable effort by the trustee, and shall have such other powers as the Court deems appropriate. Subject to Section VII.F of this Final Judgment, the trustee shall have the power and authority to hire at the cost and expense of Defendant Monsanto any investment bankers, attorneys, or other agents who are reasonably necessary in the judgment of the trustee to assist in the divestiture of Defendant DPL and who shall be solely accountable to the trustee.
E. Defendant Monsanto shall not object to a sale by the trustee on any ground other than the trustee's malfeasance. Any such objections by Defendant Monsanto must be conveyed in writing to Plaintiff and the trustee within ten (10) calendar days after the trustee has provided the notice required under this Section.
F. The trustee shall serve at the cost and expense of Defendant Monsanto, on such terms and conditions as Plaintiff approves, and shall account for all monies derived from the sale of the assets sold by the trustee and all costs and expenses so incurred. After approval by the Court of the trustee's accounting, including fees for its services and those of any professionals and agents retained by the trustee, all remaining money shall be paid to Defendant Monsanto, and the trust shall then be terminated. The compensation of the trustee and of any professionals and agents retained by the trustee shall be reasonable in light of the value of Defendant DPL and based on a fee arrangement providing the trustee with an incentive based on the price and terms of the divestiture of Defendant DPL and the speed with which it is accomplished, but timeliness is paramount.
G. After its appointment, the trustee shall file monthly reports with Plaintiff, Defendant Monsanto, and the Court setting forth the trustee's efforts to accomplish the divestiture of Defendant DPL, provided however, that to the extent such reports contain information that the trustee deems confidential, such reports shall not be filed in the public docket of the Court and Defendant Monsanto's copy of the report shall have such confidential information redacted. Such reports shall include the name, address, and telephone number of each person who, during the preceding month, made an offer to acquire, expressed an interest in acquiring, entered into negotiations to acquire, or was contacted or made an inquiry about acquiring, any interest in Defendant DPL, and shall describe in detail each contact with any such person during that period. The trustee shall maintain full records of all efforts made to divest Defendant DPL.
H. If the trustee has not accomplished such divestiture of Defendant DPL within ninety (90) calendar days after its appointment, the trustee shall file promptly with the Court a report setting forth (1) The trustee's efforts to accomplish the required divestiture of Defendant DPL; (2) the reasons, in the trustee's judgment, why the required divestiture of Defendant DPL has not been accomplished; and (3) the trustee's recommendations. To the extent such report contains information that the trustee deems confidential, such report shall not be filed in the public docket of the Court. The trustee shall at the same time furnish such report to Plaintiff. Plaintiff shall have the right to make additional recommendations consistent with the purpose of the trust. The Court shall enter thereafter such orders as it shall deem appropriate to carry out the purpose of this Final Judgment which may, if necessary, include extending this Final Judgment and the term of the trustee's appointment by a period requested by Plaintiff.
I. The trustee shall notify Plaintiff and Defendant Monsanto within two (2) business days following execution of a definitive agreement for the sale of Defendant DPL. The notice shall set forth the details of the proposed divestiture of Defendant DPL and list the name, address, and telephone number of each person not previously identified who offered or expressed an interest in or desire to acquire any ownership interest in Defendant DPL, together with full details of the same.
J. Within fifteen (15) calendar days of receipt by Plaintiff of such notice, Plaintiff may request from Defendants, the proposed DPL Acquirer, any other third party, or the trustee, additional information concerning the proposed divestiture of Defendant DPL, the proposed DPL Acquirer, and any other potential acquirer. Defendants and the trustee shall furnish any additional information requested within fifteen (15) calendar days of the receipt of the request, unless the Defendants and Plaintiff shall otherwise agree.
K. Within thirty (30) calendar days after receipt of the notice or within twenty (20) calendar days after Plaintiff has been provided the additional information requested from Defendant Monsanto, the proposed DPL Acquirer, any third party, and the trustee, whichever is later, Plaintiff shall provide written notice to Defendant Monsanto and the trustee stating whether or not it objects to the proposed divestiture of Defendant DPL. If Plaintiff provides written notice that it does not object, the sale of Defendant DPL may be consummated, subject only to Defendant Monsanto's limited right to object to the sale under Section VII.E of this Final Judgment. Absent written notice that Plaintiff does not object to the proposed DPL Acquirer or upon objection by Plaintiff, the sale of Defendant DPL shall not be consummated. Upon objection by Defendant Monsanto under Section VII.E, a sale of Defendant DPL proposed under this Section shall not be consummated unless approved by the Court.
Defendants shall not finance all or any part of any purchase made pursuant to Section IV or Section VII of this Final Judgment.
Until the divestitures required by this Final Judgment have been accomplished, Defendants shall take all steps necessary to comply with the Hold Separate and Preservation of Assets Stipulation and Order entered by this Court. Defendants shall take no action that would jeopardize the divestitures ordered by this Court.
A. Within ten (10) calendar days of the filing of the Complaint in this matter, and every thirty (30) calendar days thereafter until the divestitures have been completed under Sections IV and V, Defendants shall deliver to Plaintiff an affidavit as to the fact and manner of its compliance with Sections IV, V, and VI of this Final Judgment. Each such affidavit shall include the name, address, and telephone number of each person who, during the preceding thirty days, made an offer to acquire, expressed an interest in acquiring, entered into negotiations to acquire, or was contacted or made an inquiry about acquiring, any interest in the Enhanced Stoneville Assets, and shall describe in detail each contact with any such person during that period, including a summary of all conversations (1) Between Defendants and any Acquirer of the Enhanced Stoneville Assets, and (2) between Defendants and Syngenta with respect to the VipCot Assets. Defendants may incorporate by reference in any such affidavit any responsive information or documents previously provided to Plaintiff, provided however, that Defendants identify with specificity when the information or documents were previously provided and, if the information or documents were part of a larger submission, where in the submission the information or documents may be located. Assuming the information set forth in the affidavit is true and complete, any objection by Plaintiff to information provided by Defendants, including any limitation on information, shall be made within fourteen (14) days of receipt of such affidavit.
B. Defendants shall keep all records of all efforts made to preserve and divest the Enhanced Stoneville Assets and VipCot Assets until one year after each such divestiture has been completed.
A. For the purposes of determining or securing compliance with this Final Judgment, or of determining whether the Final Judgment should be modified or vacated, and subject to any legally recognized privilege, from time to time duly authorized representatives of the United States Department of Justice, including consultants and other persons retained by the United States, shall, upon written request of a duly authorized representative of the Assistant Attorney General in charge of the Antitrust Division, and on reasonable notice to Defendants, be permitted:
(1) Access during Defendants' office hours to inspect and copy, or at Plaintiffs option, to require Defendants to provide copies of all books, ledgers, accounts, records and documents in the possession, custody, or control of Defendants, relating to any matters contained in this Final Judgment; and
(2) To interview, either informally or on the record, Defendants' officers, employees, or agents, who may have their individual counsel present, regarding such matters. The interviews shall be subject to the reasonable convenience of the interviewee and without restraint or interference by Defendants.
B. Upon the written request of a duly authorized representative of the Assistant Attorney General in charge of the Antitrust Division, Defendants shall submit written reports or responses to written interrogatories, under oath if requested, relating to any of the matters contained in this Final Judgment as may be requested.
C. No information or documents obtained by the means provided in this Section shall be divulged by Plaintiff to any person other than an authorized representative of the executive branch of the United States, except in the course of legal proceedings to which the United States is a party (including grand jury proceedings), or for the purpose of securing compliance with this Final Judgment, or as otherwise required by law.
D. If, at the time information or documents are furnished by Defendants to Plaintiff, Defendants represent and identify in writing the material in any such information or documents to which a claim of protection may be asserted under Rule 26(c)(7) of the Federal Rules of Civil Procedure, and Defendants mark each pertinent page of such material, “Subject to claim of protection under Rule 26( c)(7) of the Federal Rules of Civil Procedure,” then Plaintiff shall give Defendants ten (10) calendar days' notice prior to divulging such material in any legal proceeding (other than a grand jury proceeding).
A. Unless such transaction is otherwise subject to the reporting and waiting period requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, 15 U.S.C. 18a (the “HSR Act”), Defendant Monsanto, without providing advance notification to Plaintiff, shall not directly or indirectly acquire (1) Voting securities, (2) all or substantially all of the cotton germplasm, or (3) substantially all of the assets relating to cottonseeds or cottonseed traits, of any company that develops and sells cottonseed in the United States, or any company that has developed, or has under development traits for commercialization in cottonseed in the United States, where such acquisition would be reportable under the HSR Act but for a failure to satisfy the thresholds of 15 U.S.C. l8a(a)(2).
B. Such notification shall be provided to Plaintiff in the same format as, and per the instructions relating to the Notification and Report Form set forth in the Appendix to Part 803 of Title 16 of the Code of Federal Regulations as amended, except that the information requested in Items 5 through 9 of the instructions must be provided only about cottonseeds or transgenic traits that shall be or could be used in cottonseeds. Notification shall be provided at least thirty (30) days prior to acquiring any such interest, and shall include, beyond what may be required by the applicable instructions, the names of the principal representatives of the parties to the agreement who negotiated the agreement, and any management or strategic plans discussing the proposed transaction. If within the thirty (30) day period after notification, representatives of Plaintiff make a written request for additional information, Defendant Monsanto shall not consummate the proposed transaction or agreement until twenty (20) days after submitting all such additional information. Early termination of the waiting periods in this paragraph may be requested and, where appropriate, granted in the same manner as is applicable under the requirements and provisions of the HSR Act and rules promulgated thereunder. This Section shall be broadly construed and any ambiguity or uncertainty regarding the filing of notice under this Section shall be resolved in favor of filing notice.
If Defendant Monsanto divests the Enhanced Stoneville Assets and the VipCot Assets, Defendant Monsanto may not reacquire any part of the Enhanced Stoneville Assets or the VipCot Assets during the term of this Final Judgment. If Defendant Monsanto divests Defendant DPL, it may not reacquire any part of Defendant DPL during the term of this Final Judgment.
This Court retains jurisdiction to enable any party to this Final Judgment to apply to this Court at any time for further orders and directions as may be necessary or appropriate to carry out or construe this Final Judgment, to modify any of its provisions, to enforce compliance, and to punish violations of its provisions.
Unless this Court grants an extension, this Final Judgment shall expire ten (10) years from the date of its entry.
Entry of this Final Judgment is in the public interest. The parties have complied with the requirements of the Antitrust Procedures and Penalties Act, 15 U.S.C. 16, including making copies available to the public of this Final Judgment, the Competitive Impact Statement, and any comments thereon and Plaintiff's responses to comments. Based upon the record before the Court, which includes the Competitive Impact Statement and any comments and response to comments filed with the Court, entry of this Final Judgment is in the public interest.
1. “Advanced Exotic Yield Lines” means the Breeding populations and proprietary Lines created by Defendant Monsanto from a cross between
2. “Backcross” means to cross a hybrid with one of its parents and then to cross the resulting progeny with the same parent Line (perhaps multiple times) in order to develop progeny with a genetic makeup that approximates the genetic make up of that parent while retaining certain desirable characteristics of the genetic makeup of the other parent of the hybrid.
3. “Breed” means to purposefully modify the Germplasm of a plant so as to alter its genetic make up, and to develop the progeny from the altered Germplasm.
4. “DPL Marker Data” means Fingerprints that Defendant Monsanto shall create for the DPL Germplasm being divested pursuant to Schedule B.2.
5. “Donor Lines” means the cotton Lines used by Defendant Monsanto to create or transmit novel cotton traits or events, and identified in Schedule F.
6. “Fingerprint” means a record of the presence or absence of genetic markers for which a Line has been tested.
7. “Germplasm” means a collection of heterozygous and homozygous cotton plants or parts thereof. For purposes of Schedules B and C of this Final Judgment, when the Defendants are required to convey Germplasm to a party, the Defendant may satisfy that obligation by conveying that Germplasm in seed form, or if necessary, in potted plant form.
8. “Introgress” means to move a gene from one cotton plant into another.
9. “Line” means a set of cottonseed or plants that share a common reasonably homogenous genotype that originate from a cross between two cotton plants.
10. “MAB Populations” means the Germplasm populations for which Defendant Monsanto has conducted significant marker analyses that are identified in Schedule E.
11. “Monsanto B.t. Gene” means a DNA molecule, or a replicate thereof, developed and out-licensed by Defendant Monsanto for use in commercial cottonseed in the United States, and which encodes a B.t. toxin that when present in cotton plants results in those plants being toxic to lepidopteran insects.
12. “Monsanto Cotton Traits” means: (1) The transgenic event denominated “Event 531” currently sold under the “Bollgard” brand; (2) the transgenic event denominated “Event 15985” currently sold under the “Bollgard II” brand; (3) the transgenic event denominated “Event 1445” currently sold under the “Roundup Ready” brand; and (4) the transgenic event denominated “Event 88913” currently sold under the “Roundup Ready Flex” brand, or any combination thereof.
13. “Monsanto Marker Library” means (1) Two collections of genetic information concerning variations in the genetic makeup of
14. “Monsanto Roundup Ready Gene” means a DNA molecule, or a replicate thereof, developed and out-licensed by Defendant Monsanto for use in commercial cottonseed in the United States, and which when present in cotton plants results in those plants exhibiting commercial tolerance to glyphosate herbicides.
