Agricultural Marketing Service
Animal and Plant Health Inspection Service
Food and Nutrition Service
Forest Service
Rural Business-Cooperative Service
Rural Housing Service
Rural Utilities Service
International Trade Administration
National Oceanic and Atmospheric Administration
Federal Energy Regulatory Commission
Western Area Power Administration
Management and Budget Office
Agency for Healthcare Research and Quality
Children and Families Administration
Food and Drug Administration
National Institutes of Health
Federal Emergency Management Agency
Fish and Wildlife Service
Land Management Bureau
National Park Service
Employment Standards Administration
Mine Safety and Health Administration
Occupational Safety and Health Administration
Copyright Royalty Board, Library of Congress
Management and Budget Office
Federal Aviation Administration
Federal Highway Administration
Federal Transit Administration
National Highway Traffic Safety Administration
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.
Department of Homeland Security.
Final rule.
The Department of Homeland Security is issuing a final rule exempting from certain provisions of the Privacy Act a revised and updated Privacy Act system of records maintained by the Office of Investigations in the Office of the Inspector General. The system of records is the “Investigative Data Management System.”
Richard N. Reback, Department of Homeland Security, Office of Inspector General/STOP 2600, 245 Murray Drive, SW., Building 410, Washington, DC 20528, by telephone (202) 254-4100 or facsimile (202) 254-4285; or Hugo Teufel III, (703) 235-0780, Chief Privacy Officer, U.S. Department of Homeland Security, Washington, DC 20528; e-mail
On November 9, 2005, the Department of Homeland Security (DHS) published a notice of proposed rulemaking (70 FR 67931), to exempt a Privacy Act system of records maintained by the Office of Investigations in the Office of the Inspector General (OIG) from certain provisions of the Privacy Act. The system of records is the DHS OIG Investigations Data Management System.
No comments were received on the proposed rulemaking. Accordingly, the Department is adopting the proposed rule as final.
Pursuant to the requirements of the Regulatory Flexibility Act, 5 U.S.C. 601-612, DHS certifies that these regulations will not significantly affect a substantial number of small entities. The final rule imposes no duties or obligations on small entities. Further, in accordance with the provisions of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501, DHS has determined that this final rule would not impose new record keeping, application, reporting, or other types of information collection requirements.
Freedom of information, Privacy.
Pub. L. 107-296, 116 Stat. 2135, 6 U.S.C. 101 et seq.; 5 U.S.C. 301. Subpart A also issued under 5 U.S.C. 552. Subpart B also issued under 5 U.S.C. 552a.
5. DHS-OIG-2005-002, the Office of Inspector General Investigative Records System includes both paper investigative files and the “Investigation Data Management System” (IDMS)—an electronic case management and tracking information system, which also generates reports. The Investigative Records System consists of records and information collected and maintained to receive and process allegations of violations of criminal, civil, and administrative laws and regulations relating to DHS programs, operations, and employees, as well as contractors and other individuals and entities associated with the DHS. The system allows the DHS Office of Inspector General to monitor case assignments, disposition, status, and results; manage investigations and information provided during the course of such investigations; track actions taken by management regarding misconduct; track legal actions taken following referrals to the United States Department of Justice for prosecution or litigation; provide information relating to any adverse action or other proceeding that may occur as a result of the findings of an investigation; retrieve investigation results; provide a system for creating and reporting statistical information; and to provide a system to track Office of Inspector General investigators' firearms qualification records and property records. Pursuant to exemptions 5 U.S.C. 552a(j)(2) of the Privacy Act, portions of this system are exempt from 5 U.S.C. 552a(c)(3) and (4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(5) and (e)(8); (f); and (g). Pursuant to 5 U.S.C. 552a (k)(1), (k)(2) and (k)(5), this system is exempt from the following provisions of the Privacy Act, subject to the limitations set forth in those subsections: 5 U.S.C. 552a (c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), and (f). Exemptions from these particular subsections are justified, on a case-by-case basis to be determined at the time a request is made, for the following reasons:
(a) From subsection (c)(3) and (c)(4) (Accounting for Disclosures) because release of the accounting of disclosures could alert the subject of an investigation of an actual or potential criminal, civil, or regulatory violation, to the existence of the investigation; and reveal investigative interest on the part of DHS as well as the recipient agency. Disclosure of the accounting would therefore present a serious impediment to law enforcement efforts and/or efforts to preserve national security. Disclosure of the accounting would also permit the individual who is the subject of a record to impede the investigation, tamper with witnesses or evidence, and avoid detection or apprehension, which would undermine the entire investigative process.
(b) From subsection (d) (Access to Records) because access to the records contained in this system of records could inform the subject of an investigation of an actual or potential criminal, civil, or regulatory violation, to the existence of the investigation, and reveal investigative interest on the part of DHS or another agency. Access to the records could permit the individual who is the subject of a record to impede the investigation, tamper with witnesses or evidence, and avoid detection or apprehension. Amendment of the records could interfere with ongoing investigations and law enforcement activities and would impose an impossible administrative burden by requiring investigations to be continuously reinvestigated. In addition, permitting access and amendment to such information could disclose security-sensitive information that could be detrimental to homeland security.
(c) From subsection (e)(1) (Relevancy and Necessity of Information) because in the course of investigations into potential violations of federal law, the accuracy of information obtained or introduced occasionally may be unclear or the information may not be strictly relevant or
(d) From subsection (e)(2) (Collection of Information from Individuals) because requiring that information be collected from the subject of an investigation would alert the subject as to the nature or existence of an investigation, thereby interfering with the related investigation and law enforcement activities.
(e) From subsection (e)(3) (Notice to Subjects) because providing such detailed information would impede law enforcement in that it could compromise the existence of a confidential investigation or reveal the identity of witnesses or confidential informants.
(f) From subsections (e)(4)(G) and (H) (Agency Requirements), (f) (Agency Rules), and (g) (Civil Remedies) because portions of this system are exempt from the individual access provisions of subsection (d).
(g) From subsection (e)(5) (Collection of Information) because in the collection of information for law enforcement purposes it is impossible to determine in advance what information is accurate, relevant, timely, and complete. Compliance with (e)(5) would preclude OIG special agents from using their investigative training and exercise of good judgment to both conduct and report on investigations.
(h) From subsection (e)(8)(Notice on Individuals) because compliance would interfere with OIG's ability to obtain, serve, and issue subpoenas, warrants and other law enforcement mechanisms that may be filed under seal, and could result in disclosure of investigative techniques, procedures, and evidence.
Agricultural Marketing Service, USDA.
Final rule.
This rule modifies the minimum size requirements under the Colorado potato marketing order, Area No. 2. The marketing order regulates the handling of Irish potatoes grown in Colorado, and is administered locally by the Colorado Potato Administrative Committee, Area No. 2 (Committee). The minimum size requirements for Area No. 2 potatoes specify that potatoes handled under the marketing order must be at least 2 inches in diameter or 4 ounces in weight, with exceptions allowing the handling of round potatoes of any weight, and Russet Burbank, Russet Norkotah, and Silverton Russet potato varieties with a minimum of 1
Teresa Hutchinson or Gary Olson, Northwest Marketing Field Office, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, Telephone: (503) 326-2724, Fax: (503) 326-7440, or e-mail:
Small businesses may request information on complying with this regulation by contacting Jay Guerber, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or e-mail:
This final rule is issued under Marketing Agreement No. 97 and Marketing Order No. 948, both as amended (7 CFR part 948), regulating the handling of Irish potatoes grown in Colorado, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”
The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866.
This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.
This final rule modifies the minimum size requirements under the order. The minimum size requirements for Area No. 2 potatoes specify that potatoes handled under the marketing order must be at least 2 inches in diameter or 4 ounces in weight with exceptions allowing the handling of round potatoes of any weight, and Russet Burbank, Russet Norkotah, and Silverton Russet potato varieties with a minimum of 1
Section 948.22 authorizes the issuance of grade, size, quality, maturity, pack, and container regulations for potatoes grown in the production area. Section 948.21 further authorizes the modification, suspension, or termination of requirements issued pursuant to § 948.22.
Section 948.40 provides that whenever the handling of potatoes is regulated pursuant to §§ 948.20 through 948.24, such potatoes must be inspected by the Federal-State Inspection Service, and certified as meeting the applicable requirements of such regulations.
Under the order, the State of Colorado is divided into three areas of regulation for marketing order purposes. These include: Area No. 1, commonly known as the Western Slope, includes and consists of the counties of Routt, Eagle, Pitkin, Gunnison, Hinsdale, La Plata, and all counties west thereof; Area No. 2, commonly known as the San Luis Valley, includes and consists of the counties of Sanguache, Huerfano, Las Animas, Mineral, Archuleta, and all counties south thereof; and, Area No. 3 includes and consists of all the remaining counties in the State of Colorado which are not included in Area No. 1 or Area No. 2. The order
Grade, size, and maturity regulations specific to the handling of potatoes grown in Area No. 2 are contained in § 948.386 of the order.
On August 16, 2001, the Committee recommended increasing the minimum size requirements from 1
The Committee believes that the demand for fresh potatoes has decreased over the last several years and that there are currently abundant supplies in the marketplace. Market data also shows that consumers prefer larger, higher quality potatoes. After reviewing such market data over the past six years, the Committee decided to recommend removing the minimum size exception for Russet Burbank, Russet Norkotah, and Silverton Russet varieties. The Committee believes that providing the sizes desired is necessary to maintain consumer confidence in the marketplace. The Committee also believes that most Colorado potato handlers have already been shipping Russet varieties with a minimum size of 2 inches in diameter or 4 ounces in weight.
Russet potatoes subject to the order's handling regulation will meet the size requirements if they are at least 2 inches in diameter or 4 ounces in weight. Some long, thin potatoes might be smaller than 2 inches in diameter, but weigh at least 4 ounces. These potatoes would meet the revised size requirements. Some potatoes might weigh less than 4 ounces, but be at least 2 inches in diameter. These potatoes would also meet the revised minimum size requirements.
Twelve members voted in favor of the modification and one member voted in opposition. The dissenting member was concerned that some industry members who produce smaller Russet potatoes might not support the change. The Committee made the recommendation to provide buyers with the sizes they prefer and to maintain buyer confidence, thus facilitating the handling and marketing of Colorado Area No. 2 potatoes and improving producer returns.
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.
There are approximately 77 handlers of Colorado Area No. 2 potatoes subject to regulation under the order and approximately 180 producers in the regulated production area. Small agricultural service firms are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $6,500,000, and small agricultural producers are defined as those having annual receipts of less than $750,000.
During the 2006-2007 marketing year, approximately 16,061,432 hundredweight of Colorado Area No. 2 potatoes were inspected under the order and sold into the fresh market. Based on an estimated average f.o.b. price of $11.00 per hundredweight, the Committee estimates that 66 Area No. 2 handlers, or about 86 percent, had annual receipts of less than $6,500,000. In view of the foregoing, the majority of Colorado Area No. 2 potato handlers may be classified as small entities.
In addition, based on information provided by the National Agricultural Statistics Service (NASS), the average producer price for Colorado potatoes for 2006 was $8.80 per hundredweight. The average annual fresh potato revenue for each Colorado Area No. 2 potato producer is therefore calculated to be approximately $785,226. Consequently, on average, the majority of the Area No. 2 Colorado potato producers may not be classified as small entities.
This final rule removes from the handling regulation the exception that Russet Burbank, Russet Norkotah, and Silverton Russet varieties of Area No. 2 Colorado potatoes may be 1
Authority for this action is contained in §§ 948.21, 948.22, 948.40, and 948.386.
NASS estimated planted acreage for the 2006 crop in Area No. 2 at 59,900 acres, an increase of 1,700 acres when compared with 58,200 acres planted in 2005. In 2006, NASS data shows that Russet Norkotah, the most popular variety, was planted on 60.3 percent of the total potato acreage. Other Russet varieties accounted for 20.6 percent of the total acres planted, with various other varieties making up the remaining 19.1 percent.
Based on Committee records, 89.6 percent of Area No. 2 potatoes entered the fresh market during the 2006-2007 marketing year (including potatoes produced for seed). Of those potatoes, Russet potato varieties accounted for 89.2 percent.
Only a small portion of the crop is expected to be affected by the size increase (i.e., that portion of Russet Burbank, Russet Norkotah, or Silverton Russet varieties smaller than 2 inches in diameter or 4 ounces in weight, but larger than 1
After discussing possible alternatives to this rule, the Committee determined that an increase in the minimum size for Russet varieties would increase returns to producers while supplying the market with a higher percentage of larger high quality potatoes. The Committee believes that the expected benefits are improved quality, increased purchases and sales volume, and increased returns received by producers. During its deliberations, the Committee also considered increasing the minimum size to 2
This final rule increases the size requirements for Russet varieties of potatoes under the order. Accordingly, this action will not impose any additional reporting or recordkeeping requirements on either small or large Russet potato handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.
AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.
As noted in the initial regulatory flexibility analysis, USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this final rule.
In addition, the Committee's meeting was widely publicized throughout the Colorado Area No. 2 potato industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the August 16, 2007, meeting was a public meeting and all entities, both large and small, were able to express views on this issue.
A proposed rule concerning this action was published in the
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at:
After consideration of all relevant matter presented, including the information and recommendation submitted by the Committee and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.
It is further found that good cause exists for not postponing the effective date of this rule until 30 days after publication in the
Marketing Agreements, Potatoes, Reporting and recordkeeping requirements.
7 U.S.C. 601-674.
(a) * * *
(2)
Animal and Plant Health Inspection Service, USDA.
Interim rule and request for comments.
We are amending the regulations governing the importation of certain animals, meat, and other animal products by removing Surrey County, England, from the list of regions considered to be free of foot-and-mouth disease (FMD). We are taking this action because the existence of FMD has been confirmed in that area. This action is necessary to prevent the introduction of FMD into the United States. As a result of this interim rule the importation of ruminants and swine and the fresh meat and other animal products of ruminants and swine from Surrey County, England, is restricted.
This interim rule is effective January 30, 2008. However, we are imposing this restriction retroactively to August 3, 2007. We will consider all comments that we receive on or before March 31, 2008.
You may submit comments by either of the following methods:
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Dr. Chip Wells, Senior Staff Veterinarian, Regionalization Evaluation Services Import Staff, National Center for Import and Export, VS, APHIS, 4700 River Road, Unit 38, Riverdale, MD 20737-1231; (301) 734-4356.
Foot-and-mouth disease (FMD) is a severe and highly contagious viral infection affecting all cloven-hoofed ruminants, including cattle, deer, goats, sheep, swine, and other animals. The disease is highly communicable and is characterized by fever and blister-like lesions on the tongue and lips, in the mouth, on the teats, and between the hooves. It causes severe losses in the production of meat, milk, and other dairy products. Although many animals survive the disease, it leaves them debilitated. FMD is endemic to more than two-thirds of the world and is considered to be widespread in parts of Africa, Asia, Europe, and South America. Because of the highly communicable nature of FMD, it is necessary to protect livestock that are free of the disease from any animals, animal products, or other articles that might be contaminated with the FMD virus.
Although FMD was eradicated in the United States in 1929, the virus could be reintroduced by a single infected animal, animal product, or person carrying the virus. Once introduced, FMD can spread quickly through exposure to aerosols from infected animals, direct contact with infected animals, contact with contaminated feed or equipment, ingestion of animal products, or contact with humans harboring the virus or carrying the virus on their clothing.
The regulations in 9 CFR part 94 (referred to below as the regulations) govern the importation of certain animals and animal products into the United States in order to prevent the introduction of various animal diseases, including rinderpest and FMD. Section 94.1 of the regulations lists regions of the world that are considered free of rinderpest and FMD. The United Kingdom (England, Northern Ireland, Scotland, Wales, and the Isle of Man), in its entirety, has been listed in § 94.1 as a region considered free of rinderpest and FMD. Section 94.11 lists regions of the world considered free of rinderpest and FMD but from which the importation of meat and other animal products into the United States is subject to additional restrictions because of those regions' proximity to or trading relationships with FMD-affected regions. The United Kingdom is currently listed in § 94.11 as one of the regions from which meat and other animal products of ruminants and swine are subject to additional restrictions.
On August 3, 2007, the United Kingdom reported an outbreak of FMD in Surrey County, England, to the World Organization for Animal Health (OIE). A second outbreak was reported on August 7, 2007. By September 30, 2007, a total of eight outbreaks had been confirmed. All infected premises were located in Surrey County. As a precautionary measure, the United Kingdom, in agreement with the European Commission, has since August 3, 2007, restricted exports of ruminants and swine and the fresh meat and other animal products of ruminants and swine, initially from all of Great Britain and subsequently from smaller regions within Great Britain. Epidemiological investigations and risk assessments conducted by the United Kingdom link the source of the outbreaks in Surrey County with a probably accidental release of the FMD virus from a laboratory and vaccine production facility in Pirbright. Intensive surveillance has demonstrated that the virus never spread outside of Surrey County. The United Kingdom and the European Commission removed all restrictions in Great Britain on December 31, 2007.
Based on our discussions with the United Kingdom's veterinary officials and our evaluation of the situation, we have determined that: (1) FMD is not known to exist in the United Kingdom outside of Surrey County, England; (2) the United Kingdom maintained strict control over the importation and movement of animals and animal products from regions of higher risk and established barriers to the spread of FMD from Surrey County, England; (3) the United Kingdom maintained a surveillance system capable of detecting FMD should the disease have been introduced into other regions of the country; and (4) the United Kingdom has the laws, policies, and infrastructure to detect, respond to, and eliminate any occurrence of FMD. Consequently, until such time as we are able to conclude our own risk assessment of the Surrey County outbreaks, we have decided to remove the affected portion of the United Kingdom encompassing the administrative unit Surrey County, England, from the list of regions considered free of FMD. We are taking this action in order to protect the livestock of the United States from FMD.
Therefore, we are amending the regulations in § 94.1 to remove Surrey County, England, from the list of regions that are considered free of rinderpest and FMD. We are also amending the regulations in § 94.11 to remove Surrey County, England, from the list of regions considered free of rinderpest and FMD but from which the importation of meat and other animal products of ruminants and swine into the United States is subject to additional restrictions. We are imposing this restriction retroactively to August 3, 2007, which is the date that the presence of FMD in this region of England was first confirmed.
We recognize that the United Kingdom immediately responded to the detection of the disease by imposing restrictions on the movement of ruminants and swine and the fresh meat and other animal products of ruminants and swine within and from England and initiating measures to eradicate the disease, and the outbreak appears to be well controlled at this time. Because of the United Kingdom's efforts to ensure that FMD does not spread beyond its borders, we intend to reassess the situation in accordance with the standards of the OIE at a future date. As part of the reassessment process, we will consider all comments received during the comment period on this interim rule. This future reassessment will determine whether it is necessary to continue to prohibit the importation of ruminants and swine and the fresh meat and other animal products of ruminants and swine from Surrey County, England.
This rulemaking is necessary on an emergency basis to prevent the introduction of FMD into the United States. Under these circumstances, the Administrator has determined that prior notice and opportunity for public comment are contrary to the public interest and that there is good cause under 5 U.S.C. 553 for making this rule effective less than 30 days after publication in the
We will consider comments we receive during the comment period for this interim rule (see
This rule has been reviewed under Executive Order 12866. For this action, the Office of Management and Budget has waived its review under Executive Order 12866.
This emergency situation makes timely compliance with section 604 of the Regulatory Flexibility Act (5 U.S.C. 601,
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has retroactive effect to August 3, 2007; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.
This interim rule contains no information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501,
Animal diseases, Imports, Livestock, Meat and meat products, Milk, Poultry
7 U.S.C. 450, 7701-7772, 7781-7786, and 8301-8317; 21 U.S.C. 136 and 136a; 31 U.S.C. 9701; 7 CFR 2.22, 2.80, and 371.4.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule; request for comments.
The FAA is adopting a new airworthiness directive (AD) for certain EMBRAER Model EMB-135 airplanes; and Model EMB-145, -145ER, -145MR, -145LR, -145XR, -145MP, and -145EP airplanes. This AD requires inspections to detect discrepancies of the components of the elevator control system, repetitive movements of the control column to observe the normal response of the elevators, repetitive inspections to detect discrepancies of the skin of the elevators, and applicable related investigative actions and corrective actions. This AD also provides for optional terminating actions for the inspections and measurements. This AD results from a report indicating that a Model EMB-145 airplane did not rotate in response to the command from the yoke during take-off, which resulted in a rejected take-off. We are issuing this AD to detect and correct discrepancies of the elevator control system, which could result in reduced control of the elevators and consequent reduced controllability of the airplane.
This AD becomes effective February 14, 2008.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in the AD as of February 14, 2008.
We must receive comments on this AD by February 29, 2008.
You may send comments by any of the following methods:
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For service information identified in this AD, contact Empresa Brasileira de Aeronautica S.A. (EMBRAER), P.O. Box 343-CEP 12.225, Sao Jose dos Campos-SP, Brazil.
You may examine the AD docket on the Internet at
Sanjay Ralhan, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 227-1405; fax (425) 227-1149.
On December 13, 2005, we issued AD 2005-26-15, amendment 39-14436 (70 FR 77303, December 30, 2005). That AD applies to certain EMBRAER Model EMB-135 airplanes; and Model EMB-145, -145ER, -145MR, -145LR, -145XR, -145MP, and -145EP airplanes. That AD requires performing repetitive inspections for cracks, ruptures, or bends in certain components of the elevator control system; replacing discrepant components; and, for certain airplanes, installing a new spring cartridge and implementing new logic for the electromechanical gust lock system. That AD also requires eventual modification of the elevator gust lock system to replace the mechanical system with an electromechanical system, which will terminate the repetitive inspections. That AD resulted from reports that cracks have been found in certain components of the elevator control system in the horizontal stabilizer area of several airplanes equipped with a mechanical gust lock system. These cracks have been attributed to damage from strong wind gusts on the ground. The actions specified in that AD are intended to prevent discrepancies in the elevator control system, which could result in reduced control of the elevator and consequent reduced controllability of the airplane.
Since we issued that AD, we received a report indicating that an EMBRAER Model EMB-145 airplane did not rotate in response to the command from the yoke as expected during take-off, and the flightcrew had to perform a rejected take-off. The elevator control system did not respond to elevator inputs from the flightcrew. Investigation revealed that both elevator control rods were broken, and skin damage was found to the elevator control surface. Preliminary investigation reports reveal that the control rods broke under compression load. The reports also reveal that strong, windy conditions prevailed before the incident. The airplane's mechanical elevator gust lock system had not yet been modified into an electromechanical elevator gust lock
EMBRAER has issued Alert Service Bulletin 145-27-A106, Revision 02, dated December 28, 2007. The alert service bulletin describes procedures for:
• Doing a one-time detailed visual inspection to detect discrepancies (i.e., cracks, rupture and/or bends) of the components of the elevator control system, doing a one-time movement of the control column to observe the normal response of the elevators, doing a one-time general visual inspection within touching distance to detect discrepancies (i.e., overtravel at the hinge area) of the lower skins of the elevators, and doing applicable related investigative actions (Part I). The related investigative actions include detailed visual and general visual inspections and measurements to detect discrepancies of components of the elevator control system.
• Repetitively moving the control column to observe the normal response of the elevators, repetitively doing the general visual inspection from the ground, and doing applicable related investigative actions, as described previously (Part II).
• Repetitively moving the control column to observe the normal response of the elevators, repetitively doing the general visual inspection to detect discrepancies (i.e., overtravel at the hinge areas) of the lower and upper skins of the elevators, doing applicable related investigative actions described previously, and doing applicable detailed visual and general visual inspections and measurements to detect discrepancies of components of the elevator control system (Part III).
EMBRAER Alert Service Bulletin 145-27-A106 refers to Task 05-50-26-200-802-A, “On-Ground Gale-Force Winds,” dated March 28, 2006, of Chapter 5-50-26 of EMBRAER EMB145 Aircraft Maintenance Manual, as an additional source of service information for accomplishing the related investigative actions and for accomplishing detailed visual and general visual inspections and measurements to detect discrepancies of components of the elevator control system.
These airplanes are manufactured in Brazil and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement.
We are proposing this AD because we evaluated all relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
Therefore, we are issuing this AD to detect and correct discrepancies of the elevator control system, which could result in reduced control of the elevators and consequent reduced controllability of the airplane. This AD requires accomplishing the actions specified in the EMBRAER alert service bulletin described previously, except as discussed under “Difference Between the AD and the Referenced Service Bulletin.” This AD also requires repair and inspection reports of any discrepancy found, and provides for optional terminating actions. The required inspection reports will help determine the extent of the discrepancies in the affected fleet.
Paragraph (l) of this AD provides operators with an option to modify the elevator mechanical gust locks in accordance with paragraphs (c)(1) and (c)(2) of AD 2005-26-15 to end repetitive inspection requirements of this AD. We are currently considering superseding AD 2005-26-15 to reduce the compliance time for that modification and we might use the results of the inspection reports in our considerations.
The alert service bulletin does not specify instructions on how to repair certain conditions. This AD requires repairing those conditions using a method approved by the FAA or the Agência Nacional de Aviação Civil (ANAC) (or its delegated agent). In light of the type of repair that is required to address the unsafe condition, and consistent with existing bilateral airworthiness agreements, we have determined that, for this AD, a repair approved by the FAA or the ANAC is acceptable for compliance with this AD.
The Accomplishment Instructions of the alert service bulletin first defines the term “detailed inspection,” but thereafter inadvertently uses the term “detailed visual inspection.” This AD refers to all such inspections as “detailed inspection.”
Paragraph 3.C.(1)(a) of the alert service bulletin specifies that the general visual inspection is performed by a checker. This AD requires that the inspection be done by certified maintenance personnel.
We have determined that interim repetitive inspections are necessary to ensure long-term continued operational safety, in this case, to detect any discrepancy before it represents a hazard to the airplane. Because of our requirement to promote safe flight of civil aircraft and thus, the critical need to assure the proper functioning of the elevator control system and the short compliance time involved with this action, this AD must be issued immediately.
Because an unsafe condition exists that requires the immediate adoption of this AD, we find that notice and opportunity for prior public comment hereon are impracticable and that good cause exists for making this amendment effective in less than 30 days.
This AD is a final rule that involves requirements affecting flight safety, and we did not provide you with notice and an opportunity to provide your comments before it becomes effective. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
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,
We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that the 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 AD and placed it in the AD docket. See the
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a) This AD becomes effective February 14, 2008.
(b) None.
(c) This AD applies to EMBRAER Model EMB-135BJ, -135ER, -135KE, -135KL, and -135LR airplanes; and Model EMB-145, -145ER, -145MR, -145LR, -145XR, -145MP, and -145EP airplanes; certificated in any category; as identified in EMBRAER Alert Service Bulletin 145-27-A106, Revision 02, dated December 28, 2007.
(d) This AD results from a report indicating that an airplane did not rotate in response to the command from the yoke during take-off, which resulted in a rejected takeoff. We are issuing this AD to detect and correct discrepancies of the elevator control system, which could result in reduced control of the elevators and consequent reduced controllability of the airplane.
(e) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(f) Within 20 flight hours after the effective date of this AD, do a one-time detailed inspection of the components and general visual inspection of the lower skin of the elevators, and observation of the movement of the elevator control surfaces, by accomplishing all the applicable actions specified in Part I of the Accomplishment Instructions of the EMBRAER Alert Service Bulletin 145-27-A106, Revision 02, dated December 28, 2007, unless the terminating actions specified in paragraph (l) of this AD have been done.
(1) If no structural damage or abnormal operation is detected, regardless of observed wind velocity, no further action is required by this paragraph.
(2) If any structural damage or abnormal operation is detected, regardless of observed wind velocity, before further flight, do the detailed visual and general visual inspections and measurements (related investigative action) by accomplishing all the applicable actions specified in Part I of the Accomplishment Instructions of the service bulletin.
EMBRAER Alert Service Bulletin 145-27-A106, Revision 02, dated December 28, 2007, refers to Task 05-50-26-200-802-A, dated March 28, 2006, of Chapter 5-50-26 of EMBRAER EMB 145 Aircraft Maintenance Manual, as an additional source of service information for accomplishing the corresponding inspections and measurements required by paragraphs (f)(2), (h)(2), and (j) of this AD.
(g) Actions done before the effective date of this AD in accordance with the Accomplishment Instructions of EMBRAER Alert Service Bulletin 145-27-A106, dated December 23, 2007; or Part I of the Accomplishment Instructions of EMBRAER Alert Service Bulletin 145-27-A106, Revision 01, dated December 27, 2007; are acceptable for compliance with the corresponding requirements of paragraphs (f) and (f)(2) of this AD only.
(h) Prior to first flight of the day after accomplishing all the actions required by paragraph (f) of this AD, or within 10 flight hours after the effective date of this AD, whichever occurs later, do the observation of the movements of the elevator control surfaces and general visual inspection from the ground by accomplishing all the applicable actions specified in Part II of the Accomplishment Instructions of EMBRAER Alert Service Bulletin 145-27-A106, Revision 02, dated December 28, 2007, except as required by paragraph (i) of this AD, until the terminating actions specified in paragraph (l) of this AD are done.
(1) If no structural damage or abnormal operation is detected, repeat the movement observations and inspections thereafter prior to first flight of each day of operation.
(2) If any structural damage or abnormal operation is detected, before further flight, do the related investigative actions by accomplishing all the applicable actions specified in Part II of the Accomplishment Instructions of the service bulletin. Repeat the movement observations and inspections thereafter prior to first flight of each day of operation.
(i) Where paragraph 3.C.(1)(a) of the Accomplishment Instructions of the service bulletin specifies that the general visual inspection is performed by a checker, this AD requires that the inspection be done by an authorized person identified in section 43.3 of the Federal Aviation Regulations (14 CFR 43.3).
(j) At the applicable times specified in Table 1 of this AD, do the actions specified in Table 1 of this AD by accomplishing all the applicable actions specified in Part III of the Accomplishment Instructions of EMBRAER Alert Service Bulletin 145-27-A106, Revision 02, dated December 28, 2007. Repeat the applicable actions thereafter at intervals not to exceed 600 flight hours until the terminating actions specified in paragraph (l) of this AD are done; except if the gust lock position and wind conditions specified in paragraph (j)(2) or (j)(3) of this AD occur within that time, the repeat inspection must be done before further flight.
(k) If any discrepancy is detected during any detailed inspection, general visual inspection, or measurement of components of the elevator control system, or applicable related investigative action required by paragraph (f)(2), (h)(2), or (j) of this AD, before further flight, repair it using a method approved by either the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the Agência Nacional de Aviação Civil (ANAC) (or its delegated agent).
(l) Accomplishing the actions required by paragraph (c)(1) or (c)(2), as applicable, of AD 2005-26-15, amendment 39-14436, terminates the requirements of this AD.
(m) Submit a report of any findings of damage or discrepancy found during any inspection required by this AD to the Manager, International Branch, ANM-116, FAA, or to EMBRAER Technical Support Engineering, fax +55-12-3927-2428; e-mail
(1) If the inspection was done after the effective date of this AD: Submit the report within 10 days after the inspection.
(2) If the inspection was done before the effective date of this AD: Submit the report within 10 days after the effective date of this AD.
(n)(1) The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(2) To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector (PI) in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.
(o) None.
(p) You must use EMBRAER Alert Service Bulletin 145-27-A106, Revision 02, dated December 28, 2007, to perform the actions that are required by this AD, unless the AD specifies otherwise. The Director of the Federal Register approved the incorporation by reference of this document in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Contact Empresa Brasileira de Aeronautica S.A. (EMBRAER), P.O. Box 343-CEP 12.225, Sao Jose dos Campos-SP, Brazil, for a copy of this service information. You may review copies at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Federal Aviation Administration (FAA), DOT.
Direct final rule, request for comments.
This action establishes Class E Airspace at Lewistown, PA. The existing controlled airspace serving nearby airports does not adequately support a new Area Navigation (RNAV) Global Positioning System (GPS) Special Instrument Approach Procedure (IAP) that has been developed for medical flight operations. This action enhances the safety and management of Instrument Flight Rule (IFR) operations by providing the required controlled airspace for this approach around the Lewistown Hospital in Lewistown, PA.
Effective 0901 UTC, April 10, 2008. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments. Comments for inclusion in the Rules Docket must be received on or before March 17, 2008.
Send comments on this rule to: U.S. Department of Transportation, Docket Operations, West Building's Ground Floor, Room W12-140, 1200 New Jersey, SE., Washington, DC 20590-0001; Telephone: 1-800-647-5527; Fax: 202-493-2251. You must identify the Docket Number FAA-2007-0274; Airspace Docket No. 07-AEA-14, at the beginning of your comments. You may also submit and review received comments through the Internet at
You may review the public docket containing the rule, any comments received, and any final disposition in person in the Dockets Office (see
Daryl Daniels, System Support Group,
The FAA anticipates that this regulation will not result in adverse or negative comments, and, therefore, issues it as a direct final rule. The FAA has determined that this rule only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Unless a written adverse or negative comment or a written notice of intent to submit an adverse or negative comment is received within the comment period, the regulation will become effective on the date specified above. After the close of the comment period, the FAA will publish a document in the
Although this action is in the form of a direct final rule, and was not preceded by a notice of proposed rulemaking, interested persons are invited to comment on this rule by submitting such written data, views, or arguments as they may desire. An electronic copy of this document may be downloaded from and comments may be submitted and reviewed at
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify the rule. Factual information that supports the commenter's ideas and suggestions is extremely helpful in evaluating the effectiveness of this action and determining whether additional rulemaking action would be needed. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. Those wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2007-0274; Airspace Docket No. 07-AEA-14.” The postcard will be date stamped and returned to the commenter.
This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 establishes Class E airspace at Lewistown, PA providing the controlled airspace required to support the new Copter Area Navigation (RNAV) Global Positioning System (GPS) 247 Point in Space (PinS) approach developed for the Lewistown Hospital Heliport. Although Class E airspace exists in the area, it is insufficient for this approach which will serve medical Lifeguard flights. Controlled airspace, known as class E5 Airspace, extending upward from 700 feet Above Ground Level (AGL) is required to encompass, to the extent practical, all Instrument Approach Procedures (IAPs) and Instrument Flight Rule (IFR) operations, therefore, the FAA is amending Title 14, Code of Federal Regulations (14 CFR) part 71 to establish a 6-mile radius Class E5 airspace area at Lewistown, PA. Designations for Class E airspace areas extending upward from 700 feet or more above the surface of the Earth are published in FAA Order 7400.9R, signed August 15, 2007 effective September 15, 2007, which is incorporated by reference in 14 CFR 71.1. The Class E designations listed in this document will be published subsequently in the Order.
The regulations adopted herein 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 various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore, (1) is not a “signifcant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.
This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes controlled airspace to serve the Lewistown Hospital Heliport in Lewistown, PA.
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.
That airspace extending upward from 700 feet above the surface of the Earth within a 6-mile radius of the Point in Space coordinates (lat. 40°37′46″ N., long. 77°33′19″ W.) serving the Lewistown Hospital Heliport.
Federal Aviation Administration (FAA), DOT.
Direct final rule, request for comments.
This action establishes Class E Airspace at Marienville, PA to support a new Area Navigation (RNAV) Global Positioning System (GPS) Special Instrument Approach Procedure (IAP) that has been developed for medical flight operations into the East Marien High School Heliport. This action enhances the safety and management of Instrument Flight Rule (IFR) operations by providing that required controlled airspace to protect for this approach near the high school in Marienville, PA.
Effective 0901 UTC, April 10, 2008. The Director of the Federal Register approves this incorporation by reference action under Title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments. Comments for inclusion in the Rules Docket must be received on or before March 17, 2008.
Send comments on this rule to: U.S. Department of Transportation, Docket Management, West Building Ground Floor, Room W12-140, 1200 New Jersey, SE., Washington, DC 20590-0001; Telephone: 1-800-647-5527; Fax: 202-493-2251. You must identify the Docket Number FAA-2007-0162; Airspace Docket No. 09-AEA-13, at the beginning of your comments. You may also submit and review received comments through the Internet at
You may review the public docket containing the rule, any comments received, and any final disposition in person in the Dockets Office (see
Daryl Daniels, System Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305-5581.
The FAA anticipates that this regulation will not result in adverse or negative comments, and, therefore, issues it as a direct final rule. The FAA has determined that this rule only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Unless a written adverse or negative comment or a written notice of intent to submit an adverse or negative comment is received within the comment period, the regulation will become effective on the date specified above. After the close of the comment period, the FAA will publish a document in the
Although this action is in the form of a direct final rule, and was not preceded by a notice of proposed rulemaking, interested persons are invited to comment on this rule by submitting such written data, views, or arguments as they may desire. An electronic copy of this document may be downloaded from and comments may be submitted and reviewed at
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify the rule. Factual information that supports the commenter's ideas and suggestions is extremely helpful in evaluating the effectiveness of this action and determining whether additional rulemaking action would be needed. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. Those wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-A2007-0162; Airspace Docket No. 07-AEA-13.” The postcard will be date stamped and returned to the commenter.
This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 establishes Class E airspace at Marienville, PA, providing the controlled airspace required to support the new Copter RNAV (GPS) 047 Point in Space (PinS) instrument approach developed for the East Marien High School Heliport. In today's environment where speed of treatment for medical injuries is imperative, various landing sites have been developed for helicopter medical Lifeguard flights or Lifeflights. The East Marien High School has been chosen as one of these sites. Controlled airspace, known as Class E5 airspace, extending upward from 700 feet Above Ground Level (AGL) is required for IFR operations and to encompass all IAPs to the extent practical; therefore, the FAA is amending Title 14, Code of Federal Regulations (14 CFR) part 71 to establish a 6-mile Class E5 airspace area at Marienville, PA. Designations for Class E airspace areas extending upward from 700 feet or more above the surface of the Earth are published in FAA Order 7400.9R, signed August 15, 2007 effective September 15, 2007, which is incorporated by reference in 14 CFR part 71.1. The Class E designations listed in this document will be published subsequently in the Order.
The regulations adopted herein 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 various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive order 13132.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore, (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.
This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes controlled airspace near the East Marien High School Heliport in Marienville, PA.
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.
That airspace extending upward from 700 feet above the surface of the Earth within a 6-mile radius of the Point in Space coordinates (lat. 41°27′41″ N., long. 79°07′54″ W.) serving the East Marien High School Heliport.
Federal Aviation Administration (FAA), DOT.
Direct final rule, request for comments.
This action establishes Class E Airspace at Emporium, PA to support a new Area Navigation (RNAV) Global Positioning System (GPS) Special Instrument Approach Procedure (IAP) that has been developed for medical flight operations into the Emporium High School Heliport. This action enhances the safety and management of Instrument Flight Rule (IFR) operations by providing that required controlled airspace for this approach around Emporium, PA.
Effective 0901 UTC, April 10, 2008. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments. Comments for inclusion in the Rules Docket must be received on or before March 17, 2008.
Send comments on this rule to: U.S. Department of Transportation, Docket Management, West Building Ground Floor, Room W12-140, 1200 New Jersey, SE., Washington, DC 20590-0001; Telephone: 1-800-647-5527; Fax: 202-493-2251. You must identify the Docket Number FAA-2007-0275; Airspace Docket No. 07-AEA-15, at the beginning of your comments. You may also submit and review received comments through the Internet at
You may review the public docket containing the rule, any comments received, and any final disposition in person in the Dockets Office (see
Daryl Daniels, System Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305-5581.
The FAA anticipates that this regulation will not result in adverse or negative comments, and, therefore, issues it as a direct final rule. The FAA has determined that this rule only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Unless a written adverse or negative comment or a written notice of intent to submit an adverse or negative comment is received within the comment period, the regulation will become effective on the date specified above. After the close of the comment period, the FAA will publish a document in the
Although this action is in the form of a direct final rule, and was not preceded by a notice of proposed rulemaking, interested persons are invited to comment on this rule by submitting such written data, views, or arguments as they may desire. An electronic copy of this document may be downloaded from and comments may be submitted and reviewed at
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify the rule. Factual information that supports the commenter's ideas and suggestions is extremely helpful in evaluating the effectiveness of this action and determining whether additional rulemaking action would be needed. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. Those wishing the FAA to acknowledge receipt of their comments submitted in response to the rule must submit a self-addressed, stamped postcard on which the following statement is made; “Comments to Docket No. FAA-2007-0275; Airspace Docket No. 07-AEA-15,” The postcard will be date stamped and returned to the commenter.
This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 establishes Class E airspace at Emporium, PA providing the controlled airspace required to support the New Copter RNAV (GPS) 144 Point in Space (PinS) instrument approach developed for the Emporium High School Heliport. In today's environment where speed of treatment for medical injuries is imperative, various landing sites have been developed for helicopter medical Lifeguard flights or Lifeflights; the Emporium High School has been chosen as one of these sites. Controlled airspace, known as Class E5 airspace, extending upward from 700 feet Above Ground Level (AGL) is required for Instrument Flight Rule (IFR) operations and to encompass all Instrument Approach Procedures (IAPs) to the extent practical, therefore, the FAA is amending Title 14, Code of Federal Regulations (14 CFR) part 71 to establish a 6-mile radius Class E5 airspace area at Emporium, PA. Designations for Class E airspace areas extending upward from 700 feet or more above the surface of the Earth are published in FAA Order 7400.9R signed august 15, 2007 effective September 15,2007, which is incorporated by reference in 14 CFR part 7.1. The Class E designations listed in this document will be published subsequently in the Order.
The regulations adopted herein 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 various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.
This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes controlled airspace near the Emporium High School Heliport in Emporium, PA.
Airspace, Incorporated 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.
That airspace extending upward from 700 feet above the surface of the Earth within a 6-mile radius of the Point in Space coordinates (lat. 41°31′54″ N., long. 78°16′28″ W.) serving the Emporium High School Heliport.
Federal Aviation Administration (FAA), DOT.
Direct final rule, request for comments.
This action establishes Class E Airspace at new Albany, MS. Airspace is needed to support new Area Navigation (RNAV) Global Positioning System (GPS) Standard Instrument Approach Procedures (SIAPs) that have been developed for New Albany-Union County Airport. This action enhances the safety and management of Instrument Flight Rule (IFR) operations in the area by providing the required controlled airspace to protect for these approaches around new Albany, MS.
Effective 0901 UTC, April 10, 2008. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments. Comments for inclusion in the Rules Docket must be received on or before March 17, 2008.
Send comments on this rule to: Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey, SE., West Building, Ground Floor, Room W12-140, Washington, DC 20590-0001; Telephone: 1-800-647-5527; Fax: 202-493-2251. You must identify the Docket Number FAA-2007-0161; Airspace Docket No. 07-ASO-25, at the beginning of your comments. You may also submit and review received comments through the Internet at
You may review the public docket containing the rule, any comments received, and any final disposition in person in the Dockets Office (see
Daryl Daniels, System Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305-5581.
The FAA anticipates that this regulation will not result in adverse or negative comments, and, therefore, issues it as a direct final rule. The FAA has determined that this rule only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Unless a written adverse or negative comment or a written notice of intent to submit an adverse or negative comment is received within the comment period, the regulation will become effective on the date specified above. After the close of the comment period, the FAA will publish a document in the
Although this action is in the form of a direct final rule, and was not preceded by a notice of proposed rulemaking, interested persons are invited to comment on this rule by submitting such written data, views, or arguments as they may desire. The direct final rule is used in this case to facilitate the timing of the charting schedule and enhance the operation at the airport, while still allowing and requesting public comment on this rulemaking action. An electronic copy of this document may be downloaded from and comments submitted through
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify the rule. Factual information that supports the commenter's ideas and suggestions is extremely helpful in evaluating the effectiveness of this action and determining whether additional rulemaking action would be needed. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. Those wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2007-0161; Airspace Docket No. 07-ASO-25.” The postcard will be date stamped and returned to the commenter.
This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 establishes Class E airspace at New Albany, MS, providing the controlled airspace required to support new SIAPs that were developed for the New Albany-Union County Airport. No Class E5 airspace exists in the airport area, so controlled airspace must be developed. Controlled airspace extending upward from 700 feet Above Ground Level (AGL) is required to encompass all SIAPs to the extent practical, therefore, the FAA is amending Title 14, Code of Federal Regulations (14 CFR) part 71 to establish Class E5 airspace at New Albany, MS. Designations for Class E airspace areas extending upward from 700 feet or more above the surface of the Earth are published in FAA Order 7400.9R, signed August 15, 2007 effective September 15, 2007, which is incorporated by reference in 14 CFR part 71.1. The Class E designations listed in this document will be published subsequently in the Order.
The regulations adopted herein 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 various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.
This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes controlled airspace around the New Albany-Union County Airport.
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.
That airspace extending upward from 700 feet above the surface within a 7.1-mile radius of New Albany-Union County Airport and within 4 miles each side of the 176° bearing from the airport extending from the 7.1-mile radius to 10.3 miles southeast of the airport.
Department of State.
Final rule; correction.
This document contains correction to the revised Passport rule published in the
Effective on February 1, 2008.
Consuelo Pachon, Office of Legal Affairs and Law Enforcement Liaison, Bureau of Consular Affairs, 2100 Pennsylvania Avenue, NW., Suite 3000, Washington, DC, telephone number 202-663-2431.
The final rule published on November 19, 2007 (72 FR 64930) is corrected as follows:
(j)
(e) An “enhanced border security” surcharge on the filing of each application for a regular passport in an amount set administratively by the Department and published in the Schedule of Fees for Consular Services.
Environmental Protection Agency (EPA).
Direct final rule.
In 1997, Illinois adopted and submitted rules establishing a cap and trade program regulating emissions of volatile organic compounds (VOC). The program, known as the Emission Reduction Market System (ERMS), was designed to address VOC sources in the Chicago area with potential to emit at least 25 tons per year. Then, in 2004, the Chicago ozone nonattainment area was in effect reclassified from severe to moderate, which according to EPA guidance revised the applicable definition of major sources from 25 tons per year to 100 tons per year. This “reclassification” could have resulted in the program no longer including sources with potential to emit more than 25 but less than 100 tons per year. Instead, Illinois adopted rule revisions, submitted to EPA on January 10, 2007, which required that these sources remain part of the program. Illinois' rule revisions also address other ramifications of the “reclassification.” EPA is approving these rule revisions.
This direct final rule will be effective March 31, 2008, unless EPA
Submit your comments, identified by Docket ID No. EPA-R05-OAR-2007-0183, by one of the following methods:
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John Summerhays, Environmental Scientist, Criteria Pollutant Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6067,
This supplementary information section is arranged as follows:
On January 10, 2007, Illinois submitted revisions to Part 205 of Title 35 of the Illinois Administrative Code, entitled “Emissions Reduction Market System” (ERMS). ERMS is a cap and trade program addressing VOC emissions in the Chicago area. Under ERMS, Illinois issues allowances equivalent to 12 percent less than baseline VOC emission levels, and requires affected sources to hold allowances equivalent to their VOC emissions during the ozone season. The program thereby requires overall VOC emission levels to be reduced to 12 percent below baseline levels. The original rules for this program were adopted on November 20, 1997, and were submitted by Bharat Mathur of the Illinois EPA on December 16, 1997. EPA approved those rules on October 15, 2001, at 66 FR 52359.
Part 205 requires participation of all major VOC sources in the Chicago area. More specifically, the 1997 version of Section 205.200 that Illinois adopted in 1997 stated that “The requirements of this Part shall apply to any source * * * located in the Chicago ozone nonattainment area that is required to obtain a [Title V permit], and [has VOC emissions during the ozone season of at least 10 tons].” The requirement for a Title V operating permit applies to major sources. Since the Chicago area at that time was classified as a severe ozone nonattainment area, major sources were defined to include sources with the potential to emit 25 tons per year or more of VOC.
In 2004, EPA classified the Chicago ozone nonattainment area as moderate for the 8-hour ozone standard, and effective in 2005 rescinded the severe classification for the 1-hour ozone standard. The definition of major sources for moderate ozone nonattainment areas includes sources with the potential to emit 100 tons per year or more of VOC. According to EPA guidance (see 69 FR 23951, April 30, 2004), the replacement of the prior classification of severe with a classification of moderate thus meant that sources with potential to emit at least 25 tons per year but less than 100 tons per year of VOC would no longer be required to have Title V operating permits. As a result, the sources in the Chicago area in this size range would no longer be subject to the ERMS requirements, given the applicability criteria in Section 205.200 as quoted above.
Illinois estimated that the loss of these intermediate sized sources from ERMS would result in a loss of 330 tons of VOC emission reduction per ozone season associated with these sources. Illinois sought to avoid this loss of sources from the program. Consequently, Illinois revised Section 205.200 to redefine applicability to include sources with potential to emit at least 25 tons of VOC (and sources otherwise required to have a Title V permit) and at least 10 tons of VOC emissions during the ozone season. By this means, Illinois revised its applicability provisions to include the same set of sources as were included in 1997, notwithstanding the change in the classification of the Chicago area.
Under the 1997 rules, Illinois established several elements of the ERMS program by means of Title V permits. Most notably, the source's Title V permit is used to specify the number of allowances to be issued to the source (Cf. Section 205.315) and the source-specific VOC monitoring methods (Cf.
Illinois therefore adopted Section 205.316, to provide that sources that are not required to obtain a Title V permit (i.e., under EPA's guidance, sources with potential emissions between 25 and 100 tons per year) shall either request a Title V permit anyway or apply for a federally enforceable state operating permit (FESOP). The FESOP is to specify the provisions (relating for example to the number of allowances allocated to the source and the source-specific monitoring requirements) that would otherwise be specified in the Title V permit.
Title V provides for defining some operations with trivial or no emissions as insignificant activities. The 1997 version of Section 205.220 of Illinois' rules exempts these activities from ERMS. The revised version of Section 205.220 extends this exemption to sources obtaining FESOPs. That is, the revised Section 205.220 provides that any activity meeting the criteria in Part 201 Subpart F of Title 35 of the Illinois Administrative Code for insignificant activities may be exempted from the ERMS program, whether the source is subject to a Title V permit or a FESOP.
In ozone nonattainment areas classified as severe, major new sources and existing sources undergoing major modifications must obtain 1.3 tons of offsets for every ton of new emissions. In ozone nonattainment areas classified as moderate, major new sources and existing sources undergoing major modifications need only obtain 1.1 tons of offsets for every ton of new emissions. New source review rules require that any change in offset ratio applies only prospectively, to sources permitted after the change in ratio, and that sources permitted before the change in ratio must continue to have offsets in at least the ratio that applied at the time the source was permitted.
Under Section 205.150 of the 1997 ERMS rules, major new sources and sources undergoing major modifications were required to obtain 1.3 allowances for every ton of new emissions. Illinois' revised rules provide for modified ratios as the applicable ratios change. Section 205.150(f)(1) of the revised rules states: “If the nonattainment classification of the Chicago area for ozone is changed such that the required offset ratio is no longer 1.3 to 1 and a new offset ratio applies, as specified in 35 Ill. Adm. Code 203.302, that ratio shall then apply in lieu of the 1.3 to 1 ratio set forth in subsections (c)(2), (d)(1), and (e) of this Section. Such new ratio shall not apply to any part of a source or any modification already subject to the 1.3 to 1 ratio or other previously effective offset ratio established prior to the effective date of the new ratio.” Section 205.150(f)(2) provides that the ratio becomes 1 to 1 if the Chicago area is redesignated to attainment.
These revisions address the ramifications of a revised classification according to EPA guidance as cited above. However, while Illinois was adopting these rule revisions, EPA's ozone implementation guidance was being challenged in court. On December 22, 2006, with clarification on June 8, 2007, the Court of Appeals for the District of Columbia Circuit ruled against elements of EPA's ozone implementation guidance, including the “backsliding” inherent in allowing an area originally classified as severe and subsequently classified as moderate to apply the less stringent major source definition for moderate areas.
Fortunately, Illinois' rules achieve the intended effect notwithstanding these developments regarding applicable size thresholds and offset ratios. Section 205.200 provides that Part 205 requirements apply to sources with potential to emit at least 25 tons of VOC per year, without regard to whether the major source threshold is 25 or 100 tons per year. Resumption of a 25 ton per year definition of major source simply means that sources with potential emissions between 25 and 100 tons that were subject to ERMS in 1997 because they were major sources are again subject to ERMS because they are again major sources. Since any source with potential to emit more than 25 tons per year now by definition must obtain a Title V permit, it is a moot point whether the State provides a FESOP option for sources of that size that are not subject to the Title V permitting requirement. With respect to offsets, Section 205.150 simply applies required holding allowances for new sources in accordance with the applicable offset ratio. While the ratio for a time was interpreted to be 1.1 to 1, the court decision means that this ratio is reverting back to 1.3 to 1, and Section 205.150 provides that the ratio used for ERMS shall indeed revert back to 1.3 to 1. Thus, the Illinois rules accommodate the effects of the court's ruling, and the court's ruling does not alter the approvability of Illinois' Part 205 rules.
Illinois requested that EPA defer rulemaking on Section 205.150(e). This section provides that new sources providing offsets by holding trading program allowances in the proper ratio need not also provide offsets in their new source permit. Illinois made a similar request for deferral of EPA rulemaking on this section in conjunction with its 1997 submittal of ERMS rules. While a new source may use a shutdown for both purposes, purchasing the necessary allowances from a shutdown source and simultaneously using the shutdown in the new source permit to satisfy offset requirements, the deferral of rulemaking provides that the two requirements must be met independently.
Illinois made a corollary change, changing the term “Chicago ozone nonattainment area” to the term “Chicago area.” The term “Chicago area” is defined to mean the same area as the previous term “Chicago ozone nonattainment area,” but the revised term more clearly signifies that the program will remain in effect even if the Chicago area is redesignated as an attainment area.
In addition to the rules identified above, Illinois made conforming revisions to multiple other rules. These revisions generally replace the term “Chicago nonattainment area” with the term “Chicago area” or mention FESOPs as a possible vehicle for specifying source-specific provisions to implement the ERMS rules.
EPA finds these changes approvable. The change in the applicability provisions merely assures that the original program applicability criteria continue to apply, notwithstanding any change in the classification or designation of the area. The requirement
EPA is approving Illinois' revisions to the ERMS program, except that EPA is deferring action on Section 205.150(e). EPA is publishing this action without prior proposal because EPA views this as a noncontroversial amendment and anticipates no adverse comments. However, in the proposed rules section of this
Illinois did not change every rule in part 205. The State submitted only those rules that it changed. Thus, the revised rules being approved here must be viewed in conjunction with the unrevised rules approved at 40 CFR 52.720(c)(158).
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget.
Because it is not a “significant regulatory action” under Executive Order 12866 or a “significant energy action,” this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001).
This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator 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 et seq.).
Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).
This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (59 FR 22951, November 9, 2000).
This action also does not have Federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act.
This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal Standard.
In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the state to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.
This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 31, 2008. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401 et seq.
(c) * * *
(180) On January 10, 2007, Illinois submitted revisions to its rules for the Emission Reduction Market System. These revisions assure that sources in the Chicago area with potential emissions of VOC between 25 and 100 tons per year will remain subject to the program, irrespective of changes in the area's ozone nonattainment classification or designation and any associated changes in whether such sources are defined to be major sources. EPA is again deferring action on section 205.150(e).
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(A) The following sections of 35 Illinois Administrative Code Part 205, as effective June 13, 2005: sections 205.120, 205.130, 205.150 (except for 205.150(e)), 205.200, 205.205, 205.210, 205.220, 205.300, 205.310, 205.315, 205.316, 205.318, 205.320, 205.330, 205.335, 205.337, 205.400, 205.405, 205.410, 205.500, 205.510, 205.610, 205.700, 205.730, 205.750, and 205.760.
Environmental Protection Agency (EPA).
Final order.
In this order, EPA denies objections filed by the Natural Resources Defense Council (“NRDC”) to a final rule under section 408 of the Federal Food, Drug, and Cosmetic Act (“FFDCA”), (21 U.S.C. 346a), establishing tolerances for the pesticide boscalid on various leafy greens. NRDC argues that EPA has unlawfully removed the additional safety factor for the protection of infants and children required by Food Quality Protection Act of 1996.
Tony Kish, Registration Division, (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: 703-308-9443; e-mail address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:
• Crop production (NAICS code 111), e.g., agricultural workers; greenhouse, nursery, and floriculture workers; farmers.
• Animal production (NAICS code 112), e.g., cattle ranchers and farmers, dairy cattle farmers, livestock farmers.
• Food manufacturing (NAICS code 311), e.g., agricultural workers; farmers; greenhouse, nursery, and floriculture workers; ranchers; pesticide applicators.
• Pesticide manufacturing (NAICS code 32532), e.g., agricultural workers; commercial applicators; farmers; greenhouse, nursery, and floriculture workers; residential users.
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities that are potentially affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
In addition to accessing an electronic copy of this
EPA has established a docket for this action under docket identification (ID) number EPA-HQ-OPP-2005-0145. To access the electronic docket, go to
In this order, EPA denies objections filed by the Natural Resources Defense Council (“NRDC”) to a final rule under section 408 of the Federal Food, Drug, and Cosmetic Act (“FFDCA”), (21 U.S.C. 346a), establishing tolerances for the pesticide boscalid on various leafy greens. (Ref. 1). NRDC argues that EPA must retain an additional ten-fold (10X) safety factor for the protection of infants and children due to data showing that juvenile animals are more sensitive than adults. Retention of this additional safety factor, NRDC contends, shows that the tolerances are unsafe. Additionally, NRDC contends that EPA's tolerance decision was arbitrary and capricious because (1) EPA failed to explain adequately its reason for not applying a 10X safety factor for infants and children and (2) the safe dose for boscalid established by EPA is “clearly contrary to the data . . . .” (Id. at 3-4, 7-8).
The procedure for filing objections to tolerance actions and EPA's authority
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EPA also regulates pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), (7 U.S.C. 136 et seq). While the FFDCA authorizes the establishment of legal limits for pesticide residues in food, FIFRA requires the approval of pesticides prior to their sale and distribution, (7 U.S.C. 136a(a)), and establishes a registration regime for regulating the use of pesticides. FIFRA regulates pesticide use in conjunction with its registration scheme by requiring EPA review and approval of pesticide labels and specifying that use of a pesticide inconsistent with its label is a violation of Federal law. (7 U.S.C. 136j(a)(2)(G)). In the FQPA, Congress integrated action under the two statutes by requiring that the safety standard under the FFDCA be used as a criterion in FIFRA registration actions as to pesticide uses which result in dietary risk from residues in or on food, (7 U.S.C. 136(bb)), and directing that EPA coordinate, to the extent practicable, revocations of tolerances with pesticide cancellations under FIFRA. (21 U.S.C. 346a(l)(1)).
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Section 408(b)(2)(C) requires EPA to give special consideration to risks posed to infants and children. Specifically, this provision states that EPA “shall assess the risk of the pesticide chemical based on available information concerning the special susceptibility of infants and children to the pesticide chemical residues, including neurological differences between infants and children and adults, and effects of
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There are three main reasons for closely linking tolerance values to the maximum value that could be present from maximum label usage of the pesticide. First, EPA believes it is important to coordinate its actions under the two statutory frameworks governing pesticides. (See 61 FR 2378, 2379, January 25, 1996). It would be illogical for EPA to set a pesticide tolerance under the FFDCA without considering what action is being taken under FIFRA with regard to registration of that pesticide use. (Cf. 40 CFR 152.112(g) (requiring all necessary tolerances to be in place before a FIFRA registration may be granted)). In coordinating its actions, one basic tenet that EPA follows is that a grower who applies a pesticide consistent with the FIFRA label directions should not run the risk that his or her crops will be adulterated under the FFDCA because the residues from that legal application exceed the tolerance associated with that use. To further this goal, crop field trials require application of the pesticide in the manner most likely to produce maximum residues. Second, choosing tolerance values based on FIFRA label rates helps to ensure that tolerance levels are established no higher than necessary. If tolerance values were selected solely in consideration of health risks, in some circumstances, tolerance values might be set so as to allow much greater application rates than necessary for effective use of the pesticide. This could encourage misuse of the pesticide. Finally, closely linking tolerance values to FIFRA labels helps EPA to police compliance with label directions by growers because detection of an overtolerance residue is indicative of use of a pesticide at levels, or in a manner, not permitted on the label.
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In evaluating a pesticide's potential hazards (e.g., liver effects, carcinogenicity), EPA examines both short-term (e.g., “acute”) and longer-term (e.g., “chronic”) adverse effects from pesticide exposure. (Ref. 2 at 8-10). EPA also considers whether the “effect” has a threshold - a level below which exposure has no appreciable chance of causing the adverse effect. For non-threshold effects, EPA assumes that any exposure to the substance increases the risk that the adverse effect may occur. At present, EPA only considers one adverse effect, the chronic effect of cancer, to potentially be a non-threshold effect. (Ref. 2 at 8-9). Not all carcinogens, however, pose a risk at any exposure level (i.e., “a non-threshold effect or risk”). Advances in the understanding of carcinogenesis have increasingly led EPA to conclude that some pesticides that cause carcinogenic effects only cause such effects above a certain threshold of exposure.
Once the hazard for a durational scenario is identified, EPA must determine the toxicological level of concern and then compare estimated human exposure to this level of concern. This comparison is done through either calculating a safe dose in humans (incorporating all appropriate safety factors) and expressing exposure as a percentage of this safe dose (the reference dose (“RfD”) approach) or dividing estimated human exposure into an appropriately protective dose from the relevant studies (the margin of exposure (“MOE”) approach). How EPA determines the level of concern and assesses risk under these two approaches is explained in more detail below. EPA's general approach to estimating exposure is also briefly discussed.
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For dietary risks, EPA uses the Point of Departure to calculate a safe dose or RfD. The RfD is calculated by dividing the Point of Departure by applicable safety or uncertainty factors. Typically, a combination of safety or uncertainty factors providing a hundredfold (100X) margin of safety is used: 10X to account for uncertainties inherent in the extrapolation from laboratory animal data to humans and 10X for variations in sensitivity among members of the human population as well as other unknowns. Further, to account for deficiencies in the database or the results seen in the database, EPA has traditionally added additional safety factors on a case-by-case basis. The FQPA amendments to FFDCA section 408 require an additional safety factor of 10X to protect infants and children (to address data completeness and pre- and post-natal toxicity concerns), unless reliable data support selection of a different factor. To some extent, the FQPA safety factor addresses concerns related to the factors driving EPA's traditional use of additional safety factors.
In implementing FFDCA section 408, EPA's Office of Pesticide Programs, also calculates a variant of the RfD referred to as a Population Adjusted Dose (“PAD”). A PAD is the RfD divided by any portion of the FQPA children's safety factor that does not correspond to one of the traditional additional safety factors used in general Agency risk assessment. (Ref. 5 at 13-16). The reason for calculating PADs is so that other parts of the Agency, which are not governed by FFDCA section 408, can, when evaluating the same or similar substances, easily identify which aspects of a pesticide risk assessment are a function of the particular statutory commands in FFDCA section 408. Today, RfDs and PADs are generally calculated for both acute and chronic dietary risks although traditionally a RfD or PAD was only calculated for chronic dietary risks. Throughout this document general references to EPA's calculated safe dose are denoted as a RfD/PAD.
To quantitatively describe risk using the RfD/PAD approach, estimated exposure is expressed as a percentage of the RfD/PAD. Dietary exposures lower than 100 percent of the RfD/PAD are generally not of concern.
For non-dietary, and often for combined dietary and non-dietary, risk assessments of threshold effects, the toxicological level of concern is not expressed as a safe dose or RfD/PAD but rather as the margin of exposure (MOE) that is necessary to be sure that exposure to a pesticide is safe. To calculate the MOE for a pesticide for a given exposure scenario, the expected human exposure to the pesticide is divided into the dose identified as the Point of Departure. A safe MOE is generally considered to be a margin at least as high as the product of all applicable safety factors for a pesticide. For example, if a pesticide needs a 10X factor to account for interspecies differences, a 10X factor for intraspecies differences, and a 10X FQPA children's safety factor, the safe or target MOE would be a value of at least 1,000. In contrast to the RfD/PAD approach, the higher the pesticide's MOE, the safer the pesticide would be considered. Accordingly, if the target MOE for a pesticide is 1,000, MOE's for that pesticide exceeding 1,000 would generally not be of concern. Like RfD/PADs, specific MOEs are calculated for exposures of different durations. For non-dietary exposures, EPA typically examines short-term, intermediate-term, and long-term exposures. Additionally, non-dietary exposure often involves exposures by various routes including dermal, inhalation, and oral.
The RfD/PAD and MOE approaches are fundamentally equivalent. For a given risk and given exposure of a pesticide, if the pesticide were found to be safe under a RfD/PAD analysis it would also pass under the MOE approach, and vice-versa.
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i. the types and amount of food that is consumed; and
ii. the residue levels in that food.
In assessing exposure from pesticide residues in food, EPA, for efficiency's sake, follows a tiered approach in which it, in the first instance, conducts its initial, screening-level exposure assessment using the worst case assumptions that 100 percent of the crop in question is treated with the pesticide and 100 percent of the food from that crop contains pesticide residues at the tolerance level. (Id. at 11). When such an assessment shows no risks of concern, EPA's resources are conserved because a more complex risk assessment is unnecessary and regulated parties are spared the cost of any additional studies that may be needed. If, however, a first tier assessment suggests there could be a risk of concern, EPA then attempts to refine its exposure assumptions to yield a more realistic picture of residue values through use of data on the percent of the crop actually treated with the pesticide and data on the level of residues that may be present on the treated crop. These latter data are used to estimate what has been traditionally referred to by EPA as “anticipated residues.” Use of percent crop treated data and anticipated residue information is appropriate because EPA's worst case assumptions of 100 percent treatment and residues at tolerance value significantly overstate residue values. (72 FR 52112, July 18, 2007; 71 FR 43906, 43909-43910, August 2, 2006).
In estimating pesticide exposure levels in drinking water, EPA most frequently uses mathematical water exposure models rather than pesticide-specific monitoring data. (69 FR 30042, 30058, May 26, 2004). EPA's models are based on extensive monitoring data and detailed information on soil properties, crop characteristics, and weather patterns. These models calculate estimated environmental concentrations of pesticides using laboratory data that describe how quickly the pesticide breaks down to other chemicals and how it moves in the environment (i.e., does it bind to the soil or is it highly water soluble). Although computer modeling provides an indirect estimate of pesticide concentrations, these concentrations can be estimated continuously over long periods of time, and for places that are of most interest for any particular pesticide. Modeling is a useful tool for characterizing vulnerable sites, and can be used to estimate peak concentrations from infrequent, large storms. Whether EPA assesses pesticide exposure in drinking water through monitoring data or modeling, EPA uses the higher of the two values from surface and ground water in assessing overall exposure to the pesticide. In most cases, pesticide residues in surface water are significantly higher than in ground water.
Generally, in assessing residential exposure to pesticides, EPA relies on its Residential Standard Operating Procedures (“SOPs”). (Ref. 7). The SOPs establish models for estimating application and post-application exposures in a residential setting where pesticide-specific monitoring data is not available. SOPs have been developed for many common exposure scenarios including pesticide treatment of lawns, garden plants, trees, swimming pools, pets, and indoor surfaces including crack and crevice treatments. The SOPs are based on existing monitoring and survey data including information on activity patterns, particularly for children. Where available, EPA relies on pesticide-specific data in estimating residential exposures.
As part of implementation of the major changes to FFDCA section 408 included in the FQPA, EPA has issued a number of policy guidance documents addressing critical science issues. On January 31, 2002, EPA released its science policy guidance on the children's safety factor. (Ref. 5) [This policy is hereinafter referred to as the “Children's Safety Factor Policy”]. The Children's Safety Factor Policy emphasizes throughout that EPA interprets the children's safety factor provision as establishing a presumption in favor of application of an additional 10X safety factor for the protection of infants and children. (Id. at 4, 11, 47, A-6). Further, the policy notes that the children's safety factor provision permits a different safety factor to be
In making pesticide-specific assessments regarding the magnitude of the children's safety factor, the policy stresses the importance of focusing on the statutory language that ties the children's safety factor to concerns regarding potential pre- and post-natal toxicity and the completeness of the toxicity and exposure databases. (Id. at 11-12). As to the completeness of the toxicity database, the policy recommends use of a weight-of-the-evidence approach which considers not only the presence or absence of data generally required under EPA regulations and guidelines but also the availability of “any other data needed to evaluate potential risks to children.” (Id. at 20). The policy indicates that the principal inquiry concerning missing data should center on whether the missing data would significantly affect calculation of a safe exposure level. (Id. at 22; accord 67 FR 60950, 60955, September 27, 2002) (finding no additional safety factor necessary for triticonazole despite lack of developmental neurotoxicity (“DNT”) study because the “DNT [study] is unlikely to affect the manner in which triticonazole is regulated.”)). When the missing data are data above and beyond general regulatory requirements, the policy states that the weight of evidence would generally only support the need for an additional safety factor where the data “is being required for ‘cause,’ that is, if a significant concern is raised based upon a review of existing information, not simply because a data requirement has been levied to expand OPP's general knowledge.” (Ref. 5 at 23).
As to potential pre- and post-natal toxicity, the Children's Safety Factor Policy lists a variety of factors that should be considered in evaluating the degree of concern regarding any identified pre- or post-natal toxicity. (Id. at 27-31). As with the completeness of the toxicity database, the policy emphasizes that the analysis should focus on whether any identified pre- or post-natal toxicity raises uncertainty as to whether the RfD/PAD is protective of infants and children. (Id. at 31). Once again, the presence of pre- or post-natal toxicity, by itself, is not regarded as determinative as to the children's safety factor. Rather, the policy stresses the importance of evaluating all of the data under a weight-of-evidence approach focusing on the safety of infants and children. (Id.).
In evaluating the completeness of the exposure database, the policy explains that a weight-of-the-evidence approach should be used to determine the confidence level EPA has as to whether the exposure assessment “is either highly accurate or based upon sufficiently conservative input that it does not underestimate those exposures that are critical for assessing the risks to infants and children.” (Id. at 32). EPA describes why its methods for calculating exposure through various routes and aggregating exposure over those routes generally produce conservative exposure estimates - i.e. health-protective estimates due to overestimation of exposure. (Id. at 40-43). Nonetheless, EPA emphasizes the importance of verifying that the tendency for its methods to overestimate exposure in fact were adequately protective in each individual assessment. (Id. at 44).
Boscalid is a fungicide used both on agricultural food crops as well as turf. It has a wide variety of agricultural uses including berries, nuts, soybeans, and various vegetables. (40 CFR 180.589(a)). Tolerances have also been established to cover inadvertent residues on various other crops as a result of rotation of these crops onto fields previously treated with boscalid. (40 CFR 180.589(d)). On December 20, 2006, EPA promulgated new boscalid tolerances for residues in or on leafy greens crop subgroup 4A, except head and leaf lettuce, and leafy petioles crop subgroup 4B. (71 FR 76185, December 20, 2006).
In promulgating these tolerances, EPA assessed the risk from boscalid based on aggregate boscalid exposure. Animal studies indicated that repeat dosing with boscalid resulted in effects in the liver and/or thyroid in various species. Mechanistic studies indicated that the thyroid effects were derivative of enzymatic effects on the liver. (Ref. 8 at 4). The chronic RfD/PAD was based on the results of three studies that showed similar effects at similar levels. (Id. at 23-24). The boscalid database showed no effects that were attributable to a single dose, and thus boscalid was deemed not to pose an acute risk. Testing involving
EPA concluded that chronic exposures to boscalid did not raise safety concerns because the most highly exposed population subgroup, children 1-2 years old, had exposures below the PAD or safe dose (exposure was at 38 percent of the PAD). (71 FR 76188). Short-term exposures from golf course turf was also judged to be safe having a MOE of 1,400. (Id.). EPA concluded the cancer risk posed by boscalid was negligible given the weak evidence of carcinogenicity in animal studies. (Id. at 76189). In conducting these assessments, EPA determined that the children's safety factor could be removed because the database was complete, there was low concern for increased sensitivity in the young, and exposure had been estimated in a conservative fashion. (Id. at 76188).
On February 20, 2007, NRDC filed objections to the December 2006 rule establishing tolerances for boscalid on various leafy greens. (Ref. 1). On May 21, 2007, NRDC supplemented and expanded its objections by filing comments during the comment period held by EPA on NRDC's initial objections. (Ref. 9).
NRDC's objections have two main thrusts: (1) that EPA erred in removing the children's safety factor given the finding of that young animals had increased sensitivity to boscalid; and (2) that EPA's decision is arbitrary and capricious due to a failure to adequately explain its reasons for removing the children's safety factor and because EPA's selection of NOAELs and the RfD/PAD “are clearly contrary to the data.” (Ref. 1).
With regard to increased sensitivity in young animals, NRDC relied in its objections principally on the EPA
NRDC makes no new arguments to justify its claim that EPA's decision is arbitrary and capricious; rather, NRDC merely cross-references its earlier assertions regarding EPA's interpretation of science data.
In its comments on its objections, NRDC expands on these arguments. First, it argues that EPA erred in discounting the seriousness of the increased sensitivity in the DNT and rat reproduction studies. NRDC claims that EPA's analysis is based on nothing more than speculation. (Ref. 9 at 2-4). Second, NRDC cites a third study as showing sensitivity in young animals, the rabbit developmental study, and argues similarly that EPA has relied on nothing more than speculation to conclude that the demonstrated sensitivity is of low concern. Finally, NRDC provides greater detail in support of its argument that EPA's selection of a RfD/PAD for boscalid is not protective of children and does not justify removal of the children's safety factor.
Upon receipt of the objections, EPA provided a copy of the objections to the tolerance petitioner, BASF Corporation, as required by the statute. Further, on March 28, 2007, EPA published a notice of the availability of the objections and established a 60-day comment period. (72 FR 14551, March 28, 2007). Other than from BASF, EPA received significant comments only from NRDC - commenting on its own objections.
BASF's comments stressed that a complete database had been submitted on boscalid including neurotoxicity studies that went beyond the core toxicology database requirements. In addition, BASF asserted that these studies showed “no toxicologically meaningful effects [in young animals] were observed at a dose below one that produced toxicity to the parental animals.” (Ref. 10 at 2). BASF contended that effects in rat pups in the DNT and the two-generation reproduction study that occurred at doses lower than effects in maternal animals were small and/or transient decreases in pup body weight. (Id.).
Because NRDC's comments on its own objections were a supplementation of its objections, these comments were provided to BASF and BASF was given a 30-day period for response. (Ref. 11). As to NRDC's new arguments concerning sensitivity in the young, BASF asserts that the data did not support that conclusion. As regards the two-generation reproduction study and the DNT, BASF notes that, although toxicity in the parental animals was not seen in the DNT study and was seen only at the high dose in the reproduction study, in the chronic/carcinogenicity study in rat, where systematic toxicity is examined more thoroughly, adverse effects were seen at doses corresponding to the mid and high doses in the DNT and reproduction studies. Thus, BASF concludes that the findings of adverse effects in the young at the mid and high doses in the DNT and reproduction studies do not show increased sensitivity in the young. As to the rabbit developmental study, BASF argues that, because the effects on the fetuses (increased number of abortions) occurred at a dose that showed the maternal animals were under stress (decreased weight gain), the study does not show increased sensitivity in the fetuses. According to BASF, “[t]he rabbit is prone to spontaneously abort as a response to maternal stress, and feed restriction alone during the gestational period may trigger abortions in rabbits.” (Id. at 3). Finally, BASF defends EPA's use of the NOAEL from the chronic dog study as the Point of Departure for setting the cRfD/PAD by presenting a “benchmark dose” analysis of the relevant studies. Benchmark dose analysis involves fitting a mathematical model to the dose response data for the purpose of estimating the threshold effect level (i.e., the no adverse effect level) reflecting a selected benchmark response (e.g., 5%, 10%). BASF's benchmark dose analysis revealed that the NOAEL from the chronic dog study was lower than the benchmark dose from DNT and two-generation reproduction studies.
For the reasons stated below, EPA denies each of NRDC's objections.
NRDC contends that EPA's decision to remove the children's safety factor was erroneous based on (1) the legal argument that whenever EPA identifies increased sensitivity in the young it is required to retain the full 10X children's safety factor; and (2) the scientific claim that EPA did not have a reasoned basis for its conclusion that the sensitivity identified in animal studies was of low concern in evaluating whether the 10X children's safety factor should be retained or a different factor selected.
Before reaching the merits of these arguments, one preliminary matter needs to be addressed. In a prior order on an objection to EPA's removal of the children's safety factor as to different pesticides, EPA denied the objection where retention of the children's safety factor would not have altered EPA's conclusion on the pesticide's safety (72 FR 39318, 39323-39324, July 18, 2007). For boscalid, the retention/removal decision appears to be critical to the safety determination because EPA concluded that chronic exposure to boscalid for the highest exposed population subgroup is at 38 percent of the RfD/PAD. If no other change is made to the boscalid risk assessment other than retaining the 10X children's safety factor, then the calculation that boscalid exposure uses 38 percent of the RfD/PAD for the most highly-exposed subgroup would increase by a factor of 10. Because of the conservativeness of the exposure assessment for boscalid (assuming all foods that may be legally treated bear tolerance level residues), however, EPA strongly suspects that a more realistic exposure assessment will not show a risk of concern. Exposure refinements from the worst case assumptions of all foods containing tolerance level residues generally reduce exposure estimates by an order of magnitude or more. (70 FR 46706, 46732, August 10, 2005). Nonetheless, because EPA has not completed a revised risk assessment for boscalid at this time, it will address in this order the substance of NRDC's challenge to EPA's decision on the children's safety factor. It should be noted that EPA's decision on the children's safety factor for boscalid relied in part on the conservativeness of EPA's exposure
1.
On repeated occasions EPA has rejected the interpretation that the children's safety factor provision mandates that the absence of a particular study or a finding of pre- or post-natal toxicity or increased sensitivity in the young removes EPA's discretion to choose a different safety factor. (72 FR 52108, 52115-52117, September 12, 2007; 71 FR 43906, 43919, August 2, 2006). EPA explained its rationale recently in responding to NRDC objections which made precisely the same argument in this case:
The statute does direct EPA to consider “susceptibility of infants and children” to pesticides. (21 U.S.C. 346a(b)(2)(C)(i)(II)). It also states that an additional safety factor to protect infants and children shall be applied “to take into account potential pre- and post-natal toxicity . . . .” (21 U.S.C. 346a(b)(2)(C)). Nonetheless, in clear and unmistakable language, Congress decreed that, “[n]otwithstanding such requirement for an additional margin of safety” to take into account potential pre- and post-natal toxicity, EPA is authorized to choose a different safety factor if EPA has reliable data showing a different factor is safe. (Id.). Interpreting the statute as creating a rigid, per se rule that the identification of sensitivity in the young removes EPA's discretion to choose a different safety factor is inconsistent with this language and the flexibility granted to the Agency.
2.
a.
EPA disagrees with NRDC's analysis and reaffirms its conclusion that boscalid did not elicit an adverse effect on auditory startle reflex in the DNT study. In its initial analysis of the DNT, an EPA reviewer concluded that there were treatment-related decreases in auditory startle reflex at all doses on post-natal-day (“PND”) 24. This finding was based on a statistically significant decrease in auditory startle reflex in males at both the low and high doses in the first block of five trials and for the average effect over all trials. The average decrease was greater in the low dose group (24%) than the high dose group (19%). The mid-dose group had a slightly lower decrease of 15%. In females, a statistically significant effect was only seen in the second block of the low and mid-dose groups but no such effect was seen for the average across blocks. Again, there was no dose-response effect in that greater decreases were seen at the low dose than at the mid or high dose. No statistically significant effects on auditory startle reflex were seen on PND 60. Noting the “limitations” in the data, the EPA reviewer nonetheless tentatively found a treatment-related effect at all doses.
In response to this tentative conclusion, the boscalid registrant submitted historical control data on auditory startle reflex and data concerning one male pup that died on PND 25. After examining the historical control data, EPA concluded that the auditory startle reflex of the controls from the boscalid DNT study were similar to historical controls and thus the controls from the boscalid study “should be considered the primary source for analysis and consideration” for this study. (Ref. DER at 30). As to the rat which died, EPA concluded that it was suffering from an underlying illness unrelated to treatment and removed its data from the study. As a result, none of the individual block trials nor the average from all trials for males evidenced a statistically significant decrease in auditory startle reflex at PND 24. EPA also reanalyzed the statistical significance of the results for the females and found a statistically significant effect only at the low dose for the second block. Given the revised finding of a statistically significant effect in only one block trial (out of five) at one dose (out of three) in one sex on one day of testing (out of two) and the lack of a dose response (effects only at the low dose), EPA concluded that there was no treatment-related effect on auditory startle reflex.
NRDC's objection here is denied. As a preliminary matter, EPA would note that it disagrees with NRDC's claim that historical control data can only be used for the narrow purpose of evaluating the fitness of a study's controls. (Refs. 12a, 12b, and 12c). This disagreement, however, is beside the point because for the boscalid DNT study EPA used historical control data in precisely the manner that NRDC argues they should be used. EPA's review of the DNT specifically found that “[h]istorical control data provided indicated that the mean startle amplitude on PND 24 for the current study of [boscalid] was similar to the control means of the submitted studies on PND 24. Therefore the analysis of this group's relation to treatment groups is valid and should be considered the primary source for analysis and evaluation.” (Ref. 13 at 30). Finally, EPA's conclusion that the DNT study showed no treatment-related effect on auditory startle reflex was based upon a reasonable evaluation of the data, as demonstrated above.
b.
EPA believes that the significance attached to findings of sensitivity in a DNT study should be driven primarily by an evaluation of the results of the study itself. EPA would note that the development and design of the DNT study underwent an exhaustive independent scientific peer review as well as public comment process. (Ref. 14). This process included multiple reviews by EPA's FIFRA Scientific Advisory Panel and public comment opportunities as well as a scientific workshop involving outside experts organized expressly to evaluate developmental neurotoxicity testing issues. (Id.). NRDC's criticisms of use of reporting statistical significance at the 95 and 99 percent confidence levels are misplaced. Use of p-values of 0.01 and 0.05 to document statistically significant differences between treated and control animal groups is a long-established practice in the scientific community. (Refs. 15a, 15b, 15c, 15d, and 15e). EPA can calculate different levels of statistical confidence if for some reason the data suggest that may be valuable; however, in EPA's judgment no such reasons were present in the circumstances of the boscalid DNT study.
c.
In comments on NRDC's objections, BASF argues that young animals are not more sensitive to boscalid than adult animals given that adult animals in the chronic/carcinogenicity study in the rat experienced adverse effects at similar dose levels as the pups in the two generation rat study. BASF makes the same contention with regard to the DNT study. (See Unit VII.A.2.d., below).
EPA does not believe that the sensitivity evidenced in the pups in the two-generation reproduction requires retention of the 10X children's safety factor. As discussed in detail in Unit VII.A.2.f., the NOAEL from the chronic dog study used for the Point of Departure in setting the chronic RfD/PAD for the liver effects is protective of the body weight effects seen in the second generation male pups at mid and high doses in the two-generation reproduction study. EPA disagrees with NRDC that it was somehow improper to take into account that the body weight effects in the pups in the two-generation reproduction study were only seen in males and only in the second generation. These factors bear on significance of the effects seen. Effects seen in only one sex and only after dosing for two generations are generally regarded as less significant than effects seen in both sexes and in both generations of a two-generation study. Moreover, there is other evidence from the study suggesting that body weight effects in the young were not entitled to great weight in EPA's weight-of-the-evidence analysis. First, absolute body weight and bodyweight gain of the male F
NRDC places special emphasis on EPA's suggestion that the body weight effect may be due to the very high dose given the maternal animals. EPA's statement on this issue was in error because, as noted, the body weight effects were seen at both the mid and high doses in the study in the second generation pups. Nonetheless, for the reasons described above, identification of a clear NOAEL for body weight effects and limited nature of the body weight effects (e.g., one sex only, inconsistent findings at the mid dose), EPA concludes that the chronic RfD/PAD based on a safety factor of 100X is safe for infants and children.
EPA does not agree that BASF has made an appropriate comparison of the results of the two-generation reproduction study and the chronic/carcinogenicity study given the substantial difference in time of exposure to boscalid in the two studies.
d.
For similar reasons to those relied upon in rejecting NRDC's arguments concerning the two-generation reproduction study, EPA does not believe that the sensitivity evidenced in the pups in the DNT study requires retention of the 10X children's safety factor. As discussed in detail in Unit VII.A.2.f., the NOAEL from the chronic dog study used for the Point of Departure in setting the chronic RfD/PAD for the liver/thyroid effects is protective of the transient body weight effects seen in the pups at mid dose and the more severe pup body weight effects at the high dose in the DNT study. EPA disagrees with NRDC that it was somehow improper to take into account that the body weight effects in the mid-dose pups were transient in nature - i.e., statistically significant decreases in body weight were seen on post-natal
NRDC challenges EPA's reasoning that the effects on pups' body weight may be due to the maternal animals being exposed above the Limit Dose. The Limit Dose is regarded as the highest dose possible that can be given an animal without overwhelming its defense mechanisms. As a general matter, EPA does not believe NRDC's argument is well-founded because discounting the weight of effects seen only at or above the Limit Dose is a well-accepted scientific precept. Here, however, EPA erred by mentioning the Limit Dose because effects were present in the pups at the mid dose as well as at the dose that exceeded the Limit Dose. Nonetheless, for the reasons described above, identification of a clear NOAEL for body weight effects and limited nature of the body weight effects (e.g., one sex only, transient nature of effects at the mid dose), EPA concludes that the RfD/PAD based on a safety factor of 100X is safe for infants and children.
For the same reason as stated in Unit VII.A.2.c., EPA disagrees with BASF's comparison of the DNT study and the chronic/carcinogenicity study.
e.
NRDC's claims as to the rabbit developmental study, have even less merit than its arguments as to the two-generation reproduction and DNT studies. Not only is the chronic RfD/PAD for the thyroid effects protective of the qualitative sensitivity seen in the rabbit developmental study but the chronic RfD/cPAD is protective by an order of magnitude of an effect seen only at a “limit dose.” The chronic RfD/PAD is based on a NOAEL from the chronic dog study of 21.8 mg/kg/day as compared to the NOAEL for the fetal effects in the rabbit developmental study of 300 mg/kg/day. The fetal effects (abortions and early delivery) were seen only at the Limit Dose. (Unlike in the two-generation reproduction and DNT studies, adverse effects were only seen in the young at the high dose.). Moreover, the fetal effects were seen only in the presence of adverse effects in the maternal animals. The primary adverse effects in the maternal animals were abortions and early delivery (considered an adverse effect on both maternal animals and fetuses) but the study evidenced decreased food consumption and decreased body weight in the maternal animals as well. Although a definitive conclusion was not reached on whether the food consumption effects were treatment-related, evaluation of the individual animals showed that three of the four does that aborted or delivered early experienced dramatic reductions in food consumption. Given these results, it was reasonable for EPA to take into account its scientific expertise with rabbit toxicology studies which indicated that maternal animals put under stress had a tendency to abort or deliver early. Based on all of this evidence, EPA rejects NRDC's arguments concerning the rabbit developmental study and concludes that the qualitative sensitivity evidenced in the fetuses in the rabbit developmental study does not require retention of the 10X children's safety factor. (Refs. 18 and 19).
f.
EPA relied on three co-critical studies in selecting a NOAEL for the chronic RfD/PAD: chronic toxicity in the rat, carcinogenicity in the rat, and chronic toxicity in the dog. Each of these studies showed liver effects and the rat studies also evidenced secondary effects on the thyroid. The NOAELs for the studies tightly bunched between 21.8 and 30 mg/kg/day. EPA selected the 21.8 mg/kg/day NOAEL from the chronic dog study to calculate the chronic RfD/PAD. EPA considered but rejected lower NOAELs from three other studies: the 90-day subchronic toxicity study in the dog; the two-generation reproduction study in the rat; and the developmental neurotoxicity study. EPA's rationale for not using the NOAELs from these studies was that the lower NOAELs from these studies were an artifact of dose selection given the wide range between NOAEL and LOAEL in the studies and the minimal effects seen at the LOAEL.
NRDC challenges EPA's conclusion claiming that EPA has ignored “effects at significantly lower doses in juvenile animals (2-gen repro and DNT).” (Ref. 1 at 4). NRDC also argues that EPA's decision is speculative because (1) “EPA does not identify any reliable data to support its theory that a 10x differential between NOAELs and LOAELs - as occurred [with the three studies with lower NOAELs] - can never result from well designed and conducted studies;” and (2) “EPA offers no reliable data to support its assumption that the relationship between the LOAELs and NOAELs across studies with different designs and with different test species must always be the same . . . .” (Ref. 9 at 4).
NRDC's arguments are without merit. First, NRDC is wrong to contend that EPA, in setting the chronic RfD/PAD, ignored “effects at significantly lower doses in juvenile animals” in the two-generation reproduction study and the DNT. EPA based the chronic RfD/PAD on the chronic dog study. In that study the lowest dose in which adverse effects were seen was 57.4 mg/kg/day. On the other hand, in the two-generation reproduction study and the DNT, the lowest doses at which adverse effects were seen were 101.2 mg/kg/day and 147 mg/kg/day, respectively. (Ref. 18 at 17). Second, EPA is not contending, nor does its analysis depend on, the supposition that a “10x differential between NOAELs and LOAELs . . . can never result from well designed and conducted studies.” The differential between a study's NOAEL and LOAEL depends on the dose spacing in the study - studies with more and closely-spaced doses are likely to yield a lower differential than studies with fewer and widely-spaced doses. EPA is not arguing that it is inappropriate to design a study with a factor of 10 between doses. Third, EPA is not contending that the relationship between NOAELs and LOAELs across studies must always be the same. Rather, EPA concluded that the data for boscalid indicated that the NOAEL it selected as the Point of Departure for calculating the chronic
In making this conclusion, EPA relied on several factors. First, EPA compared the NOAELs and LOAELs of the six chronic studies that had NOAELs that were relatively close. This exercise is appropriate because the NOAEL from any one study is, in part, an artifact of the dose selection process, and does not identify the no adverse effect level just the level at which no effects were observed in the particular study. In animal testing, animals are generally dosed at three or four different levels. The dose levels are fairly widely spread (generally 2X - 10X) so that there is a good chance of identifying both a NOAEL and a LOAEL. The actual no adverse effect level or lowest adverse effect level will be somewhere between the identified NOAEL and LOAEL. When multiple studies produce results in a similar range, they often can provide valuable information about where the true no adverse effect and lowest adverse effect levels are. The NOAELs and LOAELs for the six studies are presented in Table 1.
Just based on the dose spread alone, the chronic dog study appears to provide valuable information because it has the tightest spread between NOAEL and LOAEL.
Second, EPA considered the effects seen in the studies. The NOAEL/LOAELs for the chronic rat, carcinogenicity rat, and chronic dog studies were all based primarily on effects on the liver and/or thyroid. The other three studies had NOAEL/LOAELs based on decreased body weight and decreased body weight gain. The first three studies also demonstrated body weight effects but at the same or higher doses than the organ effects. Organ effects are generally judged to be of more serious concern than systemic toxicity as shown through body weight effects. Given the heightened concern with the liver and thyroid effects and the fact that body weight effects only occurred at the same or higher doses, evaluation of the effects seen in the studies also supported reliance on the NOAEL from the chronic dog study.
Finally, EPA undertook a one-to-one comparison of the chronic dog study with the three studies that had a lower NOAEL. Given that the subchronic dog study was conducted in the same species as the chronic dog study and that the results of the subchronic dog study were fully consistent with the chronic dog study (i.e., based on the chronic dog study it would be expected that 7.6 mg/kg/day would be a NOAEL and 78.1 a LOAEL), the subchronic dog study supported reliance on the NOAEL from the chronic dog study. Further, the strength of the findings at the LOAEL in the two-generation reproduction study and the DNT study, did not suggest that the actual no adverse effect level for the effects seen in these studies is far below the identified LOAEL. In the two-generation reproduction and DNT studies, the body weight effects at the LOAEL were either transient in nature (DNT study), not seen in both sexes (two-generation reproduction study), or not consistently seen post-natally (DNT and two-generation reproduction studies). (See Units VII.A.2.c., VII.A.2.d., and VII.A.2.e.).
Given the weight-of-the-evidence, EPA concludes it was reasonable to choose the NOAEL from the chronic dog study in calculating the chronic RfD/PAD. Contrary to NRDC's contention, this decision is not based on speculation but on careful consideration of the entire database - a complete database that provides reliable data on which to choose a safety factor that is protective of the safety of infants and children. In any event, EPA would note that selecting the NOAEL from the DNT study or the two-generation reproduction study would not change the safety conclusion on the boscalid tolerances even without any further refinement of the worst case exposure assumptions relied upon in the tolerance document. EPA estimated exposure was at 38 percent of the chronic RfD/PAD and a lowering of the chronic RfD/PAD by a factor of two due to reliance on the two-generation reproduction study (i.e. using a NOAEL of 10.1 mg/kg/day instead of 21.8 mg/kg/day) would still show worst case exposure to be below the chronic RfD/PAD.
BASF, in its comments, presents a benchmark dose analysis of the DNT and two-generation reproduction studies in support of EPA's selection of 21.9 mg/kg/day as the Point of Departure. The benchmark dose calculated by BASF is supportive of EPA's decision in that all of the benchmark doses covering various endpoints in these two studies were higher than 21.8 mg/kg/day. Although BASF's description of the method it used for calculating these benchmark doses appears scientifically appropriate, BASF has not submitted supporting documentation for its calculation and EPA has not independently verified it.
3.
EPA has a complete toxicity database for boscalid. The toxicity studies for boscalid show it generally to have low mammalian toxicity and the database reveals no reproductive or developmental concerns, including no developmental neurotoxic concerns. Data involving the testing of young animals did show increased quantitative sensitivity in the young with regard to body weight effects and qualitative
NRDC argues that EPA's tolerance decision on boscalid was arbitrary and capricious because (1) EPA failed to adequately explain its safety factor decision; and (2) “[t]he NOAELs and cPAD established by EPA for boscalid are clearly contrary to the data . . . .” (Ref. 1 at 7-8). In the section of its objections addressing this claim, NRDC provides nothing in support of its assertion that EPA provided insufficient explanation for its children's safety factor determination. Presumably, NRDC is referring to the aspects of the children's safety factor determination challenged in an earlier portion of its objections and addressed by EPA in Unit VII.A. of this order. Thus, EPA relies on Unit VII.A. as responsive to NRDC's arbitrary and capricious claim as to the children's safety factor decision, and denies the objection for the reasons there stated. Similarly, to the extent NRDC is arguing that EPA's selection of a NOAEL in the DNT study or its selection of the NOAEL from the chronic dog study as the Point of Departure for deriving the chronic RfD/PAD were arbitrary and capricious, EPA denies this objection for the reasons contained in Units VII.A.2.a. and VII.A.2.f.
As indicated previously, this action announces the Agency's final order regarding objections filed under section 408 of FFDCA. As such, this action is an adjudication and not a rule. The regulatory assessment requirements imposed on rulemaking do not, therefore, apply to this action.
The Congressional Review Act, (5 U.S.C. 801
1. NRDC, “Objection To The Establishment Of Tolerances For Pesticide Chemical Residues Of Boscalid Docket Id No. EPA-HQ-OPP-2005-0145” (February 20, 2007).
2. Office of Pesticide Programs, U.S. EPA, “Available Information on Assessing Pesticide Exposure From Food: A User's Guide” (June 21, 2000).
3. U.S. EPA, “Residue Chemistry Test Guidelines: OPPTS 860.1500 Crop Field Trials” (August 1996).
4. Office of Pesticide Programs, U.S. EPA and Pest Regulatory Management Agency, Health Canada, “NAFTA Guidance Document for Guidance for Setting Pesticide Tolerances Based on Field Trial Data ” (September 28, 2005).
5. Office of Pesticide Programs, U.S. EPA, “Determination of the Appropriate FQPA Safety Factor(s) in Tolerance Assessment” (January 31, 2002).
6. Office of Pesticide Programs, U.S. EPA, “The Use of Data on Cholinesterase Inhibition for Risk Assessments of Organophosphorous and Carbamate Pesticides” (August 18, 2000).
7. Office of Pesticide Programs, U.S. EPA, Versar Corporation, “Standard Operating Procedures (SOPs) for Residential Exposure Assessments” (Draft, December 19, 1997).
8. Office of Prevention, Pesticides and Toxic Substances, U. S. EPA, Memorandum from Yan Donovan to Dennis McNeilly/R.Keigwin, “PP# 1F06313 —Human Health Risk Assessment for New Fungicide BAS 510 F (Common Name: Boscalid) — Proposal for Tolerances for Residues in/on Numerous Crops and Livestock Commodities” (September 8, 2003).
9. NRDC, “Objection to the Establishment of Tolerances for Pesticide Chemical Residues of Boscalid” (May 21, 2007.
10. BASF, “Docket ID Number EPA-HQ-OPP-2005-0145: BASF Response to NRDC Objection to Boscalid Pesticide Tolerances” (May 29, 2007).
11. Email Communication, Bryant Crowe, U.S. EPA to Khalid Akkari, BASF, “Notification: Boscalid - Objections” (July 10, 2007).
12a. W. Kaufmann. 2003. “Current Status of Developmental Neurotoxicity: An Industry Perspective.”
12b. U. Deschl, B. Kittle et al. 2002. “The value of historical control data-scientific advantages for pathologists, industry and agencies.”
12c. J.K. Haseman. 1995. “Data Analysis: Statistical Analysis and Use of Historical Control Data.”
13. Health Effects Division, Office of Pesticide Programs, US EPA, “Data Evaluation Record: Developmental Neurotoxicity Study - Rat; BAS 910 F” (Date) (EPA Reviewer: William F. Sette).
14. U.S. EPA, “Response to Petition to Compel the U.S. EPA to Repeal Its Test Guidelines for Developmental Neurotoxicity” (January 3, 2005) (available at “http://docket.epa.gov/edkpub/do /EDKStaffCollection DetailView?objectId =0b0007d480525f44)”.
15a. H.L. Adler and E. B. Roessler 1977. “Introduction to Probability and Statistics.” 6th ed. H. Freeman. New York. 1977.
15b. S. Gad and C.S. Weil. “Statistics and Experimental Design for the Toxicologist.” Telford Press, NJ. 1986.
15c. M. Hollander and D.A. Wolfe. “Non parametric Statistical Methods.” John Wiely & Sons. New York. 1973.
15d. R.R. Holson et al., 2007. “Statistical Issues and Techniques Appropriate for Developmental Neurotoxicity Testing.”
15e. Haseman, Joseph K. 1981. “Statistical Issues in the Design, Analysis and Interpretation of Animal Carcinogenicity Studies.” In:
16a. U.S. Environmental Protection Agency. “Guidelines for Reproductive
16b. U.S. Environmental Protection Agency. “Guidelines for Developmental Toxicity Risk Assessment.”
16c. “An Evaluation and Interpretation of Reproductive Endpoints For Human Health Risk Assessment.” International Life Science Institute. Health and Environmental Sciences Institute. Developmental and Reproductive Toxicity Committee. November 1998.
17. Health Effects Division, Office of Pesticide Programs, US EPA, “Data Evaluation Record: Reproduction and Fertility Effects Study - Rat; BAS 910 F” (March 23, 2002) (EPA Reviewer: Alan Levy).
18. Office of Prevention, Pesticides and Toxic Substances, U. S. EPA, Memorandum from Alan Levy to Yan Donovan, “BAS 510 F - Report of the Hazard Identification Assessment Review Committee” (March 7, 2003).
19. Health Effects Division, Office of Pesticide Programs, US EPA, “Data Evaluation Record: Prenatal Developmental Toxicity Study - Rabbit; BAS 910 F” (March 23, 2002) (EPA Reviewer: Alan Levy).
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes a tolerance for residues of fluopicolide, 2,6-dichloro-
This regulation is effective January 30, 2008. Objections and requests for hearings must be received on or before March 31, 2008, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
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You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to those engaged in the following activities:
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This listing is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
In addition to accessing an electronic copy of this
Under section 408(g) of FFDCA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2006-0481 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described in
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In the
Based upon review of the data supporting the petition, EPA has modified the tolerances proposed for vegetable, leafy, except brassica, group 4; vegetable, fruiting, group 8; and vegetable, curcurbit, group 9. The appropriate tolerances for vegetable, leafy, except brassica, group 4; vegetable, fruiting, group 8; and vegetable, curcurbit, group 9 are 25, 1.6, and 0.50 ppm, respectively. These tolerances were determined considering residue/processing data and, as applicable, recent agency guidance (“NAFTA Guidance Document for Guidance for Setting Pesticide Tolerances Based on Field Trial Data,” Regulatory Proposal PRO2005-04, U.S EPA and Health Canada, Pest Management Regulatory Agency, 2005 (
For the reasons stated in Unit V., EPA is not establishing at this time the following petitioned-for tolerances: Potato; wheat, forage; wheat, grain; and wheat, hay and straw.
The existing tolerances for imported grape at 2.0 ppm, and grape, raisin at 6.0 ppm now apply to all imported and U.S. domestic grapes. Additionally, the residue definition in paragraph (a) of the tolerance expression is being changed from only fluopicolide, to: Tolerances are established for residues of fluopicolide, 2,6-dichloro-
Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .” These provisions were added to FFDCA by the Food Quality Protection Act (FQPA) of 1996.
Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for the petitioned-for tolerance for residues of fluopicolide, 2,6-dichloro-
EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Specific information on the studies received and the nature of the adverse effects caused by fluopicolide as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found in the document entitled
For hazards that have a threshold below which there is no appreciable risk, the toxicological level of concern (LOC) is derived from the highest dose at which NOAEL in the toxicology study identified as appropriate for use in risk assessment. However, if a NOAEL cannot be determined, the lowest dose at which adverse effects of concern are identified the LOAEL is sometimes used for risk assessment. Uncertainty (UFs)/safety factors are used in conjunction with the LOC to take into account uncertainties inherent in the extrapolation from laboratory animal data to humans and in the variations in sensitivity among members of the human population as well as other unknowns. Safety is assessed for acute and chronic risks by comparing aggregate exposure to the pesticide to the acute population adjusted dose (aPAD) and chronic population adjusted dose (cPAD). The aPAD and cPAD are calculated by dividing the LOC by all applicable UFs. Short-term, intermediate-term, and long-term risks are evaluated by comparing aggregate exposure to the LOC to ensure that the margin of exposure (MOE) called for by the product of all applicable UFs is not exceeded.
A summary of the toxicological endpoints for fluopicolide used for human risk assessment can be found at regulations.gov in the document entitled
1.
i.
No such effects were identified in the toxicological studies for fluopicolide; therefore, a quantitative acute dietary exposure assessment is unnecessary.
A conservative acute dietary exposure assessment for the metabolite of fluopicolide, BAM, was conducted. Maximum residues of BAM from fluopicolide field trials on tuberous and corm vegetables, leafy vegetables (except brassica), fruiting vegetables, cucurbit vegetables, grapes (domestic and imported), (except potato), and from dichlobenil field trials on food commodities with established/pending tolerances (40 CFR 180.231) were included in the assessments. The assessments used 100% percent crop treated (PCT) except for apples, blueberries, cherries, cranberries, peaches, pears, and raspberries.
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a. For the acute assessment: Apples (2.5%), blueberries (2.5%), cherries (2.5%), peaches (2.5%), pears (2.5%), and raspberries (5%).
b. For the chronic assessment: Apples (1%), blueberries (1%), cherries (1%), cranberries (45%), peaches (1%), pears (1%), and raspberries (5%).
2.
Based on the Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS) and Screening Concentration in Ground Water (SCI-GROW) models, the estimated environmental concentrations (EECs) of fluopicolide for acute exposures are estimated to be 26.81 parts per billion (ppb) for surface water and 0.64 ppb for ground water. The EECs for chronic (non cancer) exposures are estimated to be 8.34 ppb for surface water and 0.64 ppb for ground water. The EECs for chronic (cancer) exposures are estimated to be 6.14 ppb for surface water and 0.64 ppb for ground water.
Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For chronic dietary risk assessment, the water concentration of value 8.34 ppb was used to access the contribution to drinking water. Considering residues of BAM in drinking water from uses of dichlobenil and fluopicolide, the uses on dichlobenil will result in the highest residues in drinking water. Therefore, the results from dichlobenil (from the use of nutsedge at 10 lb. dichlobenil active ingredient/Acre (ai)/(A)) are used in this assessment, i.e., 56.2 ppb was used as the value of BAM residues in drinking water in the dietary assessment for both the acute and chronic assessments.
3.
Fluopicolide is proposed for registration on the following residential non-dietary sites: Residential turfgrass and ornamental plants. EPA assessed residential exposure using the following assumptions: Residential handlers may receive short-term dermal and inhalation exposure to fluopicolide when mixing, loading, and applying the formulations. Residential postapplication exposure via the dermal route is likely for adults and children entering treated lawns. Toddlers may also experience exposure via incidental non-dietary ingestion (i.e., hand-to-mouth, object-to-mouth (turfgrass), and soil ingestion) during postapplication activities on treated turf.
While it is necessary to evaluate residential exposure from all sources of fluopicolide's metabolite BAM, the use pattern for dichlobenil is not expected to result in scenarios with significant residential/non-occupational exposure. Therefore, BAM exposure estimates are based on fluopicolide use only.
Residential handler exposure was evaluated for parent fluopicolide only because the metabolite BAM is believed to form slowly in plants and soil after the product containing the parent (fluopicolide) has been applied.
Residential postapplication exposure via the dermal route is likely for adults and children entering treated lawns. Toddlers may also experience exposure via incidental non-dietary ingestion (i.e., hand-to-mouth, object-to-mouth (turf grass), and soil ingestion) during postapplication activities on treated turf.
Residential short-term/intermediate-term postapplication MOEs were estimated for “Day 0” exposure (i.e., the day of application).
4.
Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to fluopicolide and any other substances. For the purposes of this tolerance action, therefore, EPA has not assumed that fluopicolide has a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at
Fluopicolide and dichlobenil can form the common metabolite, BAM. To support existing tolerances and to establish new tolerances for fluopicolide, EPA conducted a human health risk assessment for exposure to BAM resulting from the use of all current and pending uses of fluopicolide and the herbicide dichlobenil. The risk assessment is conservative in terms of potential dietary and non-dietary exposures. In addition, the Agency retained the additional tenfold (10X) FQPA safety factor (SF) for the protection of infants and children. The assessment includes evaluations of risks for various subgroups, including those composed of infants and children. The Agency's complete risk assessment can be found at regulations.gov, docket ID number EPA-HQ-OPP-2006-0481.
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i. Determine the level of concern for the effects observed when considered in the context of all available toxicity data.
ii. Identify any residual uncertainties after establishing toxicity endpoints and traditional UFs to be used in the risk assessment for this chemical.
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i. The toxicity database for fluopicolide is complete.
ii. There is no indication that fluopicolide is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity.
iii. Although there is qualitative evidence of increased susceptibility in the prenatal developmental studies in rats, the risk assessment team did not identify any residual uncertainties after establishing toxicity endpoints and traditional UFs to be used in the risk assessment of fluopicolide. The degree of concern for prenatal and/or postnatal toxicity is low.
iv. There are no residual uncertainties identified in the exposure data bases. The dietary food exposure assessments were performed based on 100% CT and tolerance-level residues. Conservative ground water and surface water modeling estimates were used. Similarly conservative Residential Standard Operating Procedues (SOPs) were used to assess postapplication exposure to children as well as incidental oral exposure of toddlers. These assessments will not underestimate the exposure and risks posed by fluopicolide.
EPA is retaining the 10X FQPA SF for BAM for those exposure scenarios that do not rely on dichlobenil toxicity data. These scenarios are acute dietary for the general population including infants and children, females 13-49 years of age, chronic dietary, and incidental oral non-dietary. This is due to the incompleteness of the data base with regard to the systemic neurotoxic potential of BAM, including olfactory toxicity via the oral route of exposure.
For the dermal and inhalation routes of exposures, for which the Agency is relying on dichlobenil toxicity data. EPA has reduced the FQPA SF for BAM toxicity to 1X. The reasons for this are that, based on a comparison of toxicity via the intraperitoneal route of exposure, higher doses of BAM are needed to induce levels of olfactory toxicity that are similar to those caused by dichlobenil (Brandt et al. 1990; Brittebo et al. 1991; Eriksson and Brittebo 1995). Olfactory toxicity was the endpoint chosen for these exposure scenarios.
Safety is assessed for acute and chronic risks by comparing aggregate exposure to the pesticide to the aPAD and cPAD. The aPAD and cPAD are calculated by dividing the LOC by all applicable UFs. For linear cancer risks, EPA calculates the probability of additional cancer cases given aggregate exposure. Short-term, intermediate-term, and long-term risks are evaluated by comparing aggregate exposure to the LOC to ensure that the MOE called for by the product of all applicable UFs is not exceeded.
1.
The acute dietary exposure estimates for BAM at the 99.9
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The chronic dietary exposure estimates for BAM are 29% of the chronic cPAD for the general U.S. population and 93% cPAD for all infants (
3.
Fluopicolide is proposed for registration for use(s) that could result in short-term residential exposure and the Agency has determined that it is appropriate to aggregate chronic food and water and short-term exposures for fluopicolide.
Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded that food, water, and residential exposures result in aggregate MOEs greater than the LOC of 100 for all population groups, and the aggregate short-term risk estimates for fluopicolide are below the Agency's level of concern. Short-term exposures for fluopicolide's metabolite BAM, may occur as a result of activities on treated turf. Incidental oral exposures related to turf activities have been combined with chronic dietary exposure estimates to assess short-term aggregate exposure for BAM. Since aggregate MOEs for BAM are greater than the LOC, they represent risk estimates that are below the Agency's level of concern.
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Fluopicolide is proposed for registration for use(s) that could result in intermediate-term residential exposure and the Agency has determined that it is appropriate to aggregate chronic food and water and intermediate-term exposures for fluopicolide.
The intermediate-term aggregate risk for fluopicolide and BAM is the same as calculated above for the short-term aggregate risk.
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Adequate enforcement methodology, the Liquid Chromatography/Mass Spectrometry (LC/MS/MS) method is available to enforce the tolerance expression. The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; e-mail address:
No Codex, Canadian, or Mexican maximum residue limits (MRLs) or tolerances have been established for fluopicolide.
One comment was received from B. Sachau. Ms. Sachau's comments regarding general exposure to pesticides contained no scientific data or evidence to rebut the Agency's conclusion that there is a reasonable certainty that no harm will result from aggregate exposure to fluopicolide, including all anticipated dietary exposures and other exposures for which there is reliable
Therefore, tolerances are established for residues of fluopicolide, 2,6-dichloro-
This final rule establishes a tolerance under section 408(d) of FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled
Since tolerances and exemptions that are established on the basis of a petition under section 408(d) of FFDCA, such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note).
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
21 U.S.C. 321(q), 346a and 371.
(a)
Federal Emergency Management Agency, DHS.
Final rule.
Base (1% annual chance) Flood Elevations (BFEs) and modified BFEs are made final for the communities listed below. The BFEs and modified BFEs are the basis for the floodplain management measures that each community is required either to adopt or to show evidence of being already in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
The date of issuance of the Flood Insurance Rate Map (FIRM) showing
The final BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below.
William R. Blanton, Jr., Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3151.
The Federal Emergency Management Agency (FEMA) makes the final determinations listed below for the modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Mitigation Division Director of FEMA has resolved any appeals resulting from this notification.
This final rule is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.
Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community. The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown.
Administrative practice and procedure, Flood insurance, Reporting and recordkeeping requirements.
42 U.S.C. 4001
Legal Services Corporation.
Final rule.
The Legal Services Corporation (“Corporation”) is required by law to establish maximum income levels for individuals eligible for legal assistance. This document updates the specified income levels to reflect the annual amendments to the Federal Poverty Guidelines as issued by the Department of Health and Human Services.
Mattie Cohan, Senior Assistant General Counsel, Legal Services Corporation, 3333 K St., NW., Washington, DC 20007; (202) 295-1624;
Section 1007(a)(2) of the Legal Services Corporation Act (“Act”), 42 U.S.C. 2996f(a)(2), requires the Corporation to establish maximum income levels for individuals eligible for legal assistance, and the Act provides that other specified factors shall be taken into account along with income.
Section 1611.3(c) of the Corporation's regulations establishes a maximum income level equivalent to one hundred and twenty-five percent (125%) of the Federal Poverty Guidelines. Since 1982, the Department of Health and Human Services has been responsible for updating and issuing the Federal Poverty Guidelines. The revised figures for 2008 set out below are equivalent to 125% of the current Federal Poverty Guidelines as published on January 23, 2008 (73 FR 3971).
In addition, LSC is publishing charts listing income levels that are 200% of the Federal Poverty Guidelines. These charts are for reference purposes only as an aid to grant recipients in assessing the financial eligibility of an applicant whose income is greater than 200% of the applicable Federal Poverty Guidelines amount, but less than 200% of the applicable Federal Poverty Guidelines amount (and who may be found to be financially eligible under duly adopted exceptions to the annual income ceiling in accordance with sections 1611.3, 1611.4 and 1611.5).
Grant programs—law, Legal services.
Secs. 1006(b)(1), 1007(a)(1) Legal Services Corporation Act of 1974, 42 U.S.C. 2996e(b)(1), 2996f(a)(1), 2996f(a)(2).
Department of Homeland Security.
Notice of proposed rule making.
The Department of Homeland Security (DHS) is giving concurrent notice of a revised and updated system of records pursuant to the Privacy Act of 1974 for the Immigration and Customs Enforcement (ICE) Pattern Analysis and Information Collection (ICEPIC) system and this proposed rulemaking. In this proposed rulemaking, the Department proposes to exempt portions of the system of records from one or more provisions of the Privacy Act because of criminal, civil, and administrative enforcement requirements.
Comments must be received on or before March 10, 2008.
You may submit comments, identified by docket number DHS-2007-0023, by one of the following methods:
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For system related questions please contact: Steven W. Cooper (202-616-7571), Executive Information Unit, Office of Investigations, U.S. Immigration and Customs Enforcement, 425 I Street, NW., Washington, DC 20536. For privacy issues, please contact: Hugo Teufel III (571-227-3813), Chief Privacy Officer, Privacy Office, U.S. Department of Homeland Security, Washington, DC 20528.
The Privacy Act embodies fair information principles in a statutory framework governing the means by which the United States Government collects, maintains, uses, and disseminates personally identifiable information. The Privacy Act applies to information that is maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual. Individuals may request their own records that are maintained in a system of records in the possession or under the control of DHS by complying with DHS Privacy Act regulations, 6 CFR part 5.
The Privacy Act requires each agency to publish in the
The Privacy Act allows Government agencies to exempt certain records from the access and amendment provisions. If an agency claims an exemption, however, it must issue a Notice of Proposed Rulemaking to make clear to the public the reasons why a particular exemption is claimed.
DHS is claiming exemptions from certain requirements of the Privacy Act for ICEPIC. Some information in ICEPIC relates to official DHS national security, law enforcement, immigration, and intelligence activities. These exemptions are needed to protect information relating to DHS activities from disclosure to subjects or others related to these activities. Specifically, the exemptions are required to preclude subjects of these activities from frustrating these processes; to avoid disclosure of activity techniques; to protect the identities and physical safety of confidential informants and of immigration and border management and law enforcement personnel; to ensure DHS' ability to obtain information from third parties and other sources; to protect the privacy of third parties; and to safeguard classified information. Disclosure of information to the subject of the inquiry could also permit the subject to avoid detection or apprehension.
The exemptions proposed here are standard law enforcement and national security exemptions exercised by a large number of Federal law enforcement and intelligence agencies. In appropriate circumstances, where compliance would not appear to interfere with or adversely affect the law enforcement purposes of this system and the overall law enforcement process, the applicable
A notice of system of records for the Department's ICE Pattern Analysis and Information Collection (ICEPIC) System is also published in this issue of the
Freedom of information, Privacy.
For the reasons stated in the preamble, DHS proposes to amend Chapter I of Title 6, Code of Federal Regulations, as follows:
1. The authority citation for part 5 continues to read as follows:
Pub. L. 107-296, 116 Stat. 2135, 6 U.S.C. 101 et seq.; 5 U.S.C. 301. Subpart A also issued under 5 U.S.C. 552. Subpart B also issued under 5 U.S.C. 552a.
2. Add at the end of Appendix C to part 5 a new paragraph 6 to read as follows:
6. The Immigration and Customs Enforcement (ICE) Pattern Analysis and Information Collection (ICEPIC) System consists of electronic and paper records and will be used by DHS and its components. ICEPIC is a repository of information held by DHS in connection with its several and varied missions and functions, including, but not limited to: the enforcement of civil and criminal laws (including the immigration law); investigations, inquiries, and proceedings there under; and national security and intelligence activities. ICEPIC contains information that is collected by, on behalf of, in support of, or in cooperation with DHS and its components and may contain personally identifiable information collected by other Federal, State, local, tribal, foreign, or international government agencies.
Pursuant to exemption 5 U.S.C. 552a(j)(2) of the Privacy Act, portions of this system are exempt from 5 U.S.C. 552a(c)(3) and (4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(5) and (e)(8); (f), and (g). Pursuant to 5 U.S.C. 552a(k)(2), this system is exempt from the following provisions of the Privacy Act, subject to the limitations set forth in those subsections: 5 U.S.C. 552a (c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), and (f). Exemptions from these particular subsections are justified, on a case-by-case basis to be determined at the time a request is made, for the following reasons:
(a) From subsection (c)(3) and (4) (Accounting for Disclosures) because release of the accounting of disclosures could alert the subject of an investigation of an actual or potential criminal, civil, or regulatory violation to the existence of the investigation, and reveal investigative interest on the part of DHS as well as the recipient agency. Disclosure of the accounting would therefore present a serious impediment to law enforcement efforts and/or efforts to preserve national security. Disclosure of the accounting would also permit the individual who is the subject of a record to impede the investigation, to tamper with witnesses or evidence, and to avoid detection or apprehension, which would undermine the entire investigative process.