15. “Null Line” shall mean a reasonably genetically homogenous Line of cotton that is selected from a cross in which one of the parents was from the Advanced Exotic Yield Lines or MAB populations and that does not contain one or more of the Monsanto Cotton Traits that was contained in the parental Advanced Exotic Yield Line or MAB population. A grant of a right to create a Null Line to the Acquirer of the Enhanced Stoneville Assets includes an obligation by Defendant Monsanto to provide the Acquirer of the Enhanced Stoneville Assets with assays, materials, and information regarding the Monsanto Cotton Trait(s) formerly in the Null Line necessary to obtain requisite regulatory
16. “Publicly Available Cotton Germplasm” means any non-Monsanto proprietary cotton Germplasm that has not been exclusively in-licensed by Defendant Monsanto.
17. “Recurrent Parent” means the parent to which successive Backcrosses are made in Backcross Breeding.
18. “Roundup Ready Flex” means the Monsanto Roundup Ready Gene denominated “Event 88913.”
19. “SNP” (or Single Nucleotide Polymorphisms) means variations at a single position in a given DNA sequence, which occur within a population of cotton plants.
20. “SSR” (or Simple Sequence Repeat) means variations in the number of repetitions of a DNA sequence.
21. “Transform” means to alter the genetic makeup of a cotton plant variety through means other than Breeding, for example, by the introduction of foreign genetic material.
1.
2.
a. Defendant Monsanto's interest in the real property at the following sites or locations:
(1) The manufacturing, storage and delinting facility at Stoneville, Mississippi;
(2) The research & development facility at Arcola, Mississippi;
(3) The research & development facility, including greenhouse and labs, at Memphis, Tennessee; and
(4) The manufacturing, storage and delinting and the Breeding and testing facilities at N. Powerline Road, Maricopa, Arizona.
b. Defendant Monsanto's interest in the leased real property at the following sites or locations:
(1) The land at Maricopa, Arizona;
(2) The AgriCenter international research facility at Memphis, Tennessee;
(3) The Memphis Redbirds Suite;
(4) The Columbus & Greenville Railway Lease;
(5) The delinting plant at Marble Hall, South Africa;
(6) The property described in the W.B. Sutton Farms Partnership Lease;
(7) The storage facility described in the Farmers Feed Storage Agreement;
(8) The storage facility described in the David Storage Company Industrial Space Lease; and
(9) The storage facility described in the Cascio Refrigerated Warehouse Agreement.
c. At the option of the Acquirer of the Enhanced Stoneville Assets, Defendant Monsanto's interest in the real property at the following sites or locations:
(1) The farm at Lubbock, Texas;
(2) The manufacturing, storage, and delinting facility at Big Spring, Texas;
(3) The research and development facility at Idalou, Texas;
(4) 7.2 acres in Idalou, Texas (leased); and
(5) 80 acres in Idalou, Texas (leased).
d. All tangible assets other than Germplasm located at each of the locations identified in a. and b. above that are exclusively or primarily used in connection with the Stoneville U.S. branded business, including:
(1) All manufacturing and agricultural equipment, tooling and fixed assets; personal property; materials; supplies; and other tangible property.
(2) All existing drawings; blueprints; designs; plans for improvements or expansion; design protocols; specifications for materials; and specifications for parts and devices.
(3) All safety procedures for the handling of materials and substances; and quality assurance and control procedures relating to the locations listed in a. and b. above or the tangible assets listed in this paragraph d.
(4) Business records relating to the Stoneville U.S. branded cottonseed business, including stock record books, minute books, direct customer or direct distributor lists; a list of names and addresses of U.S. cotton growers with Monsanto trait licenses; and other information to the extent related to the operation of the business during the past three years which is in the possession of or available to the Defendants.
e. At the option of the Acquirer of the Enhanced Stoneville Assets, all tangible assets other than Germplasm located at each of the locations identified in c. above that are exclusively or primarily used in connection with the Stoneville U.S. branded business, including:
(1) All manufacturing and agricultural equipment, tooling and fixed assets; personal property; materials; supplies; and other tangible property.
(2) All existing drawings; blueprints; designs; plans for improvements or expansion; design protocols; specifications for materials; and specifications for parts and devices.
(3) All safety procedures for the handling of materials and substances; and quality assurance and control procedures relating to the locations listed in c. above or the tangible assets listed in this paragraph e.
(4) Business records relating to the Stoneville U.S. branded cottonseed business, including stock record books, minute books, direct customer or direct distributor lists; a list of names and addresses of U.S. cotton growers with Monsanto trait licenses; and other information to the extent related to the operation of the business during the past three years which is in the possession of or available to the Defendants.
f. At the option of the Acquirer of the Enhanced Stoneville Assets, all equipment used exclusively or primarily in connection with the Stoneville branded cottonseed business stored at Monsanto sites at Leesburg, Georgia, Mt. Olive, North Carolina and Leland, Mississippi.
3.
a.
b.
(1) Exclusive rights to (a) Breeder records and/or notebooks, including pedigrees, relating to Stoneville U.S. cotton Germplasm, identities of non-public lines of Stoneville U.S. cotton Germplasm in breeding and trial results, including yield results (subject to the redaction of any data that may be included in such records relating to the identity of any non-public lines other than Stoneville U.S. cotton Germplasm), (b) existing fingerprints for Stoneville U.S. cotton Germplasm, and (c) quality control data relating to Stoneville U.S. cotton Germplasm (subject to Defendant Monsanto's right to keep under the control of its Law Department (i) one copy of such quality control data and (ii) access to the identities of any
(2) Non-exclusive rights to, and the tangible embodiments of, (i) Non-proprietary procedures, methods, techniques, know-how, specifications, processes, analyses, and protocols used in Stoneville's U.S. branded cottonseed business (such as Monsanto's procedures for the inspection, sampling and delivery of cottonseed at production facilities, procedures for analyzing job safety and complying with environmental regulations, and specifications for production-related data entry), and (ii) Monsanto's low acid delinting process.
(3) All assignable licenses, permits, and authorizations issued by any governmental organization relating to the Stoneville U.S. branded cottonseed business.
(4) All contracts to which Stoneville Pedigreed Seed Company is a party, including supply and distribution agreements.
(5) All other intangible and contractual rights used exclusively or primarily in Stoneville's U.S. branded cottonseed business not otherwise specifically addressed in b.(1 )-(4).
4.
Excluded from the assets to be divested that are listed in this Schedule A are: (1) Real property not specifically identified in Schedule A.2., and (2) software owned by or licensed to Defendant Monsanto (except that Stoneville will receive a non-exclusive license to TaqPro), and hardware used exclusively to access such software.
1.
2.
a. With respect to this DPL Germplasm, Defendant Monsanto may:
(1) Continue to sell during 2007 any existing inventories of these DPL varieties that Defendant DPL currently offers for sale in the United States;
(2) Take back an exclusive license to commercialize varieties that (i) Contain only traits out-licensed by Defendant Monsanto, and (ii) are essentially derived from these DPL varieties, or are essentially derived from a cross between any of these DPL varieties, which license may require the Acquirer of the Enhanced Stoneville Assets to seek U.S. patents for the DPL varieties listed in Table B, and may provide for enforcement of Monsanto's exclusive rights with respect to these varieties;
(3) Retain exclusive rights (i) To continue to sell these DPL varieties in countries outside the United States in which Defendant DPL currently offers the varieties for sale, but such rights shall terminate with respect to a particular country and variety if Defendant Monsanto discontinues sales of that variety in that country, and (ii) to sell 05X460, 05Y063, and 05Z629 outside of the United States;
(4) Retain sufficient quantities of cottonseed to enable it to continue its current sales of seed relating to sales made pursuant to subparagraph 3 above (provided that any such retention by Defendant Monsanto shall only be permitted to the extent it does not adversely affect the Acquirer of the Enhanced Stoneville Assets);
(5) Retain sufficient quantities of cottonseed for Breeding purposes (provided that any such retention by Defendant Monsanto shall only be permitted to the extent it does not adversely affect the Acquirer of the Enhanced Stoneville Assets), and take back a non-exclusive license to use these DPL varieties in its Breeding program;
(6) Take back a license that grants Defendant Monsanto only those rights necessary to accomplish the divestiture of the VipCot Assets described in Schedule C; and
(7) Require the Acquirer of the Enhanced Stoneville Assets to agree that for seven (7) years after the divestiture of the Enhanced Stoneville Assets it shall not commercialize a variety that is essentially derived from one of the DPL varieties listed in Table B, if that variety contains a Monsanto glyphosate tolerance trait, a Monsanto insect resistance trait, and any non-glyphosate herbicide tolerance trait commercialized in cottonseed in the United States as of the date of the filing of this Final Judgment.
b. Defendants' divestiture of the DPL varieties 00W12, 02T15, 02Z55, 03Y047, 03Y056, 03Y062, 04T048, 04W019, 04Y341, 05X460, 05Y063, 05Z629, 25105N, and DP491 to the Acquirer of the Enhanced Stoneville Assets is subject to the license to Syngenta described in Schedule C.2.
3.
4.
a. Defendants shall divest copies of all performance and other test results, phenotypic data, product descriptions, research data and Fingerprint information for those populations and Lines, excluding data regarding the presence or function of any genetic material from
b. Defendants may not assert against the Acquirer of the Enhanced Stoneville Assets any rights Defendants may have or acquire with respect to (1) The Germplasm used in the Advanced Exotic Yield Lines, and (2) any non-transgenic yield trait contained in those Lines.
c. Defendants may retain research quantities of the Advanced Exotic Yield Lines to enable them to continue their trait development research (provided that any such retention by Defendant Monsanto shall only be permitted to the extent it does not adversely affect the Acquirer of the Enhanced Stoneville Assets); and
d. Defendants may (1) Prohibit the Acquirer of the Enhanced Stoneville Assets from conveying Lines from the Advanced Exotic Yield Lines or their progeny to third parties, other than for contract production work or for distribution to growers as commercial seed, and (2) require the Acquirer of the Enhanced Stoneville Assets to seek U.S. patents and enforce Breeding and resale restrictions on any varieties that are commercialized from the Advanced Exotic Yield Lines. Defendants shall lose the ability to require these terms (4.d.1 & 2) if Defendants have not licensed to a third party a non-transgenic cotton yield trait contained in one or more of the Advanced Exotic Yield Lines within five (5) years of the date of this Final Judgment.
5.
6.
a. In connection with its divestiture of this Cotton States Germplasm, Defendant Monsanto may retain exclusive rights to Germplasm already in-licensed to or commercialized through Cotton States at the date of this Final Judgment, or Germplasm from pre-existing Breeding crosses between two Cotton States' in-licensed Lines or between one of those Lines and a public variety, except that Defendant Monsanto may only retain non-exclusive rights to the Stoneville variety designated STX0502 which has been commercialized solely through Cotton States. Defendant Monsanto may only commercialize the Stoneville variety designated STX0502 to licensees other than Defendant DPL.
7.
a. Any Publicly Available Cotton Germplasm, provided that if the Acquirer of the Enhanced Stoneville Assets does not otherwise possess the Germplasm and cannot otherwise reasonably obtain it, Defendant Monsanto must, if the Acquirer of the Enhanced Stoneville Assets requests, provide the Acquirer of the Enhanced Stoneville Assets with sufficient quantities for use in a Breeding program;
b. Exclusive rights to (1) The Donor Lines for Defendant Monsanto's commercialized transgenic traits, (2) Germplasm Transformed or Introgressed with cotton transgenic traits other than Monsanto's Cotton Traits, (3) any Germplasm containing experimental transgenic events, and (4) Germplasm used in Monsanto's non-transgenic trait research and development program, with the exception of the Advanced Exotic Yield Lines, as addressed above; and
c. Rights to any third party Germplasm held in connection with the provision of trait Introgression services to third parties.
8.
9.
a. Shall be entitled to a proportion of the net license revenue for those traits at least as great as the net license revenue Defendant DPL is entitled to under its current licenses for those traits;
b. May, subject to reasonable regulatory and stewardship conditions, Breed into and sell cottonseed containing Monsanto Cotton Traits, non-Monsanto genes not naturally occurring in cotton;
c. Shall have an option to license future Monsanto B.t. Genes on the same terms as those used in the current DPL licenses. Defendants may terminate this option at such time as the Acquirer of the Enhanced Stoneville Assets' total annual sales of cottonseed containing a non-Monsanto B.t. Gene being marketed by the Acquirer of the Enhanced Stoneville Assets as conferring lepidopteran resistance under the Stoneville and NexGen brands, exceed 60% of the Acquirer of the Enhanced Stoneville Assets' annual sales of cottonseed that is marketed as lepidopteran resistant under the Stoneville and NexGen brands; and
d. Shall have an option to license future Monsanto Roundup Ready Genes on the same terms as those used in the current DPL licenses. Defendants may terminate this option at such time as the Acquirer of the Enhanced Stoneville Assets' total annual sales of cottonseed containing a non-Monsanto glyphosate tolerance gene being marketed by the Acquirer of the Enhanced Stoneville Assets as conferring glyphosate tolerance under the Stoneville and NexGen brands, exceed 60% of the Acquirer of the Enhanced Stoneville Assets' annual sales of cottonseed that is marketed as glyphosate tolerant under the Stoneville and NexGen brands. Defendants need not grant an option to any non-glyphosate herbicide tolerance trait stacked with any such glyphosate tolerance gene.