(b) From subsection (d) (Access to Records) because access to the records contained in this system of records could inform the subject of an investigation of an actual or potential criminal, civil, or regulatory violation, to the existence of the investigation, and reveal investigative interest on the part of DHS or another agency. Access to the records could permit the individual who is the subject of a record to impede the investigation, to tamper with witnesses or evidence, and to avoid detection or apprehension. Amendment of the records could interfere with ongoing investigations and law enforcement activities and would impose an impossible administrative burden by requiring investigations to be continuously reinvestigated. In addition, permitting access and amendment to such information could disclose security-sensitive information that could be detrimental to homeland security.
(c) From subsection (e)(1) (Relevancy and Necessity of Information) because in the course of investigations into potential violations of Federal law, the accuracy of information obtained or introduced occasionally may be unclear or the information may not be strictly relevant or necessary to a specific investigation. In the interests of effective law enforcement, it is appropriate to retain all information that may aid in establishing patterns of unlawful activity.
(d) From subsection (e)(2) (Collection of Information from Individuals) because requiring that information be collected from the subject of an investigation would alert the subject to the nature or existence of an investigation, thereby interfering with the related investigation and law enforcement activities.
(e) From subsection (e)(3) (Notice to Subjects) because providing such detailed information would impede law enforcement in that it could compromise investigations by: revealing the existence of an otherwise confidential investigation and thereby provide an opportunity for the subject of an investigation to conceal evidence, alter patterns of behavior, or take other actions that could thwart investigative efforts; reveal the identity of witnesses in investigations, thereby providing an opportunity for the subjects of the investigations or others to harass, intimidate, or otherwise interfere with the collection of evidence or other information from such witnesses; or reveal the identity of confidential informants, which would negatively affect the informant's usefulness in any ongoing or future investigations and discourage members of the public from cooperating as confidential informants in any future investigations.
(f) From subsections (e)(4)(G) and (H) (Agency Requirements), and (f) (Agency Rules) because portions of this system are exempt from the individual access provisions of subsection (d) for the reasons noted above, and therefore DHS is not required to establish requirements, rules, or procedures with respect to such access. Providing notice to individuals with respect to existence of records pertaining to them in the system of records or otherwise setting up procedures pursuant to which individuals may access and view records pertaining to themselves in the system would undermine investigative efforts and reveal the identities of witnesses, and potential witnesses, and confidential informants.
(g) From subsection (e)(5) (Collection of Information) because in the collection of information for law enforcement purposes it is impossible to determine in advance what information is accurate, relevant, timely, and complete. Compliance with (e)(5) would preclude DHS agents from using their investigative training and exercise of good judgment to both conduct and report on investigations.
(h) From subsection (e)(8) (Notice on Individuals) because compliance would interfere with DHS' ability to obtain, serve, and issue subpoenas, warrants, and other law enforcement mechanisms that may be filed under seal, and could result in disclosure of investigative techniques, procedures, and evidence.
(i) From subsection (g) to the extent that the system is exempt from other specific subsections of the Privacy Act relating to individuals' rights to access and amend their records contained in the system. Therefore DHS is not required to establish rules or procedures pursuant to which individuals may seek a civil remedy for the agency's: Refusal to amend a record; refusal to comply with a request for access to records; failure to maintain accurate, relevant timely and complete records; or failure to otherwise comply with an individual's right to access or amend records.
National Credit Union Administration (NCUA).
Advance notice of proposed rulemaking and request for comment (ANPR).
NCUA is considering whether to issue regulations to govern merger of a federally insured credit union (FICU)
Comments must be received on or before March 31, 2008.
You may submit comments by any of the following methods (Please send comments by one method only):
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Frank Kressman, Staff Attorney, Office of General Counsel, at the above address or telephone: (703) 518-6540.
The primary focus of this ANPR is protection of member interests in transactions where members have a great deal at stake because the transactions involve fundamental changes in their ownership or the structure of their credit union, including, in some cases, termination of a credit union charter or termination of federal account insurance. This ANPR concerns six types of transactions: Merger of a FICU into a FICU; merger of a FICU into a privately insured credit union (PICU); conversion of a federally-insured state credit union (FISCU) into a PICU; conversion of a FICU to an MSB; merger of a FICU into a financial institution other than an MSB; and conversion of a FICU into a financial institution other than an MSB.
While these transactions are legally permissible, member ownership can be extinguished or diluted and members may have lesser voting rights or be deprived of the security of federal share insurance. These transactions raise various issues, as discussed below, that NCUA believes its current regulations may not adequately address. NCUA is considering amendments to make certain member interests are adequately protected, including helping members understand the risks and rewards associated with these transactions. In addition, NCUA has not promulgated rules on the merger of a FICU or conversion of a FICU into a financial institution other than an MSB and NCUA is considering the necessity of issuing rules to govern these transactions. As in all rulemaking it undertakes, NCUA's focus is on providing flexibility and fairness, imposing minimal regulatory burden on credit unions whose members choose to pursue any of these transactions, and protecting the National Credit Union Share Insurance Fund (NCUSIF).
NCUA's legal authority to regulate these transactions derives from the Federal Credit Union Act (Act). The Act specifically authorizes the NCUA Board to prescribe rules governing mergers of FICUs, including mergers or consolidations with any noninsured credit union or institution. 12 U.S.C. 1766(a), 1785(b), 1785(c), and 1789(a). By definition, “noninsured” means not insured by the NCUSIF, 12 U.S.C. 1752(7), and, therefore, NCUA may prescribe rules governing mergers, conversions, or consolidations with PICUs or other financial institutions, for example, banks or thrifts insured by the Federal Deposit Insurance Corporation.
Part 708b of NCUA's regulations, which is limited to “credit union into credit union” mergers, generally requires: (1) Approval of a merger plan by the boards of directors of each credit union; (2) submission of a written plan and other documents to NCUA; and (3) approval of a plan or proposal by NCUA and, for federal credit unions, by members. 12 CFR Part 708b. If a federal credit union is in danger of insolvency, member approval is not required. 12 CFR 708b.105(b). NCUA considers various factors in approving or disapproving a merger including protecting member interests and effects on the NCUSIF.
Similar to FICU to FICU mergers, NCUA broadly regulates the procedures and substance of FICU to PICU mergers including: (1) Approval of a merger plan by the boards of directors of each credit union; (2) submission of a written plan and other documents to NCUA; and (3) approval of plan or proposal by NCUA and, for federal credit unions, by members. NCUA imposes additional notice, voting, and approval requirements on this type of transaction, including the use of form documents. 12 CFR Part 708b, Subpart B-Voluntary Termination or Conversion of Insured Status, and Subpart C-Forms. These requirements apply as well where a FISCU converts to a PICU.
The Act specifically addresses FICU to MSB conversions. 12 U.S.C. 1785(b)(2). While a FICU may convert to an MSB without the prior approval of the NCUA Board, 12 U.S.C. 1785(b)(2)(A), it must provide notice to each of its members who is eligible to vote on the matter of its intent to convert 90, 60, and 30 days before the date of the member vote on the conversion. 12 U.S.C. 1785(b)(2)(C). In this context, the Act requires NCUA's regulations to be consistent with rules promulgated by other federal financial regulators and must be no more or less restrictive than those applicable to charter conversions by other financial institutions. 12 U.S.C. 1785(b)(2)(G)(i). NCUA administers the member vote, which is verified by the federal or state regulatory agency that would have jurisdiction over the institution after the conversion. If either NCUA or that regulatory agency disapproves of the methods by which the member vote was taken or procedures applicable to the member vote, the member vote shall be taken again, as directed by NCUA or the other agency. 12 U.S.C. 1785 (b)(2)(G)(ii). Additionally, the Act specifically provides that no director or senior management official may receive any economic benefit in connection with a conversion of the credit union other than director fees and other compensation and benefits paid in the ordinary course of business. 12 U.S.C. 1785(b)(2)(F).
NCUA has implemented its statutory authority to administer FICU to MSB conversions. 12 CFR Part 708a. While the decision to convert belongs to members, to make this decision, members must be fully informed as to the reasons for the conversion and be
In 2006, NCUA revised Part 708a to improve the information available to members and the board of directors as they consider a possible conversion. 71 FR 77150 (December 22, 2006). The revisions included amended disclosures, revised voting procedures, procedures to facilitate communications among members, and procedures for members to provide their comments to directors before the credit union board votes on a conversion plan.
NCUA has not issued regulations regarding the merger or conversion of a FICU into a financial institution other than an MSB. The NCUA Board has statutory authority to approve or disapprove these two kinds of transactions and authority to promulgate rules to regulate the substance and procedures of them. 12 U.S.C. 1766(a), 1785(b)(1)(A), 1785(b)(1)(D), 1789(a)(11). In approving or disapproving these transactions, the NCUA Board must consider a number of criteria including: (1) The history, financial condition, and management policies of the credit union; (2) the adequacy of the credit union's reserves; (3) the economic advisability of the transaction; (4) the general character and fitness of the credit union's management; (5) the convenience and needs of the members to be served by the credit union; and (6) whether the credit union is a cooperative association organized for the purpose of promoting thrift among its members and creating a source of credit for provident or productive purposes. 12 U.S.C. 1785(c). NCUA has not issued regulations regarding these transactions because there have been only a handful of these transactions; in those instances, credit unions sought Board approval by petition, fashioning a submission and following procedures generally in line with the requirements of Part 708a.
NCUA seeks comment on whether issuing rules to govern credit union mergers or conversions into a financial institution other than an MSB would be beneficial for credit union members. NCUA is considering establishing an administrative framework and procedures rather than the case-by-case approach that has been used. Potential downsides to issuing a rule are that, having a rule in place, might encourage these transactions and many observers believe they are, only in unusual circumstances, in the best interests of members. Nevertheless, having a rule in place, with appropriate safeguards for member interests, could assist all parties, including the NCUA Board, in protecting protect member interests in their credit unions.
If it is determined a new rule would be beneficial, NCUA believes the rule, in brief, would establish a comprehensive administrative framework to process these transactions, while including provisions to ensure the protection of member rights and interests. In addition, NCUA would consider clarifying in a rule the criteria it would apply in approving these transactions. Procedurally, a new rule could be modeled after part 708b, including the use of form documentation and, in addition to borrowing the certain provisions of part 708b, it could address the issues discussed below that the Board believes would also be present in these transactions.
Some observers have argued that direct merger or conversion of a FICU into a stock issuing bank may have potential advantages. For example, it would enable a FICU that anticipates the need to eventually issue stock as a bank to accomplish this goal in a more efficient one-step process as opposed to the typical two-step process (FICU to MSB then MSB to stock bank) that has been the pattern in recent years in the FICU to MSB conversion scenario. Another advantage of a rule permitting these types of transactions is that it could be structured in a manner to give economic protection to members by making certain they share in the distribution of cash, free stock, or transferable stock subscription rights as compensation for their equity interest in their credit union.
A potential issue with a rule for these transactions is that the rule would likely be complex because it would need to cover: (1) Both mergers and conversions; (2) charter changes to federal and state banks; and (3) charter changes to freestanding stock banks and those within a mutual holding company structure or stock holding company structure.
NCUA requests comment on whether it should issue a rule regulating these transactions or continue to address them under NCUA's statutory authority on an as-needed basis. If a commenter is in favor of NCUA issuing a rule, the commenter should also suggest how the rule could be structured, how NCUA should address the four issues discussed in B.2. below in the context of the rule, and what other issues should be addressed.
NCUA believes there are significant issues affecting member interests arising across the spectrum of the restructuring transactions contemplated in this ANPR, including those for which NCUA currently has regulations in place and those, discussed above, for which it does not. This ANPR sets out the issues for comment in four categories: Management's Duties, Member Right to Equity, Communications to Members, and Member Voting. NCUA is interested in receiving comments on how its regulations should best address these issues. A discussion of the issues follows.
A credit union's board of directors has a fiduciary duty to act in the best interests of its members.
• The NCUA Board may act to remove or prohibit any institution-affiliated party at a FICU if that action meets certain requirements, including that the “interests of the insured credit union's members have been or could be prejudiced.” 12 U.S.C. 1787(g)(1)(B).
• Credit unions applying for federal account insurance must agree to maintain such special reserves as the NCUA Board may require “for protecting the interests of the members.” 12 U.S.C. 1781(b)(6).
• The NCUA Board must review the application of any individual to become a director or senior manager at a newly chartered or troubled FICU, and disapprove that application, if acceptance of the applicant would not be in the best interests of the depositors (members). 12 U.S.C. 1790a.
• When acting as the conservator or liquidating agent of a FICU, the NCUA Board may take any action it determines is in the best interests of the credit union's account holders (members). 12 U.S.C. 1787(b)(2)(J)(2).
As discussed in a previous rulemaking, although referring
A closer look at how the cited provisions function, however, connects them to the [credit union's board of] directors. Specifically, the best interests of the members will dictate the [NCUA] Board's actions when removing or prohibiting a director, approving the appointment of a director, operating a conserved credit union in the role of the board of directors, and reviewing the propriety of a board of directors' decision to pursue a voluntary liquidation. If the best interests of the members standard guides the conduct of the [NCUA] Board, it must also guide the conduct of [the credit union's board of] directors.
While it is important for a credit union's board of directors to understand its duty to act in the best interests of the members in the ordinary course of business, NCUA believes it is especially important when the board is considering a proposal to change the credit union's charter or insurance status. These extraordinary transactions not only result in a fundamental shift in the credit union, but tend to present more conflicts between member interests and the personal financial interests of credit union management.
While the existence of a fiduciary duty owed by directors to members is clear, neither the Act nor NCUA regulations establish or provide any guidance as to what that standard of care is for directors. NCUA is considering establishing a regulatory standard of care for directors that will help ensure they meet their fiduciary duty to their members when directors are making decisions in connection with the transactions discussed in this ANPR.
NCUA has considered the standards of care that have developed in this area of the law, which, to a great extent, have developed in case law, applying fiduciary principles not only to situations involving trusts, but also in the corporate context. The result is that a credit union board currently must look to state law and case law to understand the scope of its fiduciary duties to members and the standard of care required as articulated by its particular state. Unfortunately, case law and state law can vary widely from jurisdiction to jurisdiction causing confusion for credit unions and a lack of uniformity between credit unions in one state and others in other states. As a result, the standard of care applying to these transactions can span a broad spectrum ranging from only requiring a board of directors to have a rational basis for making a decision to requiring the board to demonstrate that its decisions are made in the best interests of its members and based on a full consideration and documented analysis of all the alternatives.
Considering the unique interests, concerns, and structure of credit unions as financial cooperatives, NCUA believes having a uniform federal standard may be useful to eliminate confusion resulting from differences in state law and may make it easier for credit union boards to fulfill their duties to members. NCUA solicits comment on whether it should establish, by regulation, a uniform federal standard of care for the transactions discussed in this ANPR, including specific suggestions on the standard that should be applied and if there should be a separate standard of care for transactions where the credit union member will no longer be a member of a credit union.
NCUA's experience with FICU to MSB conversions suggests that in some cases credit union officials have pursued personal enrichment to the detriment of members, and NCUA has issued disclosure requirements to make members aware of the potential for this. NCUA is aware of conversion transactions where family members of credit union officials had joined the credit union in noticeable numbers prior to the conversion. These new members, who may be motivated to share in the profits from an eventual sale of stock, can also skew the member vote on conversion in some instances, especially in a close vote.
NCUA is considering specific regulatory requirements regarding the record date for members voting on a conversion proposal or other transaction to prevent this problem. NCUA is interested in comments on any aspect of this issue.
(b) Member Right to Equity.
NCUA is broadly considering the issue of how to deal with unequal net worth ratios among merging credit unions. This imbalance may result in unfair treatment of members of a credit union with a higher net worth. One method NCUA is considering to address this issue is to require a merger dividend. Another option could be to simply require the board of directors of a merging credit union to consider this issue as part of its due diligence, come to its own conclusion, and then justify that decision to its members.
Generally, federal credit unions may only return net worth to members in the form of dividends or a return of interest. 12 U.S.C. 1761b, 1763. Dividends must be based on an account balance as of a specific date or calculated over a period of time, whether a month, a quarter, or several years. 12 CFR 707.7(a), Appendix B (b). Often, credit unions undertake a calculation of a dividend going back for a period of years to permit a credit union to reward long-time members.
As noted, a merging credit union often has a higher net worth ratio than the continuing credit union. Also, a merging credit union may have other valuable characteristics for which the continuing credit union is willing to pay a premium, such as a complementary field of membership, thus increasing the net worth of the merging credit union in the context of the merger. In recent merger transactions, issues about merger dividends, also sometimes called a “share adjustment” and “capital equalization,” have arisen because of the nature of dividends in credit unions. NCUA's Office of General Counsel has addressed this issue and concluded that so-called “per capita” dividends (a flat amount paid to all members) are legally impermissible. OGC Op. 07-0410 (April 13, 2007), OGC Op. 97-0813 (September 29, 1997).
NCUA recognizes that requiring a merger dividend or other return of interest in certain circumstances could include the following advantages: (1) Rewarding the merging credit union's members; (2) equalizing an imbalance in net worth between the credit unions, although this could lessen the merging credit union's value to the continuing credit union; and (3) establishing a consistent approach (e.g., setting a record date or dividend period, identifying the kinds of accounts to receive the merger dividend, and so forth).
On the other hand, NCUA recognizes that not imposing a merger dividend requirement in this area allows credit unions the flexibility to decide for themselves whether to include a merger dividend as part of their due diligence and negotiations and leaves calculation of any dividend to the merging credit unions, essentially allowing market forces and the wishes of the members to determine if a dividend is appropriate.
The Board notes that, in a recent FICU to stock bank merger, the merging FICU returned to its members their equity interest in the credit union plus a premium, and the Board believes a return of equity can be a fair way to compensate members for the loss of the credit union they own. In other transactions, such as FICU to MSB conversions, NCUA has noticed that
NCUA seeks comment on all possible options for dealing with this issue either as an amendment to current regulations or by issuing a new regulation.
NCUA fully supports members' rights to vote, in accordance with the Act, to make changes to their charter or account insurance but believes the linchpin in these transactions is that communications to members regarding the risks and benefits of the transactions must be accurate, sufficiently comprehensive, and not misleading.
NCUA encourages a FICU converting to an MSB to communicate freely with its members. There are no limits or restrictions on the number or kind of communications, provided the communications are accurate and not misleading and otherwise comply with NCUA's rules for written member communications. An example of an improper, conversion-related communication is one that implies NCUA endorses the conversion or conversion-related materials. In a recent conversion transaction, NCUA discovered a credit union made this kind of improper communication to its members. Although the instances in which this issue has been most prevalent are FICU to MSB conversions, it also could arise in any transaction in which a credit union sends materials to its members, such as federal to private insurance conversions and FICU to bank mergers.
NCUA is considering the need for a regulatory provision that specifically prohibits communications from credit union officials that state or imply that NCUA has endorsed the charter change transaction or accompanying credit union materials. NCUA is also considering requiring a credit union to include a statement in its materials to that effect, namely, that NCUA has not endorsed the transaction. NCUA requests comment in this regard.
In a charter change transaction, a credit union may communicate with its members about the kind and quality of services it will provide after completion of the transaction. For example, a credit union may close or move branch offices or modify other services available to members, such as ATM services. It may choose to do this as a cost savings measure, to achieve better compatibility with the continuing financial institution, or for other reasons. In the FICU to MSB conversion context, a converting credit union may be legally required to close or move a branch located in a federal building that has been provided by a federal agency on a rent-free and utility-free basis.
An issue in a past FICU to MSB conversion was whether the credit union would be legally required to close or move a number of its rent-free branches located in federal buildings. In that transaction, the credit union made what appeared to be potentially inaccurate statements about its ability to continue to operate the branches in the same locations following conversion to an MSB.
In another FICU to MSB conversion, the credit union made arguably misleading statements to members about its ability to continue to participate in a shared branch/shared service center network after conversion. In that transaction, the credit union told its members it was seeking approval to obtain post-conversion access to the network but failed to disclose that its request could be denied resulting in the members not having access to the network.
Members need full and accurate information about a conversion to cast an informed vote, including if the transaction will result in the credit union closing or moving branches, losing access to shared branch/shared service center networks, or modifying other services available to members. NCUA is considering requiring converting credit unions to research this aspect of a transaction and disclose their findings to members. Alternatively, NCUA could issue a more general rule to address the need for full and accurate information. NCUA solicits comments on all aspects of this issue.
Another communications issue, which NCUA's rules do not specifically address, is the so-called “hostile takeover” scenario, where an institution communicates directly with the members of a target credit union to encourage a merger or other consolidation.
NCUA could consider addressing third party merger communications by relying on current regulations or issuing a new regulation. As noted above, NCUA regulations do not directly address this situation, although part 740 prohibits a FICU from using any advertising or making any representation that is inaccurate or deceptive or in any way misrepresents its services, contracts, or financial condition. 12 CFR Part 740. The limitations of current regulations such as Part 708b and Part 740 are also, in part, that they only extend to insured credit unions. While a new regulation addressing mergers by a hostile institution may be more effective than the
NCUA seeks comment on this topic in general and regulatory approaches to
(d)
For the transactions that are the subject of this ANPR, NCUA is considering permitting any member of a credit union to request a formal recount of the vote in any situation in which the margin of decision is less than a certain percentage of the total votes cast. NCUA has not determined the appropriate margin for triggering recount rights and believes examining state law on political vote recounts in this regard could be appropriate and useful. NCUA is also considering a recount provision if sufficient evidence exists that the original vote tabulation is unreliable.
NCUA has reviewed the voting procedures of a number of close votes in recent years. In those cases, NCUA found irregularities and improprieties that called into question the reliability of the vote. Examples of problems found include the credit union or its agent: Failing to compile a proper membership list thereby excluding some members from the vote; improperly excluding members from voting for causing a loss to the credit union; allowing individuals not fully qualified as members to vote; improperly handling mail ballots returned as undeliverable; employing poor internal controls in securing, counting, and recording votes; using inconsistent procedures for determining if a vote cast was invalid; and being generally unable to reconcile the tally.
An unreliable voting process, whether intentionally manipulated or the result of incompetence, deprives members of their right to choose the fate of their credit union. NCUA requests comment on providing members the right to request a recount, under what circumstances and criteria a recount should be undertaken, and procedures for exercising such a right.
The use by management of an interim vote tally presently is primarily an issue in the FICU to MSB conversion context but could be an issue anytime management has an interest in influencing the outcome of a membership vote. NCUA has observed in the voting procedures in some FICU to MSB conversions that credit union management seek periodic running tallies from the election teller as to how many members have voted yes and no and which members have not voted. Credit union management has justified this practice by stating they only use the information for the purpose of encouraging members to vote. In investigations of recent conversions, NCUA has discovered that, in practice, some credit unions use this information only for encouraging votes in favor of the conversion. This violates both Part 708a and typical credit union policies aimed at neutrality in this regard. For example, some credit unions have pressured, required, or paid employees to encourage members to vote in favor of conversion even where the employees did not wish to do so or did not believe conversion was in the members' best interests. NCUA has learned that some credit unions have targeted likely “yes” voters in an attempt to sway the vote in favor of conversion. Other tactics include determining how a member voted in violation of the voting secrecy requirement, using periodic voting tallies to management's advantage and to the disadvantage of those members opposed to the conversion by not sharing that information with members, and improperly handling ballots for members instead of having members mail them directly to the independent election teller.
NCUA is considering: (1) Prohibiting credit union management from obtaining interim voting tallies from the election teller; (2) prohibiting credit union management from obtaining lists of members who have not voted from the election teller; (3) prohibiting credit union employees from soliciting members to vote; and (4) prohibiting credit union employees from completing member ballots or otherwise handling ballots. NCUA would appreciate comments on these means for ensuring the integrity of the voting process.
The NCUA Board invites comment on any of the issues discussed above including: (1) If NCUA's regulations should be amended to address the issues discussed in this ANPR; (2) if NCUA should promulgate new regulations for credit union merger or conversion into a financial institution other than an MSB and, if so, what those regulations should cover; and (3) any other relevant issues NCUA has not considered.
Copyright Royalty Board, Library of Congress.
Notice of proposed rulemaking.
The Copyright Royalty Judges are publishing for comment proposed regulations that set the rates and terms for the making of an ephemeral recording of a sound recording by a business establishment service for the period 2009-2013.
Comments and objections, if any, are due no later than February 29, 2008.
Comments and objections may be sent electronically to
Richard Strasser, Senior Attorney, or Gina Giuffreda, Attorney-Advisor, by telephone at (202) 707-7658 or e-mail at
In 1995, Congress enacted the Digital Performance in Sound Recordings Act, Public Law No. 104-39, which created an exclusive right for copyright owners
The scope of the section 114 statutory license was expanded in 1998 upon passage of the Digital Millennium Copyright Act of 1998 (“DMCA”), Pub. L. No. 105-304, in order to allow for the public performance of a sound recording when made in accordance with the terms and rates of the statutory license, 17 U.S.C. 114(d), by a preexisting satellite digital audio radio service or as part of an eligible nonsubscription transmission. In addition to expanding the section 114 license, the DMCA also created a statutory license for the making of an “ephemeral recording” of a sound recording by certain transmitting organizations. 17 U.S.C. 112(e). This license allows entities that transmit performances of sound recordings to business establishments, pursuant to the limitations set forth in section 114(d)(1)(C)(iv), to make an ephemeral recording of a sound recording for a later transmission.
The rates and terms for the making of ephemeral recordings of sound recordings by a business establishment service have been adjusted periodically by the Librarian of Congress and appear in 37 CFR Parts 261 and 262. However, the Copyright Royalty and Distribution Reform Act of 2004 (“CRDRA”), Public Law No. 108-419, transferred jurisdiction over these rates and terms to the Copyright Royalty Judges (“Judges”). 17 U.S.C. 801(b)(1). The current rates for this license set forth in 37 CFR Part 262 will remain in effect until December 31, 2008.
On January 5, 2007, pursuant to 17 U.S.C. 803(b)(1)(A)(i)(II), the Copyright Royalty Judges published a notice in the
On October 31, 2007, the Judges received a notice of settlement entered into by all parties to the proceeding, with the exception of Muzak, which had withdrawn from the proceeding on October 5, 2007, and RLI. Accompanying the notice of settlement was a motion by SoundExchange requesting that the Judges adopt the proposed rates and terms. SoundExchange also filed its written direct statement, given that RLI had not agreed to the proposed settlement. RLI did not file a written direct statement or an opposition to SoundExchange's motion.
Prior to a ruling on the motion to publish the proposed rates and terms for notice and comment, SoundExchange filed a motion to dismiss RLI from this proceeding for failure to file a written direct statement and renewed its request that the Judges issue a notice of proposed rulemaking seeking comment on the proposed rates and terms.
Since all remaining parties to this proceeding have agreed to the settlement, the Judges are publishing the proposed rates and terms for notice and comment pursuant to their authority under 17 U.S.C. 801(b)(7)(A).
Section 801(b)(7)(A) allows for the adoption of rates and terms negotiated by “some or all of the participants in a proceeding at any time during the proceeding” provided they are submitted to the Copyright Royalty Judges for approval. This section provides that in such event:
(i) the Copyright Royalty Judges shall provide to those that would be bound by the terms, rates, or other determination set by any agreement in a proceeding to determine royalty rates an opportunity to comment on the agreement and shall provide to participants in the proceeding under section 803(b)(2) that would be bound by the terms, rates, or other determination set by the agreement an opportunity to comment on the agreement and object to its adoption as a basis for statutory terms and rates; and
(ii) the Copyright Royalty Judges may decline to adopt the agreement as a basis for statutory terms and rates for participants that are not parties to the agreement, if any participant described in clause (i) objects to the agreement and the Copyright Royalty Judges conclude, based on the record before them if one exists, that the agreement does not provide a reasonable basis for setting statutory terms or rates.
17 U.S.C. 801(b)(7)(A). Rates and terms adopted pursuant to this provision are binding on all copyright owners of sound recordings and business establishment services making an ephemeral recording of a sound recording for the period 2009-2013.
As discussed above, the public may comment and object to any or all of the proposed regulations contained in this notice of proposed rulemaking. Those who do comment and object, however, must be prepared to participate in further proceedings in this docket to set rates and terms for the making of ephemeral recordings by business establishment services.
Copyright, Digital audio transmissions, Ephemeral recordings, Performance right, Sound recordings.
For the reasons set forth in the preamble, the Copyright Royalty Judges propose to add part 384 to Chapter III of title 37 of the Code of Federal Regulations to read as follows:
17 U.S.C. 112(e), 801(b)(1).
(a)
(b)
(c)
For purposes of this part, the following definitions shall apply:
(a)
(1) For classical programs, the proportion that the playing time of copyrighted classical recordings bears to the total playing time of all classical recordings in the program, and
(2) For all other programs, the proportion that the number of copyrighted recordings bears to the total number of all recordings in the program.
(b)
(c)
(a)
(b)
(2) If SoundExchange, Inc. should dissolve or cease to be governed by a board consisting of equal numbers of representatives of Copyright Owners and Performers, then it shall be replaced by a successor Collective upon the fulfillment of the requirements set forth in paragraph (b)(2)(i) of this section.
(i) By a majority vote of the nine Copyright Owner representatives and the nine Performer representatives on the SoundExchange board as of the last day preceding the condition precedent in paragraph (b)(2) of this section, such representatives shall file a petition with the Copyright Royalty Judges designating a successor to collect and distribute royalty payments to Copyright Owners entitled to receive royalties under 17 U.S.C. 112(e) that have themselves authorized such Collective.
(ii) The Copyright Royalty Judges shall publish in the
(c)
(d)
(1) If the Copyright Royalty Judges issue their final determination adopting these rates and terms after the commencement of the License Period, then payment due under § 384.3(b) for 2009 shall be due 45 days after the last day of the month in which these rates and terms are adopted by the Copyright Royalty Judges and published in the
(2) Payment for a Licensee that has not previously made Ephemeral Recordings pursuant to the license under 17 U.S.C. 112(e) shall be due by the 45th day after the end of the month in which the Licensee commences to do so.
(e)
(f)
(1) Such information as is necessary to calculate the accompanying royalty payment, or if no payment is owed for the month, to calculate any portion of the minimum fee recouped during the month;
(2) The name, address, business title, telephone number, facsimile number, electronic mail address and other contact information of the individual or individuals to be contacted for information or questions concerning the content of the statement of account;
(3) The handwritten signature of:
(i) The owner of the Licensee or a duly authorized agent of the owner, if the Licensee is not a partnership or a corporation;
(ii) A partner or delegee, if the Licensee is a partnership; or
(iii) An officer of the corporation, if the Licensee is a corporation;
(4) The printed or typewritten name of the person signing the statement of account;
(5) The date of signature;
(6) If the Licensee is a partnership or a corporation, the title or official position held in the partnership or corporation by the person signing the statement of account;
(7) A certification of the capacity of the person signing; and
(8) A statement to the following effect:
I, the undersigned owner or agent of the Licensee, or officer or partner, if the Licensee is a corporation or partnership, have examined this statement of account and hereby state that it is true, accurate and complete to my knowledge after reasonable due diligence.
(g)
(h)
(i)
(a)
(b)
(c)
(d)
(1) Those employees, agents, attorneys, consultants and independent contractors of the Collective, subject to an appropriate confidentiality agreement, who are engaged in the collection and distribution of royalty payments hereunder and activities related thereto, who are not also employees or officers of a Copyright Owner or Performer, and who, for the purpose of performing such duties during the ordinary course of their work, require access to the records;
(2) Board members of the Collective, and members of Collective committees whose primary functions are directly related to royalty collection and distribution, subject to an appropriate confidentiality agreement and for the sole purpose of performing their duties as board or committee members of the Collective, as applicable, provided that the sole confidential information that may be shared pursuant to this paragraph (d)(2) is confidential information contained in monthly statements of accounts provided pursuant to § 384.4(f) that accompany royalty payments;
(3) An independent and Qualified Auditor, subject to an appropriate confidentiality agreement, who is authorized to act on behalf of the Collective with respect to the verification of a Licensee's royalty payments pursuant to § 384.6 or on behalf of a Copyright Owner with respect to the verification of royalty distributions pursuant to § 384.7;
(4) Copyright owners whose works have been used under the statutory license set forth in 17 U.S.C. 112(e) by the Licensee whose Confidential Information is being supplied, or agents thereof, subject to an appropriate confidentiality agreement, provided that the sole confidential information that may be shared pursuant to paragraph (d)(4) of this section are monthly statements of account provided pursuant to § 384.4(f) that accompany royalty payments;
(5) In connection with future proceedings under 17 U.S.C. 112(e) before the Copyright Royalty Judges, and under an appropriate protective order, attorneys, consultants and other authorized agents of the parties to the proceedings or the courts; and
(6) In connection with bona fide royalty disputes or claims that are the subject of the procedures under § 384.6 or § 384.7, and under an appropriate confidentiality agreement or protective
(e)
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(a)
(b)
(c)
(d)
(e)
(f)
(g)
If a Collective is unable to identify or locate a Copyright Owner who is entitled to receive a royalty payment under this part, the Collective shall retain the required payment in a segregated trust account for a period of 3 years from the date of payment. No claim to such payment shall be valid after the expiration of the 3-year period. After the expiration of this period, the Collective may apply the unclaimed funds to offset any costs deductible under 17 U.S.C. 114(g)(3). The foregoing shall apply notwithstanding the common law or statutes of any State.
Environmental Protection Agency (EPA).
Proposed rule.
In 1997, Illinois adopted and submitted rules establishing a cap and trade program regulating emissions of volatile organic compounds (VOC). The program was designed to address VOC sources in the Chicago area with potential to emit at least 25 tons per year. Then, in 2004, EPA replaced the “Severe” classification for the Chicago ozone nonattainment area with a “Moderate” classification, which according to EPA guidance revised the applicable definition of major sources from 25 tons per year to 100 tons per year. Illinois adopted rule revisions, submitted to EPA on January 10, 2007, to require that sources with potential to emit at least 25 tons per year remain in the program. Illinois' rule revisions also address other ramifications of the “reclassification.” EPA is approving these rule revisions.
Comments must be received on or before February 29, 2008.
Submit your comments, identified by Docket ID No. EPA-R05-OAR-2007-0183, by one of the following methods:
1.
2.
3.
4.
5.
Please see the direct final rule which is located in the Rules section of this
John Summerhays, Environmental Scientist, Criteria Pollutant Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6067,
In the Final Rules section of this
Environmental Protection Agency.
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve an application from the Fort Peck Assiniboine and Sioux Tribes in Montana under Section 1425 of the Safe Drinking Water Act (SDWA) to implement an underground injection control (UIC) program for Class II (oil and gas-related) injection wells. EPA is also proposing minor revisions to regulations that are not specific to the Fort Peck Tribes' application. EPA requests public comment and has scheduled a public hearing on this application, the proposed rule, and EPA's supporting documentation. EPA will consider comments received at the public hearing and during the public comment period before taking final action.
Comments must be received on or before February 29, 2008. The public hearing will be held at the Fort Peck Community College Auditorium located at 605 Indian Avenue in Poplar, Montana at 7 p.m. on Monday, February 25, 2008.
Submit your comments, identified by Docket ID No. EPA-R08-OW-2007-0153, by one of the following methods:
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Douglas Minter, U.S. Environmental Protection Agency, 8P-W-GW, 1595 Wynkoop Street, Denver, CO 80202-1129. Phone number: 303-312-6079. E-mail address:
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The Fort Peck Assiniboine and Sioux Tribes of Montana (the “Fort Peck Tribes”) have applied to EPA under Sections 1422 and 1425 of the Safe Drinking Water Act (“SDWA”), 42 U.S.C. 300h-1 and 300h-4, for approval of the Fort Peck Tribes' program regulating Class II (oil and gas-related) underground injection wells on the Fort Peck Indian Reservation in Montana. Because the Fort Peck Tribes have sought primacy only for the Class II UIC program, EPA proposes to approve their program under SDWA section 1425. EPA's proposal is based on a careful and extensive legal and technical review of the Tribes' application. As a result of this review, EPA has determined that the Fort Peck Tribes meet all requirements of section 1451 of the SDWA, including that the Tribes have demonstrated adequate jurisdictional authority over all Class II injection activities on the Reservation, including those conducted by nonmembers. EPA has also determined that the Tribes' program meets all applicable requirements for approval under SDWA section 1425, and that they are capable of administering an effective UIC Class II program in a manner consistent with the terms and purposes of the SDWA and all applicable regulations.
These regulations are being proposed under authority of sections 1422, 1425, 1450 and 1451 of the Safe Drinking Water Act, 42 U.S.C. 300h-1, 300h-4, 300j-9 and 300j-11.
Section 1421 of the SDWA requires the Administrator of EPA to promulgate minimum requirements for effective State UIC programs to prevent underground injection activities that endanger underground sources of drinking water (“USDWs”). Sections 1422 and 1425 of the SDWA establish requirements for States seeking EPA approval of State UIC programs.
For States that seek approval for UIC programs under Section 1422 of the SDWA, EPA has promulgated a regulation setting forth the applicable procedures and substantive requirements. This regulation has been codified in the
For States that seek approval under Section 1425 of the SDWA, which provides an alternative set of requirements for Class II programs, EPA has published interim guidance in the
Section 1451 of the SDWA and 40 CFR 145.52 authorize the Administrator of EPA to treat an Indian Tribe in the same manner as a State for purposes of the UIC program if the Tribe demonstrates that: (1) It is recognized by the Secretary of the Interior; (2) it has a governing body carrying out substantial governmental duties and powers over a defined area; (3) the functions to be exercised by the Tribe are within an area of the Tribal government's jurisdiction; and (4) the Tribe is reasonably expected to be capable, in the EPA Administrator's judgment, of implementing a program consistent with the terms and purposes of the SDWA and applicable regulations.
Under Section 1451 of the SDWA and 40 CFR part 145, Subpart E, EPA is authorized to treat Indian Tribes similarly to States and may approve Tribal UIC programs. Tribes may apply for primacy under either or both Sections 1422 and 1425 of the SDWA, and the references in 40 CFR part 145 and EPA's May 19, 1981 interim guidance to “State” programs are also construed to include eligible “Tribal” programs. (See 40 CFR 145.1(h), which provides that all requirements of parts 124, 144, 145, and 146 that apply to States with UIC primacy also apply to Indian Tribes except where specifically noted.)
On December 18, 1995, the Fort Peck Tribes submitted an initial application for primacy for all Class II wells on all lands within the exterior boundaries of the Fort Peck Indian Reservation (the “Reservation”). On April 22, 1996, EPA determined that the Fort Peck Tribes’ application was complete. On September 12, 1997, EPA published a notice in the
EPA is proposing to approve the Fort Peck Tribes' Class II UIC program. Under EPA's proposed approval of the Fort Peck Tribes' application, the Fort Peck Tribes would assume primary enforcement authority (except for the authority that EPA would retain to take criminal actions: (1) Against non-Indians; and (2) against Indians where the potential fine required is greater than $5,000 or where the penalty would require imprisonment for more than one year, in accordance with 25 U.S.C. 1302) for regulating all Class II injection activities on all lands within the exterior boundaries of the Reservation.
EPA's proposed Decision Document in support of EPA's proposed approval is part of the public record and is now available for public review and comment. The proposed Decision Document includes findings that the Fort Peck Tribes meet all requirements of section 1451 of the SDWA, including that the Tribes have demonstrated adequate jurisdictional authority over all Class II injection activities on the Reservation, including those conducted by nonmembers, and that the Fort Peck Tribes' program meets all applicable requirements for approval under section 1425 of the SDWA.
If approved as proposed, the Fort Peck Tribes would administer and enforce their Class II program with respect to all Class II injection wells on the Reservation. Upon approving the Fort Peck Tribes' Class II program, EPA would amend 40 CFR part 147 as proposed in this notice to revise the reference to the EPA-administered program for Class II injection wells on the Reservation to refer to the Fort Peck Tribes' Class II program. EPA would continue to administer its UIC program for Class I, III, IV, and V wells on the Reservation. (Although the Tribal Code prohibits injection in Class I, III, and IV wells, these prohibitions are separate from the Class II program that EPA proposes to approve in this action.) As noted above, EPA would also retain Class II-related criminal enforcement authority against non-Indians on the Reservation, and against Indians on the Reservation where the potential fine required is greater than $5,000 or where the penalty would require imprisonment for more than one year.
EPA would oversee the Fort Peck Tribes' administration of the Class II program on the Reservation. Part of EPA's oversight responsibility would include requiring quarterly reports of non-compliance and annual UIC program performance reports pursuant to 40 CFR 144.8. The Memorandum of Agreement between EPA and the Fort Peck Tribes would require, among other things, that EPA review all permits associated with aquifer exemptions not previously approved by EPA.
The provisions of the Tribal Code that contain standards, requirements, and procedures applicable to owners or operators of Class II wells on the Reservation would be incorporated by reference into 40 CFR part 147. Any provisions incorporated by reference, as well as all Tribal permit conditions or permit denials issued pursuant to such provisions, would be enforceable by EPA pursuant to section 1423 of the SDWA and 40 CFR 147.1(e).
Although the Program Description submitted with the Fort Peck Tribes' application indicates that the Fort Peck Tribes requested an aquifer exemption for the Dakota Sand formation, the Fort Peck Tribes have decided not to pursue this exemption at this time.
In connection with the public comment period and hearing that the Fort Peck Tribes held on September 20, 1995, members of the public asked questions about or commented on several aspects of the proposed Tribal program. The Fort Peck Tribes' written and verbal answers to these questions and comments are given in detail in the Fort Peck Tribes' application, which, along with the other contents of the application and related documentation, are available for public review as described in this proposed rule. The general areas of the comments and summaries of the Fort Peck Tribes' answers are presented briefly below. EPA concurs with the answers that the Fort Peck Tribes have provided.
In addition, during EPA's 1997 public comment period on the Fort Peck Tribes' complete application, EPA received comments on the Fort Peck Tribes' proposed program, which are incorporated below.
Well operators asked various questions about how the Tribal permit program would be administered. In response to questions about Tribal re-permitting for existing wells, the Fort Peck Tribes stated that all EPA-issued permits remain in full effect and Tribal permits will be issued upon review of the EPA permit. The Fort Peck Tribes will charge a fee of $200 per year per well. If the Fort Peck Tribes deny an application for a permit, permit renewal, or permit modification, operators would not be able to obtain permits, permit renewals, or permit modifications from EPA. The Tribal program will apply on all land within the exterior boundaries of the Reservation, including land owned in fee by non-members.
An operator recommended that some wells should be authorized by rule to operate until a permit application is either granted or denied. The Fort Peck Tribes replied that they would not change their regulation or the need to obtain a permit before operating wells. EPA takes the position that States and Tribes are free to promulgate requirements more stringent than the minimum Federal requirements for UIC primacy, and the SDWA does not prevent the Fort Peck Tribes from requiring permits for all wells.
Some commenters suggested reducing the reporting requirements by, for example, eliminating the requirement to notify the Fort Peck Tribes within 24 hours of any well workover, suggesting alternative notification requirements, eliminating the monthly reporting requirement, and using monthly rather than daily data. The Fort Peck Tribes elected to retain their reporting requirements, stating, for example, that daily monitoring would reduce the potential to endanger underground sources of drinking water and that monthly reporting makes compliance easier to achieve.
A comment addressed to EPA stated that the Fort Peck Tribes' proposed requirement for monthly and annual injection fluid reports may be too stringent, recommending quarterly reporting instead. In response, EPA notes that section 302(b)(11) of the Tribal Code incorporates the requirements of 40 CFR 144.51, 144.54 and 146.23(b) for reporting and monitoring, with certain additional monitoring requirements, which EPA finds to be reasonable in helping ensure that USDWs are being protected. EPA has determined more frequent monitoring and reporting improves the operator's and the Tribes' ability to promptly identify problems and reduce the potential for violations.
A commenter questioned the need for the requirement to maintain pressure gauges on the tubing and annulus. The Fort Peck Tribes responded that pressure gauges allowed for agency field inspectors to observe instantaneous wellhead pressures, that several operators on the Reservation already had such pressure gauges, and that this requirement had been developed from protocols used by the State of North Dakota.
A commenter suggested that a company's size and financial stability should be considered in deciding what type of mechanism, if any, to require for demonstrating financial integrity. The Fort Peck Tribes responded that requiring a surety bond is an easy way to enforce financial responsibility, and that a financially sound company should have no difficulty securing one. The Tribes also responded that part of a company's capability to maintain and operate an injection well safely is demonstrated in securing a surety bond. EPA has determined that requiring a surety bond prior to well operation is reasonable since it eliminates the need to require annual financial statements from a company. Review of annual financial statements creates an ongoing compliance monitoring workload and creates the potential for associated violations for failure to submit such documentation.
Two commenters suggested that mechanical integrity tests should be run at pressures no higher than 500 psi (according to one commenter) or 1,000 psi (according to another commenter), instead of up to the “maximum permitted injection pressure.” In response, the Fort Peck Tribes said that they would require mechanical integrity tests to be run at the higher of: (1) 300 psi above the average operational injection pressure; or (2) the highest operational injection pressure recorded during the past year. The Tribes also stated that the testing pressure required would never be higher than the “maximum permitted injection pressure.” The Tribes recognized that a “maximum permitted injection pressure” much higher than actual operating pressures can be requested by operators in order to avoid the need for subsequent permit modifications. EPA has determined the Tribes' requirement will help ensure that mechanical integrity is maintained up to the “maximum permitted injection pressure,” and that operators should keep this requirement in mind when requesting such pressure limits in their permits.
A commenter suggested requiring cement bond logs only in special cases. The Fort Peck Tribes replied that this was an important tool in determining external mechanical integrity and indicated that some States require cement bond logs as a demonstration of mechanical integrity.
Some commenters were concerned that the Fort Peck Tribes would not only regulate injection wells themselves but also own or operate them. They made various suggestions to avoid what they perceived as a conflict, such as having the State of Montana regulate all Class II wells in Montana, including those on the Reservation, having EPA rather than the Tribal court handle appeals for non-Indian operators, and having some mediation process for disputes between the Fort Peck Tribes and permittees.
In response, the Fort Peck Tribes explained that the Tribal Office of Environmental Protection, which would administer and enforce the Fort Peck Tribes' regulatory Class II program, is a regulatory body within the Tribal government separate from the entities within the Fort Peck Tribes that own or operate injection wells. The Tribal program would be no different from a State UIC program in which one State department regulates injection activities but another State department maintains mineral holdings. In addition, the Fort Peck Tribes indicated that all surface and royalty agreements relating to mineral leasing and development on the Reservation are required to be approved by the Bureau of Indian Affairs after negotiation by the Fort Peck Tribes. In this sense, the Tribal program would be no different from an approved State UIC program in which appeals would be heard in State court.
The Fort Peck Tribes also cited legal authority in support of their civil jurisdiction over non-Indians on Reservation land, concluding that providing appeals to be heard by a Federal Agency instead of the Tribal courts would be inconsistent with the Fort Peck Tribes' governmental authority.
Some comments addressed to EPA questioned the annual $200 permitting fees. In response, EPA notes that this fee is intended to help the Fort Peck Tribes cover a portion of the anticipated expense associated with administering their Class II UIC program. The Fort Peck Tribes have estimated annual implementation costs of approximately $55,000, which is considerably more than the amount likely covered by EPA's UIC grant funds to the Tribes. Other UIC programs, such as the program administered by the Montana Board of Oil and Gas Conservation, impose a similar fee on Class II well operators. Although the Fort Peck Tribes expect that the present injection well fee will help cover program administration costs, they will retain the flexibility to raise or lower this fee if appropriate.
This proposed rule includes some minor revisions to 40 CFR 147.1 that are not specific to the Fort Peck Tribes. As a convenience to the reader, EPA has included the full text of 40 CFR 147.1 in this proposal. However, this proposal solicits comments only on the specific amendments proposed, which are: (1) To revise 40 CFR 147.1 to include specific references to Tribal programs in light of the fact that EPA is proposing in this notice to approve its first Tribal UIC program; and (2) to reserve 40 CFR 147.1(f), because it duplicates 40 CFR 9.1. It is important and necessary that EPA's regulations codifying approved UIC programs account for the fact that such programs may be run by Tribes.
As described earlier, EPA's proposed decision to approve the Fort Peck Tribes to implement a Class II UIC program includes findings that the Tribes meet all requirements of section 1451 of the SDWA, including that the Tribes have demonstrated adequate jurisdictional authority over all Class II injection activities on the Reservation, including those conducted by nonmembers. With regard to authority over nonmember activities on nonmember-owned fee lands, EPA is proposing to find that the Tribes have demonstrated such authority under the test established by the United States Supreme Court in
As part of the public record available for review and comment, EPA's proposed Decision Document, and Appendix A thereto, sets forth the Agency's specific factual findings relating to the Tribes' demonstration of inherent authority over the UIC Class II activities of nonmembers under the
In enacting part C of the SDWA, Congress generally recognized that if left unregulated or improperly managed, underground injection wells have the potential to cause serious and substantial, harmful impacts on political and economic interests and human health and welfare. Specifically, as stated in legislative history of the SDWA:
[U]nderground injection of contaminants is clearly an increasing problem. Municipalities are increasingly engaging in underground injection of sewage, sludge, and other wastes. Industries are injecting chemicals, byproducts, and wastes. Energy production companies are using injection techniques to increase production and to dispose of unwanted brines brought to the surface during production. Even government agencies, including the military, are getting rid of difficult to manage waste problems by underground disposal methods. Part C is intended to deal with all of the foregoing situations insofar as they may endanger underground sources of drinking water (USDWs).
In response to the problem of the substantial risks inherent in underground injection activities, Congress enacted section 1421 of the SDWA “ to assure that drinking water sources, actual and potential, are not rendered unfit for such use by underground injection of contaminants.”
In enacting part C of the SDWA, Congress more specifically found that mismanaged underground injection activities could have serious and substantial, harmful impacts on the public's economic and political interests, as well as its health and welfare. For example, Congress found that:
Federal air and water pollution control legislation have increased the pressure to dispose of waste materials on or below land, frequently in ways, such as subsurface injection, which endanger drinking water quality. Moreover, the national economy may be expected to be harmed by unhealthy drinking water and the illnesses which may result therefrom.
Congress specifically noted several economic and political consequences that can result from the degradation of good quality drinking water supplies, including: (1) Inhibition of interstate tourism and travel; (2) loss of economic productivity because of absence from employment due to illness; (3) limited ability of a town or region to attract workers; and (4) impaired economic growth of a town or region, and, ultimately, the nation.
As the Agency charged by Congress with implementing part C of the SDWA and assuring implementation of effective UIC programs throughout the United States, EPA agrees with these Congressional findings. EPA finds that underground injection activities, if not effectively regulated, can have serious and substantial, harmful impacts on human health, welfare, economic, and political interests. In making this finding, EPA recognizes that: (1) The underground injection activities, currently regulated as five distinct classes of injection wells as defined in the UIC regulations, typically emplace a variety of potentially harmful organic and inorganic contaminants (e.g., brines and hazardous wastes) into the ground; (2) these injected contaminants have the potential to enter USDWs through a variety of migratory pathways if injection wells are not properly managed; and (3) once present in USDWs, these injected contaminants can have harmful impacts on human health and welfare, and political and economic interests, that are both serious and substantial.
In 1980, EPA issued a document entitled, “Underground Injection Control Regulations: Statement of Basis and Purpose,” which provides the rationale for the Agency in proposing specific regulatory controls for a variety of underground injection activities. These controls, or technical requirements (e.g., testing to ensure the mechanical integrity of an injection well), were promulgated to prevent release of pollutants through the six primary “pathways of contamination,” or well-established and recognized “ways in which fluids can escape the well or injection horizon and enter USDWs.”
1. Migration of fluids through a leak in the casing of an injection well and directly into a USDW;
2. Vertical migration of fluids through improperly abandoned and improperly completed wells in the vicinity of injection well operations;
3. Direct injection of fluids into or above a USDW;
4. Upward migration of fluids through the annulus, which is the space located between the injection well's casing and the well bore. This can occur if there is sufficient injection pressure to push such fluid into an overlying USDW;
5. Migration of fluids from an injection zone through the confining strata over or underlying a USDW. This can occur if there is sufficient injection pressure to push fluid through a stratum, which is either fractured or permeable, and into the adjacent USDW; and
6. Lateral migration of fluids from within an injection zone into a portion of that stratum considered to be a USDW. In this scenario, there may be no impermeable layer or other barrier to prevent migration of such fluids.
Moreover, consistent with EPA's findings, the U.S. Department of the Interior has recognized the ability of injection wells to contaminate surface waters that are hydrogeologically connected to contaminated ground water.
In sum, EPA finds that, given the common presence of contaminants in injected fluids, serious and substantial contamination of ground water and surface water resources can result from improperly regulated underground injection activities. Moreover, such contamination has the potential to cause correspondingly serious and substantial harm to human health and welfare, and political and economic interests. EPA also has determined that Congress reached a similar finding when it enacted part C of the SDWA, directing EPA to establish UIC programs to mitigate and prevent such harm through the proper regulation of underground injection activities.
Consistent with the finding that improperly managed underground injection activities can have direct harmful effects on human health and welfare, and economic and political interests that are serious and substantial, EPA has determined that proper management of such activities serves the purpose of protecting these public health and welfare, and political and economic interests, which is a core governmental function whose exercise is integral to, and a necessary aspect of, self-government.
The above findings regarding the effects on public health and welfare, and economic and political interests are generally true for human beings and their communities, wherever they may be located. EPA has determined that the above findings that underground injection regulation is an integral and necessary incident of self-government is generally true for any Federal, State and/or Tribal government having responsibility for protecting public health and welfare. With specific relevance to Tribes, EPA has long noted the relationship between proper environmental management within Indian country and Tribal self-government and self-sufficiency. Moreover, in the 1984
This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the EO.
The Class II injection wells the Tribes propose to regulate are currently subject to EPA's regulatory program as described in 40 CFR part 147, subpart BB. Additionally, the Tribes' proposed program is, in many respects, identical to, and in some respects, more stringent than, EPA's program.
This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal Agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.
The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of this proposed rule on small entities, small entity is defined as: (1) A small business that is primarily engaged in crude petroleum and natural gas extraction as defined by NAICS Code 211111 according to Small Business Administration size standards for entities employing fewer than 500 employees; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
After considering the economic impacts of this proposed rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. The small entities directly regulated by this proposed rule are owners or operators of Class II wells, employing fewer than 500 employees. We have determined that less than 7 small entities will experience an impact of greater than 1% of annual revenues. These entities would be subject to requirements substantially similar to the existing requirements of EPA's program under 40 CFR 147.1351(a) and would not incur significant new costs as a result of this proposed rule. For example, the Tribes propose to charge an annual $200 permitting fee for each Class II well on the Reservation. While this will impose a new cost on a small entity, this cost will not have a significant economic impact on a substantial number of small entities due to the few small entities owning/operating the 23 Class II wells on the Reservation. Moreover, in approving State UIC programs imposing similar fees on a greater number of small entities, EPA determined that these new costs did not have a significant economic impact on a substantial number of small entities.
Although this proposed rule will not have a significant economic impact on a substantial number of small entities, EPA nonetheless has tried to reduce the impact of this rule on small entities. The Fort Peck Tribes' program is more stringent than the existing Federal program in certain respects. For example, unlike the existing Federal program, the Fort Peck Tribes' program requires permits for all Class II wells, with no provision for authorization by rule. (See section 202(c) of the Tribal Code.) However, because all Class II wells now in operation on the Reservation currently hold EPA permits, this more stringent requirement will not impose a significant economic impact on the owners or operators of these wells. Other requirements in the Fort Peck Tribes' program that are more stringent than the existing Federal program are identified in the proposed Decision Document available for public review and comment and are mostly minor observation, recording, and reporting requirements. These requirements also will not impose a significant economic effect on the owners or operators of these wells.
We continue to be interested in any potential impacts of the proposed rule on small entities and welcome comments on issues related to any such impacts.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. L. 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
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.
This proposed rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, or Tribal governments or the private sector because the rule imposes no enforceable duty on any State, local, or Tribal governments or the private sector. EPA's proposed approval of the Fort Peck Tribes' program would not constitute a “Federal mandate” because there is no requirement that Tribes establish UIC regulatory programs and because the program, if finally approved, will be a Tribal, rather than a Federal program. Thus, this proposed rule is not subject to the requirements of sections 202 and 205 of the UMRA.
For the same reason, EPA has determined that this proposed rule contains no regulatory requirements that might significantly or uniquely affect small governments. Thus, this proposed rule is not subject to the requirements of section 203 of the UMRA.
Executive Order 13132, entitled “Federalism”(64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on States, on the relationship between the national government and 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. If finalized, the proposed rule would merely put in place a Tribal regulatory program that is identical in many respects to the existing federal program and more stringent in certain respects, as explained in more detail in the proposed Decision Document. EPA will continue to administer its Class I, III, IV, and V UIC programs on the Reservation. Authorizing the Fort Peck Tribes to administer the Class II program will not substantially alter the distribution of power and responsibilities among levels of government or significantly change EPA's relationship with Montana. The substitution of a Tribal Class II program in place of an EPA-administered Class II program on the Fort Peck Reservation will impose no additional costs on the State of Montana. Thus, Executive Order 13132 does not apply to this rule.
In the spirit of Executive Order 13132, 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.”
EPA has concluded that this proposed rule will have Tribal implications. However, it will neither impose substantial direct compliance costs on Tribal governments, nor preempt Tribal law. The Fort Peck Tribes have voluntarily requested EPA authorization to administer their own Class II UIC program and have voluntarily assumed the Tribal share of the costs for doing so. Additionally, EPA is proposing to approve the Tribes' application for UIC Class II primacy and thus replace the existing Federal UIC Class II program for the Fort Peck Indian Reservation with a Tribal program administered pursuant to the laws of the Fort Peck Tribes. Thus, the requirements of sections 5(b) and 5(c) of the Executive Order do not apply to this proposed rule.
EPA consulted with Tribal officials early in the process of developing this regulation to permit them to have meaningful and timely input into its development. (See section IV, V, and VI for more information.)
In the spirit of Executive Order 13175, EPA specifically solicits additional comment on this proposed rule from Tribal officials.
This proposed rule is not subject to Executive Order 13045 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. The proposed Fort Peck Tribes' Class II UIC program is more stringent than the existing federal program; the Tribal program requirements have been established to prevent underground injection activities that endanger underground sources of drinking water (USDWs). The Fort Peck Tribal Executive Board has formally adopted underground injection control provisions in the Tribal Code in their program to safeguard these resources for all potential users, including but not limited to children.
This proposed rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not a significant regulatory action under Executive Order 12866.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law No. 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 does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards.
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 decrease the level of protection provided to human health or the environment or lessen current environmental standards. If finalized, this proposed rule would put in place a Tribal regulatory program that is more stringent than the federal program and, therefore, would increase the level of protection. For example, unlike the existing federal program, the Fort Peck Tribes' program requires permits for all Class II wells, with no provision for authorization by rule. Moreover, in proposing to approve the Tribes' own Class II program, EPA is enhancing the Tribes' ability to determine its own UIC affairs on its Reservation.
Environmental protection, Indian-lands, Intergovernmental relations, Reporting and recordkeeping requirements, Water supply, Incorporation by reference.
For the reasons set out in the preamble, chapter I of title 40 of the Code of Federal Regulations is proposed to be amended as follows:
1. The authority citation for part 147 is revised to read as follows:
42 U.S.C. 300h
2. Part 147 heading is revised as set forth above.
3. Section 147.1 is revised to read as follows:
(a) This part sets forth the applicable Underground Injection Control (UIC) programs for each of the States, territories, and possessions identified pursuant to the Safe Drinking Water Act (SDWA) as needing a UIC program, including any Indian country geographically located within those States, territories, and possessions.
(b) The applicable UIC programs set forth in this part may be State-administered programs approved by EPA, Tribally-administered programs approved by EPA, or Federally-administered programs promulgated by EPA. In some cases, the applicable UIC program for a particular area may consist of a State-administered or Tribally-administered program applicable to some classes of wells and a Federally-administered program applicable to other classes of wells. Approval of a State or Tribal program is based upon a determination by the Administrator that the program meets the requirements of section 1422 or section 1425 of the SDWA, any other applicable provisions of this subpart, and the applicable provisions of 40 CFR parts 124, 144, 145 and 146. A Federally-administered program is promulgated in those instances where the State or Tribe has not submitted any program for approval or where the submitted program does not meet the minimum Federal statutory and regulatory requirements.
(c) In the case of each State or Tribal program approved by EPA pursuant to section 1422 of the SDWA, the relevant subpart describes the major elements of that program, including the relevant State or Tribal statutes and regulations, the Statement(s) of Legal Authority, the Memorandum of Agreement, and the Program Description. State or Tribal statutes and regulations that contain standards, requirements, and procedures applicable to owners or operators have been incorporated by reference pursuant to regulations of the Office of the Federal Register. Material incorporated by reference is available for inspection in the appropriate EPA Regional office, in EPA Headquarters, and at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741-6030, or go to:
(d) In the case of any program promulgated under section 1422 for a State or Tribe that is to be administered by EPA, the relevant State or Tribal subpart makes applicable the provisions of 40 CFR parts 124, 144, 146, and 148, and any other additional requirements pertinent to the specific State or Tribal program.
(e) Regulatory provisions incorporated by reference (in the case of approved State or Tribal programs) or promulgated by EPA (in the case of EPA-administered programs), and all permit conditions or permit denials issued pursuant to such regulations, are enforceable by the Administrator pursuant to section 1423 of the SDWA.
(f) [Reserved].
4. Section 147.1351 is amended by revising the first sentence of paragraph (a) and by revising paragraph (b) to read as follows:
(a)
(b)
5. Subpart JJJ is added to read as follows:
The UIC program for Class II injection wells on all lands within the exterior boundaries of the Fort Peck Indian Reservation is the program administered by the Assiniboine and Sioux (Fort Peck) Tribes approved by EPA pursuant to section 1425 of the SDWA. Notice of this approval was published in the
(a)
(1)
(2) Tribal Government Resolution No. 1106-92-6.
(b)
(c)
(d)
The following is an informational listing of Fort Peck Tribal requirements incorporated by reference in Subpart JJJ of part 147 of the Code of Federal Regulations:
(a) The statutory provisions include portions of the following insofar as they pertain to Class II injection wells:
Fort Peck Assiniboine and Sioux Tribal Underground Injection Control Code, adopted June 1999, Title 18:
(b) The provisions of Tribal Government Resolution Number 1106-92-6, adopted June 22, 1992, insofar as this resolution prohibits injection by Class II wells into the Judith River formation.
Federal Emergency Management Agency, DHS.
Proposed rule.
Comments are requested on the proposed Base (1 percent annual-chance) Flood Elevations (BFEs) and proposed BFE modifications for the communities listed in the table below. The purpose of this notice is to seek general information and comment regarding the proposed regulatory flood elevations for the reach described by the downstream and upstream locations in the table below. The BFEs and modified BFEs are a part of the floodplain management measures that the community is required either to adopt or show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP). In addition, these elevations, once finalized, will be used by insurance agents, and others to calculate appropriate flood insurance premium rates for new buildings and the contents in those buildings.
Comments are to be submitted on or before April 29, 2008.
The corresponding preliminary Flood Insurance Rate Map (FIRM) for the proposed BFEs for each community are available for inspection at the community's map repository. The respective addresses are listed in the table below.
You may submit comments, identified by Docket No. FEMA-B-7760, to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3151, or (e-mail)
William R. Blanton, Jr., Chief,
The Federal Emergency Management Agency (FEMA) proposes to make determinations of BFEs and modified BFEs for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).
These proposed BFEs and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, State, or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in these buildings.
Comments on any aspect of the Flood Insurance Study and FIRM, other than the proposed BFEs, will be considered. A letter acknowledging receipt of any comments will not be sent.
Administrative practice and procedure, Flood insurance, Reporting and recordkeeping requirements.
Accordingly, 44 CFR part 67 is proposed to be amended as follows:
1. The authority citation for part 67 continues to read as follows:
42 U.S.C. 4001
2. The tables published under the authority of § 67.4 are proposed to be amended as follows:
National Highway Traffic Safety Administration (NHTSA), Department of Transportation.
Supplemental notice of proposed rulemaking (SNPRM).
This document supplements NHTSA's August 2005 proposal to upgrade the Federal motor vehicle safety standard on roof crush resistance. We issued that proposal as part of a comprehensive plan for reducing the serious risk of rollover crashes and the risk of death and serious injury in those crashes.
In this document, we ask for public comment on a number of issues that may affect the content of the final rule, including possible variations in the proposed requirements. We are also announcing the release of the results of various vehicle tests conducted since the proposal and are inviting comments on how the agency should factor this new information into its final rule.
Comments must be received on or before March 17, 2008.
You may submit comments to the docket number identified in the heading of this document by any of the following methods:
•
•
•
•
Regardless of how you submit your comments, you should mention the docket number of this document.
You may call the Docket Management Facility at 202-366-9826.
For technical issues: Mr. Christopher Wiacek, Office of Rulemaking, National Highway Traffic Safety Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590. Telephone: (202) 366-4801.
For legal issues: Mr. Edward Glancy, Office of the Chief Counsel, National Highway Traffic Safety Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590. Telephone: (202) 366-2992.
On August 23, 2005, NHTSA published in the
FMVSS No. 216 seeks to reduce deaths and serious injuries resulting from the roof being crushed and pushed into the occupant compartment when the roof strikes the ground during rollover crashes. The standard currently applies to passenger cars, and to multipurpose passenger vehicles, trucks and buses with a GVWR of 2,722 kilograms (6,000 pounds) or less.
The standard requires that when a large steel test plate (sometimes referred to as a platen) is placed in contact with the roof of a vehicle and then pressed downward, simulating contact of the roof with the ground during a rollover crash, with steadily increasing force until a force equivalent to 1.5 times the unloaded weight of the vehicle is reached, the distance that the test plate has moved from the point of contact must not exceed 127 mm (5 inches). The criterion of the test plate not being permitted to move more than a specified amount is sometimes referred to as the “platen travel” criterion. Under S5 of the standard, the application of force is limited to 22,240 Newtons (5,000 pounds) for passenger cars, even if the unloaded weight of the car times 1.5 is greater than that amount.
Due to the complex nature of a rollover event and the particularlized effect of each element of the comprehensive and systematic approach taken by the agency to address these crashes, each element addresses a specific segment of the total rollover problem.
Table 1 below shows the target population that could potentially benefit from roof crush improvements.
One modification to that basis should be noted. In the PRIA, it was assumed that in cases in which there were fatal injuries which involved both the head and another body region at the highest MAIS level, the head injury was the cause of death. More recent analysis indicates that only about
The target population relevant to FMVSS No. 216 in Table 1 is thus a relatively small subset of the occupants injured in rollovers. For fatalities, the estimated total for the target population is 5 percent of all non-convertible light vehicle rollover fatalities (476/9,011). For nonfatal injury categories, the estimated total ranges from 3 to 12 percent. The most significant exclusions resulted from requirements that fatalities occurred in rollovers in which (1) the roof was damaged in a rollover, (2) the damage was not caused by collision with a fixed object, (3) the fatally injured occupants were not ejected, and (4) those occupants were belted.
It is important to understand what this Table indicates about the safety potential of addressing roof crush. Even if there were some way to prevent every single rollover death resulting from roof crush, the total lives saved would be 476, not the approximately 10,000 deaths that result from rollover each year. This is why each initiative in NHTSA's comprehensive program to address the different aspects of the rollover problem is so important. Each initiative has a different target population. We have initiatives in place to:
1. Reduce the occurrence of rollover crashes (e.g., the requirement for Electronic Stability Control on all light vehicles and the NCAP rollover ratings),
2. Keep occupants inside the vehicle when rollovers occur (e.g., NHTSA's unstinting commitment to get passengers to buckle their seat belts every time they ride in a vehicle, as well as the requirement for enhanced door latches and the forthcoming new requirement for ejection mitigation), and
3. Better protect the occupants kept inside the vehicle during the rollover (this rule to require enhanced roof crush resistance).
Each of these three initiatives must work together to address the various aspects of the rollover problem. However, it is important to understand which portion of the rollover problem can be addressed by each of these three initiatives, so that there is a clear and correct understanding of the safety benefits potentially associated with each of the different types of actions to reduce rollover deaths and injuries.
To better address fatalities and injuries occurring in roof-involved rollover crashes, we proposed in 2005 to extend the application of the standard to vehicles with a GVWR of up to 4,536 kilograms (10,000 pounds), and to strengthen the requirements of FMVSS No. 216 by mandating that the vehicle roof structures withstand a force equivalent to 2.5 times the unloaded vehicle weight, and eliminating the 22,240 Newtons (5,000 pounds) force limit for passenger cars. Further, in recognition of the fact that the pre-test distance between the interior surface of the roof and a given occupant's head varies from vehicle model to vehicle model, we proposed to regulate roof strength by requiring that the crush not exceed the available headroom. Under the proposal, this requirement would replace the current limit on test plate movement.
The proposed new limit would prohibit any roof component from contacting the head of a seated 50th percentile male dummy when the roof is subjected to a force equivalent to 2.5 times the unloaded vehicle weight. We note that this value is sometimes referred to as the strength-to-weight ratio (SWR), e.g., a SWR of 1.5, 2.5, and so forth.
The agency has been carefully analyzing the numerous comments it received on its proposal. In addition, it has been analyzing the various additional vehicle tests, including both single-side tests and two-sided tests,
In developing a final rule, the agency will consider the comments submitted on both the August 2005 NPRM and this document. Thus, there is no need for persons to re-submit the comments they provided for the NPRM. We note that we are generally not discussing the comments in this document, except for a few brief references that are relevant to the potential economic impact of our proposal. We also note that the proposed regulatory text in this document includes both the single-sided and two-sided test requirement alternatives. The fact that the proposed regulatory text for the two alternatives does not reflect other changes suggested by commenters on the NPRM does not mean that we will not consider those recommended changes in developing a final rule.
We are providing a 45-day comment period. We believe this is appropriate given that this is an SNPRM with a more limited focus than the NPRM, and given the need to comply with a statutory deadline.
The test reports for the additional vehicle tests conducted by NHTSA are being made available to the public through the agency's internet vehicle crash test database. We are placing a memorandum in the docket which provides the Web address for that database and lists the vehicle models and test numbers that are needed to reference the information in the database. The agency incorporates by reference these test reports as part of the record for this rulemaking.
Since the publication of the NPRM, the agency has conducted 35 additional single-sided tests. In this testing, the force was applied to one side of the roof over the front seat area. Force was applied until there was 127 mm (5 inches) of platen travel, unless head contact occurred first. The strength of the roof was measured prior to any subsequent testing the agency may have conducted on the second side. The agency is releasing these data to the public in conjunction with this document.
A summary of the test results is presented in the Table 2 below.
We observed from this recent testing that the range of SWRs for vehicles with a GVWR of 6,000 pounds (2722 kilograms) or less tended to be higher than the range of SWRs for vehicles with a GVWR greater than 6,000 pounds (2722 kilograms). The SWR of many late model vehicles with a GVWR of 6,000 pounds (2722 kilograms) or less was substantially higher than the 2.5 value the agency focused on in the NPRM. Conversely, only two vehicles we tested with a GVWR greater than 6,000 pounds (2722 kilograms) exceeded the 2.5 value.
We note that the data presented in these tables do not factor in the full spectrum of weight ranges for the models tested. The SWR for each model was calculated using the unloaded vehicle weight (UVW) of the tested vehicle rather than the maximum vehicle weight. In comments on the NPRM, manufacturers said that vehicles would have to be designed to comply in their maximum weight configuration. NHTSA agrees with this comment and will reflect maximum weight configurations in the final rule analysis.
We request comments on any other steps the agency should take in factoring these new test data into its decisions for the final rule.
In the NPRM, the agency summarized the testing it had conducted to evaluate the strength of the second side of the roof of vehicles whose first side had already been tested. In this testing, after the force was applied to one side of the roof over the front seat area of a vehicle, the vehicle was repositioned and force was then applied on the opposite side of the roof over the front seat area. In performing these tests on both sides of a vehicle, the agency used the platen angle currently specified in FMVSS No. 216 (5° × 25°). We concluded that the strength of the roof on the second side of some vehicles may have been increased or decreased as a result of the deformation of the first side of the roof. The agency indicated that it planned to conduct further research before proposing rulemaking in this area.
The agency has expanded the series of two-sided roof crush tests discussed in the NPRM. The agency has now conducted a total of 26 sequential two-sided tests, as part of its evaluation, and is also releasing these data to the public in conjunction with this document.
A summary of the test results is presented in the following Table 3.
For the first eight tests (those with asterisks in the table), testing of the first side of the vehicle was conducted until the windshield cracked. This occurred between 90 and 100 mm (3.54 and 3.94 inches) of platen travel for all vehicles except the Nissan Quest which required 135 mm (5.31 inches) of platen travel before the windshield cracked. The second side was then tested for 254 mm (10 inches) of platen travel. For all other tests, the first side was conducted to 127 mm (5 inches) of platen travel unless head contact occurred first. The second side was then tested for 254 mm (10 inches) of platen travel. We note that in all 26 tests, the windshield cracked before completion of the first side test. In the first eight tests, the peak SWR was recorded at the time the windshield cracked on the first side. For all other testing, the SWR was recorded prior to 127 mm (5 inches) of platen travel or prior to head contact, whichever occurred first.
The two-sided test results show that the first side test generally produces a weakening of the structure. This is
With respect to two-sided vehicle testing, we believe that the post-NPRM tests provide the agency with sufficient additional information for the agency to now consider a two-sided test requirement for the final rule. However, as discussed in the following sections, the agency seeks comment on the relative trade offs between the single-sided and two-sided test procedures.
Based upon the results of the testing described above, the agency is contemplating various alternatives for a final rule. Each of the alternatives will directly affect the current fleet failure rate estimates, vehicle design changes and vehicle content necessary to meet those alternatives, and consequent benefits and costs. The agency has not completed cost/benefit analyses for these various alternatives, however, the agency will ensure that its decisions about these alternatives result in a final rule that is cost beneficial, as contemplated by Executive Order 12866.
Public comments submitted in response to the NPRM and research conducted by NHTSA indicate some general conclusions that can be drawn regarding the directional impact of these alternatives, as well as subsequent changes in vehicle content and other factors that may influence the final rule.
The August 2005 PRIA examined the proposed SWR of 2.5 and the alternative SWR of 3.0 times the unloaded vehicle weight. Estimated costs ranged from $88 to 95 million for the 2.5 SWR alternative and $1.2 to $1.3 billion for the 3.0 SWR alternative. Benefits were estimated to be 13 to 44 fatalities and 498 to 793 nonfatal injuries prevented for the 2.5 alternative, and 49 to 135 fatalities and 1540 to 2151 nonfatal injuries prevented for the 3.0 alternative. The estimated impacts of the final rule will be changed by a number of factors. These include:
In response to the NPRM, manufacturers commented that NHTSA's estimates underestimated the portion of the vehicle fleet that would require changes. The manufacturers noted that NHTSA's estimates were based on individual vehicles' actual weights, but that manufacturers would have to design roof structures to meet the maximum weight that each body design would be required to carry. Thus, for example, test results from a vehicle with a four-cylinder engine and manual transmission might not be indicative of the same vehicle with a six-cylinder engine and automatic transmission option, even though they share the same body design and roof structure. The agency agrees with this comment and will make appropriate adjustments in its revised analysis for the final rule. In the NPRM, the agency estimated that 32 percent of the vehicle fleet would have to be changed to meet the 2.5 proposal, whereas manufacturers commented that the portion was over 80 percent. Based on the agency's testing, more recent vehicle designs tested appear to have stronger roofs. Therefore, it is not yet clear what the actual failure rate will be. However, at this time, it appears likely that the impact of this adjustment will be to increase both the costs and benefits of the rule.
The PRIA for the August 2005 NPRM to amend FMVSS No. 216 examined the model year (MY) 2005 fleet. During MY 2005, Electronic Stability Control (ESC) was voluntarily installed on roughly 18% of the new light vehicle fleet, and the PRIA took this into account.
However, NHTSA published a proposal in September 2006 and a final rule
In the PRIA, NHTSA based its cost estimates on 4 vehicles: The 1997 Plymouth Neon, the 1999 Ford E-150 Van, the 1997 Dodge Caravan, and the 1998 Chevrolet S-10 pickup. These vehicles were used because they were the only vehicles for which the agency had finite element models which could be used to simulate the impact of roof design changes on roof strength. The agency used these vehicles to impute costs for the overall fleet based on the relative roof strength of a sample of tested vehicles. A similar procedure was used for vehicle weight changes. The PRIA estimated that the average cost per affected vehicle would be approximately $11 to meet the 2.5 SWR alternative and $51 for the 3.0 SWR alternative, with individual model costs as high as $16 for the 2.5 alternative and $84 for the 3.0 alternative. The PRIA also estimated average weight increases ranging from 2 to 14 kilograms (4 to 30 pounds). Weight is a factor in the analysis because it influences both fuel economy, and the vehicle's center of gravity which can influence the vehicle's tendency to roll over.
In response, the Alliance of Automobile Manufacturers (Alliance) submitted an analysis of costs and weights for 2 vehicle types—a large SUV and a large pickup truck.
The Alliance also contracted an independent study by Magna Steyr on the feasibility of modifying a crew cab pickup for compliance with the NPRM proposal (2.5 SWR). The study concluded that meeting the proposal in a 3-year lead time was feasible, but would add 33 kilograms (73 pounds) and $76 to $98 in variable costs. It also found that if enough leadtime were
The agency has also conducted additional tear down studies. A study
The two-sided testing conducted by NHTSA thus far indicate an average difference of approximately 8 percent lower peak force for the second side in vehicles under 2,722 kilograms (6,000 pounds) GVWR
We have conducted an analysis to examine the relative impact of one-sided testing vs. two-sided testing, based primarily on the results of the agency's own FMVSS No. 216 testing program. Since the publication of the October 2001 request for comment (66 FR 53376), the agency has conducted roof strength testing on 69 vehicles. Although these tests were conducted on specific vehicles, for this exercise, the results were adjusted to reflect the maximum unloaded vehicle weight configuration for each make/model. The agency tested 21 vehicles with GVWRs less than 2,722 kilograms (6,000 pounds) under a two-sided test regime. Eleven of these vehicles passed a 2.5 SWR on both the first and second side tested. Only five vehicles passed a 3.0 SWR on both sides and only four passed a 3.5 SWR. The agency also conducted two-sided tests on five vehicles with GVWRs over 2,722 kilograms (6,000 pounds). None of these vehicles passed a 2.5 or greater SWR. The agency also has single-sided testing data on 32 vehicles with GVWRs less than 2,722 kilograms (6,000 pounds) and 11 vehicles with GVWRs over 2,722 kilograms (6,000 pounds).
The roof strength results for this sample of 69 vehicles were then sales weighted to estimate the relative pass-fail rates that might result for single-sided and two-sided test procedure alternatives. The estimates show nearly 100 percent of vehicles over 2,722 kilograms (6,000 pounds) GVWR failed under all scenarios. The vehicles with GVWR under 2,722 kilograms (6,000 pounds) had higher failure rates for the two-sided tests when compared to the single-sided procedure. At a SWR of 2.5, the lighter vehicles are estimated to have a failure rate of 45 percent for single-sided and 67 percent for two-sided tests. The failure rate increases with higher SWR scenarios. A summary of the results is presented in the following Table 4.
In the NPRM, the agency estimated benefits based on post-crash headroom, the only basis for which a statistical relationship with injury reduction had been established. In that analysis, the agency estimated that the proposed 2.5 SWR requirement would prevent 13 to 44 fatalities.
More recently, the agency has estimated benefits based on the relationship between intrusion and the probability of injury. This relationship was not established when the NPRM was published, but with the additional years of data available, a statistically significant relationship between intrusion and injury for belted occupants has since been established. A study regarding this relationship has undergone peer review and is available in the docket.
In the NPRM, NHTSA estimated the cost of meeting the proposed 2.5 SWR single-sided test requirement at $16-$17
The agency believes that these cost estimates may increase for several reasons. The first is that manufacturers stated that vehicle body platforms must be designed to their heaviest possible design configuration. This means that a body platform that supports several different engine, transmission, and suspension options must be strong enough to pass the test requirements under the maximum weighted combination of these options. This could increase the effective SWR of the entire body platform and this would increase the average cost and weight impact of the required design changes. This would primarily be an issue for large trucks and SUVs, which are designed with a wide range of optional performance packages. It would be much less of a factor for passenger cars.
A second reason costs might rise is that predicted gasoline prices may be higher than prices predicted in the NPRM. The NPRM fuel cost estimates were based on forecasts from the Energy Information Administration (EIA), which predicted an average pump price of roughly $1.46/gallon (2002 dollars) in 2007. The final rule will be based on EIA's latest predictions. It is expected that EIA's predictions will be higher than its earlier ones.
A third reason costs may rise is that the cost estimates NHTSA used for the NPRM assumed single-sided tests. For the two-sided testing program alternative, the agency found an average difference of approximately 8-17 percent lower peak force for the second side (depending on vehicle weight class). Thus, some vehicle designs may need added strengthening to meet a two-sided test relative to a single-sided test.
Regardless of which alternative is adopted in the final rule, the agency will ensure that the final rule is cost beneficial, as contemplated by Executive Order 12866.
The agency requests comments on the costs of meeting the single-sided and two-sided testing alternative requirements for different types of vehicles for the proposed SWR of 2.5, as well as the alternatives of 3.0 and 3.5.
1. In the single-sided test results, the agency observed that vehicles under 6,000 pounds achieved higher SWR levels than did those vehicles over 6,000 pounds. Should the agency consider different stringency requirements for vehicles according to their weight class? Will different design strategies be necessary to meet the requirements for vehicles under or over 6,000 pounds? What are the cost implications associated with different stringency requirements and different design strategies?
2. In the agency's two-sided testing, an average reduction of about 8% was observed in the second side SWR compared to the first side for vehicles under 6,000 pounds, compared to an average 17% reduction for those over 6,000 pounds. Table 4 also indicates a much higher failure rate for two-sided testing compared to a single-sided requirement, and appears to indicate that fleet failure rates (and consequently benefits) for a two-sided test at a 2.5 SWR would be comparable to a single-sided test at a higher SWR. What are the relative costs associated with, for example, a two-sided requirement at 2.5 SWR versus a single-sided test at 3.0 SWR? If comparable benefits can be achieved with a single-sided test at a higher SWR requirement compared to a two-sided test at a lower SWR level, are there other considerations the agency should include in the FRIA?
3. If a two-sided alternative is pursued in the final rule, will different design strategies be required to meet the requirements for vehicles under or over 6,000 pounds? What are the cost implications associated with these strategies?
Your comments must be written and in English. To ensure that your comments are correctly filed in the Docket, please include the docket number of this document in your comments. Your comments must not be more than 15 pages long.
Please submit your comments by any of the following methods:
•
•
•
•
If you are submitting comments electronically as a PDF (Adobe) file, we ask that the documents submitted be scanned using Optical Character Recognition (OCR) process, thus allowing the agency to search and copy certain portions of your submissions.
Please note that pursuant to the Data Quality Act, in order for substantive data to be relied upon and used by the agency, it must meet the information quality standards set forth in the OMB and DOT Data Quality Act guidelines. Accordingly, we encourage you to consult the guidelines in preparing your comments. OMB's guidelines may be accessed at
If you submit your comments by mail and wish Docket Management to notify you upon its receipt of your comments, enclose a self-addressed, stamped postcard in the envelope containing your comments. Upon receiving your comments, Docket Management will return the postcard by mail.
If you wish to submit any information under a claim of confidentiality, you should submit three copies of your complete submission, including the information you claim to be confidential business information, to the Chief Counsel, NHTSA, at the address given above under
In addition, you should submit a copy, from which you have deleted the claimed confidential business information, to the Docket by one of the methods set forth above.
We will consider all comments received before the close of business on the comment closing date indicated above under
If a comment is received too late for us to consider in developing a final rule (assuming that one is issued), we will consider that comment as an informal suggestion for future rulemaking action.
You may read the materials placed in the docket for this document (e.g., the comments submitted in response to this document by other interested persons) at any time by going to
NHTSA has considered the impact of this rulemaking action under Executive Order 12866 and the Department of Transportation's regulatory policies and procedures. The Office of Management and Budget reviewed this rulemaking document under E.O. 12866, “Regulatory Planning and Review.” This rulemaking action has been determined to be significant under Executive Order 12866 and the DOT Policies and Procedures because of Congressional and public interest.
Our current understanding of the benefits and costs of this rulemaking is set forth on the pages above.
NHTSA will prepare a Final Regulatory Impact Analysis (FRIA) describing the costs and benefits of this rulemaking action for the final rule. The FRIA will analyze alternatives considered by the agency and the final rule as issued, and will reflect consideration of comments addressing costs and benefits. The agency invites comments concerning how the alternatives to the proposal discussed in today's document could affect costs and benefits.
Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
In the August 2005 NPRM, the agency discussed relevant requirements related to the Regulatory Flexibility Act, the National Environmental Policy Act, Executive Order 13132 (Federalism), the Unfunded Mandates Act, Civil Justice Reform, the National Technology Transfer and Advancement Act, and the Paperwork Reduction Act. The variations in the proposal discussed in this document do not affect the agency's analyses in those areas. NHTSA will address comments in these areas in connection with the final rule.
Motor vehicle safety, Tires.
In consideration of the foregoing, NHTSA proposes to amend 49 CFR part 571 as follows:
1. The authority citation of Part 571 continues to read as follows:
49 U.S.C. 322, 30111, 30115, 30166 and 30177; delegation of authority at 49 CFR 1.50.
2. Amend § 571.216 by:
a. Revising S3 to read as set forth below;
b. Adding to S4, in alphabetical order, new definitions of “Convertible” and “Roof component;”
c. Revising S5 to read as set forth below;
d. Removing S5.1;
e. Revising S7.1 through S7.6 to read as set forth below;
f. Adding S7.7 to read as set forth below; and
g. Removing S8 through S8.4.
The revisions and additions read as follows:
S3.
(a) School buses;
(b) Vehicles that conform to the rollover test requirements (S5.3) of Standard No. 208 (§ 571.208) by means that require no action by vehicle occupants;
(c) Convertibles, except for optional compliance with the standard as an alternative to the rollover test requirement (S5.3) of Standard No. 208; or
(d) Vehicles manufactured in two or more stages, other than chassis cabs, that conform to the roof crush requirements (S4) of Standard No. 220 (§ 571.220).
S4.
S5.
S7.1 Secure the vehicle in accordance with S7.1(a) through (d).
(a) Support the vehicle off its suspension at a longitudinal vehicle attitude of 0 degrees ± 0.5 degrees. Measure the longitudinal vehicle attitude along both the driver and passenger sill. Determine the lateral vehicle attitude by measuring the vertical distance between a level surface and a standard reference point on the bottom of the driver and passenger side sills. The difference between the vertical distance measured on the driver side and the passenger side sills shall not exceed ± 1 cm.
(b) Secure the vehicle with four stands. The locations for supporting the vehicle are defined in S7.1(c) or (d). Welding is permissible. The vehicle overhangs are not supported. Chains and wire rope are not used to secure the vehicle. Fix all non-rigid body mounts to prevent motion of the body relative to the frame. Close all windows, close and lock all doors, and secure any moveable or removable roof structure in place over the occupant compartment. Remove roof racks or other non-structural components.
(c) For vehicles with manufacturer's designated jacking locations, locate the stands at or near the specified location.
(d) For vehicles with undefined jacking locations, generalized jacking areas, or jacking areas that are not part of the vehicle body or frame, such as axles or suspension members, locate two stands in the region forward of the rearmost axle and two stands rearward of the forwardmost axle. All four stands shall be located between the axles on either the vehicle body or vehicle frame.
S7.2 (a) Adjust the seats and steering controls in accordance with S8.1.2 and S.8.1.4 of 49 CFR 571.208.
(b) Place adjustable seat backs in the manufacturer's nominal design riding position in the manner specified by the manufacturer. Place any adjustable anchorages at the manufacturer's nominal design position for a 50th percentile adult male occupant. Place each adjustable head restraint in its lowest adjustment position. Adjustable lumbar supports are positioned so that the lumbar support is in its lowest adjustment position.
S7.3 Position the Hybrid III 50th percentile male dummy specified in 49 CFR Part 572, Subpart E in accordance with S10.1 through S10.6.2.2 of 49 CFR 571.208, in the front outboard designated seating position on the side of the vehicle being tested.
S7.4 Orient the test device as shown in Figure 1 of this section, so that—
(a) Its longitudinal axis is at a forward angle (in side view) of 5 degrees below the horizontal, and is parallel to the vertical plane through the vehicle's longitudinal centerline;
(b) Its transverse axis is at an outboard angle, in the front view projection, of 25 degrees below the horizontal.
S7.5 Maintaining the orientation specified in S7.4—
(a) Lower the test device until it initially makes contact with the roof of the vehicle.
(b) Position the test device so that—
(1) The longitudinal centerline on its lower surface is within 10 mm of the initial point of contact, or on the center of the initial contact area, with the roof; and
(2) The midpoint of the forward edge of the lower surface of the test device is within 10 mm of the transverse vertical plane 254 mm forward of the forwardmost point on the exterior surface of the roof, including windshield trim, that lies in the longitudinal vertical plane passing through the vehicle's longitudinal centerline.
S7.6 Apply force so that the test device moves in a downward direction perpendicular to the lower surface of the test device at a rate of not more than 13 millimeters per second until reaching the force level specified in S5. Guide the test device so that throughout the test it moves, without rotation, in a straight line with its lower surface oriented as specified in S7.4(a) and S7.4(b). Complete the test within 120 seconds.
S7.7 Repeat the test on the other side of the vehicle.
3. Amend § 571.216 by:
a. Revising S3 to read as set forth below;
b. Adding to S4, in alphabetical order, new definitions of “Convertible” and “Roof component;”
c. Revising S5 to read as set forth below;
d. Removing S5.1;
e. Revising S7.1 through S7.6 to read as set forth below; and
f. Removing S8 through S8.4.
The revisions and additions read as follows:
S3.
(a) School buses;
(b) Vehicles that conform to the rollover test requirements (S5.3) of Standard No. 208 (§ 571.208) by means that require no action by vehicle occupants;
(c)
(d) Vehicles manufactured in two or more stages, other than chassis cabs, that conform to the roof crush requirements (S4) of Standard No. 220 (§ 571.220).
S4.
S5.
S7.1 Secure the vehicle in accordance with S7.1(a) through (d).
(a) Support the vehicle off its suspension at a longitudinal vehicle attitude of 0 degrees ± 0.5 degrees.
(b) Secure the vehicle with four stands. The locations for supporting the vehicle are defined in S7.1(c) or (d). Welding is permissible. The vehicle overhangs are not supported. Chains and wire rope are not used to secure the vehicle. Fix all non-rigid body mounts to prevent motion of the body relative to the frame. Close all windows, close and lock all doors, and secure any moveable or removable roof structure in place over the occupant compartment. Remove roof racks or other non-structural components.
(c) For vehicles with manufacturer's designated jacking locations, locate the stands at or near the specified location.
(d) For vehicles with undefined jacking locations, generalized jacking areas, or jacking areas that are not part of the vehicle body or frame, such as axles or suspension members, locate two stands in the region forward of the rearmost axle and two stands rearward of the forwardmost axle. All four stands shall be located between the axles on either the vehicle body or vehicle frame.
S7.2 (a) Adjust the seats and steering controls in accordance with S8.1.2 and S.8.1.4 of 49 CFR 571.208.
(b) Place adjustable seat backs in the manufacturer's nominal design riding position in the manner specified by the manufacturer. Place any adjustable anchorages at the manufacturer's nominal design position for a 50th percentile adult male occupant. Place each adjustable head restraint in its lowest adjustment position. Adjustable lumbar supports are positioned so that the lumbar support is in its lowest adjustment position.
S7.3 Position the Hybrid III 50th percentile male dummy specified in 49 CFR Part 572, Subpart E in accordance with S10.1 through S10.6.2.2 of 49 CFR 571.208, in the front outboard designated seating position on the side of the vehicle being tested.
S7.4 Orient the test device as shown in Figure 1 of this section, so that—
(a) Its longitudinal axis is at a forward angle (in side view) of 5 degrees below the horizontal, and is parallel to the vertical plane through the vehicle's longitudinal centerline;
(b) Its transverse axis is at an outboard angle, in the front view projection, of 25 degrees below the horizontal.
S7.5 Maintaining the orientation specified in S7.4—
(a) Lower the test device until it initially makes contact with the roof of the vehicle.
(b) Position the test device so that—
(1) The longitudinal centerline on its lower surface is within 10 mm of the initial point of contact, or on the center of the initial contact area, with the roof; and
(2) The midpoint of the forward edge of the lower surface of the test device is within 10 mm of the transverse vertical plane 254 mm forward of the forwardmost point on the exterior surface of the roof, including windshield trim, that lies in the longitudinal vertical plane passing through the vehicle's longitudinal centerline.
S7.6 Apply force so that the test device moves in a downward direction perpendicular to the lower surface of the test device at a rate of not more than 13 millimeters per second until reaching the force level specified in S5. Guide the test device so that throughout the test it moves, without rotation, in a straight line with its lower surface oriented as specified in S7.4(a) and S7.4(b). Complete the test within 120 seconds.
Agricultural Marketing Service, USDA.
Notice.
This notice announces the U.S. Department of Agriculture's (USDA) determination not to conduct a continuance referendum regarding the 1991 amendments to the Cotton Research and Promotion Order (Order) provided for in the Cotton Research and Promotion Act (Act) amendments of 1990. This determination is based on the results of a sign-up period conducted September 3 through November 30, 2007, during which eligible cotton producers and importers were provided an opportunity to request a continuance referendum.
Shethir Riva, Chief, Cotton Research and Promotion Staff, Cotton Program, AMS, USDA, STOP 0224, 1400 Independence Avenue, SW., Washington, DC 20250-0224, Telephone (202) 720-2259, Facsimile (202) 690-1718 or e-mail
During the period of September 3 through November 30, 2007, pursuant to section 8(c)(1) of the Act, USDA provided an opportunity for eligible cotton producers and importers to request a continuance referendum regarding the 1991 amendments to the Order provided for in the Act. Sign-up period results showed that USDA received 107 valid requests from eligible producers and importers. The following table depicts the number of requests for a continuance referendum.
Section 8(c)(2) of the Act, provides that following a sign-up period, USDA shall conduct a referendum upon the request of 10 percent or more of the number of cotton producers and importers voting in the most recent referendum (1991). This would require 10 percent or 4,622 (46,220X.10 = 4,622) of the 46,220 valid ballots cast by cotton producers and importers in the July 1991 referendum. It is further provided that, in counting such request not more than 20 percent or 924 may be from producers from any one state or importers of cotton.
USDA finds that the results of the sign-up period did not meet the criteria requiring a continuance referendum by the Act. USDA bases this determination on the fact that the 107 requests received during the sign-up period is less than the 4,622 required.
The 1991 amendments to the Order (7 CFR part 1205
On July 9, 1991, (56 FR 31289) AMS issued a proposal to amend the Order to determine if a majority, 50 percent or more, of producers and importers favored implementation of the proposed amendments to the Order. USDA conducted a referendum (July 1991) among persons who had been cotton producers or cotton importers during a representative period. Results of the July 1991 referendum showed that of the 46,220 valid ballots received; 27,879 or 60 percent of the persons voting favored the amendments to the Order and 18,341 or 40 percent opposed the amendments.
Following the July 1991 referendum, AMS implemented the amendments. In addition to the previously discussed amendments to the Act and Order, USDA is required by section 8(c)(1) to: (1) Conduct a review once every 5 years after the anniversary date of the referendum implementing the 1990 Act amendments to determine whether a referendum is necessary and (2) make public the results of such a review within 60 days after each fifth anniversary date of the 1991 implementing referendum. Should the review indicate that a referendum is needed USDA is directed to conduct the referendum within 12 months after a public announcement of review results.
Should the review indicate that a referendum is not warranted, section 8(c)(2) includes provisions for producers and importers to request a continuance referendum through a sign-up period.
In 1996 and 2001, pursuant to the Act, USDA issued the results of its 5-year reviews of the Cotton Research and Promotion Program. In both reviews, the Department prepared reports that described the impact of the Cotton Research and Promotion Program on the cotton industry and the views of those
In 2006, the Department again prepared a 5-year report that described the impact of the Cotton Research and Promotion Program on the cotton industry. The review report is available upon written request to the Chief of the Cotton Research and Promotion Staff at the address provided above. Comments were solicited from all interested parties including from persons who pay the assessments as well as from organizations representing cotton producers and importers (71 FR 13808; March 17, 2006). Economic data was also reviewed in order to report on the general climate of the cotton industry. Finally, a number of independent sources of information were reviewed to help identify perspectives from outside the program including the results of independent program evaluations assessing the effects of the Cotton Research and Promotion Program activities on demand for Upland cotton, return-on-investment to cotton producers, the benefit-cost ratio to companies who import cotton products and raw cotton, and the overall rate-of-return and qualitative benefits and returns associated with the Cotton Research and Promotion Program. The review report cited that the 1990 amendments to the Act were successfully implemented and are operating as intended. The report also noted that there is a consensus within the cotton industry that the Cotton Research and Promotion Program and the 1990 amendments to the Act are operating as intended. Written comments, economic data, and results from independent evaluations support this conclusion. Industry comments cited examples of how the additional funding has yielded benefits by increasing the demand and consumption for cotton. Of the 15 comments received, only one commenter, who represents cotton importers, argued for a referendum on the 1990 Act amendments.
USDA found no compelling reason to conduct a referendum regarding the 1990 Act amendments to the Cotton Research and Promotion Order although some program participants support a referendum. Therefore, USDA allowed all eligible persons to request the conduct of a continuance referendum on the 1990 amendments through a sign-up period.
With this announcement of the results of the sign-up period, USDA has completed all requirements set forth in section 8(c) (1) and (2) of the Act regarding the review of the Cotton Research and Promotion Program to determine if a continuance referendum is warranted. A referendum will not be conducted, and no further actions are planned in connection with this review.
7 U.S.C. 2101-2118.
Animal and Plant Health Inspection Service, USDA.
Notice.
We are advising the public of our decision to begin issuing permits for the importation into the continental United States and Hawaii of sweet cherries from Australia. Based on the findings of a pest risk analysis, which we made available to the public for review and comment through a previous notice, we believe that the application of one or more designated phytosanitary measures will be sufficient to mitigate the risks of introducing or disseminating plant pests or noxious weeds via the importation of sweet cherries from Australia.
January 30, 2008.
Ms. Donna L. West, Senior Import Specialist, Commodity Import Analysis and Operations, Plant Health Programs, PPQ, APHIS, 4700 River Road Unit 133, Riverdale, MD 20737-1231; (301) 734-8758.
Under the regulations in “Subpart—Fruits and Vegetables” (7 CFR 319.56 through 319.56-47, referred to below as the regulations), the Animal and Plant Health Inspection Service (APHIS) of the U.S. Department of Agriculture prohibits or restricts the importation of fruits and vegetables into the United States from certain parts of the world to prevent plant pests from being introduced into and spread within the United States.
Section 319.56-4 of the regulations contains a performance-based process for approving the importation of commodities that, based on the findings of a pest risk analysis, can be safely imported subject to one or more of the designated phytosanitary measures listed in paragraph (b) of that section. Under that process, APHIS publishes a notice in the
In accordance with that process, we published a notice
The commenter supported the findings of the pest risk analysis, but noted that her agency has concerns regarding the commercial viability of one of the treatment options we spelled out for Australian cherries. The commenter stated that the methyl bromide fumigation followed by cold treatment is considered by the Australian industry to damage the fruit and could thus reduce its commercial appeal. Based on those concerns, the
Therefore, in accordance with the regulations in § 319.56-4(c)(2)(ii), we are announcing our decision to begin issuing permits for the importation into the continental United States and Hawaii of sweet cherries from Australia subject to the following conditions:
• The fruit must be part of a commercial consignment as defined in 7 CFR 319.56-2.
• The fruit must either originate from an APHIS-approved fruit fly free area or be treated in accordance with the phytosanitary treatments regulations in 7 CFR part 305. This may entail treatment with T108-a-1/2/3 [fumigation with methyl bromide followed by cold treatment as provided in 7 CFR 305.10(a)] or irradiation using 150 Gy as the minimum absorbed dose and meeting all other relevant requirements in 7 CFR 305.31.
• Each consignment must be accompanied by a phytosanitary certificate issued by the Australian National Plant Protection Organization (NPPO) certifying that the fruit either received the required treatment or originated from a fruit fly free area. The NPPO must also include an additional declaration in the phytosanitary certificate that states: “The fruit in this shipment was inspected and found free of
• The fruit will also be subject to inspection at the port of entry should inspectors determine that such inspection is necessary.
These conditions will be listed in the fruits and vegetables manual (available at
Food and Nutrition Service, USDA.
Notice.
This notice informs the public of the annual adjustments to the reimbursement rates for meals served in the Summer Food Service Program for Children (SFSP). These adjustments reflect changes in the Consumer Price Index and are required by the statute governing the Program. In addition, further adjustments are made to these rates to reflect the higher costs of providing meals in the States of Alaska and Hawaii, as authorized by the William F. Goodling Child Nutrition Reauthorization Act of 1998.
January 1, 2008.
Keith Churchill, Policy and Program Development Branch, Child Nutrition Division, Food and Nutrition Service, U.S. Department of Agriculture, 3101 Park Center Drive, Room 640, Alexandria, Virginia 22302, (703) 305-2590.
This program is listed in the Catalog of Federal Domestic Assistance under No. 10.559 and is subject to the provisions of Executive Order 12372 which requires intergovernmental consultation with State and local officials (7 CFR part 3015, subpart V, and final rule related notice published at 48 FR 29114, June 24, 1983).
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3518), no new recordkeeping or reporting requirements have been included that are subject to approval from the Office of Management and Budget.
This notice is not a rule as defined by the Regulatory Flexibility Act (5 U.S.C. 601-612) and thus is exempt from the provisions of that Act. Additionally, this notice has been determined to be exempt from review by the Office of Management and Budget under Executive Order 12866.
The terms used in this Notice shall have the meaning ascribed to them in the regulations governing the Summer Food Service Program for Children (7 CFR Part 225).
In accordance with Section 13 of the National School Lunch Act (NSLA) (42 U.S.C. 1761), section 12 of the NSLA (42 U.S.C. 1760(f)), and the regulations governing the SFSP (7 CFR part 225), notice is hereby given of adjustments in Program payments for meals served to children participating in the SFSP in 2008. Adjustments are based on changes in the food away from home series of the Consumer Price Index (CPI) for All Urban Consumers for the period November 2006 through November 2007.
The 2008 reimbursement rates, in dollars, for all States excluding Alaska and Hawaii:
The 2008 reimbursement rates, in dollars, for Alaska:
The 2008 reimbursement rates, in dollars, for Hawaii:
The total amount of payments to State agencies for disbursement to Program sponsors will be based upon these Program reimbursement rates and the number of meals of each type served.
The above reimbursement rates, for both operating and administrative reimbursement rates, represent a 4.1 percent increase during 2007 (from 201.6 in November 2006 to 209.854 in November 2007) in the food away from home series of the Consumer Price Index for All Urban Consumers, published by the Bureau of Labor Statistics of the Department of Labor. The Department would like to point out that the SFSP administrative reimbursement rates continue to be adjusted up or down to the nearest quarter-cent, as has previously been the case. Additionally, operating reimbursement rates have been rounded down to the nearest whole cent, as required by Section 11(a)(3)(B) of the NSLA (42 U.S.C. 1759 (a)(3)(B)).
Secs. 9, 13 and 14, National School Lunch Act, as amended (42 U.S.C. 1758, 1761, and 1762a).
Forest Service, USDA.
Notice of intent to prepare an environmental impact statement.
The East Administrative Unit of the Hiawatha National Forest intends to prepare an environmental impact statement (EIS) to disclose the environmental consequences of a vegetation and transportation management project. See the
Comments concerning the scope of the analysis must be received by February 17, 2008. The draft environmental impact statement is expected October 2008 and the final environmental impact statement is expected March 2009.
Send written comments to Lyn Hyslop, Niagara Team Leader; St. Ignace Ranger District; W1900 W US-2; St. Ignace, Michigan 49781. Send electronic comments to
For further information, mail correspondence to Lyn Hyslop, Niagara Team Leader; St. Ignace Ranger District; W1900 W US-2; St. Ignace, Michigan 49781. See the
Lyn Hyslop, Niagara Team Leader; St. Ignace Ranger District; (906) 643-7900. See address above under
The purpose of and need for the project is to:
• Ensure fully stocked stands of desired forest cover types identified in the vegetation composition and size goals for management areas 2.3 and 8.3, and provide commercial wood products (Forest Plan, pp. 3-10 and 3-42).
• Provide a safe and efficient transportation system for managing the National Forest and providing appropriate access to non-federal land.
• Provide within-stand diversity by increasing white pine and hemlock in stands missing this component.
• Reduce the susceptibility of the Niagara area to insect and disease outbreaks.
To move the project area toward the desired conditions shown in the Hiawatha National Forest Land and Resource Management Plan, the Hiawatha National Forest would during this decade: (1) Clearcut on 189 acres, (2) clearcut—salvage mortality on 416 acres, (3) shelterwood cut with reserves on 650 acres, (4) seed-tree cut with reserves on 62 acres, (5) overstory removal cut with reserves on 219 acres, (6) single-tree selection cut on 4,154 acres, (7) commercial thin on 879 acres, (8) site preparation for natural regeneration on 4,487 acres, (9) mechanical site preparation for natural regeneration on 409 acres, (10) full planting on 219 acres, (11) construct 4 miles of new system roads, (12) construct 6 miles of temporary roads, (13) add 2 miles of unclassified roads to the National Forest System, (14) close 2
Stevan J. Christiansen, District Ranger; St. Ignace Ranger District; W1900 W US-2; St. Ignace, Michigan 49781.
The decision to be made is whether or not to manage the vegetation on any or all of the 6,569 acres by harvesting, and; whether or not to manage the transportation system through construction of temporary and permanent roads and log landings, addition of unclassified roads, and road closures and decommissioning.
The St. Ignace Ranger District proposes to scope for information by contacting persons and organizations on the Hiawatha's mailing list and landowners within or adjacent to the project area. In addition a legal notice will be posted in the local newspapers. An open house is also scheduled for January 30, 2008 at the St. Ignace District office at the address listed above, from 5-8 p.m. This present solicitation is for comments on this Notice of Intent and the scoping materials available elsewhere, such as on the Hiawatha National Forest webpage.
Preliminary or potential issues have been identified from experience with similar projects.
(1) Timber harvesting may adversely impact wildlife species requiring early succession habitat.
(2) Timber harvesting may adversely impact wildlife species requiring late succession habitat.
(3) Closing and decommissioning roads could reduce the amount of legal motorized vehicle activity and could increase the amount of illegal motorized vehicle activity.
(4) Closing and decommissioning roads could result in adverse effects to soils, riparian areas and wetlands, wildlife, and plants.
(5) Timber harvesting and road building may adversely impact Canada lynx or Hart's tongue fern.
(6) The karst topography and its dependent above-ground and below-ground resources may be impacted by the area's ability to produce valuable timber products.
Information is available electronically on the Hiawatha National Forest webpage:
This notice of intent initiates the scoping process which guides the development of the environmental impact statement. Comments are most valuable if they are within the scope of the proposed action, specific to the proposed action, have a direct relationship to the proposed action, and include supporting reasons for consideration in the environmental impact statement and any subsequent decisions. Comments will be used to identify relevant issues, display environmental effects, or develop a range of reasonable alternatives to the proposed action. Any referenced scientific literature should be accompanied by a complete copy of the literature, and rationale as to its pertinence to the Niagara Project.
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 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.
USDA Forest Service.
Notice of meeting.
The Eastern Region Recreation Resource Advisory Committee will hold its third meeting via teleconference. The purpose of the meeting is to receive recommendations concerning recreation fee proposals on areas managed by the Forest Service in Michigan and to discuss other items of interest related to the Federal Lands Recreation Enhancement Act of 2004.
A final detailed agenda, with any additions/corrections to agenda topics and meeting time, will be sent to regional media sources at least 14 days before the meeting, and hard copies can also be mailed or sent via FAX.
The meeting will be held February 26, 2008.
Send written comments to Cheryl Chatham, Designated Federal Official for the Eastern Recreation RAC, US Forest Service, PO Box 1270, Hot Springs, AR 71902.
Cheryl Chatham, Designated Federal Official US Forest Service, PO Box 1270, Hot Springs, AR 71902.
The meeting is open to the public. Committee discussion is limited to Forest Service staff and Committee members. However, persons who wish to bring recreation fee matters to the attention of the Committee may file written statements with the Committee staff before or after the meeting. A public input session will be provided and individuals who made written requests by February 20, 2008, will have the opportunity to address the Committee at the meeting.
The Recreation RAC is authorized by the Federal Land Recreation Enhancement Act, which was signed into law by President Bush in December 2004.
Forest Service, USDA.
Notice of meeting.
The Mendocino County Resource Advisory Committee (RAC) will meet February 15, 2008 in Willits, California. Agenda items to be covered include: (1) Approval of minutes, (2) Public Comment, (3) Sub-committees, (4) Discussion—items of interest, (5) Discussion/approval of projects, (6) next agenda items and meeting date.
The meeting will be held on February 15, 2008, from 9 a.m. to 12 noon.
The meeting will be held at the Mendocino County Museum, located at 400 E. Commercial St., Willits, California.
Roberta Hurt, Committee Coordinator, USDA, Mendocino National Forest, Covelo Ranger District, 78150 Covelo Road, Covelo, CA 95428. (707) 983-8503; e-mail
The meeting is open to the public. Persons who wish to bring matters to the attention of the Committee may file written statements with the Committee staff by February 10, 2008. Public will have the opportunity to address the committee at the meeting.
USDA Forest Service.
Notice of meeting.
The Southern Region Recreation Resource Advisory Committee will hold its third meeting at Staybridge Suites—Atlanta Perimeter Center East, 4601 Ridgeview Road in Atlanta, Georgia. The purpose of the meeting is to receive recommendations concerning recreation fee proposals on areas managed by the Forest Service in Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, Virginia, and the territory of Puerto Rico; and to discuss other items of interest related to the Federal Lands Recreation Enhancement Act of 2004.
A final detailed agenda, with any additions/corrections to agenda topics, location, field trips and meeting times, will be sent to regional media sources at least 14 days before the meeting, and hard copies can also be mailed or sent via FAX. Individuals who need special assistance such as sign language interpretation or other reasonable accommodations, or who wish a hard copy of each agenda, should contact Caroline Mitchell at PO Box 1270, Hot Springs, AR 71902 (501-321-5318) no later than 10 days prior to the meeting.
The meeting will be held February 20-21, 2008.
The meeting will be held at Staybridge Suites—Atlanta Perimeter Center East, 4601 Ridgeview Road in Atlanta, Georgia. Send written comments to Cheryl Chantham Designated Federal Official for the Southern Recreation RAC, US Forest Service, PO Box 1270, Hot Springs, AR 71902.
Cheryl Chatham, Designated Federal Official, US Forest Service, PO Box 1270, Hot Springs, AR 71902.
The meeting is open to the public. Committee discussion is limited to Forest Service staff and Committee members. However, persons who wish to bring recreation fee matters to the attention of the Committee may file written statements with the Committee staff before or after the meeting. A public input session will be provided and individuals who made written requests by February 14, 2008, will have the opportunity to address the Committee at the meeting. The Recreation RAC is authorized by the Federal land Recreation Enhancement Act, which was signed into law by President Bush in December 2004.
Rural Housing Service, Business-Cooperative Service, and Rural Utilities Service, USDA.
Proposed collection; Comments requested.
In accordance with the Paperwork Reduction Act of 1995, this notice announces Rural Development's intention to request a revision for a currently approved information collection in support of loan programs administered by the Rural Housing Service, Business-Cooperative Service, and Rural Utilities Service.
Comments on this notice must be received by April 29, 2008.
Ronald Gianella, Accountant, Office of the Deputy Chief Financial Officer, Policy and Internal Review Division, U.S. Department of Agriculture, STOP 33, P.O. Box 200011, St. Louis, MO 63120,
To administer these electronic loan collection methods, Rural Development collects the borrower's FI routing information (routing information includes the FI routing number and the borrower's account number). Rural Development uses Agency approved forms for collecting bank routing information for CIP, FedWire, and PAD.
Copies of this information collection can be obtained from Cheryl Thompson, Regulations and Paperwork Management Branch, at (202) 692-0043.
Comments should be submitted to Cheryl Thompson, Regulations and Paperwork Management Branch, Support Services Division, Rural Development, U.S. Department of Agriculture, STOP 0742, 1400 Independence Avenue, SW., Washington, DC 20250-0742. All responses to this notice will be summarized, included in the request for Office of Management and Budget (OMB) approval, and will become a matter of public record.
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) preliminarily determines that light-walled rectangular pipe and tube (LWR) from the People's Republic of China (PRC) is being, or is likely to be, sold in the United States at less than fair value (LTFV), as provided in section 733 of the Tariff Act of 1930, as amended (the Act). The estimated dumping margins are shown in the “Preliminary Determination” section of this notice.
January 30, 2008.
Jeff Pedersen or Drew Jackson, AD/CVD Operations, Office 4, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-2769 or 482-4406, respectively.
On June 27, 2007, the Department received petitions concerning imports of LWR from the PRC, Mexico, Turkey, and the Republic of Korea (Korea) filed in proper form by Allied Tube and Conduit, Atlas Tube, Bull Moose Tube Company, California Steel and Tube, EXLTUBE, Hannibal Industries, Leavitt Tube Company, Maruichi American Corporation, Searing Industries, Southland Tube, Vest Inc., Welded Tube, and Western Tube and Conduit (collectively, the petitioners). The Department initiated antidumping duty investigations of LWR from the above-mentioned countries on July 17, 2007.
On July 18, 2007, the Department requested quantity and value (Q&V) information from the 53 companies that were identified in the petition as potential producers or exporters of LWR from the PRC.
On August 16, 2007, the Department selected ZZPC and Lets Win as mandatory respondents.
The Department received separate-rate applications from ZZPC, Lets Win, Baishun, Walsall, Worldunion, Weifang, Jiangyin, and Dalian. The Department did not receive separate-rate applications from Suns and Liaoning.
On August 17, 2007, the Department issued its antidumping questionnaire to the mandatory respondents. ZZPC and Lets Win submitted timely responses to the Department's questionnaire during September and October 2007. The Department issued supplemental questionnaires to, and received responses from, ZZPC and Lets Win in October, November, and December 2007 and January 2008. The petitioners submitted comments to the Department regarding ZZPC's and Lets Wins' questionnaire and supplemental questionnaire responses, and the separate rates response of Dalian in October and December 2007.
On September 21, 2007, the Department released to interested parties a memorandum which listed potential surrogate countries and invited interested parties to comment on surrogate country and factor value selection. No party responded to the Department's invitation to comment on surrogate country selection. However, in October, November, and December 2007 and January 2008, both the petitioners and the respondents submitted surrogate values, including surrogate financial statements, for use in this investigation. All of the submitted surrogate data are from India.
In August and September 2007, the petitioners and respondents submitted comments to the Department regarding the appropriate model matching criteria.
On November 1, 2007, the petitioners alleged targeted dumping by ZZPC and Lets Win. On December 10, 2007, the Department sent a letter to the petitioners requesting more information regarding both targeted dumping allegations.
On December 13, 2007, the petitioners requested that the Department make a finding that critical circumstances exist with respect to imports of LWR from the PRC. The Department issued questionnaires regarding critical circumstances to Lets Win and ZZPC on December 18, 2007. Lets Win and ZZPC submitted their responses to those questionnaires on December 28, 2007, and January 2, 2008. See the “Critical Circumstances” section of this notice for additional information.
The period of investigation (POI) is October 1, 2006, through March 31, 2007. This period comprises the two most recently completed fiscal quarters as of the month preceding the month in which the petition was filed (
The merchandise that is the subject of this investigation is certain welded carbon-quality light-walled steel pipe and tube, of rectangular (including square) cross section, having a wall thickness of less than 4 mm.
The term carbon-quality steel includes both carbon steel and alloy steel which contains only small amounts of alloying elements. Specifically, the term carbon-quality includes products in which none of the elements listed below exceeds the quantity by weight respectively indicated: 1.80 percent of manganese, or 2.25 percent of silicon, or 1.00 percent of copper, or 0.50 percent of aluminum, or 1.25 percent of chromium, or 0.30 percent of cobalt, or 0.40 percent of lead, or 1.25 percent of nickel, or 0.30 percent of tungsten, or 0.10 percent of molybdenum, or 0.10 percent of niobium, or 0.15 percent vanadium, or 0.15 percent of zirconium. The description of carbon-quality is intended to identify carbon-quality products within the scope. The welded carbon-quality rectangular pipe and tube subject to this investigation is currently classified under the Harmonized Tariff Schedule of the United States (HTSUS) subheadings 7306.61.50.00 and 7306.61.70.60. While HTSUS subheadings are provided for convenience and Customs purposes, our written description of the scope of the investigation is dispositive.
In accordance with the preamble to the Department's regulations, we set aside a period of time in our
The Department preliminarily finds that there is reason to believe or suspect that critical circumstances exist for imports of subject merchandise from the PRC-wide entity because, in accordance with section 733(e)(1)(A)(ii) of the Act, importers of LWR produced by the PRC-wide entity knew or should have known that the exporter was selling the subject merchandise at less than its fair value and that there was likely to be material injury by reason of such sales. See Memorandum from Abdelali Elouaradia, Director, Office 4, “Preliminary Affirmative Determination of Critical Circumstances, in Part,” dated concurrently with this memorandum. In addition, the Department also preliminarily finds that imports from the PRC-wide entity satisfy section 733(e)(1)(B) of Act because these imports were massive during a relatively short period.