1. All DPL Germplasm identified in Table C containing only a Syngenta trait; and, provided that Syngenta has obtained a license (identified in Section C.4. below) to the Roundup Ready Flex trait, all DPL Germplasm Lines identified in Table C containing a Syngenta trait and the Roundup Ready Flex trait. The Germplasm Lines identified in Table C shall be conveyed along with:
a. Exclusive rights to commercialize varieties developed from the traited DPL Germplasm Lines identified in Table C, provided that any varieties commercialized from this Germplasm include, in addition to any other traits, the Cry67B event, Cry69D event, Cry02A event, or the Cot102 event;
b. Exclusive rights to Breed with the traited DPL Germplasm Lines identified in Table C, provided that any varieties commercialized from such Breeding include, in addition to any other traits, either the Cry67B event, Cry69D event, Cry02A event, or the Cot102 event;
c. Reports that provide all performance and other test results, phenotypic data, product descriptions, purity information, breeding histories, pedigrees and statuses for the Germplasm that is conveyed;
d. At Syngenta's request, Fingerprint information regarding the Recurrent Parents of each of the DPL Germplasm Lines listed in Table C sufficient to allow Syngenta to reasonably perform Backcrossing with this Germplasm
e. An exclusive license to commercialize varieties that contain the Cry67B event, Cry69D event, Cry02A event, or Cot102 event that are essentially derived from the Recurrent Parent Lines identified in Table C that are not otherwise being divested pursuant to Schedule B, which license shall require Monsanto to seek U.S. patents for those Recurrent Parent Lines and provide for enforcement of Syngenta's exclusive rights with respect to those lines.
2. Breeding quantities of the Recurrent Parents of each of the DPL Germplasm Lines identified in Table C, subject to a license to Syngenta (a) Permitting use of the Recurrent Parents only for crossing or Backcrossing between a Line and its relevant Recurrent Parent; (b) requiring that the Recurrent Parent Germplasm be returned or destroyed no later than December 31, 2014; and (c) prohibiting transfer of the Recurrent Parent Germplasm to any third party other than with an exclusive license to the relevant Line derived from that Recurrent Parent, with the same limitations on use of the Recurrent Parent Germplasm.
3. A non-exclusive royalty-free license to a PCR assay and/or an ELISA assay to enable detection of Monsanto's Roundup Ready Flex trait.
4. A non-exclusive license to (a) Develop, produce, and sell cottonseed containing the Roundup Ready Flex trait under the standard commercial terms offered by Defendant Monsanto, including changes required by this Decree to the standard license, and (b) transfer such cottonseed to a third party with a commercial Roundup Ready Flex license.
5. Defendant DPL's interest in Germplasm populations Introgressed with the Cry67B event, Cry69D event, Cry02A event, and/or the Cot102 in the U.S. cotton Breeding program that Defendant DPL purchased from Syngenta pursuant to an agreement dated May 15, 2006, along with any progeny of that material.
6. Defendant Monsanto may condition the divestitures on Syngenta's acknowledgment that Defendant Monsanto is not conveying to Syngenta any rights not held by Defendant DPL prior to Defendant Monsanto's acquisition of Defendant DPL.
7. Defendants acknowledge that nothing in this Final Judgment relating to the divestiture of the VipCot Assets shall, in and of itself, modify, alter, terminate or otherwise affect any rights and obligations in any contract between Syngenta and either of the Defendants in effect as of the date of the filing of the Complaint in this matter.
United States of America, Plaintiff, v. Monsanto Company and Delta and Pine Land Company, Defendants.
Plaintiff United States of America (“United States”), pursuant to Section 2(b) of the Antitrust Procedures and Penalties Act (“APPA” or “Tunney Act”), 15 U.S.C. 16(b)-(h), files this Competitive Impact Statement relating to the proposed Final Judgment submitted for entry in this civil antitrust proceeding.
Defendants entered into an Agreement and Plan of Merger dated August 14, 2006, pursuant to which Monsanto Company (“Monsanto”) will acquire Delta and Pine Land Company (“DPL”). The United States filed a civil antitrust Complaint on May 31, 2007, seeking to enjoin the proposed acquisition. The Complaint alleges that the likely effect of this acquisition would be to substantially lessen competition in the market for the development, production, and sale of traited cottonseed—cottonseed genetically modified to contain desirable characteristics from non-cottonseed sources—in violation of Section 7 of the Clayton Act, 15 U.S.C. 18. This loss of competition would likely result in higher prices and fewer choices for cotton farmers in the MidSouth (Mississippi, Arkansas, Louisiana, Missouri, and Tennessee) and Southeast (Alabama, Georgia, Florida, North Carolina, South Carolina, and Virginia).
At the same time the Complaint was filed, the United States also filed a Hold Separate and Preservation of Assets Stipulation and Order (“Hold Separate”) and proposed Final Judgment, which are designed to eliminate the anti competitive effects of the acquisition. Under the proposed Final Judgment, which is explained more fully below, (1) Defendants must divest Stoneville Pedigreed Seed Company (“Stoneville”), certain cottonseed lines developed by DPL for the MidSouth and Southeast, and additional cotton breeding assets of Monsanto (collectively, the “Enhanced Stoneville Assets”) to an acquirer or acquirers acceptable to the United States; (2) Defendants must divest to Syngenta Crop Protection AG (“Syngenta”) forty-three DPL cottonseed lines containing Vip Cot, Syngenta's insect-resistant trait technology that DPL was developing for cottonseed (the “VipCot Assets”); and (3) Defendant Monsanto must modify its cottonseed trait licenses with seed companies to permit licensees to breed and sell, without penalty, cottonseed containing non-Monsanto traits and cottonseed containing both licensed Monsanto traits and non-Monsanto traits, and modify its Cotton States licenses to remove any provision that allows Monsanto to terminate the license if the licensee sells cottonseed containing other traits.
Until the divestiture of the Enhanced Stoneville Assets has been accomplished, the Hold Separate requires Defendants to take all steps necessary to ensure that DPL is operated as an independent, ongoing, economically viable competitive business held entirely separate, distinct and apart from Monsanto's commercial operations. The proposed Final Judgment provides that if the Enhanced Stoneville Assets are not sold within the time period prescribed in the proposed Final Judgment to an acquirer or acquirers acceptable to the United States, Monsanto will divest DPL.
The Hold Separate also requires Defendants to preserve the divestiture assets. Until the divestiture of the Enhanced Stoneville Assets, Defendants must take all steps necessary to ensure that Stoneville will be maintained and operated as an ongoing, economically viable and active competitor in the development, production, and sale of traited cottonseed. Until the divestiture of the VipCot Assets has been accomplished, Defendants must preserve the VipCot Assets and use all reasonable efforts to proceed with their
The settlement ensures the continuation of current competition in the MidSouth and Southeast between Stoneville and DPL. It also preserves Syngenta's ability to bring cottonseed with VipCot to the market with minimal delay. And, it provides trait developers a seed company independent of Monsanto offering a platform of high-quality germplasm for the development of non-Monsanto traited cottonseed for the MidSouth and Southeast, preserving the prospects for trait competition in cottonseed.
The United States and Defendants have stipulated that the proposed Final Judgment may be entered after compliance with the APPA. Entry of the proposed Final Judgment would terminate this action, except that the Court would retain jurisdiction to construe, modify, or enforce the provisions of the proposed Final Judgment and to punish violations thereof.
Defendant Monsanto is a Delaware corporation with its headquarters in St. Louis, Missouri. Monsanto is a leading global provider of agricultural products for farmers, including seeds for cotton, soybeans, and corn; in-the-seed trait technologies that protect crops against damage from insects and weeds; and crop protection chemicals such as the herbicide Roundup. Monsanto's total revenues in 2006 exceeded $7.3 billion. The vast majority of cotton grown in the U.S. contains biotech traits, and over 96% of the traited cottonseed sold domestically contains Monsanto traits. Monsanto's two groups of cottonseed traits are marketed under the brand names (a) Roundup Ready, and its successor Roundup Ready Flex, both of which make cotton resistant to harm from glyphosate-based herbicides like Monsanto's Roundup, and (b) Bollgard, and its successor Bollgard II, both of which make cotton plants toxic to lepidopteran insect pests such as the cotton bollworm. Monsanto licenses its traits to seed companies, including DPL.
Monsanto's cottonseed sales, primarily through its Stoneville subsidiary, account for approximately 16% of the traited cottonseed sold in the United States in 2006, making Monsanto one of the largest sellers of traited cottonseed in the United States. In the MidSouth and Southeast, Monsanto accounted for 17% and 8%, respectively, of all traited cottonseed sales.
Defendant DPL is a Delaware corporation with its headquarters in Scott, Mississippi. DPL is the largest supplier of traited cottonseed in the United States. In 2006, DPL accounted for approximately 56% of the traited cottonseed sold in the United States, with sales exceeding $417 million. In the MidSouth and Southeast, DPL accounted for 79% and 87%, respectively, of all traited cottonseed sales. DPL does not itself produce traits, but works with biotechnology companies to develop cottonseed traits and to breed the resulting traits into DPL germplasm (the genetic material containing the inherent qualities of cottonseed, such as yield and fiber quality).
The combination of Monsanto and DPL would create the largest provider of traited cottonseed in the United States and give the combined firm about 95% of traited cottonseed sales in the MidSouth and Southeast. The proposed transaction would also eliminate DPL as a partner independent of Monsanto for competing trait developers, thereby substantially delaying or preventing the development and introduction of cottonseed containing non-Monsanto traits. Thus, the proposed transaction would lessen competition substantially in violation of Section 7 of the Clayton Act.
Cotton is currently grown on over fifteen million acres in the United States, in seventeen states across the Southern United States from Virginia to California. The industry recognizes four distinct growing regions: the MidSouth, Southeast, Southwest (Texas, Kansas, and Oklahoma), and West (Arizona, New Mexico, and California). The cottonseed varieties grown vary by region because growing conditions, such as soil type and climate, affect seed performance. Farmers choose cottonseed varieties that perform best in their geographic area, placing the greatest emphasis on a variety's yield (
Cottonseed companies continually work on developing improved cottonseed varieties through their breeding programs. Cotton breeding is a costly and time-consuming process in which the cottonseed company selects lines to breed together (or “cross”), plants cottonseed generated by that initial cross, and then selects the best plants for further crossing to create a variety with the desired characteristics. In most cases, it takes eight to ten years from the initial cross until a new conventional cottonseed variety (
The success of a cottonseed company's breeding program is dependent on many factors, the most important of which are the quantity and quality of available breeding materials,
Monsanto and DPL partnered in the 1980s to develop and produce traited cottonseed. DPL contributed its high-quality germplasm and experienced cotton breeders; Monsanto, its insect-resistant and herbicide-tolerant traits. In 1996, DPL began to sell the first cottonseed with Monsanto's insect-resistant trait (Bollgard) and, the following year, introduced a variety with Monsanto's herbicide-tolerant trait (Roundup Ready).
Farmers quickly adopted Monsanto-traited cottonseed because its use significantly lowered fanning costs and reduced the risk of crop loss. Farming with conventional seed involved labor-intensive, costly herbicide and insecticide applications at specific times in the growing season. Farmers had to target herbicide applications only on weeds to avoid killing the cotton plants. By planting cottonseed containing an herbicide-tolerant trait, such as Roundup Ready, farmers can spray herbicide over the entire crop to kill weeds without killing the young cotton plants. Cottonseed containing an insect-resistant trait, such as Bollgard, reduces insecticide purchases and spraying. Today, almost all of the cottonseed planted in the MidSouth and Southeast, where insects and weeds pose significant problems, contains traits that provide both insect resistance and herbicide tolerance.
When farmers acquire traited cottonseed, they pay a price per bag to the seed distributor, who, in turn, pays the seed manufacturer (
Only two non-Monsanto cotton traits are currently commercialized. WideStrike is an insect-resistant trait developed by Dow AgroSciences to compete with Monsanto's Bollgard trait. WideStrike is only available in Dow's Phytogen cottonseeds, which are primarily used in California where they perform well. LibertyLink, a trait developed by Bayer CropScience to make cotton tolerant to glufosinate herbicides, competes with Monsanto's Roundup Ready glyphosate herbicide-tolerant trait. LibertyLink is only available in Bayer's FiberMax cottonseeds, which are primarily used in the Southwest where they perform well. Together, cottonseed containing WideStrike or LibertyLink accounted for less than 5% of total United States traited cottonseed sales in 2006.
After a failed attempt to merge with Monsanto in the late 1990s, DPL commenced a strategy to replace (or “trade-out”) the Monsanto traits in DPL cottonseed with traits developed by Monsanto's competitors. DPL has worked with several biotechnology companies, including Syngenta, DuPont, Bayer, and Dow, to develop cottonseed containing the traits developed by these companies that would compete with cottonseed containing Monsanto traits.
The process to develop a cotton trait and breed and commercialize cottonseed varieties with that trait typically takes eight to twelve years and costs over $100 million. The process often requires thousands of attempts before developing a traited cottonseed that can be used to breed commercial varieties. In addition, extensive regulatory approvals, both in the United States and abroad, are required.
Trait developers consider DPL an attractive partner for two reasons. First, DPL is in a strong position to introduce new trait technologies due to its extensive breeding programs, elite germplasm collection, technical service capabilities, know-how, brand recognition, and market position. Second, DPL's trait licenses with Monsanto allow DPL to offer competing trait developers the ability to combine or “stack” their traits in DPL cottonseed with Monsanto traits. This stacking right would allow, for example, the developer of an insect-resistant trait to bring that trait to market in cottonseed that also contains Monsanto's Roundup Ready (or Roundup Ready Flex) herbicide-tolerant trait. Most United States farmers choose cottonseed that contains both an insect-resistant trait and an herbicide-tolerant trait. Monsanto's trait licenses with cottonseed companies other than DPL severely restrict the ability of those companies to work with other trait developers, with some licenses prohibiting stacking of Monsanto's traits with another company's traits.
DPL's most advanced work with non-Monsanto trait developers is with Syngenta. DPL's developmental work with Syngenta resulted in a 2004 agreement to commercialize cottonseed with Syngenta's VipCot insect-resistant traits. VipCot has been incorporated into some of DPL's best germplasm, and DPL had expected, before Monsanto's proposed acquisition was announced, to begin marketing such cottonseed as early as 2009.
Facing DPL's strategy to replace Monsanto traits in DPL seed with traits developed by Monsanto's competitors, Monsanto set about building its own cottonseed business to compete vigorously against DPL. Pursuant to this strategy, Monsanto began its Cotton States program in early 2002. Through Cotton States, Monsanto obtains licenses for cotton germplasm that small seed companies, private breeders and universities have developed; improves the germplasm through selective breeding; introduces Monsanto traits; and out-licenses the resulting traited cottonseed varieties to distributors and small cottonseed companies for sale under private labels.
In 2005, Monsanto repurchased Stoneville, the second-largest traited cottonseed company in the MidSouth and Southeast. (Monsanto had previously purchased Stoneville in 1996, and sold it in 1999 shortly before abandoning its attempt to acquire DPL.) Upon reacquiring Stoneville, Monsanto immediately invested capital to improve Stoneville's competitive position. With the acquisition of Stoneville, Monsanto became the second largest seller of traited cottonseed in the important MidSouth and Southeast regions.
Monsanto aggressively worked to strengthen its cottonseed business by, among other things, focusing on advanced breeding techniques and germplasm development and investing in breeding facilities. Monsanto predicted internally that these investments would enable Monsanto to increase its share of the cottonseed business in competition with DPL.
The relevant antitrust product and geographic markets are the development, commercialization, and sale of traited cottonseed for the MidSouth and Southeast. Growing conditions for cotton differ across regions due to weather conditions, soil type, and varied demands for weed and insect control. Farmers demand cottonseed varieties that produce high yield for their particular growing conditions. Monsanto and DPL recognize this demand and market cottonseed varieties by region.
In many regions of the country, particularly the MidSouth and Southeast, farmers demand that cottonseed have traits that provide insect resistance and herbicide tolerance. In the MidSouth and Southeast, approximately 90% of traited seed purchased by farmers contains both types of traits. Monsanto prices traits by region.
Cotton is a particularly high-value crop in the MidSouth and Southeast, where over 50% of domestic cotton is grown. The cost of cottonseed amounts to only a fraction of the total cost of growing cotton. A small but significant increase in the price of traited cottonseed in the MidSouth and Southeast regions would not cause sufficient farmers to plant other crops, or switch sufficient cottonseed purchases to conventional (non-traited) cottonseed or cottonseed varieties not well suited for their regions to make the price increase unprofitable.
Monsanto's acquisition of DPL would substantially lessen competition for the development, commercialization, and sale of traited cottonseed in the MidSouth and Southeast. First, the combination would increase the merged firm's ability and incentive to raise prices and reduce choices for traited cottonseed in the MidSouth and Southeast. In the MidSouth, DPL and Stoneville account for approximately 79% and 16%, respectively, of traited cottonseed sales. In the Southeast, DPL and Stoneville account for approximately 87% and 8%, respectively, of traited cottonseed sales. After the proposed acquisition, the combined Monsanto and DPL would
Second, the merger would eliminate DPL as a partner independent of Monsanto for developers of cotton traits that would compete against Monsanto's traits. Syngenta's current efforts to develop and commercialize with DPL cottonseed with Syngenta's VipCot insect-resistant technology to compete with Monsanto's Bollgard traits would be substantially delayed or prevented, preserving Monsanto's current dominance. And, the merger would likely delay, if not deter, efforts to develop other traits that would provide benefits to United States cotton farmers, including herbicide-tolerant traits that would compete with Monsanto's Roundup Ready traits. As a result, farmers likely would have fewer choices of, and face higher prices for, traited cottonseed.
Entry into the traited cottonseed business would be difficult, time consuming, and expensive. It requires the assets and expertise both to breed high-performing varieties of cottonseed and to develop or obtain traits providing insect resistance and herbicide tolerance. For a company that has developed a trait,
The proposed Final Judgment remedies the anticompetitive effects of the acquisition alleged in the Complaint—the elimination of competition between DPL and Monsanto for the development, breeding, and sale of traited cottonseed and the elimination of DPL as a partner independent of Monsanto for developers of traits that would compete against Monsanto—by requiring Defendants to divest the Enhanced Stoneville Assets to an approved acquirer, to divest to Syngenta over forty DPL cottonseed breeding lines containing VipCot, and to make certain licensing term modifications to Monsanto's Cotton States and seed company licenses.
Taken together, these provisions will preserve existing competition in the market for traited cottonseed in the MidSouth and Southeast, will allow Syngenta to market cottonseed with VipCot with no more than minimal delay, and will ensure the continued presence of a cottonseed company independent of Monsanto with sufficient germplasm and breeding capabilities to serve as an effective platform for development of cottonseed traits in competition with Monsanto.
The proposed Final Judgment and its accompanying schedules set forth the specific assets to be divested (including certain limitations to the assets being divested), the modifications that Defendant Monsanto must make to its third-party licenses, and the other obligations of Defendants. The following describes these remedy provisions:
The Enhanced Stoneville Assets consist of Monsanto's Stoneville business, promising Monsanto cottonseed germplasm, and twenty lines of elite DPL germplasm, including a dozen of DPL's most promising developmental lines for the MidSouth and Southeast as well as Delta Pearl, the parent of DPL's highly-popular DPL555 variety. The proposed Final Judgment requires Defendants to divest the Enhanced Stoneville Assets to an acquirer acceptable to the United States in its sole discretion. The acquirer must have a credible commitment to the traited cottonseed market and have the intent and capability of competing effectively in the market. The Defendants must divest the assets in such a way as to satisfy the United States, in its sole discretion, that the assets can and will be used by the acquirer as part of a viable, ongoing business engaged in the development, production, and sale of traited cottonseed. These provisions are designed to ensure that the Enhanced Stoneville Assets will be used to preserve competition that would otherwise be lost as a result of the acquisition.
This divestiture will provide the acquirer of the Enhanced Stoneville Assets the tools it needs—including valuable germplasm from Stoneville, Monsanto and DPL—to be a viable and active competitor in the MidSouth and Southeast, restoring the traited cottonseed competition that would otherwise be lost as a result of the acquisition. The Enhanced Stoneville Assets will provide the acquirer a significant base of current and developmental varieties that would be attractive to trait developers looking to introduce traits into cottonseed, particularly cottonseed well suited to the MidSouth and Southeast. The remedy in the proposed Final Judgment will give the acquirer capabilities that exceed those of Stoneville and a foundation on which to replicate the platform for trait development and commercialization that DPL previously provided.
The Enhanced Stoneville Assets include:
Defendants will divest Monsanto's U.S. Stoneville business, including all U.S. Stoneville cotton germplasm. This divestiture will give the acquirer the benefit of Stoneville's existing presence in the MidSouth and its germplasm development pipeline, which includes approximately 35 mid-to-full- and full-season lines for potential commercialization in the MidSouth and Southeast between 2008 and 2012. The divestiture will also include Stoneville's breeding facilities, tangible assets, brand names, breeder records and other intangible assets.
The proposed Final Judgment also requires Monsanto to grant the acquirer licenses to Monsanto's current Roundup Ready and Bollgard traits on terms at least as favorable as DPL's current terms with respect to stacking rights, revenue sharing, and options for licensing future traits. This licensing requirement will provide the acquirer of Stoneville the same ability as DPL to offer other trait developers a platform upon which to stack non-Monsanto traits with Monsanto traits.
Divesting Stoneville by itself would not fully restore the lost competition between Monsanto and DPL as it would fail to capture the breadth of Monsanto's cotton breeding program that supported Monsanto's projected share growth. In addition to Monsanto's improvements to Stoneville (which included adding a breeding station and personnel), Monsanto worked on advanced breeding techniques and germplasm development to strengthen its future competitive position. The proposed Final Judgment requires Monsanto to divest the germplasm and technology related to
DPL's success is due in significant part to its large collection of high-quality cotton germplasm from which it breeds high-yielding varieties. To ensure that the acquirer will have the scale and scope necessary in the Southeast and MidSouth to be an effective and competitive platform for trait development, Defendants will divest twenty DPL conventional varieties.
Eight of the twenty varieties are in the pedigrees of many of DPL's popular current varieties in the MidSouth and Southeast. In particular, four of these varieties (AZ2099, DP491, Delta Pearl, and DP565) are the recurrent conventional parents for DPL commercial traited varieties that today account for approximately 55% of the cottonseed sold in the Southeast (where Stoneville presently holds only an 8% share of sales). Delta Pearl is the parent of the high-yielding DPL555, which is by far the dominant cottonseed variety in the Southeast.
The twelve other divested DPL varieties constitute a significant portion of DPL's breeding pipeline for the MidSouth and Southeast and represent the varieties, and breeding stock for the varieties, that DPL had chosen to bring to market over the next decade. These twelve varieties were bred at the DPL breeding stations that focus on developing germplasm well suited for the MidSouth and Southeast. Over the past four years, each of these twelve varieties has been ranked by DPL during the regular course of business as falling within DPL's top category for conventional lines based on the variety's performance characteristics, such as yield, fiber quality, and disease resistance. The superiority of these twelve lines is underscored by the fact that DPL selected them for introgression with the traits that DPL was developing with Syngenta, as well as for introgression with Monsanto's latest insect-resistant and herbicide-tolerant traits.
The proposed Final Judgment permits Defendants to retain a license to continue using these twenty lines to breed new varieties and to sell exclusively varieties that contain only Monsanto's traits. This exception to total divestiture (
The proposed Final Judgment allows Defendants to continue, for a limited period of time, to sell conventional versions of some of the divested DPL varieties currently being sold by DPL in and outside of the United States, providing for a continuity of supply of conventional cottonseed.
In merger cases where the United States seeks a divestiture remedy, it requires completion of the divestitures
In the event that Defendants do not accomplish the divestiture of the Enhanced Stoneville Assets within the time period permitted in the proposed Final Judgment, the proposed Final Judgment provides that Defendant Monsanto shall divest DPL within sixty (60) days. Requiring divestiture of the acquired company would be necessary to ensure the full restoration of competition as quickly as possible should Defendants not be able to divest the Enhanced Stoneville Assets in an acceptable manner.
If the Defendant Monsanto has not divested DPL within the time period permitted by the proposed Final Judgment, then a trustee shall be appointed by the Court upon application of the United States. The proposed Final Judgment provides that Monsanto will pay all costs and expenses of the trustee. The trustee's commission will be structured so as to provide an incentive for the trustee based on the price obtained and the speed with which the divestiture is accomplished. After the trustee's appointment becomes effective, the trustee will file monthly reports with the Court and the United States setting forth the trustee's efforts to accomplish the divestiture of DPL. At the end of ninety (90) calendar days, if the divestiture has not been accomplished, the trustee and the United States will make recommendations to the Court, which shall enter such orders as appropriate, in order to carry out the purpose of the trust, including extending the trust or the term of the trustee's appointment.
The proposed Final Judgment requires Defendants to divest to Syngenta the VipCot Assets listed in Schedule C of the proposed Final Judgment. This divestiture seeks to minimize any delay the acquisition could cause in the commercialization of cottonseed containing VipCot, Syngenta's insect-resistant trait technology that would compete against Monsanto's Bollgard family of traits. The VipCot assets include forty-three lines of DPL germplasm into which DPL has incorporated VipCot, along with performance data and other information.
The lines will be transferred to Syngenta along with certain rights to allow Syngenta, by itself or working with others, to bring these varieties to market. Syngenta will have exclusive rights to commercialize varieties developed from these lines so long as the variety has at least one of the Syngenta trait events listed in Schedule C of the proposed Final Judgment, which includes the events that form VipCot. Syngenta will also have exclusive rights to breed with the Syngenta-traited versions of these lines. To facilitate breeding, Monsanto will provide Syngenta the “recurrent parent” conventional germplasm for each of the divested lines until December 21, 2014, which will allow Syngenta to complete development of these lines and add other traits.
The proposed Final Judgment also requires Monsanto to offer Syngenta a license to Roundup Ready Flex so that Syngenta can commercialize these VipCot lines stacked with Roundup Ready Flex. Such a license will permit Syngenta to advance these lines by introgressing Roundup Ready Flex into them. It will also permit Syngenta to sell, either independently or in conjunction with an established cottonseed company with a Roundup Ready Flex license, varieties stacked with VipCot and Flex.
The VipCot divestiture to Syngenta will therefore allow Syngenta to commercialize VipCot on the same schedule as DPL's anticipated commercialization and with the same range of options regarding stacking herbicide tolerance or other traits. Defendants must use their best efforts to divest the VipCot Assets as expeditiously as possible and shall not take any action that would harm the VipCot Assets or in any way impede their divestiture.