However, with respect to Lets Win, ZZPC, and the separate-rate companies, the Department does not preliminarily find that there is reason to believe or suspect that critical circumstances exist for imports of subject merchandise from these companies because the record indicates that imports from these companies were not massive during a relatively short period. See section 733(e)(1)(B) of the Act; see also Memorandum from Abdelali Elouaradia, Director, Office 4, “Preliminary Affirmative Determination of Critical Circumstances, in Part,” dated concurrently with this memorandum. Accordingly, for Lets Win, ZZPC, and the separate-rate companies, the statutory requirement imposed by section 733(e)(1)(B) of Act has not been satisfied and, therefore, we preliminarily determine that critical circumstances do not exist for these entities.
Pursuant to section 777A(d)(1) of the Act, in calculating dumping margins in investigations the Department normally will compare U.S. prices and normal values using a weighted average-to-average or transaction-to-transaction comparison methodology. However, section 777A(d)(1)(B) of the Act allows the Department to compare transaction-specific export or constructed export prices to weighted-average normal
On November 1, 2007, the petitioners alleged that Lets Win and ZZPC targeted certain sales of LWR for dumping. Specifically, the petitioners alleged that targeted dumping occurred where the average net price of all of the subject merchandise sold to a particular customer, entered into a particular port, or sold during a specific month, differed by more than two percent from the overall average net price of all of the subject merchandise sold by the respondent during the POI. The petitioners believe the two-percent price difference supports a finding of targeted dumping because: (1) This approach is consistent with the methodology used in the antidumping duty investigation of coated free sheet (CFS) paper from the Republic of South Korea; and (2) LWR is a commodity product sold in a competitive market and, thus, any price difference is critical.
After reviewing the petitioners' targeted dumping allegations, the Department determined that the allegations lacked basic information and support, and informed the petitioners that they failed to: (1) Establish that the two-percent price variation is significant for the LWR market; (2) establish that the price differences are based on purchasers, regions, or time periods rather than other factors (
In response to the Department's December 10, 2007, letter, the petitioners asserted that the ITC has already analyzed the LWR market and found the subject merchandise to be a commodity product.
We have determined that in this case using an average-to-transaction comparison methodology results in the same overall antidumping margin for each of the respondents as using an average-to-average comparison methodology.
Finally, the Department notes that the petitioners failed to adequately respond to the Department's concerns regarding their targeted dumping allegations. Specifically, the petitioners failed to describe how the LWR market functions and did not adequately explain why a two-percent price difference should be considered to be significant for the “commodity-like product,” LWR, given the characteristics of the LWR market.
Given the foregoing, we find that the petitioners' allegations do not contain sufficient information to conduct a targeted dumping analysis.
The Department considers the PRC to be a non-market economy (NME) country. In accordance with section 771(18)(c)(i) of the Act, any determination that a country is an NME country shall remain in effect until revoked by the administering authority.
In antidumping proceedings involving NME countries, the Department, pursuant to section 773(c)(1) of the Act, will generally base normal value (NV) on the value of the NME producer's factors of production. In accordance with section 773(c)(4) of the Act, in valuing the factors of production, the Department shall utilize, to the extent possible, the prices or costs of factors of production in one or more market economy countries that are at a level of economic development comparable to that of the NME country and are significant producers of merchandise comparable to the subject merchandise.
The Department has determined that India, Indonesia, Sri Lanka, the Philippines, and Egypt are countries that are at a level of economic development comparable to that of the PRC.
In proceedings involving NME countries, the Department has a rebuttable presumption that all companies within the country are subject to government control and thus should be assessed a single antidumping duty rate. It is the Department's policy to assign all exporters of merchandise subject to investigation involving an NME country this single rate unless an exporter can demonstrate that it is sufficiently independent so as to be entitled to a separate rate. ZZPC, Lets Win, Baishun, Walsall, Worldunion, Weifang, Jiangyin, and Dalian provided company-specific information to demonstrate that they operate independently of
The Department's separate-rate test is not concerned, in general, with macroeconomic/border-type controls,
To establish whether a firm is sufficiently independent from government control of its export activities to be entitled to a separate rate, the Department analyzes each entity exporting the subject merchandise under a test arising from the
The Department considers the following de jure criteria in determining whether an individual company may be granted a separate rate: (1) An absence of restrictive stipulations associated with an individual exporter's business and export licenses; (2) any legislative enactments decentralizing control of companies; and (3) other formal measures by the government decentralizing control of companies.
Walsall reported that it is wholly foreign-owned by China Pacific Limited (CPL), which is incorporated in the Cayman Islands. CPL is in turn wholly owned by a Hong Kong citizen. Since there is no PRC ownership of Walsall, and we have no evidence indicating that this company is under the control of the PRC, a separate rates analysis is not necessary to determine whether Walsall is independent from government control.
The Department determined that Dalian did not make a sale to the United States during the POI and thus should not be considered for a separate rate. See memorandum regarding “Dalian Brollo Steel Tubes Ltd.'s Eligibility for a Separate Rate” dated concurrently with this notice.
Typically the Department considers four factors in evaluating whether each respondent is subject to
ZZPC, Lets Win, Baishun, Worldunion, Weifang, and Jiangyin have each provided information indicating that they: (1) Set export prices independent of the government and without the approval of a government authority; (2) have the authority to negotiate and sign contracts and other agreements; (3) have autonomy from the government regarding the selection of management; and (4) retain proceeds from sales and make independent decisions regarding the disposition of profits or financing of losses. Therefore, the Department has preliminarily found a
Based on the foregoing, the Department has preliminarily granted ZZPC, Lets Win, Baishun, Walsall, Worldunion, Weifang, and Jiangyin, separate, company-specific dumping margins. The Department calculated company-specific dumping margins for ZZPC and Lets Win and assigned Baishun, Walsall, Worldunion, Weifang, and Jiangyin a dumping margin equal to the weighted-average of the dumping margins calculated for ZZPC and Lets Win. As noted above, Suns and Liaoning did not submit separate-rate applications. Accordingly, Suns and Liaoning have not provided company-specific information to demonstrate that they operate independently of
Although PRC exporters of subject merchandise to the United States were given an opportunity to provide Q&V information to the Department, not all exporters responded to the Department's request for Q&V information.
Section 776(a)(2) of the Act provides that, if an interested party (A) withholds information that has been requested by the Department, (B) fails to provide such information in a timely manner or in the form or manner requested, subject to subsections 782(c)(1) and (e) of the Act, (C) significantly impedes a proceeding under the antidumping statute, or (D) provides such information but the information cannot be verified, the Department shall, subject to subsection 782(d) of the Act, use facts otherwise available in reaching the applicable determination.
As noted above, the PRC-wide entity withheld information requested by the Department. As a result, pursuant to section 776(a)(2)(A) of the Act, we find it appropriate to base the PRC-wide dumping margin on facts available.
Section 776(b) of the Act provides that, in selecting from among the facts otherwise available, the Department may employ an adverse inference if an interested party fails to cooperate by not acting to the best of its ability to comply with requests for information.
Section 776(b) of the Act authorizes the Department to use, as adverse facts available (AFA), information derived from the petition, the final determination from the LTFV investigation, a previous administrative review, or any other information placed on the record. In selecting a rate for AFA, the Department selects one that is sufficiently adverse “as to effectuate the purpose of the facts available rule to induce respondents to provide the Department with complete and accurate information in a timely manner.”
To determine whether ZZPC or Lets Win sold LWR to the United States at LTFV, we compared the weighted-average export price (EP) of the LWR to the NV of the LWR, as described in the “U.S. Price,” and “NV” sections of this notice.
In accordance with section 772(a) of the Act, we based the U.S. price of sales on EP because the first sale to unaffiliated purchasers was made prior to importation and the use of constructed export price was not otherwise warranted. During the POI, Lets Win made certain sales of subject merchandise to the United States through an unaffiliated trading company located in the PRC. Lets Win claims that it established all of the essential terms of such U.S. sales through its negotiations with the first unaffiliated U.S. customers.
In accordance with section 772(c) of the Act, we calculated EP by deducting, where applicable, the following expenses from the starting price (gross unit price) charged to the first unaffiliated customer in the United States: foreign movement expenses, marine insurance, international freight, and foreign brokerage and handling expenses.
We based these movement expenses on surrogate values where a PRC company provided the service and was paid in Renminbi (RMB). If market economy service providers, who were paid in a market economy currency, provided movement services for over 33 percent of subject merchandise shipments, by volume, we based the movement expenses on the actual price charged by the service provider. If market economy service providers, who were paid in a market economy currency, provided movement services for less than 33 percent of subject merchandise shipments, by volume, we calculated the movement expenses by weight-averaging surrogate values with the actual price charged by the service provider.
In accordance with section 773(c) of the Act, we constructed NV from the factors of production employed by the respondents to manufacture subject merchandise during the POI. Specifically, we calculated NV by adding together the value of the factors of production, general expenses, profit, and packing costs. We valued the factors of production using prices and financial statements from the surrogate country, India. In selecting surrogate values, we followed, to the extent practicable, the Department's practice of choosing values which are non-export average values, contemporaneous with, or closest in time to, the POI, product-specific, and tax-exclusive.
We valued material inputs and packing by multiplying the amount of the factor consumed in producing subject merchandise by the average unit value of the factor. We derived the average unit value of the factor from Indian import statistics. In addition, we added freight costs to the surrogate costs that we calculated for material inputs. We calculated freight costs by multiplying surrogate freight rates by the shorter of the reported distance from the domestic supplier to the factory that produced the subject merchandise or the distance from the nearest seaport to the factory that produced the subject merchandise, as appropriate. This adjustment is in accordance with the Court of Appeals for the Federal Circuit's decision in
Further, in calculating surrogate values from Indian imports, we disregarded imports from Indonesia, South Korea, and Thailand because in other proceedings the Department found that these countries maintain broadly available, non-industry-specific export subsidies. Therefore, it is reasonable to infer that all exports to all markets from these countries may be subsidized.
We valued raw materials and packing materials using Indian import statistics, except as noted below.
We valued electricity using rates from
Consistent with 19 CFR 351.408(c)(3), we valued direct, indirect, and packing labor, using the most recently calculated regression-based wage rate, which relies on 2004 data. This wage rate can currently be found on the Department's Web site on Import Administration's home page, Import Library, Expected Wages of Selected NME Countries, revised in January 2007,
We valued water using data from the Maharashtra Industrial Development Corporation (
We valued truck freight expenses using a per-unit average rate from data obtained from the Web site of an Indian transportation company, InFreight Technologies India Limited.
We valued brokerage and handling using a simple average of the brokerage and handling costs that were reported in public submissions that were filed in two antidumping duty cases. Specifically, we averaged the public brokerage and handling expenses reported by Agro Dutch Industries Ltd. in the antidumping duty administrative review of certain preserved mushrooms from India and those reported by Kejirwal Paper Ltd. in the LTFV investigation of certain lined paper products from India.
Because the resulting value is not contemporaneous with the POI, we inflated the rate using the WPI.
ZZPC reported that all of its U.S. sales had international freight arranged by an NME freight forwarder. We valued international freight expenses using U.S. dollar freight quotes that the Department obtained from Maersk Sealand (Maersk), a market-economy shipper. We obtained quotes from Maersk for shipments from the PRC port of export and the U.S. port of import reported by ZZPC for its U.S. sales. Because these data were not contemporaneous to the POI, we adjusted them for inflation using the U.S. WPI.
We valued factory overhead, selling, general, and administrative (SG&A) expenses, and profit, using the 2006-2007 audited financial statements of Zenith Birla (India) Limited and Bihar Tubes Limited. Record evidence indicates that these are Indian companies that produce subject merchandise. We did not rely upon a third company's financial statement that was placed on the record, namely the financial statement of Bhawani Industries Limited (Bhawani), because Bhawani's financial statement lists a “DEPB Premium” in “Other Income.” India's DEPB Scheme has been found by the Department to provide a countervailable subsidy.
In accordance with 19 CFR 351.301(c)(3)(i), interested parties may submit publicly available information with which to value factors of production in the final determination within 40 days after the date of publication of the preliminary determination.
We made currency conversions into U.S. dollars, in accordance with section 773A(a) of the Act, based on the exchange rates in effect on the dates of the U.S. sales as certified by the Federal Reserve Bank.
As provided in section 782(i)(1) of the Act, we intend to verify the information upon which we will rely in making our final determination.
In the
The weighted-average dumping margins are as follows:
We will disclose the calculations performed within five days of the date of publication of this notice to parties in this proceeding in accordance with 19 CFR 351.224(b).
As noted above, the Department has found that critical circumstances exist with respect to imports of subject merchandise from the PRC-Wide entity. Therefore, in accordance with section 733(d) of the Act, we will instruct U.S. Customs and Border Protection (CBP) to suspend liquidation of all entries of LWR from the PRC-Wide entity as described in the “Scope of the Investigation” section of this notice, entered, or withdrawn from warehouse, for consumption on or after 90 days prior to the date of publication of this notice in the
In accordance with section 733(f) of the Act, we have notified the ITC of our preliminary affirmative determination of sales at LTFV. Section 735(b)(2) of the Act requires the ITC to make its final determination as to whether the domestic industry in the United States is materially injured, or threatened with material injury, by reason of imports of LWR, or sales (or the likelihood of sales) for importation, of the subject merchandise within 45 days of our final determination.
Case briefs or other written comments may be submitted to the Assistant Secretary for Import Administration no later than seven days after the date the final verification report is issued in this proceeding and rebuttal briefs, limited to issues raised in case briefs, no later than five days after the deadline for submitting case briefs.
In accordance with section 774 of the Act, we will hold a public hearing, if requested, to afford interested parties an opportunity to comment on arguments raised in case or rebuttal briefs. If a request for a hearing is made, we intend to hold the hearing three days after the deadline of submission of rebuttal briefs at the U.S. Department of Commerce, 14th Street and Constitution Ave, NW., Washington, DC 20230, at a time and location to be determined. Parties should confirm by telephone the date, time, and location of the hearing two days before the scheduled date.
Interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Import Administration, U.S. Department of Commerce, Room 1870, within 30 days after the date of publication of this notice.
Pursuant to section 735(a)(2) of the Act, on November 27, 2007, and December 10, 2007, Lets Win and ZZPC, respectively, requested that in the event of an affirmative preliminary determination in this investigation, the Department postpone its final determination by 60 days. At the same time, Lets Win and ZZPC requested that the Department extend the application of the provisional measures prescribed under 19 CFR 351.210(e)(2) from a 4-month period to a 6-month period. In accordance with section 733(d) of the Act and 19 CFR 351.210(b), because (1) our preliminary determination is affirmative, (2) the requesting exporters account for a significant proportion of exports of the subject merchandise, and (3) no compelling reasons for denial exist, we are granting the request and are postponing the final determination until no later than 135 days after the publication of this notice in the
This determination is issued and published in accordance with sections 733(f) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce
The U.S. Department of Commerce (the Department) preliminarily determines that light-walled rectangular pipe and tube from Turkey is being, or is likely to be, sold in the United States at less than fair value (LTFV), as provided in section 733(b) of the Tariff Act of 1930, as amended (the Tariff Act). The estimated margins of sales at LTFV are listed in the “Suspension of Liquidation” section of this notice. Interested parties are invited to comment on this preliminary determination. Accordingly, we will make our final determination not later than 75 days after the signature date of the preliminary determination, in accordance with 19 CFR 351.210.
January 30, 2008.
Fred Baker, Tyler Weinhold, or Robert James, AD/CVD Operations, Office 7, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-0408, (202) 482-1121, or (202) 482-0649, respectively.
On July 24, 2007, the Department initiated the antidumping duty investigation of light-walled rectangular pipe and tube from Turkey.
The Department set aside a period of time for parties to raise issues regarding product coverage and encouraged all parties to submit comments.
On August 28, 2007, the United States International Trade Commission (the Commission) preliminarily determined there is a reasonable indication that imports of light-walled rectangular pipe and tube from the People's Republic of China, Korea, Mexico and Turkey are materially injuring the U.S. industry and notified the Department of its findings.
On October 19, 2007, the petitioners requested the Department postpone the preliminary determination by 50 days. The Department published an extension notice on November 14, 2007, which set the new deadline for the preliminary determination at January 23, 2008.
Section 777A(c)(1) of the Tariff Act directs the Department to calculate individual dumping margins for each known exporter and producer of the subject merchandise. The Department identified a large number of producers and exporters of light-walled rectangular pipe and tube from Turkey and determined it was not practicable to examine each known producer or exporter of the subject merchandise, as provided in section 777A(c)(1) of the Tariff Act. On July 31, 2007, we sent quantity and value (Q&V) questionnaires to the following seventeen companies identified in the petition or through our own research: Anadolu Boru, Ayata Metal Industry, Borusan Mannesmann Boru, Erbosan Erciyas Boru Sanayii ve Ticaret A.S., Goktas Tube, Guven Boru Profil Sanayii ve Ticaret Limited Sirketi, Kalibre Boru Sanayi ve Ticaret A.S., Kerim Celik Mamulleri Imalat ve Ticaret, Noksel Steel Pipe Co., MMZ Onur Boru Profil Uretim San. ve Tic. A.S., Ozborsan Boru San. ve Tic. A.S., Ozgur Boru, Ozdemir Boru Sanayi ve Ticaret Ltd. Sti., Seamless Steel Tube and Pipe Co. (Celbor), Toscelik Profil ve Sac End. A.S, Umran Steel Pipe Inc., Yusan Industries, Ltd., and Yucel Boru ve Profil Endustrisi A.S.
The Department did not receive a response to the Q&V questionnaire from the following six companies: Anadolu Boru, Ayata Metal Industry, Goktas Tube, Seamless Steel Tube and Pipe Co. (Celbor), Umran Steel Pipe Inc., and Yusan Industries, Ltd. Furthermore, Kalibre Boru Sanayi ve Ticaret A.S., Kerim Celik Mamulleri Imalat ve Ticaret and Ozgur Boru
Nine other exporters/producers submitted proper responses to the Department's Q&V questionnaire: Borusan Mannesmann Boru, Erbosan Erciyas Boru Sanayii ve Ticaret A.S., Guven Boru Profil Sanayii ve Ticaret Limited Sirketi, Noksel Steel Pipe Co., MMZ Onur Boru Profil Uretim San. Ve Tic. A.S, Ozborsan Boru San. Ve Tic. A.S., Ozdemir Boru Sanayi ve Ticaret Ltd. Sti., Toscelik Profil Ve Sac End. A.S, and Yucel Boru ve Profil Endustrisi A.S. Two respondents—Guven Boru Profil Sanayii ve Ticaret Limited Sirketi (Guven Boru) and MMZ Onur Boru Profil Uretim San. Ve Tic. A.S (MMZ)—accounted for the majority by volume of exports of subject merchandise to the United States during the period of investigation (POI) among those companies that responded to our quantity and value questionnaire. These two respondents accounted for 54 percent of the total exports reported by the responding companies. Pursuant to section 777A(c)(2)(1)(B) of the Tariff Act, we selected these two firms as mandatory respondents.
We issued the antidumping questionnaires to Guven Boru and MMZ on September 7, 2007. The Department received a section A response from MMZ on October 4, 2007. The Department received a section A response from Guven Boru on October 5, 2007. However, the public versions of the Guven Boru response were not properly filed or served upon parties and the business proprietary version was not served to parties in a timely
Petitioners provided comments on MMZ's section A response on October 16, 2007. On October 23, 2007, the Department issued a supplemental questionnaire to MMZ regarding its section A response. On October 25, 2007, MMZ informed the Department that it was no longer participating in the antidumping proceeding.
The POI is April 1, 2006, to March 31, 2007.
The merchandise that is the subject of this investigation is certain welded carbon quality light-walled steel pipe and tube, of rectangular (including square) cross section, having a wall thickness of less than 4 mm.
The term carbon-quality steel includes both carbon steel and alloy steel which contains only small amounts of alloying elements. Specifically, the term carbon-quality includes products in which none of the elements listed below exceeds the quantity by weight respectively indicated: 1.80 percent of manganese, or 2.25 percent of silicon, or 1.00 percent of copper, or 0.50 percent of aluminum, or 1.25 percent of chromium, or 0.30 percent of cobalt, or 0.40 percent of lead, or 1.25 percent of nickel, or 0.30 percent of tungsten, or 0.10 percent of molybdenum, or 0.10 percent of niobium, or 0.15 percent of vanadium, or 0.15 percent of zirconium. The description of carbon-quality is intended to identify carbon-quality products within the scope. The welded carbon-quality rectangular pipe and tube subject to this investigation is currently classified under the Harmonized Tariff Schedule of the United States (HTSUS) subheadings 7306.61.50.00 and 7306.61.70.60. While HTSUS subheadings are provided for convenience and Customs purposes, our written description of the scope of this investigation is dispositive.
In accordance with section 771(16) of the Tariff Act, all products produced by the respondents covered by the description in the
On August 16, 2007, the Department asked all parties in this investigation and in the concurrent antidumping duty investigations of light-walled rectangular pipe and tube from Korea, Mexico, and the People's Republic of China, for comments on the appropriate product characteristics for defining individual products. Parties in this investigation and in the concurrent antidumping duty investigations of light-walled rectangular pipe and tube from Korea and Mexico were also invited to comment on the appropriate model matching methodology.
We would have relied on six criteria to match U.S. sales of subject merchandise to comparison market sales of the foreign like product: steel input type, whether metallic coated or not, whether painted or not, perimeter, wall thickness and shape. However, because we are basing the margins for the mandatory respondents upon adverse facts available, there was no need to match sales of respondents.
For the reasons discussed below, we determine the use of adverse facts available (AFA) is appropriate for the preliminary determination with respect to all companies that failed to respond (or to respond adequately) to the Q&V Questionnaire, and for both mandatory respondents (MMZ and Guven Boru). As noted in the Supplementary Information section above, the former failed to provide adequate responses to the Department's Q&V questionnaire and to the Department's follow-up letter of August 16, 2007, while the mandatory respondents failed to cooperate in this investigation.
Section 776(a)(2) of the Tariff Act provides that if an interested party withholds information requested by the administering authority, fails to provide such information by the deadlines for submission of the information and in the form or manner requested, subject to subsections (c)(1) and (e) of section 782, significantly impedes a proceeding under this title, or provides such information but the information cannot be verified as provided in 782(i), the administering authority shall use, subject to section 782(d) of the Tariff Act, facts otherwise available in reaching the applicable determination. Section 782(d) of the Tariff Act provides that if the administering authority determines a response to a request for information does not comply with the request, the administering authority shall promptly inform the responding party and provide an opportunity to remedy the deficient submission. Section 782(e) of the Tariff Act states further the Department shall not decline to consider submitted information if all of the following requirements are met: (1) The information is submitted by the established deadline; (2) the information can be verified; (3) the information is not so incomplete that it cannot serve as a reliable basis for reaching the applicable determination; (4) the interested party has demonstrated that it acted to the best of its ability; and (5) the information can be used without undue difficulties.
In this case, the nine non-responding or improperly responding companies all failed to provide such information by the deadlines for submission of the information and/or in the form or manner requested. Thus, for these companies in reaching our preliminary determination, pursuant to sections 776(a)(2)(A), (B), and (C) of the Tariff Act, we have based the dumping margin on facts otherwise available.
MMZ, one of the mandatory respondents, did not provide the information we requested necessary to calculate an antidumping margin for the preliminary determination. Specifically, MMZ failed to provide a complete response to our questionnaire, thereby withholding, among other things, home-market and U.S. sales information that is necessary for reaching the applicable determination, pursuant to section 776(a)(2)(A) of the Tariff Act. On October 25, 2007, MMZ informed the Department that it was no longer participating in the antidumping proceeding.
Guven Boru, the other mandatory respondent, failed to provide complete, timely, and properly filed responses to several of the Department's questionnaires. The Department received the initial section A response from Guven Boru on October 5, 2007. However, the public versions of the Guven Boru response were not properly filed or served upon parties and the business proprietary version was not served to parties in a timely manner. The public version submitted was not labeled “public version,” as required by 19 CFR 351.303. Also, Guven Boru served on the petitioners a public version which differed from the public version submitted to the Department, where the bracketed proprietary information was not redacted on the Department's versions. Further, petitioners indicated, and Guven Boru later confirmed, that the company did not serve a copy of the business proprietary version of this response to the petitioners under administrative protective order (APO), as required.
On October 15, 2007, the Department contacted Mr. Kemal Tureyen of Guven Boru by electronic mail asking that Guven Boru re-submit the public version of its response and serve the business proprietary and public versions of the response on the petitioners and pointing out Guven Boru's filing and service obligations, specifically Guven Boru's obligation to serve business proprietary versions of documents to those parties who have access to such information under APO, including counsel for petitioners.
On October 19, 2007, Mr. Tureyen sent an e-mail to the case analyst claiming Guven Boru had sent both a business proprietary and public version of its section A response to the petitioners.
We received sections B and C responses from Guven Boru on November 7, 2007. However, Guven Boru's sales databases were not submitted in a useable format. On November 9, 2007, the case analyst sent Mr. Tureyen an e-mail asking him to confirm what versions of Guven Boru's section B and C questionnaire response had been served on the petitioners.
On November 13, 2007, the Department issued its first supplemental questionnaire regarding Guven Boru's section A response and its section B and C sales database. On November 19, 2007, in response to our first sections A, B, and C supplemental questionnaire, we received revised sections B and C databases from Guven Boru. On November 19, 2007, petitioners informed the Department by telephone that they had received a public version of Guven Boru's section B and C response, but no business proprietary version.
On November 26, 2007, petitioners again informed the Department by telephone that they had received one public version of Guven Boru's November 8, 2007 section B and C response, no business proprietary version, and no public or proprietary copies of the corrected section B and C databases submitted November 19, 2007.
On November 29, 2007, we set a letter to Guven Boru giving the company a deadline by which to bring itself into compliance with the Department's filing and service regulations and warning it that further untimely or improperly filed submissions would not be accepted. On December 3, 2007, we issued our third supplemental questionnaire to Guven Boru (our second sections B and C supplemental questionnaire). Also, on December 3, 2007, Guven Boru failed to respond in a timely fashion to the our first section A supplemental questionnaire. Guven Boru's response was received the next day, on December 4, 2007.
In a telephone conversation on December 6, 2007, counsel for petitioners explained that petitioners had received a copy of the narrative portion of Guven Boru's business proprietary section B and C response and a copy of the November 19, 2007, section B and C sales database submission.
On December 17, 2007, the petitioners submitted a sales-below cost allegation for Guven Boru.
On December 21, 2007, we sent a letter to Guven Boru, rejecting its response to the second section A supplemental questionnaire, which was due December 13, 2007, and its request for an extension for the our second sections B and C supplemental questionnaire because these documents were untimely filed. In that letter, we also informed Guven Boru that we would not accept any further submissions and would use facts otherwise available in making our preliminary determination.
Guven Boru failed to respond in a timely manner to the our November 13, 2007, section A supplemental questionnaire and our second section A supplemental questionnaire and failed to respond entirely to the our December 3, 2007, sections B and C supplemental questionnaire and our December 12, 2007, section A supplemental questionnaire. Further, Guven Boru's untimely filings represented a continuance of a pattern of untimely and improperly filed submissions. Moreover, Guven Boru's failure on two occasions to timely serve petitioners with proprietary versions of its responses until weeks after those responses were due prevented the petitioners from meaningfully participating in this proceeding. Also, by its own admission, it destroyed its original sales databases prior to serving them on petitioners. Finally, Guven Boru's untimely responses prevented us from conducting a proper analysis within the statutorily imposed time limits of this investigation. For these reasons, in reaching our preliminary determination we have based the dumping margin for Guven Boru on facts otherwise available pursuant to sections 776(a)(2)(A), (B), and (C) of the Tariff Act.
As explained above, the Department did not receive a response to the Q&V questionnaire from Anadolu Boru, Ayata Metal Industry, Goktas Tube, Seamless Steel Tube and Pipe Co. (Celbor), Umran Steel Pipe Inc., or Yusan Industries, Ltd., and Kalibre Boru Sanayi ve Ticaret A.S., and Kerim Celik Mamulleri Imalat ve Ticaret and Ozgur Boru submitted untimely, improperly-filed, or incomplete responses. Although the Department provided all respondents, including those that did not respond (or did not respond adequately) to the Q&V questionnaire, with notice informing them of the consequences of their failure to respond adequately to the Q&V questionnaire in this case, pursuant to section 782(d) of the Tariff Act, these companies did not respond as requested. Thus, in reaching our preliminary determination, pursuant to sections 776(a)(2)(A), (B), and (C) of the Tariff Act, we have based the dumping margin for Anadolu Boru, Ayata Metal Industry, Goktas Tube, Seamless Steel Tube and Pipe Co. (Celbor), Umran Steel Pipe Inc., or Yusan Industries, Ltd., and Kalibre Boru Sanayi ve Ticaret A.S., and Kerim Celik Mamulleri Imalat ve Ticaret and Ozgur Boru on facts otherwise available.
According to section 776(b) of the Tariff Act, if the Department finds that an interested party fails to cooperate by not acting to the best of its ability to comply with requests for information, the Department may use an inference that is adverse to the interests of that party in selecting from the facts otherwise available.
Although the Department provided all respondents, including those that did not respond (or did not respond adequately) to the Q&V questionnaire, with notice informing them of the consequences of their failure to respond adequately to the Q&V questionnaire in this case, pursuant to section 782(d) of the Tariff Act, these companies did not respond as requested. With respect to MMZ and Guven Boru, the former stated it would not continue to participate in the proceeding, and the latter failed to serve petitioners with proprietary versions of its questionnaire responses in a timely fashion, destroyed one sales database before providing it to petitioners, and failed to respond in a timely fashion to four of the Department's supplemental questionnaires. This constitutes a failure on the part of these companies to cooperate to the best of their ability to comply with a request for information by the Department within the meaning of section 776(b) of the Tariff Act. Because these companies did not provide the information requested, section 782(e) of the Tariff Act is not applicable.
Based on the above, the Department has preliminarily determined that the companies that failed to respond adequately to the Q&V questionnaire and the two mandatory respondents (MMZ and Guven Boru) failed to cooperate to the best of their ability and, therefore, in selecting from among the facts otherwise available, an adverse inference is warranted.
Where the Department applies AFA because a respondent failed to cooperate by not acting to the best of its ability to comply with a request for information, section 776(b) of the Tariff Act authorizes the Department to rely on information derived from the petition, a final determination, a previous administrative review, or other information placed on the record.
When using facts otherwise available, section 776(c) of the Tariff Act provides that when the Department relies on secondary information (such as the petition) rather than on information obtained in the course of an investigation, it must corroborate, to the extent practicable, information from independent sources that are reasonably at its disposal.
The SAA clarifies that “corroborate” means the Department will satisfy itself that the secondary information to be used has probative value.
For the purposes of this investigation, to the extent appropriate information was available, we reviewed the adequacy and accuracy of the information in the Petition during our pre-initiation analysis and for purposes of this preliminary determination.
The petitioners calculated export price (EP) in two ways: by use of a price quote from a U.S. dealer and by use of the average unit values (AUVs) for import data from the Bureau of the Census IM145 import statistics.
When based on the price quote, the petitioners deducted an amount for international freight, and also a value of three percent of the U.S. price to cover inland freight from the U.S. port to the U. S. dealer, as well as the U.S. dealer's expenses and profit.
The petitioners also calculated EP based on AUVs. In the Petition of June 27, 2007, the petitioners included figures from January—March of 2006 in their calculation of AUV.
U.S. official import statistics (
The petitioners based normal value on two price quotes from each of two Turkish producers of light-walled rectangular pipe and tube.
Based on our examination of the aforementioned, we consider the petitioner's calculation of normal value, based on price quotations, corroborated. Therefore, because we confirmed the accuracy and validity of the information underlying the derivation of margins in the Petition by examining source documents as well as publicly available information, we preliminarily determine the margins in the Petition are reliable for the purposes of this investigation.
In making a determination as to the relevance aspect of corroboration, the Department will consider information reasonably at its disposal as to whether there are circumstances that would render a margin not relevant. Where circumstances indicate the selected margin is not appropriate as adverse facts available, the Department will disregard the margin and determine an appropriate margin. For example, in
In
Similar to our position in
Section 735(c)(5)(B) of the Tariff Act provides that, where the estimated weighted-averaged dumping margins established for all exporters and producers individually investigated are zero or
This 27.04 percent rate will be applied to the following seven responsive firms that were not selected as mandatory respondents: Borusan Mannesmann Boru, Erbosan Erciyas Boru Sanayii ve Ticaret A.S., Noksel Steel Pipe Co., Ozborsan Boru San. Ve Tic. A.S., Ozdemir Boru Sanayi ve Ticaret Ltd. Sti., Toscelik Profil Ve Sac End. A.S, and Yucel Boru ve Profil Endustrisi A.S.
We preliminarily determine the following weighted-average dumping margins exist for the period April 1, 2006 through March 31, 2007:
In accordance with section 733(d)(2) of the Tariff Act, we are directing U.S. Customs and Border Protection (CBP) to suspend liquidation of all entries of light-walled rectangular pipe and tube from Turkey that are entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the
In accordance with section 733(f) of the Tariff Act, we have notified the Commission of the Department's preliminary affirmative determination. If the Department's final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after our final determination whether imports of light-walled rectangular Pipe and tube from Turkey are materially injuring, or threaten material injury to, the U.S. industry.
Interested parties are invited to comment on the preliminary determination. Interested parties may submit case briefs to the Department no later than fifty days after the date of publication of this notice.
In accordance with section 774 of the Tariff Act, the Department will hold a public hearing, if requested, to afford interested parties an opportunity to comment on arguments raised in case or rebuttal briefs, provided that such a hearing is requested by an interested party. If a request for a hearing is made in this investigation, the hearing will be scheduled two days after the deadline for submitting rebuttal briefs at the U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230, at a time and in a room to be determined. Parties should confirm by telephone, the date, time, and location of the hearing 48 hours before the scheduled date. Interested parties who wish to request a hearing, or to participate in a hearing if one is requested, must submit a written request to the Assistant Secretary for Import Administration, U.S. Department of Commerce, Room 1870, within 30 days of the publication of this notice. Requests should contain: (1) The party's name, address, and telephone number; (2) the number of participants; and (3) a list of the issues to be discussed.
This determination is issued and published pursuant to sections 733(f) and 777(i)(1) of the Tariff Act.
Import Administration, International Trade Administration, Department of Commerce.
On January 18, 2008, the United States Court of International Trade (“CIT”) sustained the remand redetermination issued by the Department of Commerce (“the Department”) pursuant to the CIT's remand order in the final results of the thirteenth administrative review of the antidumping duty orders on heavy forged hand tools from the People's Republic of China.
January 30, 2008.
Paul Walker, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Ave., NW., Washington, DC 20230; telephone: (202) 482-0413.
On August 31, 2007, the CIT directed the Department to reopen the record and obtain additional evidence regarding Shandong Huarong Machinery Co., Ltd.'s (“Huarong”) production of metal pallets.
The Department released the
In its decision in
This notice is issued and published in accordance with section 516A(c)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
January 30, 2008.
The U.S. Department of Commerce (the Department) preliminarily determines that light-walled rectangular (LWR) pipe and tube from Mexico is being, or is likely to be, sold in the United States at less than fair value (LTFV), as provided in section 733(b) of the Tariff Act of 1930, as amended (the Act). The estimated margins of sales at LTFV are listed in the “Suspension of Liquidation” section of this notice. Interested parties are invited to comment on this preliminary determination.
Angelica Mendoza, Patrick Edwards (PROLAMSA), or Judy Lao (Maquilacero), AD/CVD Operations, Office 7, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-3019, (202) 482-8029, or (202) 482-7924, respectively.
On July 17, 2007, the Department initiated the antidumping duty investigation of LWR pipe and tube pipe and tube from Mexico.
The Department set aside a period of time for parties to raise issues regarding product coverage and encouraged all parties to submit comments within 20 calendar days of publication of the
On August 28, 2007, the United States International Trade Commission (ITC) preliminarily determined that there is a reasonable indication that imports of LWR pipe and tube from Korea, Mexico, Turkey and the People's Republic of China are materially injuring the U.S. industry and the ITC notified the Department of its findings.
Section 777A(c)(1) of the Act directs the Department to calculate individual dumping margins for each known
The Department did not receive a response to the Q&V questionnaire (or received an improperly filed and/or incomplete response) from the following five companies: Industrias Monterrey S.A. de C.V., PEASA—Productos Especializados de Acero, Tuberias Aspe, Tuberias y Derivados S.A. de C.V., and Nacional de Acero S.A. de C.V. (Q&V Non-Responding Companies). These five companies that failed to respond, or provided an improperly filed and/or incomplete response, were given a second opportunity to file a response on August 16, 2007. We received no response from these companies.
The remaining nine exporters/producers responded to the Department's Q&V questionnaire: Arco Metal S.A. de C.V., Hylsa S.A. de C.V., Internacional de Aceros, S.A. de C.V., Maquilacero S.A. de C.V., Perfiles y Herrajes LM, S.A. de C.V., Productos Laminados de Monterrey S.A. de C.V., Regiomontana de Perfiles y Tubos, Talleres Acero Rey S.A. de C.V., and Tuberia Laguna S.A. de C.V. (Q&V Responding Companies). Two Q&V Responding Companies—Maquilacero S.A. de C.V. (Maquilacero) and Productos Laminados de Monterrey S.A. de C.V. (PROLAMSA)—accounted for the largest volume of subject merchandise exported to the United States during the POI. These two companies were selected as mandatory respondents pursuant to section 777A(c)(2)(1)(B) of the Act.
The Department received the Section A response from Maquilacero on October 9, 2007. Petitioners filed comments on Maquilacero's Section A response on October 16, 2007, and the Department subsequently issued a supplemental questionnaire regarding Maquilacero's Section A Response on October 23, 2007. We received the Sections B and C responses from Maquilacero on October 30, 2007. Petitioners filed comments on Maquilacero's Sections B and C responses on November 8, 2007. On November 19, 2007, Maquilacero filed its response to the Department's supplemental questionnaire regarding Section A. The Department issued a supplemental questionnaire to Maquilacero concerning the company's Sections B and C responses on November 20, 2007. Maquilacero replied to this supplemental questionnaire on December 4, 2007.
On December 5, 2007, based on an allegation timely filed by petitioners, the Department initiated a sales-below-cost investigation for Maquilacero, finding reasonable grounds to believe that Maquilacero made comparison market sales of LWR pipe and tube at prices below its cost of production.
Consequently, the Department requested in a letter dated December 6, 2007, that Maquilacero respond to section D of the Department's antidumping duty questionnaire. We received Maquilacero's section D response on December 27, 2007. On January 4, 2008, the Department issued a supplemental questionnaire to Maquilacero regarding its section A through C supplemental responses. Maquilacero filed its response to the supplemental questionnaire on January 22, 2008. We were unable to analyze Maquilacero's response prior to the January 23, 2008, preliminary determination deadline. We will address any deficiencies in its responses for the final determination.
The Department received the section A response from PROLAMSA on October 9, 2007. Petitioners filed comments on PROLAMSA's section A response on October 11, 2007, and the Department subsequently issued a supplemental questionnaire regarding PROLAMSA's section A Response on October 23, 2007. We received the sections B and C responses from PROLAMSA on October 29, 2007. On November 6, 2007, PROLAMSA filed its response to the Department's supplemental questionnaire regarding section A. Petitioners filed comments on PROLAMSA's sections B and C responses on November 8, 2007. The Department issued a supplemental questionnaire to PROLAMSA concerning the company's sections B and C responses on November 16, 2007. PROLAMSA replied to this supplemental questionnaire on December 7, 2007. The Department issued a second supplemental questionnaire with regard to PROLAMSA's supplemental responses for sections A, B and C of the questionnaire on December 20, 2007. PROLAMSA submitted its second supplemental response on January 7, 2008.
On December 4, 2007, based on an allegation timely filed by petitioners, the Department initiated a sales-below-cost investigation for PROLAMSA, finding reasonable grounds to believe that PROLAMSA made comparison market sales of LWR pipe and tube at prices below its cost of production.
On December 26, 2007, petitioners timely filed with the Department separate allegations of targeted dumping for both Maquilacero and PROLAMSA. Maquilacero filed comments regarding petitioners' allegation of targeted dumping on January 7, 2008. Upon review of petitioners' allegations, the Department determined that further information was needed in order to adequately analyze petitioners' allegations. The Department issued a supplemental questionnaire to petitioners on January 11, 2008, requesting they address deficiencies identified by the Department.
On January 18, 2008, two business days prior to the signature date for this preliminary determination, petitioners filed comments regarding the responses and data of Maquilacero and PROLAMSA for the Department's consideration for the preliminary determination. Petitioners' comments were specific to both companies' reported post-sale adjustments, and also, that the Department should not deduct negative margins from positive margins for the preliminary determination. Accordingly, the Department does not have sufficient time to address these comments for the preliminary determination.
On October 19, 2007, petitioners requested that the Department postpone the preliminary determination by 50 days. The Department published an extension notice on November 14, 2007, which set the new deadline for the preliminary determination at January 23, 2008.
The period of investigation (POI) is April 1, 2006, to March 31, 2007.
The merchandise that is the subject of this investigation is certain welded carbon quality light-walled steel pipe and tube, of rectangular (including square) cross section, having a wall thickness of less than 4 mm.
The term carbon-quality steel includes both carbon steel and alloy steel which contains only small amounts of alloying elements. Specifically, the term carbon-quality includes products in which none of the elements listed below exceeds the quantity by weight respectively indicated:
1.80 percent of manganese, or 2.25 percent of silicon, or 1.00 percent of copper, or 0.50 percent of aluminum, or 1.25 percent of chromium, or 0.30 percent of cobalt, or 0.40 percent of lead, or 1.25 percent of nickel, or 0.30 percent of tungsten, or 0.10 percent of molybdenum, or 0.10 percent of niobium, or 0.15 percent vanadium, or 0.15 percent of zirconium. The description of carbon-quality is intended to identify carbon-quality products within the scope. The welded carbon-quality rectangular pipe and tube subject to this investigation is currently classified under the Harmonized Tariff Schedule of the United States (HTSUS) subheadings 7306.61.50.00 and 7306.61.70.60. While HTSUS subheadings are provided for convenience and Customs purposes, our written description of the scope of this investigation is dispositive.
In accordance with section 771(16) of the Act, all products produced by the respondents covered by the description in the “Scope of Investigation” section above, and sold in Mexico during the POI, are considered to be foreign like products for purposes of determining appropriate product comparisons to U.S. sales.
On August 16, 2007, the Department asked all parties in this investigation and in the concurrent antidumping duty investigations of LWR pipe and tube from the Republic of Korea, Turkey, and the People's Republic of China, for comments on the appropriate product characteristics for defining individual products. In addition, the Department requested that all parties in this investigation and in the concurrent antidumping duty investigations of LWR pipe and tube from the Republic of Korea and Turkey submit comments on the appropriate model matching methodology.
We have relied on six criteria to match U.S. sales of subject merchandise to comparison market sales of the foreign like product: steel input type, whether metallic coated or not, whether painted or not, perimeter, wall thickness, and shape. Where there were no sales of identical merchandise in the comparison market made in the ordinary course of trade to compare to U.S. sales, we compared U.S. sales to the next most similar foreign like product on the basis of the characteristics listed above. For both PROLAMSA and Maquilacero, it was necessary to rely on facts available in order to properly match U.S. sales of subject merchandise to comparison market sales of the foreign like product as discussed below.
Maquilacero's home market sales included sales of non-prime merchandise. As noted in Maquilacero's original and supplemental questionnaire responses, Maquilacero does not record certain product characteristics for its sales of non-prime merchandise. Specifically, Maquilacero does not document the perimeter, thickness, or shape of its non-prime sales on the documents produced in its ordinary course of trade. As such, these product characteristics for non-prime merchandise were not specifically identified in Maquilacero's home market database (in neither their respective field and nor in the control number (CONNUM) string). Section 776(a)(1) of the Act provides that the Department may use facts otherwise available if necessary information is not available on the record. Because the necessary product characteristic information needed to properly perform our margin calculations with respect to these sales is not on the record of this investigation, we must rely on facts otherwise available. In order for the Department to accurately compare Maquilacero's comparison market sales to its U.S. sales and its cost of production data, the Department applied, as neutral facts available, the product characteristics of the most common type of LWR pipe and tube (CONNUM) sold in the comparison market to the missing product characteristics of non-prime merchandise (
With respect to PROLAMSA's reported steel input type (INPUTH/U), we note that the model matching criteria designated by the Department in its antidumping duty questionnaire requested that respondent report steel input type as either: hot-rolled steel or cold-rolled steel. In its initial and supplemental questionnaire responses, PROLAMSA reported a third designation in its fields for INPUTH/U as it claims to not know whether these coils were of hot-rolled or cold-rolled steel. As noted above, section 776(a)(1) of the Act provides that the Department may use facts otherwise available if necessary information is not available on the record. Because the necessary product characteristic information needed to properly perform our margin calculations with respect to these sales is not on the record of this investigation, we must rely on facts otherwise available. Therefore, for purposes of this preliminary determination, we have revised PROLAMSA's reported steel input type for those sales that PROLAMSA could not identify as hot-rolled or cold-rolled steel in both PROLAMSA's comparison market and U.S. sales databases. Specifically, based on neutral facts available, we re-coded the reported CONNUMH/U and INPUTH/U as either hot-rolled or cold-rolled steel depending upon the reported thickness (THICKH/U) for these products. Due to the proprietary nature of this issue,
For the reasons discussed below, we determine that the use of adverse facts available (AFA) is appropriate for the preliminary determination with respect to the Q&V Non-Responding Companies. As noted in the “Supplementary Information” section above, the Q&V Non-Responding Companies failed to respond (or to respond in a timely fashion) to the Department's Q&V questionnaire and to the Department's follow up letter dated August 16, 2007.
Section 776(a)(2) of the Act provides that, (1) if an interested party withholds information requested by the administering authority, (2) fails to provide such information by the deadlines for submission of the information and in the form or manner requested, subject to subsections (c)(1) and (e) of section 782, (3) significantly impedes a proceeding under this title, or (4) provides such information but the information cannot be verified as provided in 782(i), the administering authority shall use, subject to section 782(d) of the Act, facts otherwise available in reaching the applicable determination. Section 782(d) of the Act provides that, if the administering authority determines that a response to a request for information does not comply with the request, the administering authority shall promptly inform the responding party and provide an opportunity to remedy the deficient submission. Section 782(e) of the Act states further that the Department shall not decline to consider submitted information if all of the following requirements are met: (1) The information is submitted by the established deadline; (2) the information can be verified; (3) the information is not so incomplete that it cannot serve as a reliable basis for reaching the applicable determination; (4) the interested party has demonstrated that it acted to the best of its ability; and (5) the information can be used without undue difficulties.
In this case, the Q&V Non-Responding Companies all failed to provide the information requested by the deadlines for submission of the information and/or in the form or manner requested. Specifically, the Q&V Non-Responding Companies did not respond to our Q&V questionnaires and, as such, they failed to provide pertinent information that we requested for our consideration and selection of mandatory respondents, thereby significantly impeding this proceeding. Thus, for these companies, in reaching our preliminary determination, pursuant to sections 776(a)(2)(A), (B), and (C) of the Act, we have based their dumping margin on facts otherwise available.
According to section 776(b) of the Act, if the Department finds that an interested party fails to cooperate by not acting to the best of its ability to comply with requests for information, the Department may use an inference that is adverse to the interests of that party in selecting from the facts otherwise available. See,
Although the Department provided the Q&V Non-Responding Companies with notice informing them of the consequences of their failure to respond adequately to the Q&V questionnaire in this case, pursuant to section 782(d) of the Act, these companies did not respond as requested. This constitutes a failure on the part of these companies to cooperate to the best of their ability to comply with a request for information by the Department within the meaning of section 776(b) of the Act. Because these companies did not provide the information requested, section 782(e) of the Act is not applicable. Based on the above, the Department has preliminarily determined that the Q&V Non-Responding Companies failed to cooperate to the best of their ability and, therefore, in selecting from among the facts otherwise available, an adverse inference is warranted.
Where the Department applies AFA because a respondent failed to cooperate by not acting to the best of its ability to comply with a request for information, section 776(b) of the Act authorizes the Department to rely on information derived from the petition, a final determination, a previous administrative review, or other
When using facts otherwise available, section 776(c) of the Act provides that, when the Department relies on secondary information (such as the petition) rather than on information obtained in the course of an investigation, it must corroborate, to the extent practicable, information from independent sources that are reasonably available at its disposal.
The SAA clarifies that “corroborate” means the Department will satisfy itself that the secondary information to be used has probative value.
For the purposes of this investigation, to the extent appropriate information was available, we reviewed the adequacy and accuracy of the information in the Petition during our pre-initiation analysis and for purposes of this preliminary determination.
Specifically, the petitioners calculated a single export price using the average monthly Customs Unit Values (AUVs) ((Free Alongside Ship) (FAS)) of LWR pipe and tube from Mexico for consumption in the United States, classified under HTSUS numbers 7306.60.50.00 and 7306.61.50.00. As the IM145 data is considered direct import data from CBP, we consider petitioners' AUVs based on this data to be reliable. Further, we obtained no other information that would make us question the reliability of the pricing information provided in the Petition.
The petitioners adjusted export prices for inland freight from the plant to the port of importation, specifically, Laredo, Texas. The petitioners used inland freight charges obtained from inland freight price quotes from certain Mexican producers of LWR pipe and tube.
Based on our examination of the aforementioned information, we consider the petitioners' calculation of net U.S. prices corroborated.
With respect to normal value, petitioners derived Mexican comparison market prices by obtaining price quotations from certain Mexican manufacturers of LWR pipe and tube through an economic consultant, which identified specific terms of sale and payment terms. Petitioners made no adjustments to the quoted prices, as the terms of delivery for the quotations were “free on board” (FOB) at the respective manufacturing facilities.
Based on our examination of the aforementioned information, we consider the petitioners' calculation of net comparison market prices corroborated.
We also examined information obtained from interested parties during this particular investigation to corroborate the home market and U.S. prices. Certain transaction-specific margin percentages calculated for Maquilacero and PROLAMSA exceeded those from the Petition.
Therefore, because we confirmed the accuracy and validity of the information underlying the derivation of margins in the Petition by examining source documents, publically available information and primary information submitted by respondents Maquilacero and PROLAMSA, we preliminarily determine that the margins in the Petition are reliable for the purposes of this investigation.
In making a determination as to the relevance aspect of corroboration, the Department will consider information reasonably at its disposal as to whether there are circumstances that would render a margin not relevant. Where circumstances indicate that the selected margin is not appropriate as adverse facts available, the Department will disregard the margin and determine an appropriate margin. For example, in
In
Similar to our position in
Section 351.401(i) of the Department's regulations states the Department normally will use the date of invoice, as recorded in the producer's or exporter's records kept in the ordinary course of business, as the date of sale. The regulations further provide that the Department may use a date other than the date of the invoice if the Secretary is satisfied that a different date better reflects the date on which the material terms of sale are established.
Based on the responses of both companies, and having no record evidence that would indicate otherwise, we preliminarily determine that the sales invoice date is the appropriate date of sale in both markets for Maquilacero and PROLAMSA. For a further discussion of this issue,
To determine whether sales of LWR pipe and tube from Mexico were made in the United States at less than normal value (NV), we compared the export price (EP) or constructed export price (CEP) to the NV, as described in the “Export Price and Constructed Export Price” and “Normal Value” sections below. In accordance with section 777A(d)(1) of the Act, we calculated the weighted-average prices for NV and compared these to the weighted-average of EP (and CEP), when appropriate.
For the price to the United States, we used, as appropriate, EP or CEP, in accordance with sections 772(a) and (b) of the Act. Pursuant to section 772(a) of the Act, we used the EP methodology when the merchandise was sold by the producer or exporter outside the United States directly to the first unaffiliated purchaser in the United States prior to importation and when CEP was not otherwise warranted based on the facts on the record. We calculated CEP for those sales where a person in the United States, affiliated with the foreign exporter or acting for the account of the exporter, made the sale to the first unaffiliated purchaser in the United States of the subject merchandise.
Maquilacero classified its sales to the United States solely as EP sales,
Accordingly, we calculated EP based on prices charged to the first unaffiliated U.S. customer. We based EP on the packed and delivered (to port and/or to customer) prices to the first unaffiliated purchasers in the United States. We made deductions for movement expenses in accordance with section 772(c)(2)(A) of the Act, including foreign inland freight, and foreign brokerage and handling. When appropriate, we adjusted prices to reflect deductions and/or increases to prices due to billing adjustments, early payment discounts and rebates.
PROLAMSA's U.S. sales were made by its U.S. affiliate, Prolamsa, Inc. We therefore based all of PROLAMSA's prices to the United States on CEP. When appropriate, we adjusted prices to reflect deductions and/or increases to price due to billing adjustments, early payment discounts and rebates. In accordance with section 772(c)(2) of the Act, we made deductions, where appropriate, for movement expenses including inland freight, brokerage and handling in the country of manufacture, international freight, and U.S. brokerage and handling.
In its supplemental questionnaire responses, PROLAMSA explained that it was never invoiced for foreign inland freight services provided on certain U.S. sales. As such, PROLAMSA reported no
For CEP, in accordance with section 772(d)(1) of the Act, when appropriate, we deducted from the starting price those selling expenses that were incurred in selling the subject merchandise in the United States, including direct selling expenses (
To determine whether there was a sufficient volume of sales in the home market (
Maquilacero and PROLAMSA reported sales of the foreign like product to affiliated and unaffiliated customers in the comparison market. The Department calculates NV based on a sale to an affiliated party only if it is satisfied that the price to the affiliated party is comparable to the price at which sales are made to parties not affiliated with the producer or exporter,
Based on our analysis of petitioners' allegation, we found that there were reasonable grounds to believe or suspect that Maquilacero's and PROLAMSA's sales of LWR pipe and tube in the comparison market were made at prices below their COP. Accordingly, pursuant to section 773(b) of the Act, we initiated a sales-below-cost investigation to determine whether these companies had sales that were made at prices below their respective COPs.
In accordance with section 773(b)(3) of the Act, we calculated the respondents' COP based on the sum of their costs of materials and conversion for the foreign like product, plus an amount for home market selling expenses, general and administrative (G&A) expenses, interest expenses and packing costs.
The Department relied on the COP data submitted by Maquilacero and PROLAMSA, in their respective section D questionnaire responses for the COP calculation, except for the following instances:
For a complete discussion of the changes made to the cost information submitted by Maquilacero and PROLAMSA,
On a product-specific basis, we compared the adjusted weighted-
Pursuant to section 773(b)(2)(C)(i) of the Act, where less than 20 percent of a respondent's sales of a given product were at prices less than the COP, we did not disregard any below-cost sales of that product because we determined that the below-cost sales were not made in “substantial quantities.” Where 20 percent or more of a respondent's sales of a given product during the POI were at prices less than COP, we determined that such sales have been made in “substantial quantities.”
We found that, for certain specific products, more than 20 percent of Maquilacero's and PROLAMSA's sales were at prices less than the COP and, in addition, such sales did not provide for the recovery of costs within a reasonable period of time. We therefore excluded these sales and used the remaining sales as the basis for determining NV, in accordance with section 773(b)(1) of the Act.
When comparing U.S. sales with comparison market sales of similar, but not identical, merchandise, we also made adjustments for physical differences in the merchandise in accordance with section 773(a)(6)(C)(ii) of the Act and 19 CFR 351.411. We based this adjustment on the difference in the variable cost of manufacturing for the foreign like product and subject merchandise.
In accordance with section 773(a)(1)(B) of the Act, to the extent practicable, we determine NV based on sales in the comparison market at the same level of trade (LOT) as the EP or CEP transaction. The LOT in the comparison market is the LOT of the starting-price sales in the comparison market or, when NV is based on CV, the LOT of the sales from which we derive SG&A expenses and profit. With respect to U.S. price for EP transactions, the LOT is also that of the starting-price sale, which is usually from the exporter to the importer.
To determine whether comparison market sales are at a different LOT from U.S. sales, we examined stages in the marketing process and selling functions along the chain of distribution between the producer and the unaffiliated customer. If the comparison market sales are at different LOTs, and the difference affects price comparability, as manifested in a pattern of consistent price differences between the sales on which NV is based and comparison market sales at the LOT of the export transaction, the Department makes an LOT adjustment in accordance with section 773(a)(7)(A) of the Act. For CEP sales, we examine stages in the marketing process and selling functions along the chain of distribution between the producer and the customer. We analyze whether different selling activities are performed, and whether any price differences (other than those for which other allowances are made under the Act) are shown to be wholly or partly due to a difference in LOT between the CEP and NV. Under section 773(a)(7)(A) of the Act, we make an upward or downward adjustment to NV for LOT if the difference in LOT involves the performance of different selling activities and is demonstrated to affect price comparability, based on a pattern of consistent price differences between sales at different LOTs in the country in which NV is determined. Finally, if the NV LOT is at a more advanced stage of distribution than the LOT of the CEP, but the data available do not provide an appropriate basis to determine a LOT adjustment, we reduce NV by the amount of indirect selling expenses incurred in the foreign comparison market on sales of the foreign like product, but by no more than the amount of the indirect selling expenses incurred for CEP sales.
In analyzing differences in selling functions, we determine whether the LOTs identified by the respondent are meaningful.
Maquilacero reported that all of its sales to the United States were EP sales made through two channels of distribution,
We then compared the selling functions Maquilacero provided in the comparison market LOT with the selling functions provided to the U.S. LOT. On this basis, we determined that the comparison market LOT is similar to Maquilacero's U.S. LOT. We made this determination based upon the minor differences that exist between Maquilacero's comparison and U.S. markets in terms of the selling functions that are provided to Maquilacero's customers in each market. Moreover, we find that the degree to which Maquilacero provides these identical selling functions for its customers in both markets to be similar (
PROLAMSA reported one LOT in the comparison market, Mexico, with two channels of distribution to five classes of customers: (1) Direct sales to distributors, builders (construction), and industrial end-users (collectively, Channel 1), and (2) direct sales to automotive and original equipment manufacturers (OEMs) and furniture producers (collectively, Channel 2). PROLAMSA further identified its customer categories by those that typically order stock subject merchandise (
Based on our review of the record evidence, we find that comparison market sales to both customer categories and through both channels of distribution were substantially similar with respect to selling functions and stages of marketing.
PROLAMSA reported one LOT with regard to its CEP sales through Prolamsa, Inc., with two channels of distribution in the United States, and with four classes of customers for those CEP sales: (1) Sales through U.S. affiliate (CEP sales) to other producers of LWR pipe and tube, distributors and service centers, and metal building and component manufacturers (collectively, Channel (1) and (2) sales through U.S. affiliates (CEP sales) to OEMs (Channel 2). Similar to its comparison market customers, PROLAMSA further identified its U.S. customer categories by those that typically order stock subject merchandise (
For CEP sales, we consider only the selling activities reflected in the price after the deduction of expenses and CEP profit under section 772(d) of the Act.