The proposed Final Judgment requires Monsanto to modify its third-party cottonseed trait and Cotton States Lines licenses no later than ten (10) days after the date of sale of the Enhanced Stoneville Assets, subject to the approval of the United States in its sole discretion. Monsanto will modify its third-party cottonseed trait licenses to remove restrictions on the ability of licensees to develop, market, or sell cottonseed containing traits of companies other than Monsanto, or to combine the licensed Monsanto traits in cottonseed with the traits of other companies. Monsanto will also modify the Cotton States Lines licenses to eliminate any provision that allows Monsanto to terminate the license if the licensee sells cottonseed containing other traits.
These changes will give these competing cottonseed companies the ability to partner with trait developers other than Monsanto without any financial penalty and to offer traits desired by farmers. Trait developers will thereby have access to close to half of the current U.S. cottonseed market, without having to deal with the combined Monsanto/DPL. These changes will ensure that Monsanto cannot prevent trait developers from bringing competing, non-Monsanto traits to the market.
The proposed Final Judgment provides that Defendant Monsanto shall provide notice to the United States prior to acquiring any company that develops and sells cottonseed in the United States or has developed, or has under development, traits for commercialization in cottonseed in the United States, unless the transaction is otherwise subject to Hart-Scott-Rodino reporting requirements. This provision will allow the United States to assess whether any such transaction would be likely to substantially lessen competition.
Section 4 of the Clayton Act (15 U.S.C. 15) provides that any person who has been injured as a result of conduct prohibited by the antitrust laws may bring suit in federal court to recover three times the damages the person has suffered, as well as costs and reasonable attorneys' fees. Entry of the proposed Final Judgment will neither impair nor assist the bringing of any private antitrust damage action. Under the provisions of Section 5(a) of the Clayton
The United States and Defendants have stipulated that the proposed Final Judgment may be entered by the Court after compliance with the provisions of the APPA, provided that the United States has not withdrawn its consent. The APPA conditions entry upon the Court's determination that the proposed Final Judgment is in the public interest.
The APPA provides a period of at least sixty (60) days preceding the effective date of the proposed Final Judgment within which any person may submit to the United States written comments regarding the proposed Final Judgment. Any person who wishes to comment should do so within sixty (60) days of the date of publication of this Competitive Impact Statement in the
Written comments should be submitted to: Donna N. Kooperstein, Chief, Transportation, Energy & Agriculture Section, Antitrust Division, United States Department of Justice, 325 Seventh Street, NW., Suite 500, Washington, DC 20530.
The proposed Final Judgment provides that the Court retains jurisdiction over this action, and the parties may apply to the Court for any order necessary or appropriate for the modification, interpretation, or enforcement of the Final Judgment.
The United States considered, as an alternative to the proposed Final Judgment, a full trial on the merits against Defendants. The United States could have continued the litigation and sought preliminary and permanent injunctions against Monsanto's acquisition of DPL. The United States is satisfied, however, that the divestiture of assets and other relief described in the proposed Final Judgment will preserve competition in the market for the development, production, and sale of traited cottonseed. Thus, the proposed Final Judgment would achieve all or substantially all of the relief the United States would have obtained through litigation, but avoids the time, expense, and uncertainty of a full trial on the merits of the Complaint.
The APPA requires that proposed consent judgments in antitrust cases brought by the United States be subject to a sixty-day comment period, after which the Court shall determine whether entry of the proposed Final Judgment “is in the public interest.” 15 U.S.C. 16(e)(1). In making that determination, the court, in accordance with amendments to the APPA in 2004, is required to consider:
(A) The competitive impact of such judgment, including termination of alleged violations, provisions for enforcement and modification, duration of relief sought, anticipated effects of alternative remedies actually considered, whether its terms are ambiguous, and any other competitive considerations bearing upon the adequacy of such judgment that the court deems necessary to a determination of whether the consent judgment is in the public interest; and
(B) The impact of entry of such judgment upon competition in the relevant market or markets, upon the public generally and individuals alleging specific injury from the violations set forth in the complaint including consideration of the public benefit, if any, to be derived from a determination of the issues at trial.
With respect to the adequacy of the relief secured by the decree, a court may not “engage in an unrestricted evaluation of what relief would best serve the public.”
[t]he balancing of competing social and political interests affected by a proposed antitrust consent decree must be left, in the first instance, to the discretion of the Attorney General. The court's role in protecting the public interest is one of insuring that the government has not breached its duty to the public in consenting to the decree. The court is required to determine not whether a particular decree is the one that will best serve society, but whether the settlement is “
Court approval of a final judgment requires a standard more flexible and less strict than the standard required for a finding of liability. “[A] proposed decree must be approved even if it falls short of the remedy the court would impose on its own, as long as it falls
Moreover, the Court's role under the APPA is limited to reviewing the remedy in relationship to the violations that the United States has alleged in its Complaint, and does not authorize the Court to “construct [its] own hypothetical case and then evaluate the decree against that case.”
In its 2004 amendments to the Tunney Act, Congress made clear its intent to preserve the practical benefits of utilizing consent decrees in antitrust enforcement, adding the unambiguous instruction “[n]othing in this section shall be construed to require the court to conduct an evidentiary hearing or to require the court to permit anyone to intervene.” 15 U.S.C. 16(e)(2). This language codified the intent of the original 1974 statute, expressed by Senator Tunney in the legislative history: “[t]he court is nowhere compelled to go to trial or to engage in extended proceedings which might have the effect of vitiating the benefits of prompt and less costly settlement through the consent decree process.” 119 Cong. Rec. 24,598 (1973) (statement of Senator Tunney). Rather, the procedure for the public interest determination is left to the discretion of the court, with the recognition that the court's “scope of review remains sharply proscribed by precedent and the nature of Tunney Act proceedings.”
There are no determinative materials or documents within the meaning of the APPA that were considered by the United States in formulating the proposed Final Judgment.
Dated: May 31, 2007.
Respectfully submitted,
Office of Management and Budget, Executive Office of the President.
Notice of decision.
The Confidential Information Protection and Statistical Efficiency Act of 2002 (CIPSEA) can provide strong confidentiality protections for statistical information collections, such as surveys and censuses, as well as for other statistical activities, such as data analysis, modeling, and sample design, that are sponsored or conducted by Federal agencies. The Office of Management and Budget (OMB) is issuing Implementation Guidance for Title V of the E-Government Act, the Confidential Information Protection and Statistical Efficiency Act of 2002 (Pub. L. 107-347). The purpose of the CIPSEA implementation guidance is to inform agencies about the requirements for using CIPSEA and to clarify the circumstances under which CIPSEA can be used.
31 U.S.C. 1104(d); 44 U.S.C. 3504 (specifically (a)(1)(B)(iii) and (v), (e)(1), (3) and (5), and (g)(1)); Pub. L. 107-347 section 503(a), 44 U.S.C. 3501 note.
Brian Harris-Kojetin, Ph.D., Statistical and Science Policy Office, Office of Information and Regulatory Affairs, Office of Management and Budget, NEOB, Room 10201, 725 17th Street, NW., Washington, DC 20503. Telephone: 202-395-3093.
Statistics collected and published by the Federal Government constitute a significant portion of the available information about the United States' economy, population, natural resources, environment, and public and private institutions. There are more than 70 Federal agencies or organizational units that carry out statistical activities as their principal mission or in conjunction with other program missions, such as providing services or enforcing regulations. In addition to these 70 agencies, many other Federal agencies or units may collect statistical information to use for specific program needs.
Prior to the enactment of CIPSEA, a patchwork of legislative protections governed the confidentiality of data gathered for statistical purposes by the different agencies and units. Some agencies had strong statutory authority to protect the confidentiality of the data they gathered for statistical purposes, while other agencies had weak or no legislative authority to protect confidentiality. In addition, the ability of the designated statistical agencies to share information to improve the efficiency of the Federal statistical system was limited by statutory constraints affecting those agencies.
By establishing a uniform policy for all Federal statistical collections, this law will reduce public confusion, uncertainty, and concern about the treatment of confidential statistical information by different Federal agencies. By establishing consistent rational principles and processes to buttress confidentiality pledges, the guidance that implements the law will harmonize confidentiality claims and set minimum standards for safeguarding confidential statistical information. Such consistent protection of confidential statistical information will, in turn, reduce the perceived risks of more efficient working relationships among statistical agencies, relationships that can reduce both the cost and reporting burden imposed by statistical programs.
In 2003, OMB and the other members of the Interagency Council on Statistical Policy (ICSP) formed an interagency group to discuss issues that OMB and the agencies anticipated would arise in the implementation of CIPSEA. OMB was particularly interested in understanding the questions and concerns that these statistical agencies had about the new law and how it would affect their activities. OMB also sought to incorporate the best practices of these agencies for handling confidential statistical information.
An initial draft of this implementation guidance was reviewed by the ICSP members, and OMB revised the draft guidance in response to the comments that we received. Based on the use of the law by agencies over the past three years, OMB has also addressed in the guidance specific issues that have arisen, such as nonstatistical agencies' use of CIPSEA.
OMB issued proposed Implementation Guidance for Title V of the E-Government Act, Confidential Information Protection and Statistical Efficiency Act of 2002 (CIPSEA)(Pub. L. 107-347) in October 2006 (71 FR 60,772-60,773). Five public comments were received in response to OMB's request. OMB reviewed the public comments on the guidance and made some modifications in response to the comments. The complete text of the public comments and this document are available on the OMB Web site at
One commenter expressed support for the guidance and stated that “the proposed guidelines establish principles and policies that will protect the confidentiality of the data provided by respondents to federal statistical surveys” and noted that the guidance provides “reasonable approaches to protecting confidentiality, and thereby will reduce the costs and reporting burdens imposed by statistical programs.” The commenter also noted that it was “especially useful to see guidelines for statistical agency interactions with outside analysts (e.g., contractors) authorized to see the confidential data.”
One commenter believed the discussion of the identifiability of personal information in the proposed guidance was insufficient. Although the commenter noted the technical references to Statistical Policy Working Paper #22
In response to this comment, OMB has included a definition of “personally identifiable information” in footnote 21 and provided an example of indirect identification in footnote 23, as follows:
However, it is beyond the scope of this implementation guidance to provide lists of other data sources that could be used to reidentify respondents or specific risk assessment techniques agencies must employ. As the commenter noted, OMB does provide references to more technical resources that address these issues, such as Statistical Policy Working Paper #22, and a citation to the HIPAA privacy rule has been added. Federal statistical agencies are in the best position to know about the sensitivity of their confidential statistical information and to take appropriate steps to assess and mitigate the risks of reidentification. Because this area is a “moving target,” as the commenter noted, OMB, through its Federal Committee on Statistical Methodology, sponsors the Confidentiality and Data Access Committee, which facilitates the sharing and adoption of best practices and latest techniques in disclosure avoidance across Federal agencies.
One commenter noted that “subsection (b) of the Privacy Act of 1974 authorizes numerous disclosures, many of which are inappropriate for CIPSEA records. For example, disclosures for law enforcement purposes” as well as many routine uses. The commenter asked OMB to “elaborate on the intersection between CIPSEA and the Privacy Act of 1974.”
As OMB has noted in the guidance, agencies are responsible for ensuring that information protected under CIPSEA is used exclusively for statistical purposes. OMB recognizes that the Privacy Act does permit routine uses that are nonstatistical; these uses are not permitted for CIPSEA-protected information. OMB believes that the minimum standards in the guidance for safeguarding confidential information make clear that agencies need to develop appropriate policies and procedures for CIPSEA-protected information that go beyond those that exist for Privacy Act systems of records; however, we have added the following language to make this explicit in Part I.F. of the guidance:
On the other hand, if an agency pledges to use the information for only for statistical purposes, then the agency shall not use any other authorities it has available to use the information for non-statistical purposes, because those uses would be contrary to the agency's pledge. For example, if information is protected by CIPSEA and the Privacy Act, some of the routine uses permitted under the Privacy Act would no longer be allowed because they are not for statistical purposes.
One commenter cited Footnote 31 on page 11 of the proposed guidance
Commenters also had questions about other specific matters that will be addressed during implementation.
One commenter objected to agencies being restricted from using both the terms “confidential” and “statistical purposes” together if CIPSEA did not cover the collection. The commenter noted that these terms have meaning independent of CIPSEA and agencies should be able to use them as they see fit. The commenter suggested that “Rather than prohibit the use of the terms ‘confidential’ and ‘exclusively statistical purposes,’ we suggest that OMB advise agencies, as it has in prior guidance, to ensure that they do not use terms that are confusing. OMB could also prohibit the mention of CIPSEA when it is not applicable and require that agencies invoke coverage by CIPSEA only by the mention of that law directly to survey respondents.”
OMB agrees that the terms “confidential” and “statistical purposes” have meaning independent of CIPSEA; however, when used together in a pledge to respondents, they clearly meet the requirements of CIPSEA and the protection of this law. Sec. 512 of CIPSEA simply requires that the information be “acquired by an agency under a pledge of confidentiality and for exclusively statistical purposes.” The law does not require that CIPSEA be mentioned explicitly, and OMB would certainly prohibit an agency from mentioning the law if it did not apply. It would clearly be confusing to respondents for different protections to be implied by two different agencies both pledging that the information would be confidential and used for exclusively statistical purposes. Thus, it is necessary to ensure that CIPSEA protections or greater protections apply when an agency makes this pledge to respondents.
One commenter supported the shorter version of the pledge, but expressed concerns about its comprehensibility. The commenter then suggested that OMB consider developing a formal statistical confidentiality seal that would provide an identifiable marker that would tell individuals what level of protection the information they provide will receive under the law. Specifically the commenter suggested as an example that OMB consider a green-yellow-red color scheme: Green would mean respond with confidence because answers receive the highest level of legal confidentiality protection; yellow would mean respond with caution because answers receive some confidentiality protection but less than the highest level of legal protection; and red would mean no legal confidentiality protections at all.