According to section 773(a)(7)(B) of the Act, a CEP offset is appropriate when the LOT in the home market is at a more advanced stage than the LOT of the CEP sales and there are no data available to determine the existence of a pattern of price difference. PROLAMSA reported that it provided minimal selling functions and services for the one (CEP) LOT in the United States and that, therefore, the comparison market LOT is more advanced than the CEP LOT. Based on our analysis of the channels of distribution and selling functions performed by PROLAMSA for sales in the comparison market and CEP sales in the U.S. market, we preliminarily find that the comparison market LOT is at a more advanced stage of distribution when compared to CEP sales because PROLAMSA provides many more selling functions in the comparison market at a higher level of service as compared to selling functions performed for its CEP sales (
To calculate the CEP offset, we deducted from NV the comparison market indirect selling expenses from NV for comparison market sales that were compared to U.S. CEP sales. As such, we limited the comparison market indirect selling expense deduction by the amount of the indirect selling expenses deducted in calculating the CEP as required under section 772(d)(1)(D) of the Act.
We made currency conversions into U.S. dollars in accordance with section 773A(a) of the Act based on exchange rates in effect on the dates of the U.S. sales, as certified by the Dow Jones Reuters Business Interactive LLC (trading as “Factiva”).
Pursuant to section 735(c)(5)(A) of the Act, the all-others rate is equal to the weighted average of the estimated weighted-average dumping margins of all respondents investigated, excluding zero or
As provided in section 782(i) of the Act, we intend to verify all information upon which we will rely in making our final determination.
The weighted-average dumping margins are as follows:
In accordance with section 733(d)(2) of the Act, we are directing U.S. Customs and Border Protection (CBP) to suspend liquidation of all entries of LWR pipe and tube from Mexico, with the exception of those produced and exported by PROLAMSA, that are entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the
In accordance with 19 CFR 351.204(e)(2), because the weighted-average margin for PROLAMSA is zero, we will not instruct CBP to suspend liquidation of merchandise produced and exported by PROLAMSA.
In accordance with section 733(f) of the Act, we have notified the ITC of the Department's preliminary affirmative determination. If the Department's final determination is affirmative, the ITC
Interested parties are invited to comment on the preliminary determination. Interested parties may submit case briefs to the Department no later than seven days after the date of the issuance of the final verification report in this proceeding.
Parties should confirm by telephone, the date, time, and location of the hearing 48 hours before the scheduled date.
Interested parties who wish to request a hearing, or to participate in a hearing if one is requested, must submit a written request to the Assistant Secretary for Import Administration, U.S. Department of Commerce, Room 1870, within 30 days of the publication of this notice. Requests should contain: (1) The party's name, address, and telephone number; (2) the number of participants; and (3) a list of the issues to be discussed.
This determination is issued and published pursuant to sections 733(f) and 777(I)(1) of the Act.
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public workshop.
The South Atlantic Fishery Management Council (Council), in partnership with Duke University, Nicholas School of the Environment and Earth Sciences and the University of North Carolina at Chapel Hill, is conducting a South Atlantic Ecosystem Tools and Model Development Workshop in Beaufort, NC.
The Ecosystem Modeling Workshop will take place from 8:30 a.m. - 5 p.m. on February 21, 2008, and from 8:30 a.m. - 1 p.m. on February 22, 2008.
The workshop will be held at the Duke Repass Center, Duke Marine Laboratory, 135 Duke Marine Lab Road, Beaufort, NC 28516; telephone: (252) 504-7501.
Kim Iverson, Public Information Officer; telephone (843) 571-4366 or toll free (866) SAFMC-10; fax: (843) 769-4520; email:
The Workshop is designed to provide an understanding of regional data availability, partner capabilities, tool and model development status and funding mechanisms to support multiple task-based Ecosystem model development efforts in the South Atlantic region. The Workshop is designed to build on previous coordination meetings and model development efforts to establish short-term development and long-term development strategies necessary to support ecosystem-based management, the South Atlantic Fishery Management Council's Fishery Ecosystem Plan and future Comprehensive Fishery Ecosystem Amendments.
This meeting is physically accessible to people with disabilities. Requests for auxiliary aids should be directed to the Council office (see
Note: The times and sequence specified in this agenda are subject to change.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The Gulf of Mexico Fishery Management Council (Council) will convene a public meeting on Aquaculture Amendment.
The meeting will convene at 6 p.m. on Tuesday, February 19, 2008 and conclude no later than 9 p.m
This meeting will be held at The Islander, 82100 Overseas Highway, Islamorada, FL 33036; telephone: (305) 664-2031.
Wayne Swingle, Executive Director; telephone: (813) 348-1630.
The Gulf of Mexico Fishery Management Council (Council) is preparing an amendment which will require persons to obtain a permit from NMFS to participate in aquaculture by constructing an aquaculture facility in the exclusive economic zone (EEZ) of the Gulf of Mexico. Each application for a permit must comply with many permit conditions related to record keeping and operation of the facility. These permit
Copies of the Amendment a can be obtained by calling the Council office at (813) 348-1630.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Tina Trezza at the Council (see
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of rescheduling of a public meeting.
The Pacific Fishery Management Council's (Council) Trawl Rationalization Tracking and Monitoring Committee (TRTMC) is cancelling and rescheduling a previously announced working meeting. The meeting is open to the public.
The TRTMC meeting to be held Wednesday, January 23, 2008 was cancelled and is rescheduled as a telephone conference on Wednesday, February 13, 2008, from 10 a.m. until business for the day is completed.
A listening station for the public will be available at the Pacific Fishery Management Council, Large Conference Room, 7700 NE Ambassador Place, Suite 101, Portland, OR 97220-1384; telephone: (503) 820-2280.
Mr. Jim Seger, Staff Officer; telephone: (503) 820-2280.
The original notice published in the
The Council is considering a rationalization program to cover limited entry trawl landings in the West Coast groundfish fishery. The purpose of the TRTMC working meeting is to provide agency guidance and perspectives on design constraints and to scope likely impacts of alternative configurations of tracking and monitoring systems for trawl rationalization.
Although non-emergency issues not contained in the meeting agenda may come before the TRTMC for discussion, those issues may not be the subject of formal TRTMC action during this meeting. TRTMC action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under Section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the TRTMC's intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Ms. Carolyn Porter at (503) 820-2280 at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The Pacific Fishery Management Council's (Council) Groundfish Allocation Committee (GAC) will hold a working meeting, which is open to the public.
The GAC meeting will be held Wednesday, February 20, 2008, from 1 p.m. until business for the day is completed. The GAC will reconvene Thursday, February 21, 2008, and Friday, February 22, 2008 at 8:30 a.m. each day until their business is completed.
The GAC meeting will be held at the Sheraton Portland Airport Hotel, Cascade A and B Room, 8235 N.E. Airport Way, Portland, OR 97220; telephone: (503) 281-2500.
Mr. John DeVore, Groundfish Management Coordinator; telephone: (503) 820-2280.
The purpose of the GAC meeting is to consider draft alternatives and other material for rationalizing the Pacific Coast limited entry groundfish trawl industry (trawl rationalization); consider alternatives, preliminary analyses, and other material for allocating Pacific Coast groundfish stocks and stock complexes to the various Pacific Coast fishery sectors (intersector allocation); and consider draft alternatives and preliminary analyses associated with a contemplated limited entry licensing system for West Coast open access groundfish fisheries (open access license limitation). No management actions will be decided by the GAC. The GAC's role will be development of recommendations and refinement of draft alternatives for analysis in a contemplated environmental impact statement for trawl rationalization and two contemplated environmental assessments for intersector allocation and open access license limitation. The GAC recommendations will be provided for consideration by the Council at its March 2008 meeting in Sacramento, CA, and at its April 2008 meeting in Seattle, WA.
Although non-emergency issues not contained in the meeting agenda may come before the GAC for discussion, those issues may not be the subject of formal GAC action during this meeting. GAC action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under Section 305a) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the GAC's intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Ms. Carolyn Porter at (503) 820-2280 at least 5 days prior to the meeting date.
Department of Defense, Defense Policy Board Advisory Committee.
Notice.
The Defense Policy Board Advisory Committee will meet in closed session on March 6, 2008 from 0800 hrs until 2030 and March 7, 2008 from 0900 hrs until 1330 at the Pentagon.
The purpose of the meeting is to provide the Secretary of Defense, Deputy Secretary of Defense and Under Secretary of Defense for Policy with independent, informed advice on major matters of defense policy. The Board will hold classified discussions on national security matters.
In accordance with Section 10(d) of the Federal Advisory Committee Act, Public Law No. 92-463, as amended [5 U.S.C. App II (1982)], it has been determined that this meeting concerns matters listed in 5 U.S.C. 552B(c)(1) (1982), and that accordingly this meeting will be closed to the public.
Department of Education, Office of Indian Education.
Notice of an open meeting.
This notice sets forth the schedule and proposed agenda of an upcoming open meeting of the National Advisory Council on Indian Education (the Council). The notice also describes the functions of the Council. Notice of this meeting is required by section 10(a)(2) of the Federal Advisory Committee Act and is intended to notify the public of their opportunity to attend. This notice is appearing in the
February 7, 2008.
9 a.m. to 4 p.m., Eastern Standard Time.
400 Maryland Avenue, SW., Room 5C100, Washington, DC 20202.
Cathie Carothers, Director Office of Indian Education, National Advisory Council on Indian Education; 400 Maryland Avenue, SW., Washington, DC 20202; phone: (202) 260-7485; fax: (202) 260-4149; e-mail:
Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FRS) at 1-800-877-8339, Monday through Friday between the hours of 8 a.m. and 8 p.m., Eastern Standard Time.
The National Advisory Council on Indian Education is authorized by Section 7141 of the Elementary and Secondary Education Act. The Committee is established within the Department of Education to advise the Secretary of Education on the funding and administration (including the development of regulations, and administrative policies and practices) of any program over which the Secretary has jurisdiction and includes Indian children or adults as participants or programs that may benefit Indian children or adults, including any program established under Title VII, Part A of the Elementary and Secondary Education Act. The Council submits to the Congress, not later than June 30 of each year, a report on the activities of the Council that includes recommendations the Council considers appropriate for the improvement of Federal education programs that include Indian children or adults as participants or that may benefit Indian children or adults, and recommendations concerning the funding of any such program.
The purpose of this meeting is to discuss reauthorization of the Elementary and Secondary Education Act; the President's fiscal year 2008 budget and the 2009 budget request; Executive Order 13336 activities; program updates; the Council's charter; and development of the Council's Annual Report to Congress.
Individuals who will need accommodations for a disability in order to attend the meeting (e.g., interpreting services, assistance listening devices, or materials in alternative format) should notify Cathie Carothers at (202) 260-7485 no later than February 1, 2008. We will attempt to meet requests for accommodations after this date but cannot guarantee their availability. The meeting site is accessible to individuals with disabilities.
Records are kept of all Committee proceedings and are available for public inspection at 400 Maryland Avenue, Room 5C132, Washington, DC 20202, from the hours of 9 a.m. to 5 p.m., Eastern Standard Time Monday through Friday.
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
United States Election Assistance Commission.
Notice of Public Meeting.
Thursday, February 7, 2008 10 a.m.-1 p.m.
Hyatt Regency on Capitol Hill, 400 New Jersey Avenue, NW., Washington, DC 20001. (Metro Stop: Union Station).
Commissioners will receive an update on HAVA Funding Issues. Commissioners will consider and vote on the following studies: Study on Feasibility of Free Absentee Voting Postage; Study on use of Social Security Information of First Time Voters Who Register to Vote by Mail. Commissioners will consider and vote on an Interim
This meeting will be open to the public.
Bryan Whitener, Telephone: (202) 566-3100.
Department of Energy.
Notice of renewal.
Pursuant to Section 14(a)(2)(A) of the Federal Advisory Committee Act (Pub. L. No. 92-463), and in accordance with Title 41 of the Code of Federal Regulations, section 102-3.65(a), and following consultation with the Committee Management Secretariat, General Services Administration, notice is hereby given that the Environmental Management Advisory Board will be renewed for a two-year period beginning January 23, 2008.
The Board provides the Assistant Secretary for Environmental Management (EM) with information and strategic advice on a broad range of corporate issues affecting the EM program. These corporate issues include, but are not limited to, project management and oversight activities; cost/benefit analyses; program performance; contracts and acquisition strategies; human capital management; and site end-states activities. Recommendations to the Department of Energy (DOE) on the programmatic resolution of numerous difficult issues will help achieve DOE's objective of the safe and efficient cleanup of its contaminated sites.
Additionally, the renewal of the Environmental Management Advisory Board has been determined to be essential to conduct DOE's business and to be in the public interest in connection with the performance of duties imposed on DOE by law and agreement. The Board will operate in accordance with the provisions of FACA, and rules and regulations issued in implementation of that Act.
Further information regarding this Advisory Board may be obtained from Ms. Terri Lamb, Designated Federal Officer, at (202) 586-9007.
Federal Energy Regulatory Commission, DOE.
Notice.
In compliance with the requirements of section 3506(c)(2)(a) of the Paperwork Reduction Act of 1995 (Pub. L. No. 104-13), the Federal Energy Regulatory Commission (Commission) is soliciting public comment on the specific aspects of the information collection described below.
Comments on the collection of information are due March 31, 2008.
Copies of sample filings of the proposed collection of information can be obtained from the Commission's Web site (
Documents filed electronically via the Internet must be prepared in WordPerfect, MS Word, Portable Document Format, or ASCII format. To file the document, access the Commission's Web site at
All comments may be viewed, printed or downloaded remotely via the Internet through FERC's homepage using the eLibrary link. For user assistance, contact
Michael Miller may be reached by telephone at (202) 502-8415, by fax at (202) 273-0873, and by e-mail at
The information collected under the requirements of FERC-516A “Small Generator Interconnection Agreements” (OMB No. 1902-2003) is used by the Commission to enforce the statutory provisions of sections 205 and 206 of the Federal Power Act (FPA), as amended by Title II, section 211 of the Public Utility Regulatory Policies Act of 1978 (PURPA) (16 U.S.C. 825d). FPA sections 205 and 206 require the Commission to remedy undue discriminatory practices within interstate electric utility operations.
The Commission amended its regulations in 2005 with Order No. 2006 to require public utilities that own, control, or operate facilities used for the transmission of electric energy in interstate commerce to amend their Open Access Transmission Tariffs (OATTs) to include a Commission-approved
Prior to Order No. 2006, the Commission's policy had been to address interconnection issues on a case-by-case basis. Although a number of transmission providers had filed interconnection procedures as part of their OATTs, many industry participants remained dissatisfied with existing interconnection policies and procedures. With an increasing number of interconnection-related disputes, it became apparent that the case-by-case approach was an inadequate and inefficient means to address interconnection issues. This prompted the Commission to adopt, in Order No. 2006, a single set of procedures for jurisdictional transmission providers and a single uniformly applicable
With the incorporation of these documents in their OATTs, there is no longer a need for transmitting utilities to file case-by-case interconnection agreements and procedures with the Commission. However, on occasion, circumstances warrant non-conforming agreements or a situation-specific set of procedures. These non-conforming documents must be filed in their entirety with the Commission for review and action.
The information collected is in response to a mandatory requirement. The Commission implements these filing requirements in the Code of Federal Regulations (CFR) under 18 CFR Part 35, § 35.28(f).
There was a one-time start-up cost to comply with Order No. 2006 requirements that was included when the Commission first sought authorization for this information in 2005. The estimated burden of the continued requirement to maintain the procedures and agreement documents in transmission providers' OATTs is reflected herein as is the filing of non-conforming interconnection procedures and agreements that occur on occasion.
The estimated total cost to respondents is $75,222.78. [1,238 hours divided by 2080 hours
The reporting burden includes the total time, effort, or financial resources expended to generate, maintain, retain, disclose, or provide the information including: (1) Reviewing instructions; (2) developing, acquiring, installing, and utilizing technology and systems for the purposes of collecting, validating, verifying, processing, maintaining, disclosing and providing information; (3) adjusting the existing ways to comply with any previously applicable instructions and requirements; (4) training personnel to respond to a collection of information; (5) searching data sources; (6) completing and reviewing the collection of information; and (7) transmitting, or otherwise disclosing the information.
The estimate of cost for respondents is based upon salaries for professional and clerical support, as well as direct and indirect overhead costs. Direct costs include all costs directly attributable to providing this information, such as administrative costs and the cost for information technology. Indirect or overhead costs are costs incurred by an organization in support of its mission. These costs apply to activities which benefit the whole organization rather than any one particular function or activity.
Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information will have practical utility; (2) 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) 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 those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology
Federal Energy Regulatory Commission, DOE.
Notice.
In compliance with the requirements of section 3506(c)(2)(a) of the Paperwork Reduction Act of 1995 (Pub. L. No. 104-13), the Federal Energy Regulatory Commission (Commission) is soliciting public comment on the specific aspects of the information collection described below.
Comments on the collection of information are due March 31, 2008.
Copies of sample filings of the proposed collection of information can be obtained from the Commission's Web site (
Documents filed electronically via the Internet must be prepared in WordPerfect, MS Word, Portable Document Format, or ASCII format. To file the document, access the Commission's Web site at
All comments may be viewed, printed or downloaded remotely via the Internet
Michael Miller may be reached by telephone at (202) 502-8415, by fax at (202) 273-0873, and by e-mail at
The information collected under the requirements of FERC-600 “Rules of Practice and Procedure: Complaint Procedures” (OMB No. 1902-0180) is used by the Commission to implement the statutory provisions of the Federal Power Act (FPA), 16 U.S.C. 791a-825r; the Natural Gas Act (NGA), 15 U.S.C. 717-717w; the Natural Gas Policy Act (NGPA), 15 U.S.C. 3301-3432, the Public Utility Regulatory Policies Act of 1978 (PURPA), 16 U.S.C. 2601-2645; the Interstate Commerce Act, 49 U.S.C. App. § 1,
With respect to the natural gas industry, section 14(a) of the NGA provides: The Commission may permit any person to file with it a statement in writing, under oath or otherwise, as it shall determine, as to any or all facts and circumstances concerning a matter which may be the subject of an investigation.
For public utilities, section 205(e) of the FPA provides: Whenever any such new schedule is filed, the Commission shall have the authority, either upon complaint or upon its own initiative without complaint at once, and, if it so orders, without answer or formal pleading by the public utility, but upon reasonable notice to enter upon hearing concerning the lawfulness of such rate, charge, classification, or service; and pending such hearing and decision of the Commission. * * *
Section 215(d)(5) of the FPA provides: The Commission, upon its own motion or upon complaint, may order the Electric Reliability Organization to submit to the Commission a proposed reliability standard or a modification to a reliability standard that addresses a specific matter if the Commission considers such a new or modified reliability standard appropriate to carry out this section. * * *
Concerning hydropower projects, section 19 of the FPA provides: * * * it is agreed as a condition of such license that jurisdiction is hereby conferred upon the Commission, upon complaint of any person aggrieved or upon its own initiative, to exercise such regulation and control until such time as the State shall have provided a commission or other authority for such regulation and control. * * *
For qualifying facilities, section 210(h)(2)(B) of PURPA provides: Any electric utility, qualifying cogenerator, or qualifying small power producer may petition the Commission to enforce the requirements of subsection (f) as provided in subparagraph (A) of this paragraph.
Likewise for oil pipelines, Part 1 of the Interstate Commerce Act (ICA), sections 1, 6 and 15 (recodified by Pub. L. 95-473 and found as an appendix to Title 49 U.S.C.) the Commission is authorized to investigate the rates charged by oil pipeline companies subject to its jurisdiction. If a proposed oil rate has been filed and allowed by the Commission to go into effect without suspension and hearing, the Commission can investigate the effective rate on its own motion or by complaint filed with the Commission. Section 13 of the ICA provided that: Any person, firm, corporation, company or association, or any mercantile, agricultural, or manufacturing society or other organization, or any common carrier subject to the provisions of this chapter in contravention of the provisions thereof, may apply to the Commission by petition which shall briefly state the facts: whereupon a statement of the complaint thus made shall be forwarded by the Commission to such common carrier, who shall be called upon to satisfy the complaint, or to answer the same in writing, within a reasonable time, to be specified by the Commission. * * *
In Order No. 602, 64 FR 17087 (April 8, 1999), the Commission revised its regulations governing complaints filed with the Commission under the above statutes. Order No. 602 was designed to encourage and support consensual resolution of complaints, and to organize the complaint procedures so that all complaints are handled in a timely and fair manner. In order to achieve the latter, the Commission revised Rule 206 of its Rules of Practice and Procedure (18 CFR 385.206) to require that a complaint satisfy certain informational requirements, that answers be filed in a shorter, 20-day time frame, and that parties may employ various types of alternative dispute resolution procedures to resolve complaints.
In Order No. 647, 69FR 32436 (June 10, 2004), the Commission revised its regulations to simplify the formats it requires for various types of notices. These revisions provide for a more uniform formatting and make it easier for the Commission to update the form of notice formatting without the necessity of initiating a rulemaking for every change. A new subsection 18 CFR 385.203(d) replaced the former format requirements. Among the provisions that were affected by these revisions was 18 CFR 385.206(b)(10).
On September 9, 2005, the Office of Management and Budget (OMB) approved the reporting requirements contained in FERC-600 for a term of three years, the maximum period permissible under the Paperwork Reduction Act
Investigations may range from whether there is undue discrimination in rates or service to questions regarding market power of regulated entities to environmental concerns. In order to make a better determination, it is important to know the specifics of any oil, gas, electric, and hydropower complaint “upfront” in a timely manner and in sufficient detail to allow the Commission to act swiftly. In addition, such complaint data will help the Commission and interested parties to monitor the market for exercises of market power or undue discrimination. The information is voluntary but submitted with prescribed information. The Commission implements these filing requirements in the Code of Federal Regulations (CFR) under 18 CFR Part 385, §§ 385.206, 385.203 and 385.213.
The Commission is requesting a three-year extension of the current expiration date, with no changes to the existing collection of data.
Estimated cost burden to respondents is $68,904. (1,134 hours/2080 hours per year times $126,384 per year average per employee = $68,904). The cost per respondent is $861. There is a significant decrease in the number of respondents and number of filings since the last renewal request. However, the cost per respondent has increased to reflect adjustments due to inflationary costs.
The reporting burden includes the total time, effort, or financial resources expended to generate, maintain, retain, disclose, or provide the information including: (1) Reviewing instructions; (2) developing, acquiring, installing, and utilizing technology and systems for the purposes of collecting, validating, verifying, processing, maintaining, disclosing and providing information; (3) adjusting the existing ways to comply with any previously applicable instructions and requirements; (4) training personnel to respond to a collection of information; (5) searching data sources; (6) completing and reviewing the collection of information; and (7) transmitting, or otherwise disclosing the information.
The estimate of cost for respondents is based upon salaries for professional and clerical support, as well as direct and indirect overhead costs. Direct costs include all costs directly attributable to providing this information, such as administrative costs and the cost for information technology. Indirect or overhead costs are costs incurred by an organization in support of its mission. These costs apply to activities which benefit the whole organization rather than any one particular function or activity.
Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information will have practical utility; (2) 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) 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 those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology
Take notice that on January 17, 2008, Airtricity Munnsville Wind Farm, LLC tendered for filing its notice of non-material change in status related to a change in its upstream ownership.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant and all the parties in this proceeding.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible online at
Take notice that the following hydroelectric applications have been filed with the Commission and are available for public inspection:
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All documents (original and eight copies) should be filed with: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Comments, protests, and interventions may be filed electronically via the Internet in lieu of paper; see 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “e-Filing” link. The Commission strongly encourages electronic filings. Please include the project number (P-13030-000) on any comments or motions filed.
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
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m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
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Comments, protests and interventions may be filed electronically via the Internet in lieu of paper. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site at
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Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
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d.
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All documents (original and eight copies) should be filed with: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Comments, protests, and interventions may be filed electronically via the Internet in lieu of paper; see 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “e-Filing” link. The Commission strongly encourages electronic filings. Please include the project number (P-13047-000) on any comments or motions filed.
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
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(1) 5 to 90 wave buoys generators having a total installed capacity of 20 to 180 megawatts, (2) a proposed 24.9 kilovolt transmission line, and (3) appurtenant facilities. The project is estimated to have an average annual generation from 87.5 to 790 gigawatt-hours, which would be sold to a local utility.
(1) 5 to 90 wave buoys generators having a total installed capacity of 20 to 180 megawatts, (2) a proposed 24.9 kilovolt transmission line, and (3) appurtenant facilities. The project is estimated to have an average annual generation from 87.5 to 790 gigawatt-hours, which would be sold to a local utility.
(1) 5 to 90 wave buoys generators having a total installed capacity of 20 to 180 megawatts, (2) a proposed 24.9 kilovolt transmission line, and (3) appurtenant facilities. The project is estimated to have an average annual generation from 87.5 to 790 gigawatt-hours, which would be sold to a local utility.
(1) 5 to 90 wave buoys generators having a total installed capacity of 20 to 180 megawatts, (2) a proposed 24.9 kilovolt transmission line, and (3) appurtenant facilities. The project is estimated to have an average annual generation from 87.5 to 790 gigawatt-hours, which would be sold to a local utility.
(1) 5 to 90 wave buoys generators having a total installed capacity of 20 to 180 megawatts, (2) a proposed 24.9 kilovolt transmission line; and (3) appurtenant facilities. The project is estimated to have an average annual generation from 87.5 to 790 gigawatt-hours, which would be sold to a local utility.
(1) 5 to 90 wave buoys generators having a total installed capacity of 20 to 180 megawatts, (2) a proposed 24.9 kilovolt transmission line; and (3) appurtenant facilities. The project is estimated to have an average annual generation from 87.5 to 790 gigawatt-hours, which would be sold to a local utility.
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m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
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Comments, protests and interventions may be filed electronically via the Internet in lieu of paper; See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under “e-filing” link. The Commission strongly encourages electronic filing.
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Take notice that the following hydroelectric applications have been filed with the Commission and are available for public inspection:
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b.
c.
d.
e.
f.
g.
h.
i.
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All documents (original and eight copies) should be filed with: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Comments, protests, and interventions may be filed electronically via the Internet in lieu of paper; see 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “e-Filing” link. The Commission strongly encourages electronic filings. Please include the project number (P-12972-000) on any comments or motions filed.
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
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m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
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Comments, protests and interventions may be filed electronically via the Internet in lieu of paper. See 18 CFR 385.2001 (a)(1)(iii) and the instructions on the Commission's Web site at
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Take notice that the following hydroelectric applications have been filed with the Commission and are available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
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All documents (original and eight copies) should be filed with: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Comments, protests, and interventions may be filed electronically via the Internet in lieu of paper; see 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “e-Filing” link. The Commission strongly encourages electronic filings. Please include the project number (P-12987-000) on any comments or motions filed.
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
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m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
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Comments, protests and interventions may be filed electronically via the Internet in lieu of paper. See 18 CFR 385.2001 (a)(1)(iii) and the instructions on the Commission's Web site at
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Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
All documents (original and eight copies) should be filed with: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Comments, protests, and interventions may be filed electronically via the Internet in lieu of paper; see 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “e-Filing” link. The Commission strongly encourages electronic filings. Please include the project number (P-12965-000) on any comments or motions filed.
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
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l. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
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Take notice that the following hydroelectric applications have been filed with the Commission and are available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
All documents (original and eight copies) should be filed with: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Comments, protests, and interventions may be filed electronically via the Internet in lieu of paper; see 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “e-Filing” link. The Commission strongly encourages electronic filings. Please include the project number (P-12974-000) on any comments or motions filed.
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission
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m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
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Comments, protests and interventions may be filed electronically via the Internet in lieu of paper. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site at
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Take notice that on January 14, 2008, Caledonia Energy Partners, L.L.C. (Caledonia), 2001 Timber Creek Road, Flower Mound, TX 75028, filed in Docket No. CP08-52-000, an application under section 7(c) of the Natural Gas Act (NGA), to expand the Caledonia Storage Facility by developing a depleted production reservoir as an additional gas storage field; constructing a pipeline lateral to connect the new field with the existing storage facility; and installation of a total of 10,000 Hp of additional compression which will allow Caledonia to increase its maximum allowable operating pressure to 2,518 psia. The expanded facilities will increase Caledonia's maximum total storage capacity from 11.7 Bcf to 16.9 Bcf and its maximum daily withdrawal
Any questions regarding this application should be directed to Jim Goetz, Caledonia Energy Partners, L.L.C., 2001 Timber Creek Road, Flower Mound, Texas 75028, at (972) 691-3332, or by fax at (972) 874-8743, or Christopher A. Schindler, Hogan & Hartson L.L.P., 555 Thirteenth Street, NW., Washington, DC 20004, at (202) 637-5723, or by fax at (202) 637-5910.
Pursuant to Section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: Complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding; or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the final environmental impact statement (FEIS) or EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all federal authorizations within 90 days of the date of issuance of the Commission staff's FEIS or EA.
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date stated below, file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 14 copies of filings made with the Commission and must mail a copy to the applicant and to every other party in the proceeding. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commentors will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commentors will not be required to serve copies of filed documents on all other parties. However, the non-party commentors will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that the following application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
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All documents (original and eight copies) should be filed with: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Comments, protests, and/or interventions may be filed electronically via the Internet in lieu of paper. See, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site at
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When a Declaration of Intention is filed with the Federal Energy Regulatory Commission, the Federal Power Act requires the Commission to investigate and determine if the interests of interstate or foreign commerce would be affected by the project. The Commission also determines whether or not the project: (1) Would be located on a navigable waterway; (2) would occupy or affect public lands or reservations of the United States; (3) would utilize surplus water or water power from a government dam; or (4) if applicable, has involved or would involve any construction subsequent to 1935 that may have increased or would increase the project's head or generating capacity, or have otherwise significantly modified the project's pre-1935 design or operation.
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m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
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Take notice that the Commission received the following electric rate filings:
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St. NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed dockets(s). For assistance with any FERC Online service, please e-mail
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St. NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed dockets(s). For assistance with any FERC Online service, please e-mail
Rule 2010 of the Federal Energy Regulatory Commission's (Commission) Rules of Practice and Procedure provides that, to eliminate unnecessary expense or improve administrative efficiency, the Secretary may establish a restricted service list for a particular phase or issue in a proceeding.
The Commission staff is consulting with the Georgia State Historic Preservation Officer (hereinafter, SHPO) and the Advisory Council on Historic Preservation (hereinafter, Council) pursuant to the Council's regulations, 36 CFR Part 800, implementing section 106 of the National Historic Preservation Act, as amended (16 U.S.C. section 470f), to prepare and execute a programmatic agreement for managing properties included in, or eligible for inclusion in, the National Register of Historic Places at the Lake Blackshear Hydroelectric Project No. 659 (SHPO Reference Number HP021003-004 and Seminole Tribe of Florida Reference Number THPO-000454).
The programmatic agreement, when executed by the Commission and the SHPO would satisfy the Commission's section 106 responsibilities for all individual undertakings carried out in accordance with the license until the license expires or is terminated (36 CFR 800.13[e]). The Commission's responsibilities pursuant to section 106 for the Lake Blackshear Project would
Crisp County Power Commission, as licensee for Lake Blackshear Hydroelectric Project No. 659, the Alabama-Quassarte Tribal Town, and the Seminole Tribe of Florida have expressed an interest in this preceding and are invited to participate in consultations to develop the programmatic agreement.
For purposes of commenting on the programmatic agreement, we propose to restrict the service list for the aforementioned project as follows:
Any person on the official service list for the above-captioned proceeding may request inclusion on the restricted service list, or may request that a restricted service list not be established, by filing a motion to that effect within 15 days of this notice date. In a request for inclusion, please identify the reason(s) why there is an interest to be included. Also please identify any concerns about historic properties, including Traditional Cultural Properties. If historic properties are to be identified within the motion, please use a separate page, and label it
An original and 8 copies of any such motion must be filed with Kimberly D. Bose, the Secretary of the Commission (888 First Street, NE., Washington, DC 20426) and must be served on each person whose name appears on the official service list. Please put the project name “Lake Blackshear Project” and number “P-659-014” on the front cover of any motion. Motions may be filed electronically via the Internet in lieu of paper. The Commission strongly encourages electronic filings. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site (
If no such motions are filed, the restricted service list will be effective at the end of the 15-day period. Otherwise, a further notice will be issued ruling on any motion or motions filed within the 15-day period.
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental assessment (EA) that will discuss the environmental impacts of the Dominion Transmission Incorporation (DTI) Project involving the addition of a compressor unit at its existing Utica Compressor Stations, located at New Hartford, Herkimer County, New York. The EA will be used by the Commission in its decision-making process to determine whether the project is in the public convenience and necessity.
This notice announces the opening of the scoping process the Commission will use to gather input from the public and interested agencies on the project. Your input will help determine which issues need to be evaluated in the EA. Please note that the scoping period will close on February 25, 2008. Details on how to submit comments are provided in the Public Participation section of this notice.
This notice is being sent to affected landowners; federal, state, and local government agencies; elected officials; Native American tribes; other interested parties; and local libraries and newspapers. State and local government representatives are asked to notify their constituents of this proposed project and to encourage them to comment on their areas of concern.
A fact sheet prepared by the FERC entitled “An Interstate Natural Gas Facility On My Land? What Do I Need To Know?” addresses a number of typically asked questions, including the use of eminent domain and how to participate in the Commission's proceedings. It is available for viewing on the FERC Internet Web site (
DTI proposes to install an additional compressor unit at its existing Utica Compressor Station to provide new firm transportation service for a new customer while maintaining reliability in meeting all existing service entitlement on the northeastern portion of DTI's transmission system. The project would be located in New Harford, Herkimer County, New York. Modification of the Utica Compressor Station will include the installation of:
• One natural gas-fired, reciprocating internal combustion engine with a nominal 2,250 HP rating.
All project activities would be contained within the property boundary for DTI's Utica Compressor Station. Approximately five acres of this facility would be utilized for project activities.
The general location of the proposed facilities is shown in Appendix 1.
We
With this notice, we are asking federal, state, and local agencies with jurisdiction and/or special expertise with respect to environmental issues to formally cooperate with us in the preparation of the EA. These agencies may choose to participate once they have evaluated the proposal relative to their responsibilities. Additional agencies that would like to request cooperating agency status should follow the instructions for filing comments provided under the Public Participation section of this notice.
NEPA also requires the FERC to discover and address concerns the public may have about proposals. This process is referred to as “scoping.” The main goal of the scoping process is to focus the analysis in the EA on the important environmental issues. By this Notice of Intent, we are requesting public comments on the scope of the issues to address in the EA. All comments received are considered during the preparation of the EA.
The EA will discuss impacts that could occur as a result of the construction and operation of the proposed project under these general headings:
• Geology and soils.
• Land use.
• Water resources, fisheries, and wetlands.
• Cultural resources.
• Vegetation and wildlife.
• Air quality and noise.
• Endangered and threatened species.
We will also evaluate possible alternatives to the proposed project or portions of the project, where necessary, and make recommendations on how to lessen or avoid impacts on the various resource areas.
Our independent analysis of the issues will be in the EA. Depending on the comments received during the scoping process, the EA may be published and mailed to federal, state, and local agencies, public interest groups, interested individuals, affected landowners, newspapers, libraries, and the Commission's official service list for this proceeding. A comment period will be allotted for review if the EA is published. We will consider all comments on the EA before we make our recommendations to the Commission.
To ensure your comments are considered, please carefully follow the instructions in the Public Participation section below.
You can make a difference by providing us with your specific comments or concerns about the project. By becoming a commentor, your concerns will be addressed in the EA and considered by the Commission. You should focus on the potential environmental effects of the proposal, alternatives to the proposal including alternative compressor station sites, and measures to avoid or lessen environmental impact. The more specific your comments, the more useful they will be. Please carefully follow these instructions to ensure that your comments are received in time and properly recorded:
• Send an original and two copies of your letter to: Kimberley D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First St., NE., Room 1A, Washington, DC 20426;
• Label one copy of the comments for the attention of Gas Branch 2, PJ-11.2;
• Reference Docket No. CP08-45-000; and
• Mail your comments so that they will be received in Washington, DC on or before February 25, 2008.
The Commission encourages electronic filing of comments. See 18 Code of Federal Regulations 385.2001(a)(1)(iii) and the instructions on the Commission's Internet Web site at
We may mail the EA for public comment. If you are interested in receiving it, please return the Information Request (Appendix 2). If you do not return the Information Request, you will be taken off the mailing list.
In addition to involvement in the EA scoping process, you may want to become an official party to the proceeding, or “intervenor”. To become an intervenor you must file a motion to intervene according to Rule 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.214). Intervenors have the right to seek rehearing of the Commission's decision. Motions to Intervene should be electronically submitted using the Commission's eFiling system at
Affected landowners and parties with environmental concerns may be granted intervenor status upon showing good cause by stating that they have a clear and direct interest in this proceeding which would not be adequately represented by any other parties. You do not need intervenor status to have your environmental comments considered.
An effort is being made to send this notice to all individuals, organizations, and government entities interested in and/or potentially affected by the proposed project. This includes all landowners who own homes within distances defined in the Commission's regulations of certain aboveground facilities.
Additional information about the project is available from the Commission's Office of External Affairs, at 1-866-208-FERC or on the FERC Internet Web site (
In addition, the Commission now offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries and direct links to the documents. Go to
Finally, public meetings or site visits will be posted on the Commission's calendar located at
Take notice that on January 16, 2007, Downeast Pipeline, LLC (Downeast Pipeline), PO Box 865, Calais, Maine 04619, filed, in Docket No. CP07-53-001, an application to amend its pending application for a Certificate of Public Convenience and Necessity pursuant to section 7(c) of the Natural Gas Act (NGA) filed with the Commission on December 22, 2006. Downeast Pipeline proposes to amend its application to reflect a modification to its originally proposed pipeline route in order to avoid crossing the Moosehorn National Wildlife Refuge which is owned and managed by the U.S. Fish and Wildlife Service. The modification proposed by Downeast Pipeline affects 7.5 miles of the originally proposed 31-mile-long route and extends from milepost 10.2 to milepost 17.7, all as more fully set forth in the application which is on file with the Commission and open to public inspection. The Commission staff will determine if this amendment will have an effect on the schedule for the environmental review of this project. A Notice of Schedule for Environmental Review will be issued when Commission staff has received all the information necessary in order to complete the draft EIS.
Any questions regarding this application should be directed to Robert Wyatt, Downeast LNG, Inc., PO Box 865, Calais, ME 04619 or Lisa M. Tonery, Fulbright & Jaworski, 666 Fifth Avenue, New York, NY 10103-3198, (212) 318-3009.
This filing is available for review at the Commission's Washington, DC office or may be viewed on the Commission's Web site at
There are two ways to become involved in the Commission's review of this Project. First, any person wishing to obtain legal status by becoming a party to the proceeding for this project should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10) by the comment date, below. A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 14 copies of filings made with the Commission and must mail a copy to the applicant and to every other party in the proceeding. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.
However, a person does not have to intervene to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project and/or associated pipeline. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commenters will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commenters will not be required to serve copies of filed documents on all other parties. However, the non-party commenters will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
Protests and interventions may be filed electronically via the Internet in lieu of paper; see 18 CFR 285.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “e-filing” link. The Commission strongly encourages electronic filings.
Lockport Energy Associates, L.P. (Lockport) filed an application for market-based rate authority, with an accompanying rate schedule. The proposed market-based rate schedule provides for the sale of energy, capacity and ancillary services at market-based rates. Lockport also requested waivers of various Commission regulations. In particular, Lockport requested that the Commission grant blanket approval under 18 CFR part 34 of all future issuances of securities and assumptions of liability by Lockport.
On January 23, 2008, pursuant to delegated authority, the Director, Division of Tariffs and Market Development—West, granted the requests for blanket approval under part 34 (Director's Order). The Director's Order also stated that the Commission would publish a separate notice in the
Notice is hereby given that the deadline for filing protests is February 22, 2008.
Absent a request to be heard in opposition to such blanket approvals by the deadline above, Lockport is authorized to issue securities and assume obligations or liabilities as a guarantor, indorser, surety, or otherwise in respect of any security of another person; provided that such issuance or assumption is for some lawful object within the corporate purposes of Lockport, compatible with the public interest, and is reasonably necessary or appropriate for such purposes.
The Commission reserves the right to require a further showing that neither public nor private interests will be adversely affected by continued approvals of Lockport's issuance of securities or assumptions of liability.
Copies of the full text of the Director's Order are available from the Commission's Public Reference Room, 888 First Street, NE., Washington, DC 20426. The Order may also be viewed on the Commission's Web site at
Long Beach Partners, LLC (Long Beach) filed an application for market-based rate authority, with an accompanying rate schedule. The proposed market-based rate schedule provides for the sale of energy, capacity and ancillary services at market-based rates. Long Beach also requested waivers of various Commission regulations. In particular, Long Beach requested that the Commission grant blanket approval under 18 CFR part 34 of all future issuances of securities and assumptions of liability by Long Beach.
On January 23, 2008, pursuant to delegated authority, the Director, Division of Tariffs and Market Development-West, granted the requests for blanket approval under part 34 (Director's Order). The Director's Order also stated that the Commission would publish a separate notice in the
Notice is hereby given that the deadline for filing protests is February 22, 2008.
Absent a request to be heard in opposition to such blanket approvals by the deadline above, Long Beach is authorized to issue securities and assume obligations or liabilities as a guarantor, indorser, surety, or otherwise in respect of any security of another person; provided that such issuance or assumption is for some lawful object within the corporate purposes of Long Beach, compatible with the public interest, and is reasonably necessary or appropriate for such purposes.
The Commission reserves the right to require a further showing that neither public nor private interests will be adversely affected by continued approvals of Long Beach's issuance of securities or assumptions of liability.
Copies of the full text of the Director's Order are available from the Commission's Public Reference Room, 888 First Street, NE., Washington, DC 20426. The Order may also be viewed on the Commission's Web site at
On January 30, 2008, staff of the Office of Energy Projects (OEP) will hold a meeting on the pending applications in the above referenced dockets. The purpose of the meeting is to discuss various procedural, tariff, and environmental matters.
The meeting will be held on Wednesday, January 30, 2008 at 2:30 p.m. (EST), in Room 62-26 at the Commission Headquarters in Washington, DC, and is open to the public.
The Federal Energy Regulatory Commission (Commission) hereby gives notice that on the January 24, 2008, members of its staff will attend a stakeholder meeting sponsored by a number of transmission service providers in Northwestern United States. The purpose of the meeting is to coordinate transmission planning studies for a number of proposed transmission projects in the Northwest. The meeting will be held at the Portland, OR Airport Sheraton from 9 a.m. to 12 noon. The meeting is open to all stakeholders and staff's attendance is part of the Commission's ongoing outreach efforts. The meeting may discuss matters at issue in the above captioned dockets.
For further information, contact Saeed Farrokhpay at
On January 28, 2008, staff of the Office of Energy Projects (OEP) will hold a technical conference concerning issues raised by the U.S. Fish and Wildlife Service for the REX East Project. In particular, construction impacts dealing with the biological assessment and the Migratory Bird Treaty Conservation Agreement will be discussed.
The technical conference will be held on Monday, January 28, 2008, at 1:30 p.m. (EST) in Room 3M-2B at the Commission Headquarters in Washington, DC.
Information concerning any changes to the above may be obtained from the Commission's Office of External Affairs at (202) 502-8004 or toll free at 1-866-208-FERC (208-3372).
Take notice that the Commission will convene a technical conference in the above-referenced proceeding on Friday, February 8, 2008, at 10 a.m. (EDT), in a room to be designated at the offices of the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
The Commission's December 28, 2007 Order
FERC conferences are accessible under section 508 of the Rehabilitation Act of 1973. For accessibility accommodations please send an e-mail to
All interested persons are permitted to attend. For further information please contact Timothy Duggan at (202) 502-8326 or e-mail
The Federal Energy Regulatory Commission hereby gives notice that members of its staff may attend the meetings of the Southwest Power Pool (SPP) Regional State Committee Board of Directors, SPP Members Committee and SPP Board of Directors as noted below. Their attendance is part of the Commission's ongoing outreach efforts.
The discussions may address matters at issue in the following proceedings:
These meetings are open to the public.
For more information, contact Patrick Clarey, Office of Energy Market
Take notice that on January 16, 2008, Northern Natural Gas Company, (Northern), 1111 South 103rd Street, Omaha, Nebraska 68124, filed in Docket No. CP08-56-000, a prior notice request pursuant to sections 157.205 and 157.210 of the Federal Energy Regulatory Commission's regulations under the Natural Gas Act for authorization to install and operate 0.5 mile of a 36-inch diameter extension to its existing NBPL IA/MN State E-Line, located in Worth County, Iowa, all as more fully set forth in the application, which is on file with the Commission and open to public inspection. The filing may also be viewed on the Web at
Northern states that the modifications proposed are necessary to meet Owatonna Public Utilities' request for firm capacity of 5 MMcf/d, effective November 1, 2008. Northern estimates the cost of construction to be $1,178,383, which will be financed with internally generated funds.
Any questions regarding the application should be directed to Michael T. Loeffler, Senior Director, Certificates and External Affairs, Northern Natural Gas Company, 1111 South 103rd Street, Omaha Nebraska 68124, call (402) 398-7103 or Donna Martens, Senior Regulatory Analyst, call (402) 398-7138.
Any person or the Commission's Staff may, within 60 days after the issuance of the instant notice by the Commission, file pursuant to Rule 214 of the Commission's Procedural Rules (18 CFR 385.214) a motion to intervene or notice of intervention and, pursuant to section 157.205 of the Commission's Regulations under the Natural Gas Act (NGA) (18 CFR 157.205), a protest to the request. If no protest is filed within the time allowed therefore, the proposed activity shall be deemed to be authorized effective the day after the time allowed for protest. If a protest is filed and not withdrawn within 30 days after the time allowed for filing a protest, the instant request shall be treated as an application for authorization pursuant to Section 7 of the NGA.
The Commission strongly encourages electronic filings of comments, protests, and interventions via the Internet in lieu of paper. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site (
PowerGrid Systems, Inc. (PowerGrid) filed an application for market-based rate authority, with an accompanying rate schedule. The proposed market-based rate schedule provides for the sale of energy and capacity at market-based rates. PowerGrid also requested waivers of various Commission regulations. In particular, PowerGrid requested that the Commission grant blanket approval under 18 CFR part 34 of all future issuances of securities and assumptions of liability by PowerGrid.
On January 23, 2008, pursuant to delegated authority, the Director, Division of Tariffs and Market Development-West, granted the requests for blanket approval under part 34 (Director's Order). The Director's Order also stated that the Commission would publish a separate notice in the
Notice is hereby given that the deadline for filing protests is February 22, 2008.
Absent a request to be heard in opposition to such blanket approvals by the deadline above, PowerGrid is authorized to issue securities and assume obligations or liabilities as a guarantor, indorser, surety, or otherwise in respect of any security of another person; provided that such issuance or assumption is for some lawful object within the corporate purposes of PowerGrid, compatible with the public interest, and is reasonably necessary or appropriate for such purposes.
The Commission reserves the right to require a further showing that neither public nor private interests will be adversely affected by continued approvals of PowerGrid's issuance of securities or assumptions of liability.
Copies of the full text of the Director's Order are available from the Commission's Public Reference Room, 888 First Street, NE., Washington, DC 20426. The Order may also be viewed on the Commission's Web site at
Take notice that the following application has been filed with the
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All documents (original and eight copies) should be filed with: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington DC 20426. Please include the project number (P-2206-034) on any comments or motions filed. Comments, protests, and interventions may be filed electronically via the Internet in lieu of paper. See, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “e-Filing” link. The Commission strongly encourages e-filings.
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m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
n. Comments, Protests, or Motions to Intervene—Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.
o. Filing and Service of Responsive Documents—Any filings must bear in all capital letters the title “COMMENTS”, “RECOMMENDATIONS FOR TERMS AND CONDITIONS”, “PROTEST”, OR “MOTION TO INTERVENE”, as applicable, and the Project Number of the particular application to which the filing refers. A copy of any motion to intervene must also be served upon each representative of the Applicant specified in the particular application.
p. Agency Comments—Federal, state, and local agencies are invited to file comments on the described applications. A copy of the applications may be obtained by agencies directly from the Applicant. If an agency does not file comments within the time specified for filing comments, it will be presumed to have no comments. One copy of an agency's comments must also be sent to the Applicant's representatives.
Take notice that the following application has been filed with the Commission and is available for public inspection:
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j. Deadline for filing comments and or motions: February 25, 2008.
All documents (original and eight copies) should be filed with: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington DC 20426. Please include the project number (P-2206-035) on any comments or motions filed. Comments, protests, and interventions may be filed electronically via the Internet in lieu of paper. See, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “e-Filing” link. The Commission strongly encourages e-filings.
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This constitutes notice, in accordance with 18 CFR 385.2201(b), of the receipt of prohibited and exempt off-the-record communications.
Order No. 607 (64 FR 51222, September 22, 1999) requires Commission decisional employees, who make or receive a prohibited or exempt off-the-record communication relevant to the merits of a contested proceeding, to deliver to the Secretary of the Commission, a copy of the communication, if written, or a summary of the substance of any oral communication.
Prohibited communications are included in a public, non-decisional file associated with, but not a part of, the decisional record of the proceeding. Unless the Commission determines that the prohibited communication and any responses thereto should become a part of the decisional record, the prohibited off-the-record communication will not be considered by the Commission in reaching its decision. Parties to a proceeding may seek the opportunity to respond to any facts or contentions made in a prohibited off-the-record communication, and may request that the Commission place the prohibited communication and responses thereto in the decisional record. The Commission will grant such a request only when it determines that fairness so requires. Any person identified below as having made a prohibited off-the-record communication shall serve the document on all parties listed on the official service list for the applicable proceeding in accordance with Rule 2010, 18 CFR 385.2010.
Exempt off-the-record communications are included in the decisional record of the proceeding, unless the communication was with a cooperating agency as described by 40 CFR 1501.6, made under 18 CFR 385.2201(e)(1)(v).
The following is a list of off-the-record communications recently received by the Secretary of the Commission. The communications listed are grouped by docket numbers in ascending order. These filings are available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that the following application has been filed with the Commission and is available for public inspection:
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j. Deadline for filing comments, protests, and/or motions: February 25, 2008.
All documents (original and eight copies) should be filed with: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Comments, protests, and/or interventions may be filed electronically via the Internet in lieu of paper. See, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site at
Please include the docket number (DI08-2-000) on any comments, protests, and/or motions filed.
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When a Declaration of Intention is filed with the Federal Energy Regulatory Commission, the Federal Power Act requires the Commission to investigate and determine if the interests of interstate or foreign commerce would be affected by the project. The Commission also determines whether or not the project: (1) Would be located on a navigable waterway; (2) would occupy or affect public lands or reservations of the United States; (3) would utilize surplus water or water power from a government dam; or (4) if applicable, has involved or would involve any construction subsequent to 1935 that may have increased or would increase the project's head or generating capacity, or have otherwise significantly modified the project's pre-1935 design or operation.
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m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
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The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental assessment (EA) that will discuss the environmental impacts of the proposed Whitetail Natural Gas Storage Project involving construction and operation of natural gas facilities by Tarpon Whitetail Gas Storage, LLC (Whitetail) in Monroe County, Mississippi. The EA will be used by the Commission in its decision-making process to determine whether the project is in the public convenience and necessity.
This notice announces the opening of the scoping process the Commission will use to gather input from the public and interested agencies on the project. Your input will help determine which issues need to be evaluated in the EA. Please note that the scoping period will close on February 25, 2008. Details on how to submit comments are provided in the Public Participation section of this notice.
If you are a landowner receiving this notice, you may be contacted by a pipeline company representative about the acquisition of an easement to construct, operate, and maintain the
This notice is being sent to affected landowners; federal, state, and local government representatives and agencies; elected officials; Native American tribes; other interested parties; and local libraries and newspapers. State and local government representatives are asked to notify their constituents of this proposed project and to encourage them to comment on their areas of concern.
A fact sheet prepared by the FERC entitled “An Interstate Natural Gas Facility On My Land? What Do I Need To Know?” addresses a number of typically asked questions, including the use of eminent domain and how to participate in the Commission's proceedings. It is available for viewing on the FERC Internet Web site (
Whitetail proposes to construct, own, operate, and maintain a high-deliverability, multi-cycle depleted reservoir natural gas storage facility, known as the Aberdeen Gas Storage Field, in Monroe County. The Whitetail Natural Gas Storage Project would accommodate the injection, storage, and subsequent withdrawal of natural gas for redelivery in interstate commerce. Upon completion of the project, the reservoir would have a total working gas storage capacity of 8.6 billion standard cubic feet.
The primary facilities associated with the proposed project are as follows:
• Up to 20 injection/withdrawal wells and 2 saltwater disposal wells in two general locations (the “West Well Pad Site” and the “East Well Pad Site”);
• An interconnection (the “TETCO Interconnect”) with Texas Eastern's existing interstate natural gas pipeline that includes a meter station, pig launcher/receiver, interconnect piping, and associated facilities;
• About 4.9 miles of 24-inch-diameter pipeline (the “West Header Right-of-way pipeline”) and 1.0 mile of 16-inch-diameter pipeline (the “Field Line Corridor pipeline”); and
• 14,200 horsepower (hp) of compression (four 3,550 hp natural gas-driven compressors and ancillary facilities) at a new compressor station (the “Whitetail Compressor Station”).
The general location of the proposed storage field project is shown in Appendix 1.
The construction and development of the Aberdeen Gas Storage Field itself would encompass about 2,850 acres. An additional buffer zone, defined by the Mississippi Oil and Gas Board as necessary to ensure reservoir integrity, would bring the total storage area to 4,840 acres.
The West Header Right-of-way and the Field Line Corridor pipelines would together require about 79 acres of temporary disturbance for the construction rights-of-way, including extra work spaces. Of this total, about 36 acres would be retained for Whitetail's permanent rights-of-way.
The proposed TETCO Interconnect site is a 1-acre tract at the northwest terminus of the proposed West Header Right-of-way pipeline. This site would be fenced and permanently converted to natural gas operation.
Most of the remaining facilities associated with the proposed project would be constructed within the “Plant Site,” a 24.3-acre tract owned by Whitetail. Within this site, the Whitetail Compressor Station would encompass about 11.1 acres and the West Well Pad Site (for construction of injection/withdrawal and saltwater disposal wells and ancillary facilities) would encompass about 6.1 acres. About 4.3 acres would be used as temporary work space, pipe storage, construction offices, and similar use. The remaining 2.8 acres of the Plant Site consists of an existing facilities area which would not be disturbed by Whitetail's proposed construction, though it could be used for operational purposes. Once the project is completed, Whitetail would construct a permanent security fence around the Plant Site.
The proposed East Well Pad Site is about 1 mile southeast of the Plant Site and at the eastern terminus of the proposed Field Line Corridor pipeline. This site would encompass about 5 acres for construction of injection/withdrawal and saltwater disposal wells, a pig launcher/receiver, and ancillary facilities related to the wells and pipeline.
We
NEPA also requires the FERC to discover and address concerns the public may have about proposals. This process is referred to as “scoping.” The main goal of the scoping process is to focus the analysis in the EA on the important environmental issues. By this Notice of Intent, we are requesting public comments on the scope of the issues to address in the EA. All comments received will be considered during the preparation of the EA.
The EA will discuss impacts that could occur as a result of the construction and operation of the proposed project under these general headings:
• Geology and soils.
• Water resources and wetlands.
• Land use.
• Socioeconomics.
• Cultural resources.
• Vegetation and wildlife (including sensitive species).
• Air quality and noise.
Our independent analysis of the issues will be in the EA. Depending on the comments received during the scoping process, the EA may be published and mailed to federal, state, and local agencies, public interest groups, interested individuals, affected landowners, newspapers, libraries, and the Commission's official service list for this proceeding. A comment period will be allotted for review if the EA is published. We will consider all comments on the EA before we make our recommendations to the Commission.
To ensure your comments are considered, please carefully follow the instructions in the public participation section below.
You can make a difference by providing us with your specific comments or concerns about the project. By becoming a commentor, your concerns will be addressed in the EA and considered by the Commission. You should focus on the potential environmental effects of the proposal, alternatives to the proposal, and measures to avoid or lessen environmental impact. The more specific your comments, the more useful they will be. Please carefully follow these instructions to ensure that your comments are received in time and properly recorded:
• Send an original and two copies of your letter to: Kimberley D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First St., NE; Room 1A, Washington, DC 20426.
• Label one copy of the comments for the attention of Gas Branch 1.
• Reference Docket No. CP08-46-000.
• Mail your comments so that they will be received in Washington, DC on or before February 25, 2008.
The Commission encourages electronic filing of comments. See 18 Code of Federal Regulations 385.2001(a)(1)(iii) and the instructions on the Commission's Internet Web site at
We may mail the EA for comment. If you are interested in receiving it, please return the Information Request (Appendix 3). If you do not return the Information Request, you will be taken off the mailing list.
In addition to involvement in the EA scoping process, you may want to become an official party to the proceeding known as an “intervenor.” Intervenors play a more formal role in the process. Among other things, intervenors have the right to receive copies of case-related Commission documents and filings by other intervenors. Likewise, each intervenor must send one electronic copy (using the Commission's eFiling system) or 14 paper copies of its filings to the Secretary of the Commission and must send a copy of its filings to all other parties on the Commission's service list for this proceeding. If you want to become an intervenor you must file a motion to intervene according to Rule 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.214) (see Appendix 2).
Affected landowners and parties with environmental concerns may be granted intervenor status upon showing good cause by stating that they have a clear and direct interest in this proceeding which would not be adequately represented by any other parties. You do not need intervenor status to have your environmental comments considered.
Additional information about the project is available from the Commission's Office of External Affairs, at 1-866-208-FERC or on the FERC Internet Web site (
In addition, the Commission now offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries and direct links to the documents. Go to
Finally, public meetings or site visits will be posted on the Commission's calendar located at
Take notice that on January 18, 2008, Transcontinental Gas Pipe Line Corporation (TGPL) filed a prior notice request pursuant to sections 157.205, 157.208 and 157.210 of the Federal Energy Regulatory Commission's (Commission) regulations under the Natural Gas Act, and TGPL's blanket certificate issued in Docket No. CP82-426, for authorization to replace three segments of mainline pipeline in Howard County, Maryland (MD).
As a result of population density increases along TGPL's mainline, TGPL must upgrade three parallel segments of pipeline—Mainlines A, B and C—each approximately 0.377 miles long, in Howard County, MD. These replacements are required in order to ensure compliance with the United States Department of Transportation's (USDOT) regulations at 49 CFR 192.611 and to maintain certificated service and the safety and reliability of TGPL's mainline. The replacement will take place in an area recently classified as meeting the USDOT Class 4 regulations, as defined at 49 CFR 192.5(b)(4). The estimated total cost of all pipeline replacements is approximately $9.6 million. TGPL's proposal is more fully described in the application that is on file with the Commission.
Any questions regarding the application should be directed to Bill Hammons LLP, P.O. Box 1396, Houston, Texas 77251 at (713) 215-2130.
Any person or the Commission's staff may, within 60 days after issuance of the instant notice by the Commission, file pursuant to Rule 214 of the Commission's Procedural Rules (18 CFR 385.214) a motion to intervene or notice of intervention and pursuant to Section 157.205 of the regulations under the NGA (18 CFR 157.205), a protest to the request. If no protest is filed within the time allowed therefore, the proposed activity shall be deemed to be authorized effective the day after the time allowed for filing a protest. If a protest is filed and not withdrawn within 30 days after the allowed time for filing a protest, the instant request shall be treated as an application for authorization pursuant to section 7 of the NGA.
Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such motions or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant, on or before the comment date. It is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of comments, protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible online at
Take notice that on January 14, 2008, Transwestern Pipeline Company, LLC (Transwestern), 711 Louisiana Street, Suite 900, Houston, Texas 77002-2716, filed in Docket No. CP08-51-000, a prior notice request pursuant to sections 157.205, 157.210, and 157.216 of the Federal Energy Regulatory Commission's regulations under the Natural Gas Act for authorization to construct, own, operate, and abandon compression equipment, located in Apache County, Arizona, all as more fully set forth in the application, which is on file with the Commission and open to public inspection. The filing may also be viewed on the Web at
Transwestern proposes to: (i) Construct, own, and operate compression equipment consisting of three 5,000 electric horsepower (HP) motors, compressor units, station piping, and ancillary facilities; and (ii) to abandon, in place, the existing three 4,000 HP reciprocating gas engines, compressors, and ancillary facilities, at Transwestern's Compressor Station 4, located in Apache County, Arizona (Station 4 Electrification Project). Transwestern estimates the cost of the project to be $14,000,000. Transwestern states that the purpose of the project is to improve system reliability and to reduce operating and maintenance costs by replacing older gas engines with new, more efficient electric engines.
Any questions regarding the application should be directed to Kelly Allen, Manager of Certificates and Reporting, Transwestern Pipeline Company, LLC, 711 Louisiana Street, 9th Floor South Tower, Houston, Texas 77002-2716, call (281) 714-2056, fax (281) 714-2180, or by e-mail
Any person or the Commission's Staff may, within 60 days after the issuance of the instant notice by the Commission, file pursuant to Rule 214 of the Commission's Procedural Rules (18 CFR 385.214) a motion to intervene or notice of intervention and, pursuant to section 157.205 of the Commission's Regulations under the Natural Gas Act (NGA) (18 CFR 157.205) a protest to the request. If no protest is filed within the time allowed therefore, the proposed activity shall be deemed to be authorized effective the day after the time allowed for protest. If a protest is filed and not withdrawn within 30 days after the time allowed for filing a protest, the instant request shall be treated as an application for authorization pursuant to section 7 of the NGA.
The Commission strongly encourages electronic filings of comments, protests, and interventions via the internet in lieu of paper. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site (
Western Area Power Administration, DOE.
Notice of request for comments.
The Western Area Power Administration (Western) invites public comment on a proposed collection of information that Western is developing for submission to the Office of Management and Budget (OMB) pursuant to the Paperwork Reduction Act of 1995.
Comments regarding this proposed information collection must be received on or before the close of the comment period which is March 31, 2008. Consideration will be given to all comments received on or before the close of the comment period.
Written comments or suggestions may be sent to the Acting Power Marketing Advisor at 12155 W. Alameda Parkway, Lakewood, CO 80228, by fax at 720-962-7009, or by e-mail at
Requests for additional information should be directed to Melanie Reed at 970-461-7229.
Reclamation Laws are a series of laws arising from the Desert Land Act of 1872 and include but are not limited to: The Desert Land Act of 1872, Reclamation Act of 1902, Reclamation Project Act of 1939, and the Acts authorizing each individual project such as the Central Valley Project Authorizing Act of 1937.
Western is a Federal agency under the Department of Energy that markets and transmits wholesale electrical power from 56 Federal hydropower plants and one coal-fired plant. Western sells about 40 percent of regional hydroelectric generation in a service area that covers 1.3 million square miles in 15 states. To provide this reliable electric power to most of the western half of the United States, Western markets and transmits about 10,000 megawatts of hydropower across an integrated 17,000-circuit mile, high voltage transmission system. Western's preference customers include municipalities, cooperatives, public utility and irrigation districts, Federal and State agencies, and Native American tribes. They, in turn, provide retail electric service to millions of consumers in Arizona, California, Colorado, Iowa, Kansas, Minnesota, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, Texas, Utah, and Wyoming.
As part of its marketing mission, Western proposes to collect information from entities which may be interested in obtaining a power allocation from Western. Western will submit the information clearance requirement to the Office of Management and Budget after analyzing and responding to all comments received through this process. As required by the Paperwork Reduction Act, after receiving comments, Western will publish a notice of submittal.
Pursuant to this proposed information collection, Western invites comments on: (1) 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) the accuracy of the agency's estimate of burden, 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 appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. The proposed information collections in this program will not be part of a system of records covered by the Privacy Act,
The proposed collection of information is necessary for the proper performance of Western's functions. Western markets a limited amount of Federal power. Western has discretion to determine who will receive an allocation of Federal power. Due to the high demand for Western's power and limited amount of available power, under established marketing plans, Western needs to be able to collect information to evaluate who may receive an allocation of Federal power. As a result, the information Western collects is both necessary and useful.
This public process only determines the information which Western will collect from an entity desiring to apply for a Federal power allocation. The information Western proposes to collect is voluntary. Western will use the information collected, in conjunction with its marketing plan, to determine an entity's eligibility and ultimately who will receive an allocation of Federal power. Western will issue a call for application, as part of its marketing plan which will occur through a separate process. The actual allocation of power is outside the scope of this proceeding.
Western proposes to collect the information described below. Western will collect the information through an application. As part of this process, Western has identified what it believes is the minimum amount of information Western needs for its Regions to properly perform the functions of the agency. Due to the variations that may be developed in each Region, each Region through its marketing plan, may determine that it does not need all of the information. Each Region will identify the subset of the data that it will require in its application through its call for application.
Western proposes the applicant provide the information requested or the most reasonable estimates that are available. If the requested information is not applicable or is not available, the applicant shall note it. Western will request, in writing, additional information from any applicant whose application is deficient. Western will notify the applicant when such information is due. In the event that by the due date, an applicant fails to provide sufficient information to allow Western to make a determination regarding eligibility, the application will not be considered. The content and
All items of information in the Applicant Profile Data (APD) should be answered as if prepared by the entity/organization seeking the allocation of Federal power. The APD shall consist of the following:
1. Applicant Information. Please provide the following:
a. Applicant's (entity/organization requesting an allocation) name and address:
b. Person(s) representing the applicant:
c. Type of entity/organization:
d. Parent entity/organization of the applicant, if any:
e. Name of the applicant's members, if any: (Separated by commas)
f. Applicable law under which the applicant was established:
g. Applicant's geographic service area (if available, please submit a map of the service area and indicate the date prepared):
h. Describe whether the applicant owns and operates its own electric utility system.
i. Provide the date the applicant attained utility status. 10 CFR part 905.35 defines utility status to mean “that the entity has responsibility to meet load growth, has a distribution system, and is ready, willing, and able to purchase power from Western on a wholesale basis for resale to retail consumers.”
j. Describe the entity/organization that will interact with Western on contract and billing matters.
2. Service Requested:
a. Provide the amount of power the applicant is requesting to be served by Western.
3. Applicant's Loads:
a. Utility and non-utility applicants:
(i) If applicable, provide the number and type of customers served (e.g., residential, commercial, industrial, military base, agricultural):
(ii) Provide the actual monthly maximum demand (kilowatts) and energy use (kilowatt-hours) for each calendar month experienced in calendar year 20_:
(iii) Provide the average annual load factor for calendar year 20_:
(iv) Provide the average monthly load factors for calendar year 20_:
(v) Identify any factors or conditions in the next 5 years which may significantly change peak demands, load duration, or profile curves.
b. Native American Tribe applicants only:
(i) Indicate the utility or utilities currently serving your loads:
(ii) If applicable, provide the number and type of customers served (e.g., residential, commercial, industrial, military base, agricultural):
(iii) Provide the actual monthly maximum demand (kilowatts) and energy use (kilowatt-hours) experienced in calendar year 20_. If the actual demand and energy data are not available provide the estimated monthly demand:
(iv) If the demand and energy data in 3.b(iii) above is estimated, provide a description of the method and basis for this estimation in the space provided below:
(v) Provide the actual average annual load factors for calendar year 20_. If the actual load factors are not available, provide the estimated load factors: Calendar Year 20_ Average Annual Load Factor
(vi) Provide the actual monthly load factors for calendar year 20_. If the actual load factors are not available, provide the estimated load factors.
(vii) If the load factor data in 3.b.(v-vi) is estimated, provide a description of the method and basis for this estimation in the space provided below:
(viii) Identify any factors or conditions in the next 5 years which may significantly change peak demands, load duration, or profile curves:
4. Applicant's Resources. Please provide the following information:
a. A list of current power supplies if applicable, including the applicant's own generation, as well as purchases from others. For each supply, provide the resource name, capacity supplied, and the resource's location. Power supplies (resource name, capacity & location):
b. For each power supplier, provide a description and status of the power supply contract (including the termination date):
c. For each power supplier, provide the type of power:
5. Transmission:
a. Points of delivery. Provide the requested point(s) of delivery on Western's transmission system (or a third party's transmission system), the voltage of service required, and the capacity desired, if applicable.
b. Transmission arrangements. Describe the transmission arrangements necessary to deliver firm power to the requested points of delivery. Include a brief description of the applicant's transmission and distribution system including major interconnections. Provide a single-line drawing of applicant's system, if one is available.
c. Provide a brief explanation of the applicant's ability to receive and use, or receive and distribute Federal power as of [date].
6. Other Information. The applicant may provide any other information pertinent to receiving an allocation.
7. Signature: Western requires the signature and title of an appropriate official who is able to attest to the validity of the APD and who is authorized to submit the request for an allocation.
By signing below, I certify the information which I have provided is true and correct to the best of my information, knowledge and belief.
Signature ____________
Title ______________
Applications may be submitted by U.S. mail to the address below or electronically to
Western has obtained an OMB Clearance Number ___ for the collection of the above information.
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Based on the above, Western anticipates that there will be additional cost burdens for record keeping of 1 hour per year for each successful applicant, i.e., each applicant who receives a Federal power allocation. Western anticipates that over the course of 3 years there will be 30 successful applicants. The power may be allocated in year 1, year 2 or year 3. For the purposes of determining the cost burden, Western will presume all 30 applicants received an allocation in year 1. As a result, the annual hourly burden for record keeping is 30 hours.
For the purposes of this cost burden analysis, Western is assuming that a staff level power utility specialist will fill out the APD. Western estimates a staff level power utility specialist rate, including administrative overheard to be approximately $100/hour. For record keeping, Western estimates an administrative support rate of $50/hour. Based on the above, Western estimates the total annual cost as (133.333 hour/year × $100/hour) + (30 hour/year × $50/hour) = $14,833 per year.
Using the above estimates, on a per applicant basis, assuming the applicant receives a Federal power allocation, the total cost for the applicant over a 3-year period is $550. The cost to fill out the APD is a one time cost of $400. In addition to the one time cost, the applicant, if it successfully receives a power allocation, will incur an additional expense of 1 hour for record keeping per year × $50 per hour for a total record keeping cost of $150 for 3 years.
d.
The procedure and process for the allocation of power shall be the subject matter of a separate notice and is outside the scope of this process.
To avoid unnecessary duplication, Western proposes that only entities who desire a Western allocation be required to submit an APD.
As it relates to each of the components of the APD, there is no duplication. Section 1 is information Western needs to determine who the applicant is, whether the applicant is a preference entity and whether the applicant is ready, willing and able to receive and/or distribute Federal power. Section 2 identifies the amount of Federal power which the applicant requests. Section 3 identifies the applicant's loads. Section 4 identifies the applicant's resources. Section 5 identifies the applicant's transmission delivery arrangements necessary to receive Federal power. Section 6 is voluntary and provides the applicant with the ability to provide any additional information. Section 7 is an attestation that the information provided is true and accurate to the best of the applicant's knowledge.
The proposed information requested is the minimum amount of information to determine whether the applicant qualifies as a preference entity and is ready, willing and able to receive an allocation of Federal power.
The proposed collection uses plain, coherent, and unambiguous language that is understandable to the target audience. The terms are those used in the power industry. Western does not market power to individual members of the public such as homeowners or shopkeepers. Preference entities are statutorily designated potential customers who generally are involved in the power business. As a result, the language used in the application is understandable to the target audience.
The proposed information collection is voluntary. Western proposes to use the information to determine whether an applicant qualifies as a preference entity to receive an allocation of Federal power. As discussed above, there is no mandatory recordkeeping requirement on the applicant if it does not receive an allocation of Federal power. For those entities that receive a Federal power allocation, Western proposes a requirement that they keep the information for 3 years after Western grants the power allocation and the applicant signs a Federal power contract. The proposed 3-year record retention policy for such applicants would allow Western sufficient time to administer the contract and to ensure the applicant provided factual information in its application. Western anticipates that a 3-year record retention policy will have little impact on most businesses in the power industry who will keep the APD as part of their normal business records. The procedure and process for the allocation of power shall be the subject matter of a separate notice and is outside the scope of this process.
The APD identifies that there is no recordkeeping requirement for the respondent if it does not receive an allocation of Federal power. It also identifies that applicants who receive an allocation of Federal power must retain the records for 3 years.
If an entity desires a Federal power allocation from Western, Western needs certain information to determine whether the entity is eligible to receive power. Western has a limited amount of power available. Western uses its discretion in allocating power. In order to use its discretion in allocating power, Western will use the information collected on the application. Western will not accept incomplete applications. Western will work with Native American Tribes and other entities who may need assistance in filling out the application. No person is required to submit any information unless a valid OMB control number is displayed. No person is required to submit any information unless they desire a Federal power allocation.
Western's power marketing offices will administer and evaluate the applications. Use and management of the collected information has been factored into these offices functions and resource requirements. Historically, Western has requested the same relative information from applicants in past marketing plan initiatives and effectively utilized Western resources to utilize and manage the information in its determinations. The power marketing offices will make a recommendation to Western's Administrator on which applicant(s) should be awarded a Federal power allocation based on the information contained in the APD. Western's Administrator shall use his discretion in the final power allocations. The procedure and process for the allocation of power shall be the subject matter of a separate notice and is outside the scope of this process.
Since the proposed information collected is used to determine whether an applicant receives an allocation of Federal power, this section is inapplicable.
The APD will be accessible for downloading via Western's Web site. Western will accept electronic-mail submission of the APD, as well as submission via fax or regular mail. Applicants cannot enter the information on Western's Web site.
Western invites public comment on a proposed collection of information that Western is developing for submission to OMB pursuant to the Paperwork Reduction Act of 1995. Comments are invited on: (1) 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; (2) 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) 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 or other forms of information technology.
Environmental Protection Agency (EPA).
Notice.
This notice announces receipt of an application 264-EUP-140 from Bayer CropScience requesting to amend and extend the existing experimental use permit (EUP) for the
Comments must be received on or before February 29, 2008.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2007-0179, by one of the following methods:
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Denise Greenway, Biopesticides and Pollution Prevention Division (7511P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 308-8263; e-mail address:
This action is directed to the public in general. This action may, however, be of interest to those persons who are interested in agricultural biotechnology or may be required to conduct testing of pesticidal substances under the Federal Food, Drug, and Cosmetic Act (FFDCA) or the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
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i. Identify the document by docket ID number and other identifying information (subject heading,
ii. 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.
iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information and/or data that you used.
v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
vi. Provide specific examples to illustrate your concerns and suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
viii. Make sure to submit your comments by the comment period deadline identified.
Bayer CropScience has requested an amendment and extension of EUP 264-EUP-140, which was first granted by EPA on February 7, 2006 and published in the
Following the review of the Bayer CropScience application and any comments and data received in response to this notice, EPA will decide whether to issue or deny the EUP amendment/extension request for this EUP program, and if issued, the conditions under which it is to be conducted. Any amendment/extension of this EUP will be announced in the
The specific legal authority for EPA to take this action is under FIFRA section 5.
Environmental protection, Experimental use permits.
Environmental Protection Agency (EPA).
Notice of Charter Renewal.
The Charter for the Environmental Protection Agency's Local Government Advisory Committee (LGAC) will be renewed for an additional two-year period, as a necessary committee which is in the public interest, in accordance with the provisions of the Federal Advisory Committee Act (FACA), 5 U.S.C. App. 2 Section 9(c). The purpose of the LGAC is to provide advice and recommendations to EPA's Administrator on ways to improve its partnership with Local Governments and provide more efficient and effective environmental protection.
It is determined that the LGAC is in the public interest in connection with the performance of duties imposed on the Agency by law.
Inquiries may be directed to Frances Eargle, Designated Federal Officer, LGAC, U.S. EPA (mail code 1301A), 1200 Pennsylvania Avenue, NW., Washington, DC 20460, or
Environmental Protection Agency.
Notice.
The Environmental Protection Agency (EPA) is holding a second public workshop to discuss the development of proposed regulations for the underground injection of carbon dioxide (CO
This public workshop will be held from 1 p.m. to 5:30 p.m., Eastern time, on Tuesday, February 26, 2008, and from 8:30 a.m. to 5 p.m. on Wednesday, February 27, 2008. To register for this workshop, please visit the following site:
The meetings will be held at the Crystal City Sheraton Hotel. The hotel is located at 1800 Jefferson Davis Highway in Arlington, VA, two blocks from the Crystal City Metro Station. The hotel's telephone number is (703) 486-1111.
For general information about these meetings, please contact Mary Rose (Molly) Bayer by phone at (202) 564-1981, by e-mail at
The purpose of this workshop is to continue to advance the dialogue between EPA and stakeholders on geologic sequestration of CO
For information on access or services for individuals with disabilities, please contact Mary Rose (Molly) Bayer at (202) 564-1981 or
Environmental Protection Agency (EPA).
Notice.
This notice announces the initial filing of a pesticide petition proposing the establishment or modification of regulations for residues of pesticide chemicals in or on various commodities.
Comments must be received on or before February 29, 2008.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2007-1204 and the pesticide petition number (
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Alan Reynolds, Biopesticides and Pollution Prevention Division (7511P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 605-0515; e-mail address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
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i. Identify the document by docket ID number and other identifying information (subject heading,
ii. 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.
iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information and/or data that you used.
v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
vi. Provide specific examples to illustrate your concerns and suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
viii. Make sure to submit your comments by the comment period deadline identified.
EPA is printing notice of the filing of a pesticide petition received under section 408 of the Federal Food, Drug,
Pursuant to 40 CFR 180.7(f), a summary of the petition included in this notice, prepared by the petitioner, is included in a docket EPA has created for this rulemaking. The docket for this petition is available on-line at
Environmental protection, Agricultural commodities, Feed additives, Food additives, Pesticides and pests, Reporting and recordkeeping requirements.
Environmental Protection Agency.
Notice of availability; opening of public comment period.
The Environmental Protection Agency (EPA or we) is announcing the availability of, and soliciting public comments for 45 days on, the proposed approval of the radioactive, contact-handled (CH), transuranic (TRU) waste characterization program implemented at the Hanford Site in Richland, Washington. This waste is intended for disposal at the Waste Isolation Pilot Plant (WIPP) in New Mexico.
In accordance with the WIPP Compliance Criteria, EPA evaluated the characterization of CH TRU debris and solid waste from Hanford during an inspection conducted the week of June 4, 2007. Using the systems and processes developed as part of the U.S. Department of Energy's (DOE's) Carlsbad Field Office (CBFO) program, EPA verified whether DOE could adequately characterize CH TRU waste consistent with the Compliance Criteria. The results of EPA's evaluation of Hanford's program and its proposed approval are described in the Agency's inspection report, which is available for review in the public dockets listed in
This notice summarizes the waste characterization processes evaluated by EPA and EPA's proposed approval. As required by 40 CFR 194.8, at the end of a 45-day comment period EPA will evaluate public comments received, and if appropriate, finalize the reports responding to the relevant public comments, and issue a final report and approval letter to DOE.
Comments must be received on or before March 17, 2008.
Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2008-0027, by one of the following methods:
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These documents are also available for review in hard-copy form at the following three EPA WIPP informational docket locations in New Mexico: in Carlsbad at the Municipal Library, Hours: Monday-Thursday, 10 a.m.-9 p.m., Friday-Saturday, 10 a.m.-6 p.m., and Sunday, 1 p.m.-5 p.m., phone number: 505-885-0731; in Albuquerque at the Government Publications
Rajani Joglekar or Ed Feltcorn, Radiation Protection Division, Center for Federal Regulations, Mail Code 6608J, U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, Washington, DC 20460; telephone number: 202-343-9601; fax number: 202-343-2305; e-mail address:
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• 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.
DOE is developing the WIPP, near Carlsbad in southeastern New Mexico, as a deep geologic repository for disposal of TRU radioactive waste. As defined by the WIPP Land Withdrawal Act (LWA) of 1992 (Pub. L. 102-579), as amended (Pub. L. 104-201), TRU waste consists of materials that have atomic numbers greater than 92 (with half-lives greater than twenty years), in concentrations greater than 100 nanocuries of alpha-emitting TRU isotopes per gram of waste. Much of the existing TRU waste consists of items contaminated during the production of nuclear weapons, such as rags, equipment, tools, and sludges.
TRU waste is itself divided into two categories, based on its level of radioactivity. Contact-handled (CH) TRU waste accounts for about 97 percent of the volume of TRU waste currently destined for the WIPP. It is packaged in 55-gallon metal drums or in metal boxes and can be handled under controlled conditions without any shielding beyond the container itself. The maximum radiation dose at the surface of a CH TRU waste container is 200 millirems per hour. CH waste primarily emits alpha particles that are easily shielded by a sheet of paper or the outer layer of a person's skin.
Remote-handled (RH) TRU waste emits more radiation than CH TRU waste and must therefore be both handled and transported in shielded casks. Surface radiation levels of unshielded containers of remote-handled transuranic waste exceed 200 millirems per hour. RH waste primarily emits gamma radiation, which is very penetrating and requires concrete, lead, or steel to block it.
On May 13, 1998, EPA issued a final certification of compliance for the WIPP facility. The final rule was published in the
The final WIPP certification decision includes conditions that (1) prohibit shipment of TRU waste for disposal at WIPP from any site other than the Los Alamos National Laboratories (LANL) until the EPA determines that the site has established and executed a quality assurance program, in accordance with §§ 194.22(a)(2)(i), 194.24(c)(3), and 194.24(c)(5) for waste characterization activities and assumptions (Condition 2 of Appendix A to 40 CFR part 194); and (2) (with the exception of specific, limited waste streams and equipment at LANL) prohibit shipment of TRU waste for disposal at WIPP (from LANL or any other site) until EPA has approved the procedures developed to comply with the waste characterization requirements of § 194.22(c)(4) (Condition 3 of Appendix A to 40 CFR part 194). The EPA's approval process for waste generator sites is described in § 194.8 (revised July 2004).
Condition 3 of the WIPP Certification Decision requires EPA to conduct independent inspections at DOE's waste generator/storage sites of their TRU waste characterization capabilities before approving their program and the waste for disposal at the WIPP. EPA's inspection and approval process gives EPA (a) discretion in establishing technical priorities, (b) the ability to accommodate variation in the site's waste characterization capabilities, and (c) flexibility in scheduling site WC inspections.
As described in section 194.8(b), EPA's baseline inspections evaluate each WC process component (equipment, procedures, and personnel training/experience) for its adequacy and appropriateness in characterizing TRU waste destined for disposal at WIPP. During an inspection, the site demonstrates its capabilities to characterize TRU waste(s) and its ability to comply with the regulatory limits and tracking requirements under § 194.24. A baseline inspection may describe any limitations on approved waste streams or waste characterization processes [§ 194.8(b)(2)(iii)]. In addition, a baseline inspection approval must specify what subsequent WC program changes or expansion should be reported to EPA [§ 194.8(b)(4)]. The Agency is required to assign Tier 1 (T1) and Tier 2 (T2) to the reportable changes depending on their potential impact on data quality. A T1 designation requires that the site must notify EPA of proposed changes to the approved components of an individual WC process (such as radioassay equipment or personnel), and EPA must also approve the change before it can be implemented. A WC element with a T2
The site inspection and approval process outlined in § 194.8 requires EPA to issue a
EPA has performed a baseline inspection of CH TRU waste characterization (WC) activities at Hanford (EPA Inspection No. EPA-HAN-6.07-8). The purpose of EPA's inspection was to verify that the waste characterization program implemented at Hanford for characterizing CH TRU, retrievably-stored, debris and solid waste is technically adequate and meets the regulatory requirements at 40 CFR 194.24.
During the inspection, EPA evaluated the adequacy of the site's WC programs for two CH TRU waste categories, debris (S5000) and solids (S3000), to be disposed of at the WIPP. The Agency examined the following activities:
• Acceptable knowledge (AK) for CH TRU debris waste (S5000) and solid waste (S3000) and AK for CH, repackaged debris waste (S5000) from the Plutonium Finishing Plant (PFP).
• Visual examination (VE) in lieu of real-time radiography (RTR) for CH TRU debris waste (S5000) and solid waste (S3000) and Visual Examination Technique (VET) for CH, repackaged debris waste from the PFP.
• RTR for CH TRU debris waste (S5000) and solid waste (S3000).
• Nondestructive assay (NDA) systems at the Waste Receiving and Processing (WRAP) Facility for characterizing debris (S5000) and solid (S3000) wastes: the Gamma Energy Analysis Units A and B (GEA A and GEA B); the Pajarito Imaging Passive Active Neutron Units A and B (IPAN A and IPAN B); and the Super High Efficiency Neutron Counter A (SHENCA).
• NDA systems at the plutonium Finishing Plant (PFP) for characterizing debris waste (S5000): Calorimeters AR-1, AR-5, P-13, P-14 and Q-1 in conjunction with the Room 172 Segmented Gamma Scanner Assay System (SGSAS).
• WIPP Waste Information System (WWIS) for tracking the components of CH retrievably-stored TRU debris waste (S5000) and solid waste (S3000).
During the inspection, Hanford personnel stated that load management will never be performed at the site and EPA did not evaluate this aspect during the inspection [see section 8.1(5) of the inspection report]. Therefore, this proposed approval does
The EPA inspection team determined that the Hanford WC program for CH TRU waste was technically adequate. EPA is proposing to approve the Hanford CH TRU WC program in the configuration observed during this inspection and described in this report and the attached checklists (Attachments A.1 through A.9). This proposed approval includes the following:
(1) The AK process for CH TRU debris and solid wastes and for newly-generated debris wastes.
(2) The WRAP GEA Units A and B for assaying solid and debris wastes.
(3) The WRAP IPAN Units A and B for assaying solid and debris waste.
(4) The WRAP SHENCA system for assaying solid and debris wastes.
(5) The PFP Calorimeters AR-1, AR-5, P-13, P-14 and Q-1 in conjunction with the Room 172 SGSAS for assaying debris wastes.
(6) The nondestructive examination (NDE) process of RTR for solid and debris wastes.
(7) VE in lieu of the RTR process for retrievably-stored solid and debris wastes and VET of newly-generated debris wastes.
(8) The WWIS process for tracking of waste contents of solid and debris wastes Hanford must report and receive EPA approval of any Tier 1 (T1) changes to the Hanford WC activities from the date of the baseline inspection, and must notify EPA regarding Tier 2 (T2) changes according to Table 1, below. It is worth noting that Table 1 in this report closely follows the format used in the previous CH baseline approval report of Los Alamos National Laboratory—Central Characterization Project (LANL-CCP) (see EPA Docket No. A-98-49, II-A4-88). This format departs from what was used in baseline inspection reports and EPA site approval letters prior to LANL-CCP in several ways, as detailed in the LANL-CCP report and repeated here. The most important of these differences involves presentation of the T2 elements. In previous reports, there were two T2 columns that have been merged into a single T2 column for Hanford. The T2 column entries have also been modified to better reflect the 40 CFR 194.24(h) requirements that the site provide notification regarding the completion or availability of specific T2 elements, whereas the previous tables stated that the site must actually provide the T2 elements (document or procedure revisions, etc.). This approach is similar to the tiering tables used in EPA reports for sites characterizing remote-handled TRU waste. Additionally, there are other minor word changes to the table for the sake of legibility.
EPA has placed the report discussing the results of the Agency's inspection of the Hanford Site in the public docket as described in
Information on the certification decision is filed in the official EPA Air Docket, Docket No. A-93-02 and is available for review in Washington, DC, and at the three EPA WIPP informational docket locations in New Mexico (as listed in
Federal Election Commission.
Notice of Rules of Procedure.
The Federal Election Commission is revising its written rules for conducting its activities to provide for the circumstance when the Commission has fewer than four Members. Further information is provided in the
Associate General Counsel Lawrence L. Calvert, 999 E Street, NW., Washington, DC 20463, (202) 694-1650 or (800) 424-9530.
Under 2 U.S.C. 437c(e) the Commission “shall prepare written rules for the conduct of
The Commission shall meet at least once every month and also at the call of any Member, pursuant to U.S.C. 437c(d).
1. For the purpose of these rules, the word Member means a Commissioner appointed by the President with the advice and consent of the Senate pursuant to 2 U.S.C. 437c(a)(1).
2. For the purpose of these rules, the word meeting means the collegiate deliberation of at least four Members of the Commission pursuant to 2 U.S.C. 437c(d).
Four Members of the Commission shall constitute a quorum for the consideration and resolution of matters that involve the exercise of its duties and powers under the Federal Election Campaign Act of 1971 as amended and Chapters 95 and 96 of the Internal Revenue Code of 1954 (the Act). If less than four Members of the Commission are present at any time during a Commission meeting, the Chairman shall declare a temporary recess until a quorum is again present at which time the meeting may resume.
1. The Chairman of the Commission shall be the presiding officer over meetings of the Commission.
2. He or she shall call meetings to order.
3. The Vice-Chairman shall act as presiding officer in the absence or disability of the Chairman or in the event of a vacancy in the office of Chairman. In the absence of the Chairman and Vice-Chairman, the Members of the Commission present shall select a presiding officer, to act during the absence of the Chairman and Vice-Chairman.
1. Meetings of the Commission shall be called to order by the Chairman.
2. The Chairman shall ascertain the presence of a quorum before proceeding with the business of any meeting.
3. All business before the Commission shall be brought by the presiding officer.
1. Any motion shall be reduced to writing at the request of any Member of the Commission.
2. Any motion may be withdrawn or modified by the movant at any time before it is amended or voted upon.
3. Any principal or secondary motion that exercises a duty or power of the Commission under the Act shall require four votes for approval.
4. Any motion to adjourn or recess shall require a majority vote of at least three Members of the Commission for approval.
5. Any principal or secondary motion regarding a procedural matter shall require a majority vote of at least three Members of the Commission for approval.
6. For the purpose of these rules, a procedural motion is any matter not exercising the powers of the Commission under the Federal Election Campaign Act, as amended or Chapter 95 or 96 of the Internal Revenue Code of 1954, including but not limited to any motion to delay a vote on a matter to any subsequent meeting; or any motion requesting a status report; or directing further studies, information and reports from the General Counsel, the Staff Director or any division thereof; or any motion to waive the timely submission requirement for circulation of material for the agenda of the Commission.
7. Motions to Consider
The introduction of a principal motion puts a matter before the Commission for deliberation. When any such matter is under debate the Chairman shall entertain no motion except:
(a) A motion to adjourn.
(b) A motion to recess.
(c) A motion to call for the order of the day.
(d) Motion to Reconsider. The effect of the adoption of a motion to reconsider is to place before the Commission again the question on which the vote to reconsider was taken in the exact position in which it was before the original vote. Four votes are necessary to adopt a motion to reconsider. It is in order for any such motion to be offered by a member who was on the prevailing side of the question when it was initially adopted.
(e) A motion to lay a matter over. Any such motion shall require a majority vote of at least three members of the Commission; at least three votes will be required for any subsequent motion to take any such matter from the table. Any such motion shall be undebatable. Any such matter which is laid on the table pursuant to these rules shall be taken from the table pursuant to these rules at the next subsequent meeting or the matter dies. In order to table any agenda item which was placed on the agenda for a particular meeting by a Member of the Commission who is absent at that meeting a vote of a majority of at least three members of the Commission is required for approval. A motion to lay a matter over takes precedence over any motion to move the previous question.
(f) A motion to postpone consideration of a matter to a date certain. Any such motion shall require a majority vote of at least three members of the Commission.
(g) A motion to move the previous question.
(h) A motion in the nature of a substitute.
(i) A motion to amend. Any motion to amend takes precedence over the motion that it proposes to amend but is subordinate to all other motions. The effect of the foregoing is that the adoption of any such motion to amend does not result in the adoption of the motion to be amended; instead, that motion remains pending in its modified form. Rejection of a motion to amend leaves the pending motion as it was before the amendment was offered.
Any Commissioner may as a matter of personal privilege obtain recognition to speak upon any subject matter which in his or her judgment may affect the Commission or the Commissioner.
In cases where there appear to be no opposition, the Chairman may state that in the absence of objection, action shall be considered taken on a matter.
Whenever any Member of the Commission who was absent when a vote was taken subsequently requests consent to be recorded as having voted on the matter, he or she shall place the reason for his or her absence on the record. Any such request shall be in order only on the same day on which the vote was taken.
Points of order shall be debatable at the discretion of the chair. Any Member of the Commission may appeal any decision of the chair but for any such appeal to prevail it must receive a majority vote of at least three Members of the Commission.
No vote by any Member of the Commission with respect to any matter may be cast by proxy; 2 U.S.C. 437c(c).
Any parliamentary situation or circumstance not addressed in these Rules shall be governed by
When the Commission has fewer than four Members, all of the foregoing provisions of this directive shall apply, except as follows:
1. Notwithstanding section A.2 of this directive, the word “meeting” shall mean the collegiate deliberation of two or more Members.
2. Notwithstanding section B of this directive, all Members of the Commission must be present to constitute a quorum for the consideration or resolution of any matter. If any Member of the Commission is absent at any time during a Commission meeting, the Chairman shall automatically declare a temporary recess (notwithstanding the absence of a call for a quorum) until a quorum is again present at which time the meeting may resume.
3. When these special rules are in effect, the Commission may discuss any matter otherwise in order for discussion pursuant to the other provisions of this Directive. However, the Commission may not act on any matter except for the following:
(a) Documents such as
(b) Notices of filing dates, including filing dates for special elections;
(c) Any action otherwise requiring Commission approval with respect to FEC Conferences or invitations for public appearances;
(d) Election of which Members shall serve as chairman and vice chairman solely for the period during which the Commission has fewer than four Members, provided that in each instance that there is a Member eligible to hold the position pursuant to the eligibility requirements of 2 U.S.C. 437c(a)(5);
(e) Appointment of an acting general counsel, an acting staff director, an acting chief financial officer or an acting inspector general, approval of temporary personnel actions at the GS-15 level and above, and approval of other personnel actions;
(f) Budget estimates or requests for concurrent submission to the President and Congress, and other budget related matters requiring Commission approval;
(g) Minutes of previous meetings;
(h) Non-filer notices issued pursuant to 2 U.S.C. 438(a)(7);
(i) Debt settlement plans pursuant to 11 CFR Part 116;
(j) Administrative terminations pursuant to 11 CFR 102.4 and Commission Directive 45;
(k) Systems of Records Notices pursuant to the Privacy Act;
(l) Policies, procedures and directives pursuant to the Privacy Act or Section 522 of the Consolidated Appropriations Act, 2005;
(m) Agency head review of labor-management agreements;
(n) Any other action where a statute imposes a duty of “agency head review” on the Commission;
(o) Appeals under the Freedom of Information and Privacy Acts;
(p) Sunshine Act recommendations for items on an agenda;
(q) Contracts;
(r) The FEC Management Plan, pursuant to OMB Circular A-123 and the Federal Managers' Financial Integrity Act;
(s) Corrective action plans prepared in response to audits both financial and non-financial pursuant to FEC Directive 50 and/or the Accountability of Tax Dollars Act; or,
(t) EEO-related
4. Notwithstanding any provision of sections E, I or K of this directive, approval of any motion or appeal properly before the Commission under this section L shall require the affirmative vote of a majority of the Members of the Commission. However, if such majority comprises exclusively the affirmative votes of Members affiliated with the same political party (or Members whose positions are aligned for the purpose of nomination by the President), then the motion or appeal shall be deemed not approved.
5. Section H of this directive shall not be operative during any period in which these special rules are in effect.
The Commission hereby gives notice of the filing of the following agreement under the Shipping Act of 1984. Interested parties may submit comments on the agreement to the Secretary, Federal Maritime Commission, Washington, DC 20573, within ten days of the date this notice appears in the
Notice is hereby given that the following applicants have filed with the Federal Maritime Commission an application for license as a Non-Vessel Operating Common Carrier and Ocean Freight Forwarder—Ocean Transportation Intermediary pursuant to section 19 of the Shipping Act of 1984 as amended (46 U.S.C. Chapter 409 and 46 CFR part 515).
Persons knowing of any reason why the following applicants should not receive a license are requested to
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
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 February 22, 2008.
Board of Governors of the Federal Reserve System, January 25, 2008.
In accordance with section 10(d) of the Federal Advisory Committee Act as amended (5 U.S.C., Appendix 2), the Agency for Healthcare Research and Quality (AHRQ) announces meetings of scientific peer review groups. The subcommittees listed below are part of the Agency's Health Services Research Initial Review Group Committee.
The subcommittee meetings will be closed to the public in accordance with the Federal Advisory Committee Act, section 10(d) of 5 U.S.C., Appendix 2 and 5 U.S.C. 552b(c)(6). Grant applications are to be reviewed and discussed at these meetings. These discussions are likely to involve information concerning individuals associated with the applications, including assessments of their personal qualifications to conduct their proposed projects. This information is exempt from mandatory disclosure under the above-cited statutes.
Agenda items for these meetings are subject to change as priorities dictate.
In compliance with the requirements of section 506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Administration, Office of Information Services, 370 L'Enfant Promenade, SW., Washington, DC 20447, Attn: ACF Reports Clearance Officer. E-mail address:
The Department specifically requests comments 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) 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. Consideration will be given to comments and suggestions submitted within 60 days of this publication.
Estimated Total Annual Burden Hours: 312,513.
In compliance with the requirements of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Administration, Office of Information Services, 370 L'Enfant Promenade, SW., Washington, DC 20447, Attn: ACF Reports Clearance Officer. All requests should be identified by the title of the information collection.
The Department specifically requests comments 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) 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. Consideration will be given to comments and suggestions submitted within 60 days of this publication.
Office of Management and Budget, Paperwork Reduction Project, Fax: 202-395-6974, Attn: Desk Officer for the Administration for Children and Families.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of the guidance entitled “Recommendations for Clinical Laboratory Improvement Amendments of 1988 (CLIA) Waiver Applications for Manufacturers of In Vitro Diagnostic Devices.” FDA is issuing this guidance to recommend approaches for determining whether a laboratory test may be performed by laboratories with a certificate of waiver under CLIA.
Submit written or electronic comments on this guidance at any time. General comments on agency guidance documents are welcome at any time.
Submit written requests for single copies of the guidance document entitled “Recommendations for Clinical Laboratory Improvement Amendments of 1988 (CLIA) Waiver Applications for Manufacturers of In Vitro Diagnostic Devices” to the Division of Small Manufacturers, International, and Consumer Assistance (HFZ-220), Center for Devices and Radiological Health, Food and Drug Administration, 1350 Piccard Dr., Rockville, MD 20850. Send one self-addressed adhesive label to assist that office in processing your request, or fax your request to 240-276-3151. See the
Submit written comments concerning this guidance to the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Submit electronic comments to
Carol Benson,Center for Devices and Radiological Health (HFZ-440), Food and Drug Administration,2098 Gaither Rd., Rockville, MD 20850, 240-276-0396.
CLIA requires that clinical laboratories obtain a certificate from the Secretary of Health and Human Services (the Secretary) before accepting materials derived from the human body for laboratory tests (42 U.S.C. 263(b)). Laboratories that perform only tests that are “simple” and that have an “insignificant risk of an erroneous result” may obtain a certificate of waiver (42 U.S.C. 263a(c)(2)). The Secretary has delegated to FDA the authority to determine under CLIA whether particular tests (waived tests) are “simple” and have “an insignificant risk of an erroneous result” (69 FR 22849, April 27, 2004). This guidance describes recommendations for device manufacturers seeking to submit information (CLIA waiver application) to FDA to support a determination that a cleared or approved in vitro diagnostic (IVD) device meets this CLIA waiver standard.
In the guidance document, FDA recommends an approach for manufacturers to demonstrate in a CLIA waiver application that a device is simple and has an insignificant risk of erroneous result as required under CLIA (42 U.S.C. 263a). FDA based the recommendations in the guidance
The draft of this guidance was issued September 7, 2005 (70 FR 53231). FDA received and considered approximately 40 sets of comments on the draft guidance document. After taking the comments into consideration, FDA has updated the document to provide clarifications as needed. The guidance has also been revised to allow for additional supplementation of the actual patient specimens in the clinical study with alternative samples, preferably banked patient samples. The revised guidance recommends that, when neither patient specimens nor banked samples are available, it may be acceptable to supplement with other types of prepared samples, e.g., spiked, or diluted samples that mimic patient samples in terms of analyte and matrix. The revised guidance specifies that up to a total of one third of the clinical study samples may be supplemented with these types of alternative samples. The revised guidance also provides more flexibility in selecting the comparator method as well as more consistency in terms of the criteria for accuracy for waived tests as compared with moderate and high complexity tests.
This guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The guidance represents the agency's current thinking on reporting results from studies evaluating diagnostic tests. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statute and regulations.
Persons interested in obtaining a copy of the guidance may do so by using the Internet. To receive “Recommendations for Clinical Laboratory Improvement Amendments of 1988 (CLIA) Waiver Applications for Manufacturers of In Vitro Diagnostic Devices,” you may either send an e-mail request to
CDRH maintains an entry on the Internet for easy access to information including text, graphics, and files that may be downloaded to a personal computer with Internet access. Updated on a regular basis, the CDRH home page includes device safety alerts,
This guidance contains information collection provisions that are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in this guidance were approved under OMB control number 0910-0598.
Interested persons may submit to the Division of Dockets Management (see
Please note that on January 15, 2008, the FDA Web site transitioned to the Federal Dockets Management System (FDMS). FDMS is a Government-wide, electronic docket management system. Electronic submissions will be accepted by FDA through FDMS only.
In compliance with the requirement of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, for opportunity for public comment on proposed data collection projects, the National Cancer Institute (NCI), the National Institutes of Health (NIH) will publish periodic summaries of proposed projects to be submitted to the Office of Management and Budget (OMB) for review and approval.
There are no Capital Costs to report. There are also no Operating and/or Maintenance Costs to report.
To request more information on the proposed project or to obtain a copy of the data collection plans and instruments, contact: Dr. Richard Hayes, Project Officer, OEB/EBP/DCEG/NCI 6120 Executive Blvd., EPS Room 8114, Bethesda, MD 20892-7364, or call non-toll-free number (301) 435-3973 or fax your request to (301) 402-1819 or E-mail your request, including your address to:
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.
Notice is hereby given of a change in the meeting of the Medication Development Research Subcommittee, March 13, 2008, 8 a.m. to March 13, 2008, 5 p.m. Omni Shoreham Hotel, 2500 Calvert Street, NW. Washington, DC, 20008 which was published in the
The date and the time of the meeting were changed to March 12, 2008, 5 p.m. to March 13, 2008, 5 p.m. 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 individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Department of Homeland Security.
Privacy Act System of Records.
Pursuant to the Privacy Act of 1974, the Department of Homeland Security, U. S. Immigration and Customs Enforcement, is publishing this notice of system of records for the Department's ICE Pattern Analysis and Information Collection (ICEPIC) system. A proposed rulemaking is also published in this issue of the
The established system of records will be effective February 29, 2008. A revised ICEPIC notice of system of records that addresses public comments, responds to OMB direction, and includes other ICE changes will be published not later than August 27, 2008 and will supersede this notice of system of records.
You may submit comments, identified by Docket Number DHS 2007-0020 by one of the following methods:
•
•
•
For system related questions please contact Steven W. Cooper, Executive Information Unit, Office of Investigations, U.S. Immigration and Customs Enforcement, 425 I Street, NW, Washington, DC 20536. For privacy issues please contact: Hugo Teufel III, Chief Privacy Officer, Privacy Office, U.S. Department of Homeland Security, Washington, DC 20528.
Part of ICE's mission is to investigate possible violations of U.S. immigration law. Many times this involves hours of analysis regarding a particular case or operation. As part of the investigative
The ICEPIC Tool builds on earlier ICE initiatives to verify the identity of Special Interest Aliens (SIAs), as designated by the Department of State. In 2003 ICE implemented the National Security Entry Exit Registration System (NSEERS) to manage the growing collection of over 500,000 SIA records. National and international terrorist threats in the 2004 and 2005 timeframe resulted in ICE reviewing not only the SIA records in NSEERS, but also the records of aliens registered with the Student and Exchange Visitor Information System (SEVIS) and entered into the United States Visitor and Immigrant Status Indicator Technology (US VISIT) system as well. Since 2005, ICE's expanding law enforcement role has demanded increasingly sophisticated tools to detect potential violations of immigration and criminal law and terrorist threats.
ICE analyzes relationships among individuals using conventional database queries and link analysis tools; however, traditional link analysis tools rely on the consistency of key data, such as names and addresses, to establish relationships. If the source data is of poor quality or an individual seeks to conceal his/her identity through intentional, but subtle, changes to names, addresses, and other biographic information, then conventional tools are less effective at recognizing relationships. As a result, investigators and analysts may miss important relationships among suspects, family members, other associates, organizations, addresses, and vehicles.
ICEPIC allows ICE law enforcement agents and analysts to look for non-obvious relationship patterns among individuals and organizations that are indicative of violations of the customs and immigration laws that are enforced by DHS agencies, as well as possible terrorist threats and plots. From these relationships, ICE agents can develop specific leads and law enforcement intelligence for active and new investigations. Identified relationships can also be recorded for reuse in subsequent investigative analyses. The information processed by ICEPIC comes from existing ICE investigative and apprehension records systems, as well as immigration and alien admission records systems. All ICEPIC activity is predicated on ongoing and valid law enforcement investigations.
ICEPIC includes capabilities that assist investigators to record results of analyses performed in support of investigations and to capture additional relevant information obtained from outside sources. The information collected by, on behalf of, in support of, or in cooperation with DHS and its components may contain personally identifiable information collected by other Federal, state, local, tribal, foreign, or international government agencies or organizations.
ICEPIC assists ICE investigators by automating five business processes:
A. Analysis of leads, law enforcement and intelligence reports, referrals, and processing of queries of ICE and DHS information to locate relevant records and produce reports;
B. Integration and resolution of information from multiple ICE and DHS databases to provide leads for law enforcement investigations and disruption of potential terrorist activities;
C. Initiation of analyses that support investigative cases in DHS and field offices and recording the results of beneficial analyses;
D. Production and dissemination of target indicator profiles and other law enforcement intelligence; and
E. Management of analysis workflows and information resources.
Information that is produced or maintained by ICEPIC is used by ICE agents in headquarters and field offices to identify potential violations of customs or immigration law, confirm suspected violations, or investigate potential terrorist threats. ICEPIC is used to identify relationships among different individuals or among records for the same individual from multiple sources when an individual or individuals have been identified as subjects, leads, or associates in an investigative case. In cases where DHS determines that the information would assist in the enforcement of civil or criminal laws, ICE may share the information with the appropriate Federal, State, local, tribal, or foreign governmental agencies or multilateral governmental organizations. Information may also be used by national intelligence community agencies where analysis of the records indicates a potential or confirmed threat of terrorist activity justifying further analysis or investigation. ICE may also share this information with the FBI when ICE becomes aware of information that may be related to an individual in the Terrorist Screening Database.
The Department of Justice (DOJ) and other Federal agencies may use reports generated through ICEPIC in the review, settlement, and prosecution of claims, complaints, and lawsuits involving matters over which ICE exercises jurisdiction or when conducting litigation or in proceedings before any court, adjudicative, or administrative body. This includes any litigation matters where ICE, DOJ, or an employee in his or her official capacity in support of ICE, the United States, or any agency thereof is involved.
The Privacy Act embodies fair information principles in a statutory framework governing the means by which the United States Government collects, maintains, uses, and disseminates personally identifiable information. The Privacy Act applies to information that is maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other particular assigned to the individual. Individuals may request access to their own records that are maintained in a system of records in the possession or under the control of DHS by complying with DHS Privacy Act regulations, 6 CFR part 5.21 and DHS will review each request on a case-by-case basis in light of exemptions taken by ICEPIC.
The Privacy Act requires each agency to publish in the
In accordance with 5 U.S.C. 552a(r), DHS has provided a report of this revised system of records to the Office of Management and Budget and to the Congress.
ICE Pattern Analysis and Information Collection.
Sensitive But Unclassified
U.S. Department of Homeland Security Immigration and Customs Enforcement Headquarters data facilities are located in the Virginia suburbs of Washington, DC, with continuity of operations sites in remote locations within the continental United States.
A. Individuals or entities who are associated with investigations, inspections, apprehensions, detentions, patrols, removals, examinations, naturalizations, intelligence production, legal proceedings, or other operations that implement and enforce the Immigration and Nationality Act (INA) (8 U.S.C. 1101
B. Individuals or entities who are associated with investigations, inspections, apprehensions, detentions, law enforcement intelligence production, legal proceedings or other operations that implement and enforce immigration- and customs-related laws, specifically those found in Titles 8, 19, and 31 of the United States Code.
C. Individuals who are respondents, representatives, or witnesses in administrative, civil penalty, or forfeiture proceedings, or defendants, representatives or witnesses in criminal prosecution or extradition proceedings under immigration or customs-related laws or regulations.
D. Associates of the above individuals and entities who are sources of information relevant to an investigation.
E. Individuals wanted by other law enforcement agencies, including Federal, State, local, tribal, foreign and international, or individuals who are the subject of inquiries, lookouts, or notices by another agency or a foreign government.
F. Individuals, including U.S. Citizens, Lawful Permanent Residents, immigrants and non-immigrants who apply for immigration benefits and/or any form of automated or other expedited inspection for verifying eligibility to cross the borders into the United States.
G. Non-United States citizens and Non-Lawful Permanent Residents who present themselves for entry into and/or exit from the United States, including individuals subject to the requirements and processes of US-VISIT. Individuals covered under US-VISIT include those who are not United States citizens at the time of entry or exit or who are United States citizens or Lawful Permanent Residents who have not identified themselves as such at the time of entry or exit.
H. Individuals unlawfully present in the United States to include persons who have failed to maintain a valid immigration status as well as persons who are otherwise unlawfully present in the United States.
I. Nationals of countries that threaten to wage war, or are at war with the United States, and individuals required to register as agents of foreign governments in the United States.
Records come directly from information collected from individuals during DHS or federal enforcement encounters, from information provided by individuals when applying for U.S. immigration benefits or temporary admission to the U.S., or from persons entering or leaving the U.S. Analyzed records include biographical data; biometric identifiers, including fingerprints and photographs; and information or data related to the individual subject's case, including immigration history, alien registration, and other identification or record numbers. The system maintains records used to show relationships across all categories of records. These records include:
A. Information collected from individuals during a DHS enforcement encounter or investigation, including, but not limited to: Names, aliases, dates of birth, phone numbers, addresses, nationality, identification numbers such as A-File Number, Social Security Number, or driver's license number, and physical characteristics. This information is maintained in the Treasury Enforcement Communications System (TECS), last published October 18, 2001, 66 FR 52984 and in the DHS Enforcement Operational Immigration Records (ENFORCE) system, last published DHS/ICE-CBP-CIS-001-03, ENFORCE/IDENT March 20, 2006, 71 FR 13987;
B. Information collected about individuals during a DHS enforcement encounter or investigation, or provided by other State, local, tribal Federal, or foreign law enforcement or other relevant agencies, including, but not limited to: Names, aliases, nationality, dates of birth, phone numbers, addresses, affiliations, identification numbers such as A-File Number, Social Security Number, or driver's license number, or physical characteristics. This information is maintained in TECS;
C. Biographic information such as names, aliases, dates of birth, phone numbers, addresses, nationality, identification numbers such as A-File Number, Social Security Number, or driver's license number, and immigration violation information obtained from the DHS ENFORCE or successor systems;
D. Biographic information such as names, aliases, dates of birth, phone numbers, addresses, nationality, identification numbers such as A-File Number, Social Security Number, or driver's license number, and descriptive information obtained from U.S. Citizenship and Immigration Services (USCIS) immigration benefits applications and application review findings;
E. Information obtained from other Federal or foreign law enforcement agencies about individuals known or reasonably suspected to be or to have been engaged in conduct constituting, in preparation for, in aid of, or related to terrorism;
F. Biographic information and other information such as name, address, and phone number obtained from commercial data providers for individuals identified as prospective leads or suspects in active investigations; and
G. Biographic information such as names, aliases, dates of birth, phone numbers, addresses, nationality, identification numbers such as A-File Number, Social Security Number, or driver's license number, and descriptive information obtained from U.S. Customs and Border Protection (CBP) encounters at Ports of Entry during border crossings.
5 U.S.C. § 301; 8 U.S.C. § 1103; 8 U.S.C. § 1225(d)(3); 8 U.S.C. § 1324(b)(3); 8 U.S.C. § 1357(a); 8 U.S.C. § 1360(b); 19 U.S.C. § 1; and 19 U.S.C. § 1509.
The purpose of the ICEPIC system is to provide the information technology infrastructure products and services that enable investigators and analysts within ICE and other DHS components to recognize non-obvious person, address, and organizational relationships within existing DHS records systems, and to develop timely, actionable leads needed to accomplish ICE law enforcement and counter-terrorism mission objectives. All ICEPIC activity is predicated on ongoing and valid law enforcement investigations. Current manual and automated processes for research, collation, organization, validation, and analysis of the information in numerous DHS alien registration, entry, intelligence, lookout, and enforcement systems can accomplish similar objectives, but are cumbersome, time-consuming, and error-prone. ICEPIC will provide a reliable, responsive, and secure system to support production of actionable leads and law enforcement intelligence for DHS components and other Federal entities, as appropriate and in conformance with this system of records notice.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, all or a portion of the records or information contained in this system may be disclosed to authorized entities, as is determined to be relevant and necessary, outside DHS as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
A. To the Department of Justice (DOJ) or other Federal agency in the review, settlement, defense, and prosecution of claims, complaints, and lawsuits involving matters over which ICE exercises jurisdiction, or when conducting litigation or in proceedings before any court, adjudicative or administrative body, when: (a) DHS; or (b) any employee of DHS in his/her official capacity; or (c) any employee of ICE in his/her individual capacity, where DOJ or DHS has agreed to represent the employee; or (d) the United States, or any agency thereof, is a party to the litigation or has an interest in such litigation, and DHS determines that the records are both relevant and necessary to the litigation and the use of such records is compatible with the purpose for which DHS collected the records.
B. To appropriate Federal, State, local, tribal, or foreign governmental agencies or multilateral governmental organizations responsible for investigating or prosecuting the violations of, or for enforcing or implementing, a statute, rule, regulation, order, license, or treaty where DHS determines that the information would assist in the enforcement of domestic and foreign civil or criminal laws.
C. To U.S. agencies of the national intelligence community or through established liaison channels to selected foreign governments where analysis of the records indicates a potential or confirmed threat of terrorist activity justifying further analysis or investigation.
D. To an agency, organization, or individual for the purpose of performing audit or oversight operations as authorized by law, but only such information as is necessary and relevant to such audit or oversight function. Those provided information under this routine use are subject to the same Privacy Act limitations as are applicable to DHS officers and employees.
E. To the National Archives and Records Administration (NARA) or other Federal agencies pursuant to records management inspections being conducted under the authority of 44 U.S.C. 2904 and 2906.
F. To contractors and their agents, grantees, experts, consultants, and others performing or working on a contract, service, grant, cooperative agreement, or other assignment for DHS, when necessary to accomplish an agency function related to this system of records. Those provided information under this routine use are subject to the same Privacy Act limitations as are applicable to DHS officers and employees.
G. To appropriate Federal, State, tribal, local, or foreign law enforcement, intelligence, and regulatory agencies, foreign governments, and international law enforcement organizations, for example: the Department of Defense; the Department of State; the Department of the Treasury; the Central Intelligence Agency; the Selective Service System; the United Nations; and INTERPOL; as well as to other individuals and organizations during the course of an investigation by DHS or the processing of a matter under DHS' jurisdiction, or during a proceeding within the purview of the immigration and nationality laws, when DHS deems that such disclosure is necessary to elicit information required to accomplish the purposes described in this paragraph.
H. To an appropriate Federal, State, tribal, local, or foreign government agency or organization, or international organization, lawfully engaged in collecting law enforcement intelligence, whether civil or criminal, or charged with investigating, prosecuting, enforcing or implementing civil or criminal laws, related rules, regulations or orders, to enable these entities to carry out their law enforcement responsibilities, including the collection of law enforcement intelligence, but only when the disclosure is appropriate to the proper performance of the official duties of the person receiving the disclosure.
I. To an appropriate Federal, State, local, tribal, or foreign government agency, international organization, or private organization where the President or the Secretary of Department of Homeland Security has declared an event to be a National Special Security Event, if the information is relevant and necessary to a requesting agency's decision concerning the hiring or retention of an individual, or issuance of a security clearance, license, contract, grant, or other benefit, or if the information is relevant and necessary to a DHS decision concerning the hiring or retention of an employee, the issuance of a security clearance, the reporting of an investigation of an employee, the letting of a contract, or the issuance of a license, grant or other benefit, but only when disclosure is appropriate to the proper performance of the official duties of the person making the request.
None.
Records are stored electronically at one or more ICE data centers that are located in secure facilities. The records are stored on magnetic disc, tape, digital media, and optical media, and may also be retained in hard copy format in secured file folders.
Data are retrievable by an individual's name, Social Security Number, A-File Number, or other unique identifier, as well as by non-identifying information such as address or date of entry into the United States.
Information in this system is safeguarded in accordance with applicable laws and policies, including the DHS information technology security policies and the Federal Information Security Management Act (FISMA). All records are protected from unauthorized access through appropriate administrative, physical, and technical safeguards. These safeguards include restricting access to authorized personnel who have a need-to-know, using locks, and password protection features. The system is also protected through a multi-layer security approach. The protective strategies are physical, technical, administrative and environmental in nature, which provide access control to sensitive data, physical access control to DHS facilities, confidentiality of communications, authentication of sending parties, and personnel screening to ensure that all personnel with access to data are screened through background investigations commensurate with the level of access required to perform their duties.
The system also maintains a real-time auditing log of individuals who access and update the system. Audit logs are reviewed and analyzed for unauthorized and inappropriate system usage. DHS will investigate instances of unauthorized or inappropriate access or use of the system and take appropriate disciplinary actions where violations have occurred.
The National Archives Records Administration has not yet approved a retention schedule for this system of records. Because a history of Federal law enforcement interactions with persons and organizations is essential to detecting criminal and terrorist patterns of behavior and locating leads in current investigations, ICE has proposed to retain records in ICEPIC for ten (10) years from ICE's last use of the individual's data, and then archive the information for an additional five (5) years. After the five (5) year period, information will be destroyed unless it has become relevant to a legal action, at which point the retention schedule would reset.
Steven W. Cooper, Executive Information Unit, Office of Investigations, U.S. Immigration and Customs Enforcement, 425 I St., NW., Washington, DC 20536, telephone: (202) 616-7571.