The CIPSEA pledge was based on a pledge that was thoroughly tested; however, OMB has encouraged further cognitive testing of this pledge by agencies. OMB agrees that it would also be helpful to have more testing on a shortened version. OMB also appreciates the commenter's suggestions regarding potential “seals” that would be easy for respondents to understand and recognize, and agrees that this idea is worthy of further investigation and testing. We also agree that this will require a considerable amount of research not only to develop a recognizable seal but also to figure out appropriate ways to present it in different modes. If this research proves fruitful, OMB will consider revising this
One commenter noted that during a time of reduced funding resources the implementation requirements call for annual recertification of employees, increased physical and information security, additional record keeping requirements, and additional staff time (to ensure that appropriate confidentiality and security protocols are followed). Providing appropriate security for agency information and information systems does require resources. As with any ongoing program, agencies need to incorporate into their budgets the costs for protecting confidential information throughout the lifecycle of the statistical activities.
One commenter noted that “recent events have highlighted the particular vulnerability of laptop computers to loss and theft,” and suggested that additional information be included in the guidance about the security of laptops, PDAs, or other types of devices. OMB agrees with the comment and has modified language in the section on physical and information systems security in Part III. B, which also applies to Part IV. D of the proposed guidance referenced on page 22, so that it now reads:
Agencies are required to establish appropriate administrative and technical safeguards to ensure that the security of all media containing confidential information is protected against unauthorized disclosures and anticipated threats or hazards to their security or integrity. For example, agencies must ensure that security requirements are followed for reports, documents, printouts, information collection instruments, laptops, PDA's, zip drives, floppy disks, CD-ROMs, or any other IT devices that contain confidential information to prevent access by unauthorized persons.
One comment requested that OMB include administrative data as well as other agencies under the data sharing provisions of Subtitle B of CIPSEA to further improve efficiency. OMB notes that Subtitle B is limited in statute to the three designated statistical agencies (BLS, BEA, and Census) and applies only to business data. While OMB appreciates the potential benefits suggested in this comment, CIPSEA does not authorize any other data sharing or authorize additional agencies to share data. However, CIPSEA did not alter other existing authorities for data sharing among Federal agencies.
One commenter requested that the annual reports that agencies provide to OMB be made public and posted on agency Web sites. In the interest of transparency, agencies will now be required to post their reports on their Web sites.
Issues of privacy and confidentiality are of increasing concern to respondents to Federal government surveys. Agencies often seek to assuage these concerns by pledging to respondents that the agency will protect the information that respondents provide, and by using whatever statutory authority that the agency has to substantiate this pledge. However, many agencies do not have strong confidentiality provisions in their authorizing statutes. In this case, agencies may be able to use government-wide statutes such as the Privacy Act or exemptions under the Freedom of Information Act as the basis for a pledge to respondents, but these statutes still do not apply to many Federal surveys.
The Confidential Information Protection and Statistical Efficiency Act of 2002 (CIPSEA) is a new government-wide law that can provide strong confidentiality protections to many Federal agencies conducting statistical information collections, such as surveys and censuses as well as other statistical activities including data analysis and modeling, sample design, etc. The purpose of this guidance is to inform agencies about the requirements for using CIPSEA and clarify the circumstances under which CIPSEA can be used.
There are several key definitions and distinctions in CIPSEA regarding statistical and nonstatistical agencies, and statistical and nonstatistical purposes, that affect whether CIPSEA can be used by an agency to acquire and protect information. Below is a brief description of these major definitions and distinctions, as well as of issues related to data sharing under CIPSEA, and additional requirements for using CIPSEA that are addressed in greater detail in this guidance.
The Confidential Information Protection and Statistical Efficiency Act of 2002 (CIPSEA), Title V of the E-Government Act of 2002 (Pub. L. 107-347), has two subtitles.
Subtitle A, Confidential Information Protection, concerns confidentiality and statistical uses of information. The purposes of Subtitle A are:
1. To ensure that information supplied by individuals or organizations to an agency for statistical purposes under a pledge of confidentiality is used exclusively for statistical purposes;
2. To ensure that individuals or organizations who supply information under a pledge of confidentiality to agencies for statistical purposes will neither have that information disclosed in identifiable form to anyone not authorized by this title nor have that information used for any purpose other than a statistical purpose; and
3. To safeguard the confidentiality of individually identifiable information acquired under a pledge of confidentiality for statistical purposes by controlling access to, and uses made of, such information.
CIPSEA Subtitle A protects information that is acquired for exclusively statistical purposes under a pledge of confidentiality. This subtitle of the law applies to all Federal agencies that acquire information under these carefully prescribed conditions. The protection of information collected under this law is supported by a penalty of a Class E Felony for a knowing and willful disclosure of confidential information. This includes imprisonment for up to five years and fines up to $250,000.
CIPSEA Subtitle B promotes statistical efficiency through limited sharing of business data among three designated statistical agencies, the Bureau of the Census (Census), the Bureau of Economic Analysis (BEA), and the Bureau of Labor Statistics (BLS). The purposes of Subtitle B are:
1. To authorize the sharing of business data among Census, BEA, and BLS for exclusively statistical purposes;
2. To reduce the paperwork burdens imposed on businesses that provide requested information to the Federal Government;
3. To improve the comparability and accuracy of Federal economic statistics by allowing Census, BEA, and BLS to update sample frames, develop consistent classifications of establishments and companies into industries, improve coverage, and reconcile significant differences in data produced by the three agencies; and
4. To increase understanding of the United States economy, especially for key industry and regional statistics, to develop more accurate measures of the impact of technology on productivity growth, and to enhance the reliability of the Nation's most important economic indicators, such as the National Income and Product Accounts.
The remainder of this section of the guidance provides background information on CIPSEA and its applicability to Federal agencies. Sections II through VI provide implementation guidance on CIPSEA Subtitle A, and Section VII provides implementation guidance on Subtitle B. Section VIII covers agency reporting requirements to OMB on the implementation of CIPSEA.
There are more than 70 Federal agencies or organizational units that carry out statistical activities as their principal mission or in conjunction with other program missions, such as providing services or enforcing regulations.
Over the years, there have been numerous attempts both to shore up legal protection for the confidentiality of statistical information, and to permit some limited sharing of data for statistical purposes. Strengthening and standardizing statutory protections for the confidentiality of individually identifiable data that are collected for statistical purposes as well as enhancing the capability of Federal agencies to share information for exclusively statistical purposes have always been goals.
In 1971, the President's Commission on Federal Statistics recommended that the term
In July 1977, the Privacy Protection Study Commission stated that “no record or information * * * collected or maintained for a research or statistical purpose under Federal authority * * * may be used in individually identifiable form to make any decision or take any action directly affecting the individual to whom the record pertains * * *”
In October 1977, the President's Commission on Federal Paperwork endorsed the confidentiality and “functional separation” concepts, but applied them directly and simply to statistical programs, saying that:
• Information collected or maintained for statistical purposes must never be used for administrative or regulatory purposes or disclosed in identifiable form, except to another statistical agency with assurances that it will be used solely for statistical purposes; and
• Information collected for administrative and regulatory purposes must be made available for statistical use, with appropriate confidentiality and security safeguards, when assurances are given that the information will be used solely for statistical purposes.
The policy discussions generated by the three Commissions came together in a bipartisan outpouring of support for the Paperwork Reduction Act of 1980, which largely addressed the efficiency recommendations of the Paperwork Commission. The legislative history of that Act recognized the unfinished work of fitting the “functional separation” of statistical information into the overall scheme.
In 1993, a National Academy of Sciences panel on confidentiality and data access recommended that “Statistical records across all federal agencies should be governed by a consistent set of statutes and regulations meeting standards for the maintenance of such records, including the following features of fair statistical information practices: (a) A definition of statistical data that incorporates the principle of functional separation as defined by the Privacy Protection Study Commission, (b) a guarantee of confidentiality for data, * * * (g) legal sanctions for those who violate confidentiality requirements.”
To clarify and make consistent government policy protecting the privacy and confidentiality interests of individuals and organizations who furnish data for Federal statistical programs, OMB issued an “Order Providing for the Confidentiality of Statistical Information” in June 1997.
CIPSEA builds upon these and other efforts of the Executive and Legislative branches including H.R. 2885 (the Statistical Efficiency Act of 1999, originally offered by Representative Stephen Horn, and unanimously passed by the House of Representatives) and H.R. 2136 (the Confidential Information Protection Act, originally offered by Representative Tom Sawyer in 2001). Introducing CIPSEA, H.R. 5215, on July 25, 2002, Representative Horn indicated,
In this guidance, OMB is establishing a uniform policy for all Federal statistical collections to reduce public confusion, uncertainty, and concern about the application of the newly-enacted confidentiality requirements associated with protected statistical information acquired by different Federal agencies. By establishing consistent rational principles and
The Paperwork Reduction Act (PRA) of 1980 (as amended in 1986 and 1995) requires the Office of Information and Regulatory Affairs (OIRA) within OMB to develop policies, principles, standards, and guidelines for privacy and confidentiality generally; the integrity of confidentiality pledges; and the confidentiality of information collected for statistical purposes.
With respect to statistical policy and coordination, the PRA directs OMB to:
• Coordinate the activities of the Federal statistical system to ensure—
○ The efficiency and effectiveness of the system; and
○ The integrity, objectivity, impartiality, utility, and confidentiality of information collected for statistical purposes; * * *
• Develop and oversee the implementation of Governmentwide policies, principles, standards, and guidelines * * *
• Promote the sharing of information collected for statistical purposes consistent with privacy rights and confidentiality pledges;
In addition, Title V of the E-Government Act of 2002 authorizes the Director of the Office of Management and Budget to coordinate and oversee the confidentiality and disclosure policies established by CIPSEA. The Director is authorized to promulgate rules or provide other guidance to ensure the consistent interpretation of this title by the affected agencies.
Executive agencies as defined in 31 U.S.C. 102 or 44 U.S.C. 3502
Federal agencies collect and acquire information for a wide variety of purposes and uses, including benefit determinations, program planning and management, program evaluation, measurement of compliance with laws and regulations, and research, as well as for general purpose statistics. When acquiring information, an agency must inform the person or organization being asked to provide information whether or not it will be treated as confidential and the purpose(s) for which the information will be used.
CIPSEA protection applies to any identifiable information acquired by the agency under a pledge of confidentiality for exclusively statistical purposes. For purposes of CIPSEA, this information includes personally identifiable information
CIPSEA can apply only when an agency pledges both to protect the confidentiality of the information it acquires and to use the information only for statistical purposes. CIPSEA defines a statistical purpose to include the description, estimation, or analysis of the characteristics of groups, without identifying the individuals or organizations that comprise such groups and includes the development, implementation, or maintenance of methods, technical or administrative procedures, or information resources that support the above purposes.
A nonstatistical purpose means the use of information in identifiable form for anything other than a statistical
Agencies acquire information in different ways from a wide variety of respondents. An agency may collect information directly (
In many cases, agencies acquire information directly from respondents (including local or State governments) to a Federal survey; in other cases, agencies do not themselves directly acquire information from respondents but do so through intermediaries, such as contractors or researchers who are operating under cooperative agreements or grants at the direction of the agency. CIPSEA defines contractors and their employees, researchers, and employees of private organizations or institutions of higher learning that have a contract or agreement with a Federal agency as “agents.”
Any agency that directly acquires information from a respondent, including a local or State government, under a pledge of confidentiality for exclusively statistical purposes, can use CIPSEA to protect the information. However, if an agency is using an agent, such as a contractor, to acquire information for exclusively statistical purposes, the agency may not be able to protect the information under CIPSEA unless it is a statistical agency (see part G). In these situations, nonstatistical agencies should use their existing statutory authority to protect the confidentiality of this information.
Generally, the applicable statute with the strongest confidentiality protections for the information governs the use and disclosure of the information. CIPSEA does not restrict or diminish any other confidentiality protections or penalties for unauthorized disclosure that an agency may otherwise have for information collected for statistical purposes.
On the other hand, if an agency pledges to use the information for only statistical purposes, then the agency shall not use any other authorities it has available to use the information for non-statistical purposes, because those uses would be contrary to the agency's pledge. For example, if information is protected by CIPSEA and the Privacy Act, some of the routine uses permitted under the Privacy Act would no longer be allowed because they are not for statistical purposes.
Although any Federal agency can acquire and protect information under CIPSEA, CIPSEA provides additional authority and imposes additional requirements on statistical agencies or units. These additional provisions have implications for how and whether an agency can use CIPSEA to acquire information; these provisions are discussed in later sections of this guidance.
CIPSEA defines a statistical agency or unit as “an agency or organizational unit of the executive branch whose activities are predominantly the collection, compilation, processing, or analysis of information for statistical purposes.”
OMB shall determine whether an agency or unit can be considered a statistical agency or unit for purposes of CIPSEA.
OMB recognized 12 statistical agencies or units in its 1997 Confidentiality Order:
• Department of Agriculture
○ Economic Research Service
○ National Agricultural Statistics Service
• Department of Commerce
○ Bureau of Economic Analysis
○ Census Bureau
• Department of Education
○ National Center for Education Statistics
• Department of Energy
○ Energy Information Administration
• Department of Health and Human Services
○ National Center for Health Statistics
• Department of Justice
○ Bureau of Justice Statistics
• Department of Labor
○ Bureau of Labor Statistics
• Department of Transportation
○ Bureau of Transportation Statistics
• Department of the Treasury
○ Statistics of Income Division of the Internal Revenue Service
• National Science Foundation
○ Division of Science Resources Statistics
Since this guidance was issued in proposed form in October 2006, OMB has recognized two statistical organizational units: the Office of Applied Studies within the Substance Abuse and Mental Health Services Administration in the Department of Health and Human Services, and the Microeconomic Surveys Unit of the Board of Governors of the Federal Reserve. Other agencies or units that wish to be recognized as statistical agencies or units for purposes of CIPSEA must send a request to the Chief Statistician at OMB. The request must come from the head of the agency or unit and have the concurrence of the larger organization within which the agency or unit resides. This request should include a statement of the organizational definition of the agency or unit, its mission, statistical activities, and any nonstatistical activities, and demonstrate that its activities are predominantly statistical. Statistical activities include the collection, compilation, processing, or analysis of data for the purpose of describing the characteristics of groups or making estimates concerning the whole or relevant groups, or components within, the economy, society, or the natural environment. Statistical activities also include the development of methods or resources that support these activities, such as measurement methods, models, statistical classifications, or sampling frames. A listing of OMB recognized statistical agencies and units will be posted and maintained on OMB's Web site.
Both statistical and nonstatistical agencies can use CIPSEA to protect information they acquire directly from
The following sections II and III of this guidance describe in detail the requirements for all agencies using CIPSEA. Additional requirements for statistical agencies or units designating agents are covered in section IV. Because it is generally expected that statistical agencies or organizational units will be collecting information for exclusively statistical purposes under a pledge of confidentiality, statistical agencies or units that conduct or sponsor a collection that will not be for exclusively statistical purposes must follow additional requirements as described in section V. Additional requirements for nonstatistical agencies or units are provided in section VI.
CIPSEA provides strong protection for information obtained for exclusively statistical purposes under a pledge of confidentiality. For CIPSEA to have its intended effect of reinforcing public confidence in Federal confidentiality pledges, all Federal agencies that make the CIPSEA pledge must provide CIPSEA protection to that information. A Federal agency should not make a CIPSEA pledge unless the agency is fully committed to taking all the actions that are necessary to provide CIPSEA level protection; making the CIPSEA pledge means giving CIPSEA level protection to the collected information.
To faithfully maintain this commitment requires that agencies meet a number of minimum requirements that are described in detail in the remainder of this guidance. Specifically, agencies must:
• Inform the respondents about the confidentiality protection and use of the information (section II.);
• Collect and handle confidential information to minimize risk of disclosure, including properly training employees (section III.);
• Ensure the information is used only for statistical purposes (section III. A.);
• Review information to be disseminated to prevent identifiable information from being reasonably inferred by either direct or indirect means (section III. F.); and
• Supervise and control agents who have access to confidential information (section IV.).
Agencies are required under the PRA to:
• Publish a notice in the
• Publish a notice in the
• “Describe any assurance of confidentiality provided to respondents and the basis for the assurance in statute, regulation, or agency policy” in their PRA supporting statements submitted to OMB.
When agencies are acquiring information that will be protected under CIPSEA, they shall:
• State that the information will be protected under CIPSEA, and cite any other authority they have to protect the confidentiality of the data in their PRA supporting statements; and
• State in their
At the time of the information collection, agencies are required under the PRA to adequately inform potential respondents about the uses of the information they provide.
• The reasons the information is planned to be and/or has been collected;
• The way such information is planned to be and/or has been used to further the proper performance of the functions of the agency; and
• The nature and extent of confidentiality protection to be provided, if any.
When agencies are collecting information that they want to be protected under CIPSEA, they are required by law at the time of collection to do the following:
• Pledge to keep the data or information confidential, and
• Pledge that the information will be used for exclusively statistical purposes.
Agencies that are not protecting information under CIPSEA must ensure that the public is able to distinguish easily between pledges that reflect the protections provided by CIPSEA and those affording less protection than CIPSEA. In particular, the pledge for collections not protected to the extent afforded by CIPSEA shall not contain all the elements related to CIPSEA found in the pledges below—specifically, the pledge shall not state both that the data are confidential and that they are for exclusively statistical use (in such cases CIPSEA would apply even if not stated).
The following examples of confidentiality pledges under CIPSEA are sufficient to inform respondents of the protections afforded. Agencies shall use the following model and customize the wording in accordance with their needs. Parentheses indicate options and italics are instructions. Comparable pledge language may be substituted, but that alternative wording shall be included in the PRA supporting statements to OMB and should be cognitively tested. A complete confidentiality pledge shall be developed from the following:
The information (
The above pledge may be placed on the survey instrument (
To illustrate the actual pledge wording, an agency could implement this pledge as follows:
The information you provide will be used for statistical purposes only. In accordance with the Confidential Information Protection provisions of Title V, Subtitle A, Public Law 107-347 and other applicable Federal laws, your responses will be kept confidential and will not be disclosed in identifiable form to anyone other than employees or agents. By law, every ABC employee as well as every agent has taken an oath and is subject to a jail term of up to 5 years, a fine of up to $250,000, or both if he or she willfully discloses ANY identifiable information about you.
Agencies may choose to employ a shortened version of the pledge, such as the following, when conducting telephone surveys or in other similar circumstances as long as respondents are given access to the longer version in some other manner such as posting on the agency's Web site:
The information you provide about
Agencies whose statutory authority provides confidentiality protections more restrictive than CIPSEA for information acquired for exclusively statistical purposes under a pledge of confidentiality may use the CIPSEA pledge or their existing pledges that are similar as long as they make clear what confidentiality protections cover the information and the statutory authority for those protections. In such cases, the resemblance of an agency's pledge to the CIPSEA pledge does not imply that any provisions in CIPSEA would overrule the agency's stronger confidentiality statute. CIPSEA does not restrict or diminish any other confidentiality protections or penalties for unauthorized disclosure that an agency may otherwise have for information collected for statistical purposes, and any stronger protections would remain in effect.
These standards for safeguarding confidential information apply to information protected under CIPSEA. Federal agencies shall follow the minimum standards in this section. In addition, some best practices are provided that agencies are encouraged to adopt but are not required to implement.
The central objective of these standards is to ensure that a Federal agency that pledges confidentiality for statistical information honors that pledge. Each Federal agency remains ultimately responsible and accountable for the confidential information that the agency acquires under a CIPSEA pledge. Any inappropriate use or disclosure of CIPSEA-protected information violates the law and can undermine public trust. Therefore, there is no “acceptable” level of non-compliance with the CIPSEA pledge.
These minimum standards have been developed according to the principle of disclosure risk, which considers both the probability of an unauthorized disclosure and the expected harm from such a disclosure. These minimum standards apply to data for which the disclosure risk has been deemed relatively low by the Federal agency responsible for the information. Federal agencies shall set higher standards as the disclosure risk increases.
At a minimum, such standards shall make clear that each person having
• Determining and monitoring procedures for collection and release;
• Evaluating the reason for accessing the information and controlling access to the information; and
• Maintaining physical and information systems security.
Agencies or organizational units protecting information under CIPSEA shall incorporate the costs for protecting confidential information throughout the lifecycle of the statistical activity. This will ensure that sufficient resources are available to develop and implement procedures to ensure that:
• The confidentiality of the information is protected;
• Confidential information is used exclusively for statistical purposes;
• Access to confidential information is controlled, and only authorized persons have access to the information;
• All persons having access to confidential information understand
○ The obligations of confidentiality protection,
○ That unauthorized access to confidential information is prohibited, and
○ The penalties for unauthorized access to and unauthorized use of confidential information; and
• A person or persons are designated to oversee all procedures for handling confidential information, and that such persons are responsible for all agency confidentiality procedures, reviews, and compliance with confidentiality laws.
Each agency shall ensure the physical security and information systems security where data protected under CIPSEA are accessed and stored.
Agencies are required to establish appropriate administrative and technical safeguards to ensure the security of all media containing confidential information is protected against unauthorized disclosures and anticipated threats or hazards to their security or integrity. For example, agencies must ensure that security requirements are followed for reports, documents, printouts, information collection instruments, laptops, PDA's, zip drives, floppy disks, CD-ROMs, or any other IT devices that contain confidential information to prevent access by unauthorized persons. Agencies must also ensure that only persons authorized by the head of the statistical agency or unit are permitted access to confidential information stored in information systems.
Agencies are required to assess and secure their information and information systems in accord with the Federal Information Security Management Act (FISMA) which appears as Title III of the E-Government Act of 2002. OMB has issued guidance on implementing FISMA, and the National Institute of Standards and Technology (NIST) has issued compulsory and binding standards used to identify the level of impact and controls for maintaining the confidentiality, integrity, and availability of all information collected or maintained on behalf of an agency.
One of three security objectives for information and information systems that FISMA defines is confidentiality. The security category of an information type is determined by its potential impact on agencies should there be a breach of security, i.e., a loss of confidentiality.
Privacy Impact Assessments (PIAs) are also required of agencies developing or procuring information systems or projects that maintain or handle confidential information in identifiable form about members of the public, and agencies initiating new electronic collections of information in identifiable form.
Each agency with information protected under CIPSEA shall ensure that all individuals having access to such confidential information have a current understanding of confidentiality rules and procedures. Confidentiality training shall include at a minimum:
• An overview of information protection procedures,
• The importance of “need to know” for an authorized purpose in accessing confidential information,
• Physical and information systems security procedures, and
• The penalties for unauthorized access, use and disclosures.
Employees who have access to confidential information shall be recertified annually to ensure their understanding of confidentiality requirements.
Agencies shall establish and maintain a system of records
Prior to award, agencies shall review any contracts that involve CIPSEA protected information to ensure language is included that informs the contractor of the requirements of CIPSEA and of the contractor's obligations under the law and penalties for noncompliance (see Section IV).
For CIPSEA protected information, the agency as well as any agent accessing the information shall ensure that any dissemination of information based on confidential information is done in a manner that preserves the confidentiality of the information. To accomplish this, agencies shall:
• Review their information products prior to public release for disclosures of confidential information, and
• Apply appropriate statistical disclosure limitation (SDL) techniques
For further guidance on SDL techniques, agencies can refer to practices described in
Additional guidelines are provided below for handling confidential information protected under CIPSEA in conjunction with information not protected by CIPSEA.
When a table includes both data protected under CIPSEA and other data not protected under CIPSEA, all data shall be treated as confidential, and identifiable respondent information shall not be present in the table.
When a table includes both data protected under CIPSEA and nonconfidential data, the agency:
• Shall apply SDL techniques to ensure protection of any table cells based on information protected under CIPSEA;
• May have a table cell that reveals nonconfidential identifiable respondent information. However, the agency shall take special care to ensure that the presentation of the nonconfidential information in no way jeopardizes confidential information.
○ If the table includes any identifiable nonconfidential respondent information, the agency shall distinguish what information is protected under CIPSEA in the accompanying text or notes to the table.
○ If the table does not include any identifiable nonconfidential respondent information, there is no need to distinguish these data from those protected under CIPSEA.
• A special case exists when a table cell value reflects a combination of CIPSEA protected data and nonconfidential data (
The agency shall determine how the disclosure limitation methods used on the data affect the users and thus what information about confidentiality protection shall be included with tabular presentation.
The confidentiality provisions and limits on uses of microdata shall be completely discussed in the documentation or mentioned with a reference for details. For microdata protected under CIPSEA, SDL techniques shall be applied prior to public release.
There are two possible scenarios to consider for the dissemination of microdata in which some elements are protected under CIPSEA and other elements are not (
• If variables protected under CIPSEA are linked to other variables that are not, the most restrictive law (in terms of promising confidentiality and limiting the use of the information) shall apply. For example:
○ If an agency links data protected under CIPSEA with nonconfidential administrative data from another source and releases a linked public use microdata file, the restrictions of CIPSEA apply.
○ If an agency links data protected under CIPSEA with confidential administrative data from another source (
• If data from some respondents are protected under CIPSEA and data from other respondents are not, an agency may keep the data in separate files or combine the data sets and include a variable that tells the source for each record. Keeping the data in separate files may be the best choice because it would help highlight the difference in confidentiality provisions and limits on uses.
Statistical agencies or organizational units may under CIPSEA designate agents by contract or by entering into a special agreement to perform exclusively statistical activities that are subject to CIPSEA limitations and penalties.
Because CIPSEA has a broad definition of agents, statistical agencies and organizational units may use CIPSEA to designate a variety of individuals as agents to allow them to access confidential information for exclusively statistical purposes.
Information protected under CIPSEA must be used only for statistical purposes. When entering into contracts or special agreements with agents to acquire or access confidential information, an agency shall consider:
• The sensitivity of the confidential information,
• The risk of disclosure, and
• The resources required to maintain supervision and control of agents.
Agencies are responsible for protecting the confidentiality of their data and may establish standards beyond those in this guidance. This section thus provides the minimum requirements as well as additional guidelines for statistical agencies or units to designate agents to perform exclusively statistical activities, including data collection.
It is important to note that neither CIPSEA nor this guidance requires any statistical agency or unit to designate agents; the decision to enter into these agreements is at the discretion of the statistical agency or unit. Therefore, an agency may decline to designate agents in accordance with its authorities or practices.
Under CIPSEA, a statistical agency or unit may designate as an agent
• An employee of a private organization or a researcher affiliated with an institution of higher learning;
• Someone who is working under the authority of a government entity;
• Someone who is a self-employed researcher, a consultant, a contractor, or an employee of a contractor; or
• Someone who is a contractor or an employee of a contractor, and who is engaged by the agency to design or maintain the systems for handling or storage of data received under this title.
Statistical agencies or units designating agents must do so through contracts or other agreements that require the agent to agree in writing to comply with all provisions of law that affect information acquired by that agency.
Some statistical agencies and units receive requests from outside researchers and others who wish to obtain access to confidential data for statistical purposes as agents of the statistical agency. Most agencies that receive these kinds of requests have found it useful to first obtain a written proposal from the prospective agent. Agencies may require prospective agents to submit a proposal that includes some or all of the following in order to properly evaluate the proposed access and use of their confidential data:
• A clear and detailed description of the purpose of the access,
• The specific confidential information needed,
• How the information will be used,
• Plans for disseminating information as well as the products planned for public distribution,
• A list of persons involved in the project who will have access to the information,
• A security plan (information systems and physical security) for protecting the information [applicable only for off-site access arrangements], and
• A timeframe for access.
After an agency receives the proposal and reviews it, the agency may provide comments and may request changes or may request the prospective agent to complete a written agreement (see section IV.C).
Whether or not a prospective agent has submitted a proposal to an agency, access to confidential information shall not be granted until the agency has entered into a written agreement with the agent, and the agent has met the requirements contained in this guidance and in agency standards for accessing the data.
Prior to the enactment of CIPSEA, some statistical agencies and units had statutory authority to authorize agents to access confidential information. Agencies have developed a variety of mechanisms that balance permitting access to confidential data, while controlling that access. This area is evolving rapidly, and the following examples are included only as illustrations:
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•
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Some statistical agencies or units use contractors to acquire information and/or perform other statistical activities. Under CIPSEA, the contractor and the contractor's employees are considered agents. For any data that will be acquired by the contractor under CIPSEA, or if the contractor will have access to any confidential information protected by CIPSEA, the legally binding contract shall include the provisions shown in the Appendix.
If a statistical agency or unit provides designated agents access to confidential information protected under CIPSEA for exclusively statistical purposes, then all such access shall require a written, legally binding contract or other agreement between the agency and the responsible management level official from the institution with which the agent(s) is(are) affiliated.
Agencies have the responsibility to ensure the security of physical and information systems for on-site as well as off-site access (if applicable) to confidential information and must follow applicable OMB Guidance and NIST standards and publications.
In order to ensure the physical and information systems security of the confidential information, agencies shall conduct inspections of any off-site facility that harbors confidential information protected under CIPSEA. (If the off-site facility is another Federal statistical agency or unit, agencies may at their option conduct inspections but are not required to inspect these facilities.) These inspections shall be conducted according to the following principles:
• The inspections shall assess and document whether the protection procedures outlined in the written agreement and in the agent's security plan are being implemented.
• While an inspection of the off-site facility is encouraged prior to release of the information to the agent, it is not required. (The inspection may occur any time during the access agreement period, preferably as soon as possible.)
• Inspections shall be conducted at all off-site facilities at some time during the timeframe of access. Agencies may prioritize their selection of sites for inspections based on risk, but must still inspect all off-site facilities; however, agencies may coordinate and collaborate on inspections of off-site facilities that harbor confidential data from multiple agencies. Agencies may choose not to inform the agent of the timing of such inspections.
All persons with access to confidential information protected under CIPSEA shall participate in agency-provided confidentiality training (see section III.(C) prior to accessing the confidential information as stipulated in the written agreement (section IV.C) between the agency and the agent's organization or institution.
The agency possessing the confidential data shall certify or receive notification that each project staff member has undergone the training. Agents shall also be required to be recertified annually.
Agencies shall establish and maintain a system of records
CIPSEA defines a statistical agency or unit to be “an agency or organizational unit of the executive branch whose activities are predominantly the collection, compilation, processing, or analysis of information for statistical purposes.”
Because the public should expect that a statistical agency or unit will be collecting information for exclusively statistical purposes, CIPSEA requires a statistical agency to “clearly distinguish any data or information it collects for nonstatistical purposes (as authorized by law) and provide notice to the public, before the data or information is collected, that the data or information could be used for nonstatistical purposes.”
If a statistical agency or unit will collect information that may be subject to use for nonstatistical purposes, the statistical agency or unit shall use the notices in the
As noted in section II.A, OMB's regulations for Controlling Paperwork Burdens on the Public
• Publish a notice in the
• Publish a notice in the
• “Describe any assurance of confidentiality provided to respondents and the basis for the assurance in statute, regulation, or agency policy” in their PRA supporting statements submitted to OMB.
Both
As noted in section II.B, at the time of the information collection, agencies are required under the PRA to adequately inform potential respondents about the uses of the information they provide.
This description must include the following information related to the confidentiality of their responses:
• The reasons the information is planned to be and/or has been collected;
• The way such information is planned to be and/or has been used; and
• The nature and extent of confidentiality to be provided, if any.
The statistical agency or unit must clearly explain the confidentiality provisions, if any, for all information not protected under CIPSEA. As appropriate, the explanation shall include:
• What information will be treated as confidential and the basis (
• What information will be treated as nonconfidential;
• What information, if any, is limited to use for exclusively statistical purposes and the agency's basis (
• What information, if any, is not limited to use for exclusively statistical purposes and may be used for nonstatistical purposes; and
• Any limitations on the confidentiality provisions (
Agencies must ensure that the public is able to distinguish easily between their CIPSEA pledge and any non-CIPSEA pledge covering information
For example, a pledge for data that are legally permitted to be accessed for nonstatistical purposes may state:
The information you provide will be protected to the fullest extent allowable under (name the law). This law allows for the (name specific nonstatistical uses). Information will be protected from public disclosure by (your agency). Results from this survey will be reported publicly only in statistical summaries, so that individuals cannot be identified.
To illustrate the actual pledge wording, an agency could implement this pledge as follows:
The information you provide will be protected and will not be disclosed to the public to the extent that it satisfies the criteria for exemption under the Freedom of Information Act (FOIA), 5 U.S.C. Sec. 552, and the Trade Secrets Act, 18 U.S.C. Sec. 1905.
To ensure public understanding and avoid confusion (about whether the agency will provide CIPSEA protection to the data), the above pledges do not use the word “confidential” because use of this term could give rise to confusion.
Nonstatistical agencies seeking to acquire information that will be protected under CIPSEA can take two general approaches: (1) They can directly acquire the information themselves from respondents, or (2) they can enter into an agreement with a statistical agency to acquire the information.
As noted in Section I. G., Subtitle A of CIPSEA may be used by any Federal agency that directly acquires information from respondents for exclusively statistical purposes under a pledge of confidentiality. Nonstatistical agencies that acquire information in this manner must follow all of the requirements in sections II and III of this guidance for confidential information protected by CIPSEA.
Nonstatistical agencies or units that will not collect the information themselves directly from respondents will need to carefully consider their plans for acquiring and using information if they want to use CIPSEA to protect the information. Although nonstatistical agencies and units do acquire information directly from respondents, they frequently use contractors or other agencies to acquire information for them that is used for statistical purposes. CIPSEA did not authorize nonstatistical agencies or units to designate agents, such as contractors, university researchers, or others included within the definition of agents,
As an alternative to collecting the data directly themselves, nonstatistical agencies or units that wish to acquire information with CIPSEA protection may want to consider entering into an agreement with a Federal statistical agency or unit. Because the statistical agency or unit would be responsible for protecting all confidential information acquired under the CIPSEA pledge, carrying out these responsibilities will take resources that non-statistical agencies should be prepared to provide to the statistical agency. Statistical agencies or units may designate agents under CIPSEA, but must follow the requirements in Section IV of this guidance to do so. Employees within a nonstatistical agency or unit may serve as agents for a statistical agency or unit to perform exclusively statistical activities on confidential information and be bound by CIPSEA provided that the statistical agency or unit and the agents have followed all of the requirements given in section IV.
An agreement between the statistical agency and the nonstatistical agency could be used to make the statistical agency or unit responsible for the control of the confidential information. The statistical agency could then designate a contractor to acquire the information and perform other exclusively statistical activities. The statistical agency could also designate as agents select employees of the nonstatistical agency or unit to have access to the information for exclusively statistical purposes. As noted earlier, all requirements in sections II, III, and IV would have to be met; and, therefore, all agents would be subject to penalties under CIPSEA for any disclosure.
Subtitle B, Statistical Efficiency, provides only for the sharing of business data for exclusively statistical purposes and provides for that sharing only among three statistical agencies designated in Subtitle B. Subtitle B of CIPSEA does not authorize the sharing of confidential business data among any Federal agencies other than the three designated statistical agencies, nor does it authorize any sharing of demographic or other types of data among any Federal agencies.
The following brief guidance in this section applies to the three designated statistical agencies sharing business data. These three agencies are currently working to implement the data sharing provisions of CIPSEA. OMB is working closely with them and may issue additional guidance to these three agencies as needed to implement the data sharing provisions of CIPSEA.
The three designated statistical agencies permitted by Subtitle B to share business data for exclusively statistical purposes are the Bureau of the Census, the Bureau of Economic Analysis, and the Bureau of Labor Statistics.
Prior to sharing any business data under CIPSEA, the designated statistical agencies shall inform respondents about their intentions to share the business data. If, prior to collection, the designated agencies anticipate that they will share business data, the agencies shall:
• Include in their
• Also include in their CIPSEA confidentiality pledges notification that the data may be shared with designated statistical agencies.
When a designated statistical agency plans to share data that was collected under a legal requirement to supply the information without notice of the intent to share that information with one or more designated statistical agencies, the agency shall publish a notice of the proposed data sharing activity in the
Designated statistical agencies shall enter into a written agreement before sharing any business data. The written agreement shall specify:
• The business data to be shared;
• The statistical purposes for which the business data are to be used;
• The officers, employees, and agents authorized to examine the business data to be shared; and
• Appropriate security procedures to safeguard the confidentiality of the business data.
A copy of the written agreement shall be provided to OMB ten days prior to execution.
To coordinate and oversee the confidentiality and disclosure policies established under CIPSEA, the Office of Management and Budget is authorized under CIPSEA to require reports and other information regarding the implementation of this legislation by Federal agencies.
The initial report to OMB shall cover any collections since the enactment of the legislation in December 2002 through December 2006, and subsequent reports shall cover a calendar year. Agencies shall submit their initial reports to OMB by May 30, 2007. Subsequent reports shall be submitted annually to OMB by April 30th of each year. Agencies shall also post copies of this report on their Web sites.
Agencies are authorized to promulgate rules to implement CIPSEA.
The following information shall be included in the contract or written agreement:
• The identity and affiliation of both the legally responsible agent (e.g., contractor or requestor seeking access to confidential data) and agency official signing the agreement;
• Whether the agent will be acquiring confidential information on behalf of the agency or only accessing confidential information the agency possesses;
• A clear and detailed description of the purpose of the access;
• The specific confidential information needed;
• How the information will be used;
• Any plans for disseminating information as well as the products planned for public distribution;
• Legally binding signature lines for the agency, and the responsible management level official from the institution with which the agent(s) is (are) affiliated. When the agent is operating independently for these purposes and is unaffiliated with an institution, the agent will sign;
• The legal authority under which the information was collected or acquired;
• The legal authority from CIPSEA and other laws for providing the agent the ability to acquire or to access the information;
• Penalties for violating confidentiality or unauthorized use of the information;
• The timeframe for access;
• A requirement that the agent provide and update as necessary a list of persons involved in the project who will have access to the information;
• The agent's responsibility to notify agency when
○ The agent no longer needs the information,
○ The agent plans a change in site access, and/or
○ The project purpose changes (agency approval must be obtained first);
• Confidentiality training requirement for all persons who have access to confidential information;
• The requirement that each person with access to confidential information sign a non-disclosure form that signifies an understanding of and agreement to the terms of access and agreement to comply with CIPSEA and any other applicable laws (see below for options on where to include this information);
• The requirement that the agent submit any project information products to the agency for disclosure review (agencies may also include or reference reporting requirements or standards);
• For off-site access arrangements
○ A security plan (information systems and physical security) for protecting the information,
○ Procedures regarding the return or destruction of information when access is no longer necessary (may precede project's end), and
○ The requirement that the agent allows the agency to carry out a physical and IT security inspection of the agent's workplace;
• Conditions requiring modification of the agreement;
• Termination clause for the agreement;
• Listing of contact persons for the agency and the responsible management level official from the institution with which the agent is affiliated. (When the agent is operating independently and is unaffiliated with an institution, the agent will designate a contact person.); and
• As applicable, information on funding of project work, including any between the agency, agent(s), and/or agents' institution.
The following information may be included in the body of the agreement, added to the agreement as appendices, or made part of the agency's official files for the actual agreement:
• Copy of the agency-approved proposal (if required);
• Copies of all laws cited in the agreement;
• The list of persons with access to confidential information;
• Certification that all persons who have access to confidential information have completed confidentiality training;
• Signed non-disclosure forms for all persons with access to confidential information; and
• For each person with data access, a copy of the background certification supporting such access—details to be determined by agency (options could include fingerprinting, a sworn affidavit of nondisclosure, work history checks, etc.).
Agencies may also include additional requirements in their written agreements. Examples of written agreements used by some agencies that conform to the above requirements will be available on the OMB Web site.