Pursuant to 5 U.S.C. 552a (j) and (k), this system of records may not be accessed by members of the public for purposes of determining if the system contains a record pertaining to a particular individual. Nonetheless persons may seek access to records maintained in ICEPIC as outlined in the Record Access Procedures section below. Requests for such access will be reviewed on a case-by-case basis.
ICEPIC is exempt from record access procedures pursuant to 5 U.S.C. 552a (j) and (k). Nonetheless persons may seek access to records maintained in ICEPIC by contacting FOIA/Privacy Act request to the Office of Investigations, Information Disclosure Unit, 425 I St., NW., Washington, DC 20536 and using the form found at
This system is exempt from 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4) (G) and (H), and (f) pursuant to 5 U.S.C. 552a(j)(2), (k)(2); however, requests for amendment of records may be reviewed on a case-by-case basis. Follow the “Record Access Procedures” noted above.
Information contained in the system is obtained from DHS investigators, other DHS law enforcement officers, other Federal, State, foreign and tribal law enforcement and intelligence agencies, public records, commercial data aggregators, and immigration and alien admission records systems.
Pursuant to exemption 5 U.S.C. 552a(j)(2) of the Privacy Act, portions of this system are exempt from 5 U.S.C. 552a(c) (3) and (4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(5) and (e)(8); (f), and (g). Pursuant to 5 U.S.C. 552a (k)(2), this system is exempt from the following provisions of the Privacy Act, subject to the limitations set forth in those subsections: 5 U.S.C. 552a (c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), and (f). In addition, to the extent a record contains information from other exempt systems of records, ICE will rely on the exemptions claimed for those systems.
Office of Housing Assistance and Grant Administration, HUD.
Notice of proposed information collection.
The proposed information collection requirement described below has been submitted to the Office of Management and Budget (OMB) for emergency review and approval, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
Interested persons are invited to submit comments regarding this proposal. Comments must be received within seven (14) days from the date of this Notice. Comments should refer to the proposal by name/or OMB approval number) and should be sent to: HUD Desk Officer, Office of Management and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Washington, DC 20503.
Lillian Deitzer, Paperwork Reduction Act Compliance Officer, AYO, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410; e-mail
This Notice informs the public that the U.S. Department of Housing and Urban Development (HUD) has submitted to OMB, for emergency processing, a new collection for selecting applicants for the Demonstration Program for Elderly Housing for Intergenerational Families grants.
This Notice is soliciting comments from members of the public and affecting agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
This Notice also lists the following information:
New collections would include the need for supportive housing for the target population in the area to be served, site control and suitability of the site, and adequacy of the provision of supportive services and of the proposed project; and general application requirements, certifications and resolutions.
The Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35, as amended.
Office of the Chief Information Officer, HUD.
Notice.
The proposed information collection requirement described below has been submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
Application for technical assistance funds with which CPD grantees will engage providers to supply expertise to shape their resources into effective, coordinated, neighborhood and community development strategies to revitalize and physically, socially and economically strengthen their communities.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB approval Number (2506-0166) and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202-395-6974.
Lillian Deitzer, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410; e-mail Lillian Deitzer at
This notice informs the public that the Department of Housing and Urban Development has submitted to OMB a request for approval of the Information collection described below. This notice is soliciting comments from members of the public and affecting agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
This notice also lists the following information:
Application for technical assistance funds with which CPD grantees will engage providers to supply expertise to shape their resources into effective, coordinated, neighborhood and community development strategies to revitalize and physically, socially and economically strengthen their communities.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 35, as amended.
Fish and Wildlife Service, Interior.
Notice of receipt of applications.
The following applicants have applied for scientific research permits to conduct certain activities with endangered species pursuant to section 10(a)(1)(A) of the Endangered Species Act of 1973, as amended.
To ensure consideration, written comments must be received on or before February 29, 2008.
Written comments should be submitted to the Chief, Endangered Species Division, Ecological Services, P.O. Box 1306, Room 4102, Albuquerque, New Mexico 87103. 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. Documents will be available for public inspection, by appointment only, during normal business hours at the U.S. Fish and Wildlife Service, 500 Gold Ave. SW., Room 4102, Albuquerque, New Mexico. Please refer to the respective permit number for each application when submitting comments.
Chief, Endangered Species Division, P.O. Box 1306, Room 4102, Albuquerque, New Mexico 87103 (505) 248-6920.
Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Applicant requests an amendment to the permit for research and recovery purposes to conduct recovery activities for the Devil's Hole pupfish (
Applicant requests an amendment to a current permit to conduct presence/absence surveys for research and recovery purposes for the following species: Bonytail chub (
Applicant requests an amendment to a previous permit for research and recovery purposes to conduct presence/absence surveys for spikedace (
Applicant requests a new permit to conduct presence/absence surveys for research and recovery purposes for American burying beetle (
Applicant requests an amendment to an existing permit for research and recovery purposes to conduct presence/absence surveys for the following species: Gila Chub (
Applicant requests an amendment to an existing permit for research and recovery purposes to conduct presence/absence surveys for interior least tern (
Applicant requests an amendment to an existing permit for research and recovery purposes to conduct presence/absence surveys for humpback chub (
16 U.S.C. 1531 et seq.
Fish and Wildlife Service, Interior.
Notice of receipt of applications.
The following applicants have applied for scientific research permits to conduct certain activities with endangered species pursuant to section 10(a) (1) (A) of the Endangered Species Act of 1973, as amended.
To ensure consideration, written comments must be received on or before February 29, 2008. Comments must be submitted before midnight (Eastern Standard Time) on the date specified in the
Written comments should be submitted to the Chief, Endangered Species Division, Ecological Services, P.O. Box 1306, Room 4102, Albuquerque, New Mexico 87103. 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. Documents will be available for public inspection, by appointment only, during normal business hours at the U.S. Fish and Wildlife Service, 500 Gold Ave., SW., Room 4102, Albuquerque, New Mexico. Please refer to the respective permit number for each application when submitting comments.
Chief, Endangered Species Division, P.O. Box 1306, Room 4102,
Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Applicant requests a new permit for research and recovery purposes to conduct presence/absence surveys of Rio Grande silvery minnow (
Applicant requests an amendment to an existing permit for research and recovery purposes to conduct presence/absence surveys of Gila chub (
Applicant requests a new permit for research and recovery purposes to conduct presence/absence surveys of black capped vireo (
Applicant requests a new permit to conduct presence/absence surveys for research and recovery purposes for the following species: black capped-vireo (
Applicant requests an amendment to a previous permit for research and recovery purposes to conduct presence/absence surveys for lesser long-nosed bat (
Applicant requests a new permit for research and recovery purposes to conduct presence/absence surveys for the following species: black-capped vireo (
16 U.S.C. 1531
Bureau of Land Management, Interior.
Notice.
Certain public lands located in the Pine Nut Mountain range of Douglas County, Nevada, will be temporarily closed to motorized vehicles. An emergency closure is necessary to prevent further adverse effects to paleontological resources in the Ruhenstroth paleontological area where resource damage is occurring. The potential for additional adverse effects as a result of unrestricted off-highway vehicle use within the area is substantial and significant. Major roads in the area will remain open.
The emergency closure becomes effective on January 30, 2008.
James Carter, (775) 885-6109.
This closure is authorized under the provisions of the Federal Land Policy and Management Act of 1976, 43 U.S.C. 1701
The area described contains 2,340 acres, more or less.
Maps showing these lands are available at the Carson City Field Office, 5665 Morgan Mill Road, Carson City, NV 89701.
The closure will remain in effect for five months and may be renewed until the Pine Nut Mountains Resource Management Plan Amendment Record of Decision is signed.
Authority: (43 CFR 8341.2)
Pursuant to the Federal Advisory Committee Act, the Department of the Interior Bureau of Land Management (BLM) announces the following advisory committee meeting:
The public is welcome to attend all portions of the meeting and may contribute during the public comment period at 11:30 a.m. on February 22, 2008. Those who verbally address the SEORAC during the public comment period are asked to provide a
Should you require reasonable accommodation, please contact the BLM Lakeview District at (541) 947-2177 as soon as possible.
Bureau of Land Management, Interior.
Notice of Realty Action.
This notice terminates in part the existing classification for 102.91 acres of public land that was classified as suitable for lease and conveyance under the Recreation and Public Purposes Act, as amended (43 U.S.C. 869
February 29, 2008.
Debbie Bellew, Realty Specialist, at 719-269-8514 or by e-mail
By notice published in the
The above described land is hereby made available for sale in accordance with Section 203 of the Federal Land Policy and Management Act of 1976 (FLPMA) (43 U.S.C. 1701 and 1713), subject to valid existing rights, the provisions of existing withdrawals, other segregations of record, and the requirements of applicable law. In the event the 6.5-acre parcel is not sold, this termination shall have no force or effect.
Bureau of Land Management, Department of the Interior.
Notice of Closure.
To protect fragile, wintering mule deer, bighorn sheep, pronghorn antelope, and elk herds, the Bureau of Land Management (BLM) is closing to motorized use this winter, certain public lands in the Gunnison Basin. This action is in coordination with the Colorado Division of Wildlife's emergency winter feeding program for big game herds in the Gunnison Basin. The BLM and CDOW have cooperatively identified winter feeding areas and procedures, as well as area closures in conjunction with the feeding program. Extreme snow depths, combined with extreme cold temperatures, have prompted the closure and emergency feeding decisions.
The closure for this winter will take effect immediately and will end on April 30, 2008 unless terminated sooner by the BLM Authorized Officer.
The address of the BLM Authorized Officer is: Field Manager, Gunnison Field Office, 216 N. Colorado St., Gunnison, Colorado 81230. Maps of the closure areas will be available at the Gunnison Field Office, 216 N. Colorado St., Gunnison, Colorado 81230. Additionally, signs will be posted at places near and/or within the areas to which the closure applies.
Kenny McDaniel, Field Manager, Gunnison Field Office, 216 N. Colorado St., Gunnison, Colorado 81230; telephone (970) 641-0471.
Due to extreme snow depths and extreme cold temperatures, big game in the Gunnison Basin are highly stressed. The Colorado Division of Wildlife has begun an emergency winter feeding program for mule deer, bighorn sheep, pronghorn antelope, and elk herds. The Gunnison Resource Area Approved Resource Management Plan (RMP) specifically provides for winter closures to protect wintering big game when necessary. The purpose of this motorized use closure is to prevent undue and unnecessary disturbance and harm to wintering mule deer, bighorn sheep, pronghorn antelope, and elk herds concentrating on crucial winter range. This order pertains to identified areas (shown on the maps) on public lands in Gunnison and Saguache Counties, Colorado, thus described:
Exceptions to this temporary motorized use closure include the following:
1. BLM Road #3103 (North Parlin Flats Road) to the U.S. Forest Service boundary is open to motorized use as seasonal conditions allow.
2. Any Federal, State, or local officer or employee acting within the scope of their duties, members of any organized rescue in the performance of an official duty, or any person holding written permission from the BLM.
3. Persons or agencies holding a special use permit or right-of-way for access to exercise their permit within the restricted area, for purposes related to access for maintenance and operation of authorized facilities, and provided such motorized use is limited to the routes specifically identified in the special use permit or right-of-way.
This emergency closure order is issued under the authority of 43 Code of Federal Regulations 8364.1 and 9268.3.
Bureau of Land Management, Interior.
Public Land Order.
This order withdraws 360 acres of public land from surface entry and mining for a period of 20 years to protect
January 30, 2008.
Janet Booth, BLM Wyoming State Office, 5353 N. Yellowstone Road, P.O. Box 1828, Cheyenne, Wyoming 82003, 307-775-6124.
The land has been and will continue to remain open to mineral leasing.
By virtue of the authority vested in the Secretary of the Interior by Section 204 of the Federal Land Policy and Management Act of 1976, 43 U.S.C. 1714 (2000), it is ordered as follows:
1. Subject to valid existing rights, the following described public land is hereby withdrawn from settlement, sale, location, or entry under the general land laws, including the United States mining laws (30 U.S.C. Ch. 2 (2000)), but not from leasing under the mineral leasing laws, for the Bureau of Land Management to protect
The area described contains 360.00 acres in Fremont County.
2. The withdrawal made by this order does not alter the applicability of those public land laws governing the use of lands under lease, license, or permit, or governing the disposal of their mineral or vegetative resources other than under the mining laws.
3. This withdrawal will expire 20 years from the effective date of this order unless, as a result of a review conducted before the expiration date pursuant to Section 204(f) of the Federal Land Policy and Management Act of 1976, 43 U.S.C. 1714(f) (2000), the Secretary determines that the withdrawal shall be extended.
Bureau of Land Management, Interior.
Notice.
One parcel of public land (N-76426) located in Beatty, Nevada, and totaling 0.46 acres, has been examined and found suitable for disposal utilizing direct sale procedures. The authority for the sale is under Sections 203 and 209 of the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. 1713 and 1719.
Interested parties may submit written comments to the Bureau of Land Management (BLM) regarding the proposed sale on or before March 17, 2008.
Mail written comments to the BLM Assistant Field Manager, Tonopah Field Station, 1553 South Main Street, P.O. Box 911, Tonopah, NV 89049.
Alan Buehler, (775) 482-7800. For general information on BLM's public land sale procedures, refer to the following Web address:
The sale parcel is located in Southern Nye County, section 6, within the most southeast corner section and touches the southeast corner at one point. A portion of the parcel lies within the Nevada Department of Transportation (Nev 042808) right-of-way for United States (U.S.) Highway 95.
The following described public land is being considered for sale:
This parcel of public land is proposed for sale to the Stagecoach Hotel and Casino, owned by Edward Ringle of Beatty, Nevada at no less than the appraised fair market value (FMV) of $1,300, as determined by the authorized officer after appraisal. An appraisal report has been prepared by a State-certified appraiser for the purposes of establishing the FMV.
Consistent with Section 203 of FLPMA, a tract of public land may be sold where, as a result of approved land use planning, the sale of the tract meets the disposal criteria of that section. The lands described above are identified as suitable for disposal in the BLM Tonopah Resource Management Plan (RMP) approved on October 2, 1997. The proposed disposal action is consistent with the objectives, goals, and decisions of the RMP.
The disposal (sale) of the parcel would serve an important public
The BLM prepared a preliminary Environmental Assessment (EA) and provided a 30-day comment period as part of its public involvement. All comments received have been considered and incorporated into the EA and Decision Record. The EA (NV065-EA07-117), Decision Record, Environmental Site Assessment, map, and approved appraisal report covering the proposed sale, are available for review at the BLM Tonopah Field Station.
Minerals for this parcel will be reserved in accordance with BLM's approved Mineral Potential Report dated January 18, 2005. Information pertaining to the reservation of minerals specific to the parcel is located in the case file and available for public review at the BLM Tonopah Field Station.
Publication of this Notice of Realty Action in the
The patent issued would contain the following numbered reservations, covenants, terms and conditions:
1. A right-of-way thereon for ditches and canals constructed by authority of the United States, Act of August 30, 1890 (43 U.S.C. 945);
2. Oil, gas, and geothermal resources are reserved on the land sold; permittees, licensees, and lessees retain the right to prospect for, mine, and remove the minerals owned by the United States under applicable law and any regulations that the Secretary of the Interior may prescribe, including all necessary access and exit rights;
3. Those rights for highway purposes which have been granted to Nevada Department of Transportation, its successors and assigns, by right-of-way Nev 042808, pursuant to the Act of August 27, 1958, 72 Stat. 916; 23 U.S.C. 317, for United States Highway 95, extending from Beatty to Goldfield, Nevada;
4. All valid existing rights;
5. The patentee, by accepting patent, agrees to indemnify, defend, and hold the United States harmless from any costs, damages, claims, causes of action, penalties, fines, liabilities, and judgments of any kind arising from the past, present, or future acts or omissions of the patentee, its employees, agents, contractors, lessees, or any third-party arising out of or in connection with the patentee's use, occupancy, or operations on the patented real property resulting in: (1) Violations of Federal, State, and local laws and regulations that are now, or in the future become, applicable to the real property; (2) Judgments, claims, or demands of any kind assessed against the United States; (3) Costs, expenses, or damages of any kind incurred by the United States; (4) Releases or threatened releases of solid or hazardous waste(s) and/or hazardous substance(s), pollutant(s) or containment(s), and/or petroleum product or derivative of a petroleum product, as defined by Federal and State environmental laws, off, on, into, or under land, property, and other interests of the United States; (5) Other activities by which solid or hazardous substance(s), pollutant(s) or contaminant(s), and/or petroleum product or derivative of a petroleum product, or waste(s), as defined by Federal and State environmental laws, are generated, released, stored, used, or otherwise disposed of on the patented real property, and any cleanup response, remedial action, or other actions related in any manner to said solid or hazardous substance(s) or waste(s), pollutant(s) or contaminant(s), and/or petroleum product or derivative of a petroleum product; or (6) natural resource damages as defined by Federal and State law. This covenant shall be construed as running with the patented real property and may be enforced by the United States in a court of competent jurisdiction; and
6. Pursuant to the requirements established by section 120(h) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), (42 U.S.C. 9620(h)), as amended by the Superfund Amendments and Reauthorization Act of 1988, (100 Stat.1670), notice is hereby given that the above-described lands have been examined and no evidence was found to indicate that any hazardous substances had been stored for one year or more, nor had any hazardous substances been disposed of or released on the subject property.
No representation, warranty or covenant of any kind, express or implied, will be given or made by the United States, its officers or employees, as to access to or from the above described parcel of land, the title to the land, whether or to what extent the land may be developed, its physical condition or its past, present or potential uses, and the conveyance of any such parcel will not be on a contingency basis. It is the buyer's responsibility to be aware of all applicable Federal, State and local government policies and regulations that would affect the subject lands. It is also the buyer's responsibility to be aware of existing or prospective uses of nearby properties. Any land lacking access from a public road or highway will be conveyed as such, and future access acquisition will be the responsibility of the buyer.
In the event of a sale, the unreserved mineral interests will be conveyed simultaneously with the sale of the land. These unreserved mineral interests have been determined to have no known mineral value pursuant to 43 CFR 2720.0-6 and 2720.2(a). Acceptance of the sale offer will constitute an application for conveyance of those unreserved mineral interests. The purchaser will be required to pay a $50 non-refundable filing fee for conveyance of the available mineral interests. The purchaser will have 30 days from the date of receiving the sale offer to accept the offer and to submit a deposit of 20 percent of the purchase price, the $50 filing fee for conveyance of mineral interests, and for payment of publication costs. The purchaser must
The subject parcel of land will not be offered for sale prior to the 60-day publication of this Notice of Realty Action. For a period until March 17, 2008, interested parties may submit written comments to the BLM Tonopah Field Station. Only written comments submitted by postal service or overnight mail will be considered as properly filed. Facsimiles, telephone calls, and e-mails are unacceptable means of notification.
Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment, including your personal identifying information, may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Any adverse comments regarding the proposed sale will be reviewed by the BLM Nevada State Director, who may sustain, vacate, or modify this realty action and issue a final determination. In the absence of timely filed objections, this realty action will become the final determination of the Department of the Interior.
Department of the Interior, National Park Service.
Notice and request for comments.
Under the provisions of the Paperwork Reduction Act of 1995 and 5 CFR Part 1320, Reporting and Record Keeping Requirements, the National Park Service (NPS) invites public comments on a proposed new collection of information (1024-xxxx).
Public comments on the proposed Information Collection Request (ICR) will be accepted on or before March 31, 2008.
Dr. James Gramann, NPS Social Science Program, 1201 “Eye” St., Washington, DC 20005; or via phone at 202/513-7189; or via e-mail at
The purpose of the ATMPS is to track the satisfaction of federal, state, and not-for-profit partner organizations and agencies receiving support from the Appalachian Trail Park Office (ATPO) provides support to State and Federal agencies, and not-for-profit organizations to assist them in fulfilling shared and delegated management activities in the management of the ANST. Achievement of on-the-ground results depends on the actions of these partner agencies and organizations. Progress towards management goals is measured by a satisfaction survey where key partners evaluate quality of support provided by ATPO. This effort is required by GPRA and other NPS and DOI strategic planning efforts. Data from the proposed survey is needed to assess performance regarding NPS GPRA goal IIb0. HPS performance on all goals measured in this study will contribute to DOI Department-wide performance reports.
Department of the Interior, National Park Service.
Notice and request for comments.
Under provisions of the Paperwork Reduction Act of 1995 and 5 CFR Part 1320, Reporting and Recordkeeping Requirements, the National Park Service (NPS) invites public comments on a revision of a currently approved collection of information (OMB #1024-0037).
Public comments on this Information Collection Request (ICR) will be accepted on or before February 29, 2008.
You may submit comments directly to the Desk Officer for the Department of the Interior (OMB #1024-0037), Office of Information and Regulatory Affairs, OMB, by fax at 202/395-6566, or by electronic mail at
Dr. Karen Mudar, Archeologist, Archeology Program, NPS, 1849 C Street, NW., (2275), Washington, DC 20240; or via phone at 202/354-2103; or via fax at 202/371-5102; or via e-mail at
ARPA and AA require that Federal land managers issue permits to qualified applicants and place terms and conditions on the permits, including reporting requirements, as set forth in the implementing regulation for the two statutes (43 CFR Part 7 for ARPA; 43 CFR Part 3 for the AA), to ensure that the resources are scientifically excavated or removed and deposited, along with associated records, in a suitable repository for preservation. If the permit is for work on Indian lands, ARPA required that the Federal land manager place terms and conditions on the permit as requested by the Indian landowner and the Indian tribe having jurisdiction over the lands. If the permit may have an effect on a resource on public lands that has Indian tribal religious or cultural importance, ARPA requires that the Federal land manager notify the pertinent tribe for the purpose of developing terms and conditions to be placed on the permit.
Section 13 of ARPA (16 U.S.C. 470II) requires that the Secretary of the Interior report to Congress on archeological activities conducted pursuant to the Act. To fulfill this requirement, the Secretary must collect information about permitted activities from the various land managing agencies and the Department's land managing bureaus.
Information collected responds to statutory requirements that Federal agencies (1) issue permits to qualified individuals and institutions desiring to excavate or remove archeological resources from public or Indian lands and (2) specify terms and conditions, including reporting requirements, in permits. The information collected is reported to Congress and is issued for land management purposes. The obligation to respond is required to obtain a benefit.
National Park Service, Interior.
Public Notice.
January 1, 2008.
Jo A. Pendry, Concession Program Manager, National Park Service, Washington, DC, 20240, Telephone 202/513-7156.
Pursuant to 36 CFR 51.23, public notice is hereby given that the National Park Service proposes to extend the following expiring concession contracts for a period of up to 1 year, or until such time as a new contract is executed, whichever occurs sooner.
All of the listed concession authorizations will expire by their terms on or before December 31, 2007. The National Park Service has determined that the proposed short-term extensions are necessary in order to avoid interruption of visitor services and has taken all reasonable and appropriate steps to consider alternatives to avoid such interruption.
Jo A. Pendry, Concession Program Manager, National Park Service, Washington, DC, 20240, Telephone 202/513-7156.
National Park Service, Interior.
Announcement of boundary revision and land exchange.
This notice announces the revision to the boundary of Delaware Water Gap National Recreation Area, pursuant to the Act specified below, to include a 6.67-acre parcel of adjacent land identified as Tract 921 located in Smithfield Township, Monroe County, Pennsylvania, and depicted on a map prepared by the National Park Service entitled “Delaware Water Gap National Recreation Area Proposed Boundary,” dated November 7, 2007, and numbered 620/80,055. The United States will acquire Tract 921 in exchange for 1.22 acres of Federal land also located within Monroe County.
Superintendent, Delaware Water Gap National Recreation Area, Headquarters, River Road at Route 209, Bushkill, PA 18324. Telephone 570-426-2418. Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Public Law 89-158, as amended, authorizes the Secretary of the Interior to make adjustments in the boundary of the national recreation area by publication of the amended description thereof in the
The maps are on file and available for inspection in the Lands, Concessions and Leasing Division of Realty, National Park Service Northeast Regional Office, U.S. Custom House, 200 Chestnut Street, Room 324, Philadelphia, Pennsylvania 19106-2988, and in the Offices of the National Park Service Department of the Interior, Washington, DC 20240.
Nominations for the following properties being considered for listing or related actions in the National Register were received by the National Park Service before January 12, 2008. Pursuant to section 60.13 of 36 CFR part 60 written comments concerning the significance of these properties under the National Register criteria for evaluation may be forwarded by United States Postal Service, to the National Register of Historic Places, National Park Service, 1849 C St. NW., 2280, Washington, DC 20240; by all other carriers, National Register of Historic Places, National Park Service, 1201 Eye St. NW., 8th floor, Washington, DC 20005; or by fax, 202-371-6447. Written or faxed comments should be submitted by [Insert date].
Notice.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95) [44 U.S.C. 3506(c)(2)(A)]. This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. Currently, the Employment Standards Administration is soliciting comments concerning its proposal to extend OMB approval of the information collection for the following medical reports: Roentgenographic Interpretation (CM-933), Roentgenographic Quality Rereading (CM-933b), Medical History and Examination for Coal Mine Workers' Pneumoconiosis (CM-988), Report of Arterial Blood Gas Study (CM-1159), and Report of Ventilatory Study (CM-2907). A copy of the proposed information collection request can be obtained by contacting the office listed below in the addresses section of this Notice.
Written comments must be submitted to the office listed in the addresses section below on or before March 31, 2008.
Mr. Steve Andoseh, U.S. Department of Labor, 200 Constitution Ave., NW., Room S-3201, Washington, DC 20210, telephone (202) 693-0373, fax (202) 693-1451,
The Black Lung Benefits Act of 1977 as amended, 20 U.S.C 901 et seq. and 20 CFR 718.102 set forth criteria for the administration and interpretation of x-rays. When a miner applies for benefits, the Division of Coal Mine Workers' Compensation (DCMWC) is required to schedule a series of four diagnostic tests to help establish eligibility for black lung benefits. Each of the diagnostic tests has its own form that sets forth the medical results. The forms are: Roentgenographic Interpretation (CM-933), Roentgenographic Quality Rereading (CM-933b), Medical History and Examination for Coal Mine Workers' Pneumoconiosis (CM-988), Report of Arterial Blood Gas Study (CM-1159), and Report of Ventilatory Study (CM-2907). This information collection is currently approved for use through July 31, 2008.
The Department of Labor is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submissions of responses.
The Department of Labor seeks the approval for the extension of this currently approved information collection in order to carry out its responsibility to determine eligibility for black lung benefits.
Comments submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
Mine Safety and Health Administration (MSHA), Labor.
Notice of Affirmative Decisions on Petitions for Modification Granted in Whole or in Part.
The Mine Safety and Health Administration (MSHA) enforces mine operator compliance with mandatory safety and health standards that protect miners and improve safety and health conditions in U.S. Mines. This
Copies of the final decisions are posted on MSHA's Web site at
Edward Sexauer, Chief, Regulatory Development Division at 202-693-9444 (Voice),
Under section 101 of the Federal Mine Safety and Health Act of 1977, a mine operator may petition and the Secretary of Labor (Secretary) may modify the application of a mandatory safety standard to that mine if the Secretary determines that: (1) An alternative method exists that will guarantee no less protection for the miners affected than that provided by the standard; or (2) that the application of the standard will result in a diminution of safety to the affected miners.
MSHA bases the final decision on the petitioner's statements, any comments and information submitted by interested persons, and a field investigation of the conditions at the mine. In some instances, MSHA may approve a petition for modification on the condition that the mine operator complies with other requirements noted in the decision.
On the basis of the findings of MSHA's investigation, and as designee of the Secretary, MSHA has granted or partially granted the following petitions for modification:
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Occupational Safety and Health Administration (OSHA), Labor.
Request for nominations to serve on NACOSH; announcement of new and reappointed members.
The Assistant Secretary of Labor for Occupational Safety and Health invites interested parties to submit nominations for membership on NACOSH and announces the appointment of new NACOSH members.
Nominations for NACOSH must be submitted (postmarked, sent or received) by February 29, 2008.
You may submit nominations for NACOSH, identified by Docket No. OSHA-2008-0002, by any of the following methods:
Electronically: You may submit nominations, including attachments, electronically at
Facsimile: If your nomination, including attachments, does not exceed 10 pages, you may fax it to the OSHA Docket Office at (202) 693-1648.
Mail, express delivery, hand delivery, messenger or courier service: Submit three copies of your nominations to the OSHA Docket Office, Docket No. OSHA-2008-0002, Room N-2625, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210; telephone (202) 693-2350 (TTY number (877) 889-5627). Deliveries (hand, express mail, messenger and courier service) are accepted during the Department of Labor's and Docket Office's normal business hours, 8:15 a.m.-4:45 p.m., e.t.
Instructions: All nominations for NACOSH must include the Agency name and docket number for this
Docket: To read or download submissions, go to
Electronic copies of this
Deborah Crawford, OSHA, Directorate of Evaluation and Analysis, Room N-3641, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington DC 20210; telephone (202) 693-1932; fax (202) 693-1641; e-mail address
The Assistant Secretary of Labor for Occupational Safety and Health (OSHA) invites interested parties to submit nominations for membership on NACOSH. The Committee is authorized by section 7(a) of the Occupational Safety and Health Act of 1970 (OSH Act) (29 U.S.C. 656) to advise the Secretary of Labor and the Secretary of Health and Human Services on matters relating to the administration of the OSH Act. NACOSH is a continuing advisory body and operates in compliance with provisions in the OSH Act and the Federal Advisory Committee Act (5 U.S.C. App. 2), and regulations issued pursuant to those laws (29 CFR 1912a, 41 CFR part 101-6 and 102-3).
NACOSH is comprised of 12 members, all of whom the Secretary of Labor appoints. Nominations will be accepted for five vacancies (29 CFR 1912a.2). The composition of the committee and categories of members to be appointed are as follows:
• Four public representatives. Two will be appointed;
• Two management representatives. One will be appointed;
• Two labor representatives. No vacancies;
• Two representatives representing occupational safety professions. One will be appointed; and,
• Two representing occupational health professions. One health representative will be appointed.
Pursuant to § 1912a.2, the Secretary of Health and Human Services (HHS) will designate for appointment by the Secretary of Labor one of the public representatives and the representative from the occupational health professions. Therefore, OSHA will provide to HHS all nominations, including supporting materials, for those membership categories.
NACOSH members serve staggered two-year terms, unless the member becomes unable to serve, resigns, ceases to be qualified to serve because he or she no longer meets the relevant representational requirements, or is removed by the Secretary of Labor. If a vacancy occurs before a term expires, the Secretary may appoint a new member who represents the same interest as the predecessor to serve the remainder of the unexpired term. The committee meets at least two times a year (§ 1912a.4).
Any interested person or organization may nominate one or more qualified individuals for membership. Nominations must include the nominee's name, occupation or current position, and contact information. The nomination also must identify the category that the candidate is qualified to represent, and include a resume of the nominee's background, experience, and qualifications. In addition, the nomination must state that the nominee is aware of the nomination and is willing to serve on NACOSH for a two-year term. NACOSH members will be selected upon the basis of their experience and competence in the field of occupational safety and health (§ 1912a.2). The information received through this nomination process, in addition to other relevant sources of information, will assist the Secretary of Labor in appointing members to serve on NACOSH. In selecting NACOSH members, the Secretary of Labor will consider individuals nominated in response to this
You may submit nominations (1) electronically at
Because of security-related procedures, the use of regular mail may cause a significant delay in the receipt of nominations. For information about security procedures concerning the delivery of materials by hand, express delivery, messenger or courier service, please contact the OSHA Docket Office at (202) 693-2350 (TTY (877) 889-5627).
Submissions are posted without change at
Electronic copies of this
In November 2007, Secretary Elaine Chao appointed the following four new NACOSH members to serve two-year terms:
• Ms. Barbara McCabe, International Union of Operating Engineers, as a labor representative;
• Ms. Jennifer Bailey, American Cast Iron Pipe Company, as a management representative;
• Mr. Karl Jacobson, Liberty Mutual Insurance Group, as a safety representative; and
• Ms. Susan Randolph, University of North Carolina-Chapel Hill, as a health representative.
In addition, the Secretary reappointed the following three NACOSH members to another two-year term:
• Mr. Douglas Kalinowski, Michigan Department of Consumer and Industry Services, as a public representative;
• Ms. Vickie Wells, San Francisco Department of Public Health, as a public representative; and
• Mr. Kevin Sommers, Fraternal Order of Police, as a labor representative.
Edwin G. Foulke, Jr., Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice under the authority granted by sections 6(b)(1) and 7 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 655, 656), 29 CFR 1912a, Federal Advisory Committee Act (5 U.S.C. App.2); and Secretary of Labor's Order No. 5-2007 (72 FR 31159).
Copyright Royalty Board, Library of Congress
Notice announcing commencement of Phase II distribution proceeding with request for Petitions to Participate.
The Copyright Royalty Judges are announcing the commencement of a proceeding to determine the Phase II distribution of 1998 and 1999 royalties collected under the cable statutory license. The Judges also are announcing the date by which a party who wishes to participate in this distribution proceeding must file its Petition to Participate and the accompanying $150 filing fee.
Petitions to Participate and the filing fee are due on or before February 29, 2008.
An original, five copies, and an electronic copy on a CD of the Petition to Participate, along with the $150 filing fee, may be delivered to the Copyright Royalty Board by either mail or hand delivery. Petitions to Participate and the $150 filing fee may not be delivered by an overnight delivery service other than the U.S. Postal Service Express Mail. If by mail (including overnight delivery), Petitions to Participate, along with the $150 filing fee, must be addressed to: Copyright Royalty Board, P.O. Box 70977, Washington, DC 20024-0977. If hand delivered by a private party, Petitions to Participate, along with the $150 filing fee, must be brought to the Library of Congress, James Madison Memorial Building, LM-401, 101 Independence Avenue, SE., Washington, DC 20559-6000. If delivered by a commercial courier, Petitions to Participate, along with the $150 filing fee, must be delivered to the Congressional Courier Acceptance Site located at 2nd and D Street, NE., Washington, DC. The envelope must be addressed to: Copyright Royalty Board, Library of Congress, James Madison Memorial Building, LM-403, 101 Independence Avenue, SE., Washington, DC 20559-6000.
Richard Strasser, Senior Attorney, or Gina Giuffreda, Attorney Advisor, by telephone at (202) 707-7658 or e-mail at
Each year, semiannually, cable systems must submit royalty payments to the Copyright Office as required by the cable statutory license for the privilege of retransmitting over-the-air television and radio broadcast stations. 17 U.S.C. 111. These royalties are then distributed to copyright owners whose works were included in such retransmissions and who timely filed a claim for royalties. Distribution of the royalties for each calendar year are conducted by the Copyright Royalty Judges (“Judges”) in two phases. At Phase I, the royalties are divided among the representatives of the major categories of copyrightable content (movies, sports programming, music, etc.) requesting the distribution. At Phase II, the royalties are divided among the various copyright owners within each category.
This Notice announcing the commencement of a proceeding under 17 U.S.C. 803(b)(1) for distribution of cable royalties collected for 1998 and 1999 is confined to Phase II. A Phase I proceeding for these royalty years was conducted by the Librarian of Congress under the Copyright Arbitration Royalty Panel (“CARP”) system, the predecessor to the Copyright Royalty Judges. The Librarian issued his determination dividing the royalties among the eight Phase I claimant groups, 69 FR 3606 (January 26, 2004), and the U.S. Court of Appeals for the District of Columbia Circuit affirmed his determination.
Consistent with 17 U.S.C. 804(b)(8), the Copyright Royalty Judges determine that a Phase II controversy exists as to the distribution of 1998 and 1999 cable royalties. We reach this determination, in this instance, for several reasons. First, we observe that certain interested parties represented to the Librarian some time ago that several Phase II controversies exist for these years. Second, the Program Suppliers have recently represented to us that a Phase II controversy with the National Association of Broadcasters remains for these years. Comments of the Program Suppliers on the Existence of a Controversy, at 5, n. 3 (filed in Docket No. 2005-4 CRB CD 2003 on September 19, 2007). And third, we have not received notification that any settlements have been reached, nor have we received motions for final distribution.
The Judges are consolidating the 1998 and 1999 royalty years into a single proceeding. The Librarian consolidated these years for purposes of the Phase I proceeding without incident, and Phase II proceedings are traditionally less extensive and complicated, thereby making consolidation of multiple royalty years more administratively efficient.
Petitions to Participate must be filed in accordance with the § 351.1(b) of the Judge's regulations. See 37 CFR 351.1(b). Petitions to Participate submitted by interested parties whose claims do not exceed $1,000 must contain a statement that the party will not seek a distribution of more than $1,000. No filing fee is required for these parties. We note, however, that interested parties with claims exceeding one thousand dollars ($1,000) must submit a filing fee of one hundred and fifty dollars ($150) with their Petition to Participate or it will be rejected. Cash will not be accepted; therefore, parties must pay the filing fee with a check or money order made payable to the “Copyright Royalty Board.” If a check received in payment of the filing fee is returned for lack of sufficient funds, the
Further procedural matters, including scheduling, will be addressed after Petitions to Participate have been received.
Note that in accordance with 37 CFR 350.2 (Representation), only attorneys who are members of the bar in one or more states and in good standing will be allowed to represent parties before the Copyright Royalty Judges, unless the party is an individual who represents herself or himself.
Copyright Royalty Board, Library of Congress.
Request for comments.
The Copyright Royalty Judges are requesting comments as to the existence of controversies at Phase I and Phase II for distribution of the 1999 through 2005 royalty funds collected under the satellite carrier statutory license.
Comments are due on or before February 29, 2008.
Comments may be sent electronically to
Richard Strasser, Senior Attorney, or Gina Giuffreda, Attorney Advisor, by telephone at (202) 707-7658 or e-mail at
Each year, semiannually, satellite carriers must submit royalty payments to the Copyright Office as required by the satellite carrier statutory license for the privilege of retransmitting over-the-air television broadcast stations. 17 U.S.C. 119. These royalties are then distributed to copyright owners whose works were included in such retransmissions and who timely file a claim for royalties. Distribution of the royalties for each calendar year are conducted by the Copyright Royalty Judges in two phases. At Phase I, the royalties are divided among the representatives of the major categories of copyrightable content (movies, sports programming, music, etc.) requesting the distribution. At Phase II, the royalties are divided among the various copyright owners within each category.
Final distribution of royalties in any given royalty year may be made by agreement of all the copyright owners making claim to the funds. If, however, there is a controversy as to the proper distribution, either at Phase I or Phase II, the Copyright Royalty Judges are required to conduct a proceeding under chapter 8 of the Copyright Act.
In order to determine whether further proceedings are necessary for the distribution of the 1999-2005 satellite royalty funds, the Copyright Royalty Judges request that interested copyright claimants identify the existence of both Phase I and Phase II controversies. Claimants should identify the specific royalty years in which they have a controversy, whether the controversy is at Phase I and/or Phase II, and the approximate extent of the controversy. In addition, the Judges seek comment as to the advisability of consolidating multiple royalty years into a single distribution proceeding and what, if any, royalty years should be consolidated.
Copyright Royalty Board, Library of Congress.
Notice announcing partial Phase I settlement and soliciting comments on motion for partial distribution.
The Copyright Royalty Judges are announcing a partial Phase I settlement in connection with the 2004 and 2005 cable royalty funds. The Judges are also soliciting comments on a motion for partial distribution in connection with those funds.
Comments are due on or before February 29, 2008.
Comments may be sent electronically to
Richard Strasser, Senior Attorney, or Gina Giuffreda, Attorney Advisor, by telephone at (202) 707-7658 or e-mail at
Each year cable systems must submit royalty payments to the Register of Copyrights as required by the statutory license set forth in section 111 of the Copyright Act for the retransmission to cable subscribers of over-the-air television and radio broadcast signals.
On November 2, 2007, representatives of the Phase I claimant categories (the “Phase I Parties”)
The Judges also seek comment on the existence and extent of any controversies to the 2004 and 2005 cable royalty funds, either at Phase I or Phase II, with respect to the 50% of those funds that would remain if the partial distribution is granted. In Phase I of a cable royalty distribution, royalties are distributed to certain categories of broadcast programming that have been retransmitted by cable systems. The categories have traditionally been movies and syndicated television series, sports programming, commercial and noncommercial broadcaster-owned programming, religious programming, music, public radio programming, and Canadian programming. In Phase II of a cable royalty distribution, royalties are distributed to claimants within each of the Phase I categories. Any party submitting comments on the existence of a Phase II controversy must identify the category or categories in which there is a dispute and the extent of the controversy or controversies.
The Judges must be advised of the existence and extent of all Phase I and Phase II controversies by the end of the comment period. It will not consider any controversies that come to their attention after the close of that period.
The Motion of the Phase I Claimants for Partial Distribution is posted on the Copyright Royalty Board Web site at
Mattingly Testing Services, Inc., (Mattingly Testing) is the holder of Materials License No. 25-21479-01 issued by the Nuclear Regulatory Commission (NRC or Commission) pursuant to 10 CFR Part 30 and 10 CFR Part 34. The license, initially issued on December 2, 1983, authorizes Mattingly Testing to possess radioactive sealed sources for use in industrial radiography in Molt, Montana, and at temporary job sites anywhere in the United States where the NRC maintains jurisdiction for regulating licensed material, including areas of exclusive Federal jurisdiction within Agreement States. The license was last renewed in its entirety on February 22, 2006, and is due to expire on February 28, 2016.
On November 7, 2007, during an inspection of Mattingly Testing's radiographic operations at a temporary job site, several apparent violations of NRC regulations were identified. In addition, during a follow-up inspection and investigation during the week of November 12, 2007, the NRC inspector and investigator were informed that senior management of Mattingly Testing discouraged employees from speaking with NRC inspectors and investigators. The NRC is concerned that an environment exists within Mattingly Testing's workplace that could inhibit employees from raising safety concerns to the NRC. The NRC inspections and investigation, which are still ongoing, have indicated that:
1. Mattingly Testing's control of licensed material at temporary job sites is not in compliance with NRC requirements;
2. Mattingly Testing's senior management has apparently caused employees to engage in activities that are in violation of NRC regulations and Orders; and
3. Mattingly Testing's senior management has discouraged employees from raising safety concerns both to their management and to the NRC.
This information demonstrates a lack of management control and supervision over licensed activities, raises questions as to whether Mattingly Testing will provide complete and accurate information to the NRC in compliance with 10 CFR 30.9, and whether Mattingly Testing is complying with the provisions with 10 CFR 19.15(b). Therefore, further information is needed to determine whether the Commission can have reasonable assurance that Mattingly Testing will comply with the Commission's requirements, ensure a healthy work environment, provide complete and accurate information to the Commission and otherwise conduct its activities in accordance with the Commission's requirements.
Accordingly, pursuant to sections 161c, 161o, 182 and 186 of the Atomic Energy Act of 1954, as amended, and the Commission's regulations in 10 CFR 2.204, and 10 CFR 30.9, and 10 CFR 30.32(b), in order for the Commission to determine whether your license should be modified, suspended or revoked, or other enforcement action taken to ensure compliance with NRC regulatory requirements, Mattingly Testing is required to submit the following information in writing to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, within 20 days of the date of this Demand for Information. If security-related information is necessary to provide an acceptable response, you must mark your entire response “Proprietary Information in accordance with 10 CFR 2.390(d)(1)” and follow the instructions for withholding in 10 CFR 2.390(b)(1). In accordance with 10 CFR 2.390(b)(1)(ii), the NRC is waiving the affidavit requirements for your response.
1. Provide the information requested in the non-publicly available Appendix to this Demand for Information.
2. Describe the actions it has taken and plans to take to provide reasonable assurance that its organization establishes and maintains an appropriate safety conscious work environment
Copies of this information shall also be sent to the Assistant General Counsel for Materials Litigation and Enforcement at the same address above, and to the Regional Administrator, NRC Region IV, 611 Ryan Plaza Drive, Suite 400, Arlington, Texas 76011-4005.
After reviewing your response, the NRC will determine whether further action is necessary to ensure compliance with regulatory requirements.
For the Nuclear Regulatory Commission.
Office of Management and Budget.
Revisions to Appendix C of OMB Circular A-94.
The Office of Management and Budget revised Circular A-94 in 1992. The revised Circular specified certain discount rates to be updated annually when the interest rate and inflation assumptions used to prepare the budget of the United States government were changed. These discount rates are found in Appendix C of the revised Circular. The updated discount rates are shown below. The discount rates in Appendix C are to be used for cost-effectiveness analysis, including lease-purchase analysis, as specified in the revised Circular. They do not apply to regulatory analysis.
The revised discount rates are effective immediately and will be in effect through December 2008.
Robert B. Anderson, Office of Economic Policy, Office of Management and Budget, (202) 395-3381.
Analyses of programs with terms different from those presented above may use a linear interpolation. For example, a four-year project can be evaluated with a rate equal to the average of the three-year and five-year rates. Programs with durations longer than 30 years may use the 30-year interest rate.
Office of Management and Budget (OMB).
Notice of open forum.
An open forum on the FY 2007 Performance and Accountability Report (PAR) pilot will be held at the National Academy of Public Administration (NAPA) on April 14, 2008 from 10 a.m. to 12 p.m. The PAR pilot allows agencies to explore different formats to enhance the presentation of financial and performance information and make this information more meaningful and transparent to the public. As an alternative to the traditional PAR, agencies that participated in the pilot had to prepare and submit to OMB three component documents. The component documents included an Agency Financial Report (AFR), an Annual Performance Report (APR), and a Highlights document that presents performance and financial information in a summary fashion. The purpose of the forum is to obtain feedback from individual users and stakeholders regarding the results of the pilot. Those interested in participating should respond to the questions listed below by e-mail to either Regina Kearney at
• Do the PAR pilot component documents (Annual Financial Report, Annual Performance Report, and Highlights):
○ Provide an enhanced presentation of the financial and performance information in a more transparent way (i.e., information is presented in a manner that is user friendly and easy enough for a novice reader to understand)?
○ Report financial and performance information more meaningfully (i.e., financial and performance data is reliable, relevant, and include measurable results linked to strategic goals)?
○ Tailor financial and performance information to meet stakeholder needs?
○ Report performance and financial results candidly and clearly articulate remedies to performance or financial shortfalls?
• Are the PAR pilot component documents easily accessible via the web and are they easy to use?
• Did the development of the PAR pilot component documents:
○ Improve internal and external communications?
○ Increase/decrease the burden on preparers?
• What are individuals' recommendations for improving performance and financial reporting?
April 14, 2008 from 10 a.m. to 12 p.m.
The forum will be held in the National Academy of Public Administration (NAPA) building located at 900 7th Street, NW., Suite 600, Washington, DC 20001.
Due to potential delays in OMB's receipt and processing of mail sent through the U.S. Postal Service, we encourage respondents to submit comments electronically to ensure timely receipt. We cannot guarantee that comments mailed will be received before the forum date. Electronic mail comments may be submitted to:
Regina Kearney, OMB Office of Federal Financial Management, 202-395-3993 or E-mail:
Performance and Accountability Reports provide the public with agency financial and performance information. PARs are transparent tools Congress and the public can use to hold agencies accountable for their program performance and financial results.
The FY 2007 PAR pilot, conducted from May 2007 to February 2008, was established so that agencies could explore different formats and timeframes for presenting financial and performance information and make this information more meaningful and transparent to the public. The pilot adjusted the timing for more detailed performance reporting, allowing the APR to coincide with the release of the President's Budget. The pilot further required participating agencies to produce a Highlights document, which summarized key financial and performance information from the AFR and APR.
Agencies who participated in the pilot include the Department of Health and Human Services, Department of Defense, Small Business Administration, Department of State, National Aeronautics and Space Administration, Department of Homeland Security, National Science Foundation, Department of Energy, Denali Commission, Corporation for National Community Service and U.S. Agency for International Development.
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
• (Rule 611 (17 CFR 242.611)—Order Protection Rule
On June 9, 2005, effective August 29, 2005 (
There are approximately 788 respondents
Written comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's estimates of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
Comments should be directed to: R. Corey Booth, Director/Chief Information Officer, Securities and Exchange Commission, C/O Shirley Martinson, 6432 General Green Way, Alexandria, Virginia 22312 or send an e-mail to:
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 350l
Rule 27d-1 (17 CFR 270.27d-1) is entitled “Reserve Requirements for Principal Underwriters and Depositors To Carry Out The Obligations To Refund Charges Required by Section 27(d) and Section 27(f) of the Act.” Form N-27D-1 (17 CFR 274.127d-1) is entitled “Accounting of Segregated Trust Account.” Rule 27d-2 (17 CFR 270.27d-2) is entitled “Insurance Company Undertaking in Lieu of Segregated Trust Account.” Rule 27d-1 requires the depositor or principal underwriter for an issuer to deposit funds into a segregated trust account to provide assurance of its ability to fulfill its refund obligations under sections 27(d) and 27(f). The rule sets forth minimum reserve amounts and guidelines for the management and disbursement of the assets in the account. A single account may be used for the periodic payment plans of multiple investment companies. Rule 27d-1(j) directs depositors and principal underwriters to make an accounting of their segregated trust accounts on Form N-27D-1, which is intended to facilitate the Commission's oversight of compliance with the reserve requirements set forth in rule 27d-1. The form requires depositors and principal underwriters to report deposits to a segregated trust account, including those made pursuant to paragraphs (c) and (e) of the rule. Withdrawals pursuant to paragraph (f) of the rule also must be reported. In addition, the form solicits information regarding the minimum amount required to be maintained under paragraphs (d) and (e) of rule 27d-1. Depositors and principal underwriters must file the form once a year on or before January 31 of the year following the year for which information is presented.
Instead of relying on rule 27d-1 and filing Form N-27D-1, depositors or principal underwriters for the issuers of periodic payment plans may rely on the exemption afforded by rule 27d-2. In order to comply with the rule: (i) The depositor or principal underwriter must secure from an insurance company a written guarantee of the refund requirements, (ii) the insurance company must satisfy certain financial criteria, and (iii) the depositor or principal underwriter must file as an exhibit to the issuer's registration statement, a copy of the written undertaking, an annual statement that the insurance company has met the requisite financial criteria on a monthly basis, and an annual audited balance sheet.
Rules 27d-1 and 27d-2, which were explicitly authorized by statute, provide assurance that depositors and principal underwriters of issuers have access to sufficient cash to meet the demands of certificate holders who reconsider their decisions to invest in a periodic payment plan. The information collection requirements in rules 27d-1 and 27d-2 enable the Commission to monitor compliance with reserve rules.
The depositor or principal underwriter of issuers must file a Form N-27D-1 annually or comply with the requirements in rule 27d-2. The Commission received zero Form N-27D-1 filings in 2007. Therefore, the total annual hour burden associated with rule 27d-1 and Form N-27d-1 is estimated to be zero hours; however, we are requesting 1 burden hour for administrative purposes.
Only one registered investment company has issued a new periodic payment plan certificate within the past 18 months, and the principal underwriter or depositor for this sole issuer relies on the exemption in rule 27d-2. The respondent makes approximately three responses per year.
The staff believes that rules 27d-1 and 27d-2 and Form N-27D-1 do not impose any cost burdens other than those arising from the hour burdens discussed above.
The estimates of average burden hours and costs are made solely for the purposes of the Paperwork Reduction Act, and are not derived from a comprehensive or even a representative survey or study of the costs of Commission rules and forms.
Complying with the collection of information requirements of rule 27d-1 is mandatory for depositors or principal underwriters of issuers of periodic payment plans unless they comply with the requirements in rule 27d-2. The information provided pursuant to rules 27d-1 and 27d-2 is public and, therefore, will not be kept confidential. 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.
Written comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the functions of the Commission, including whether the information has practical utility; (b) the accuracy of the Commission's estimate of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information 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. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
Please direct your written comments to R. Corey Booth, Director/Chief Information Officer, Securities and Exchange Commission, C/O Shirley Martinson, 6432 General Green Way, Alexandria, VA 22312; or send an e-mail to:
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The title for the collection of information is “Rule 204A-1 (17 CFR 275.204A-1) under the Investment Advisers Act of 1940” (15 U.S.C. 80b-1
The respondents to this information collection are investment advisers registered with the Commission. The Commission has estimated that compliance with rule 204A-1 imposes a burden of approximately 117 hours per adviser annually based on an average adviser having 84 access persons. Our latest data indicate that there were 10,817 advisers registered with the Commission. Based on this figure, the Commission estimates a total annual burden of approximately 1,265,865 hours for this collection of information.
Rule 204A-1 does not require recordkeeping or record retention. The collection of information requirements under the rule are mandatory. The information collected pursuant to the rule are not filed with the Commission, but rather take the form of communications between advisers and their supervised persons. Investment advisers use the information collected to control and assess the personal trading activities of their supervised persons. Responses to the reporting requirements will be kept confidential to the extent each investment adviser provides confidentiality under its particular practices and procedures. 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 control number.
Please direct general comments regarding the above information to the
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94-409, that the Securities and Exchange Commission will hold the following meetings during the week of January 28, 2008:
An Open Meeting will be held on Wednesday, January 30, 2008 at 10 a.m., in the Auditorium, Room L-002, and Closed Meetings will be held on Wednesday, January 30, 2008 at 11 a.m. and Thursday, January 31, 2008 at 10 a.m.
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the Closed Meetings. Certain staff members who have an interest in the matters may also be present.
The General Counsel of the Commission, or his designee, has certified that, in his opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(5), (7), (9)(B), and (10) and 17 CFR 200.402(a)(5), (7), 9(ii) and (10), permit consideration of the scheduled matters at the Closed Meetings.
Commissioner Casey, as duty officer, voted to consider the items listed for the closed meetings in closed sessions, and determined that no earlier notice of the meetings was possible.
The subject matter of the Open Meeting scheduled for Wednesday, January 30, 2008 will be:
The Commission will hear oral argument in an appeal by Jeffrey L. Gibson from the decision of an administrative law judge. Gibson is a part-owner and associated person of Gibson Gaither Wealth Management Advisors, an investment adviser, and also was, during the time at issue, associated with H. Beck, Inc., a broker-dealer. On May 9, 2006, the United States District Court for the Northern District of Georgia enjoined Gibson, with his consent, from violations of the antifraud provisions of the securities laws.
Upon motion for summary disposition, the law judge found that it was undisputed that Gibson was associated with an investment adviser and a broker-dealer and that he had been enjoined from violating the antifraud provisions of the securities laws. The law judge determined that Gibson should be barred from association with an investment adviser or broker-dealer.
Among the issues likely to be argued are:
The subject matter of the Closed Meeting scheduled for Wednesday, January 30, 2008 will be: Post-argument discussion.
The subject matter of the Closed Meeting scheduled for Thursday, January 31, 2008 will be:
Post-argument discussion.
At times, changes in Commission priorities require alterations in the scheduling of meeting items.
For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact:
The Office of the Secretary at (202) 551-5400.
Securities and Exchange Commission (“Commission”).
Notice of an application under section 6(c) of the Investment Company Act of 1940 (“Act”) for an exemption from rule 12d1-2(a) under the Act.
Secretary, Commission, 100 F Street, NE., Washington, DC 20549-1090; Applicants, c/o Abby Ingber, Esq., Schroder Investment Management North America Inc., 875 Third Avenue, 22nd Floor, New York, New York 10022.
Lewis Reich, Senior Counsel, at (202) 551-6919, or Nadya B. Roytblat, Assistant Director, at (202) 551-6821 (Division of Investment Management, Office of Investment Company Regulation).
The following is a summary of the
1. Each Trust is organized as either a Delaware statutory trust or a Massachusetts business trust and is registered under the Act as an open-end management investment company. The Trusts offer separate series (“Funds”) that may invest in other registered investment companies in reliance on section 12(d)(1)(G) of the Act and rule 12d1-2 under the Act (“Underlying Funds”).
2. SIMNA is a wholly-owned subsidiary of Schroders plc, a publicly-owned holding company organized under the laws of England. SIMNA Ltd. is an affiliate of SIMNA. SIMNA and SIMNA Ltd. are both registered as investment advisers under the Investment Advisers Act of 1940 and serve as investment advisers to the Funds. SFA, also an affiliate of SIMNA and registered as a broker-dealer under the Securities Exchange Act of 1934 Act (“Exchange Act”), provides all distribution and marketing services for the Trusts and serves as administrator to Schroder North American Equity Fund.
1. Section 12(d)(1)(A) of the Act provides that no registered investment company (“acquiring company”) may acquire securities of another investment company (“acquired company”) if such securities represent more than 3% of the acquired company's outstanding voting stock or more than 5% of the acquiring company's total assets, or if such securities, together with the securities of other investment companies, represent more than 10% of the acquiring company's total assets. Section 12(d)(1)(B) of the Act provides that no registered open-end investment company may sell its securities to another investment company if the sale will cause the acquiring company to own more than 3% of the acquired company's voting stock, or cause more than 10% of the acquired company's voting stock to be owned by investment companies.
2. Section 12(d)(1)(G) of the Act provides that section 12(d)(1) will not apply to securities of an acquired company purchased by an acquiring company if: (i) The acquiring company and acquired company are part of the same group of investment companies; (ii) the acquiring company holds only securities of acquired companies that are part of the same group of investment companies, government securities, and short-term paper; (iii) the aggregate sales loads and distribution-related fees of the acquiring company and the acquired company are not excessive under rules adopted pursuant to section 22(b) or section 22(c) of the Act by a securities association registered under section 15A of the Exchange Act or by the Commission; and (iv) the acquired company has a policy that prohibits it from acquiring securities of registered open-end management investment companies or registered unit investment trusts in reliance on section 12(d)(1)(F) or (G) of the Act.
3. Rule 12d1-2 under the Act permits a registered open-end investment company or a registered unit investment trust that relies on section 12(d)(1)(G) of the Act to acquire, in addition to securities issued by another registered investment company in the same group of investment companies, government securities, and short-term paper: (1) Securities issued by an investment company that is not in the same group of investment companies, when the acquisition is in reliance on section 12(d)(1)(A) or 12(d)(1)(F) of the Act; (2) securities (other than securities issued by an investment company); and (3) securities issued by a money market fund, when the investment is in reliance on rule 12d1-1 under the Act. For the purposes of rule 12d1-2, “securities” means any security as defined in section 2(a)(36) of the Act.
4. Section 6(c) of the Act provides that the Commission may exempt any person, security, or transaction from any provision of the Act, or from any rule under the Act, if such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policies and provisions of the Act.
5. Applicants state that the proposed arrangement would comply with the provisions of rule 12d1-2 under the Act, but for the fact that the Funds may invest a portion of their assets in Other Investments. Applicants request an order under section 6(c) of the Act for an exemption from rule 12d1-2(a) to allow the Funds to invest in Other Investments. Applicants assert that permitting the Funds to invest in Other Investments as described in the application would not raise any of the concerns that the requirements of section 12(d)(1) were designed to address.
Applicants agree that the order granting the requested relief will be subject to the following conditions:
1. In connection with its approval of any investment advisory agreement under section 15 of the Act, the Board of the appropriate Fund, including a majority of the trustees who are not “interested persons” as defined in section 2(a)(19) of the Act, will find that the advisory fees, if any, charged under the agreement are based on services provided that are in addition to, rather than duplicative of, services provided pursuant to any Underlying Fund's advisory agreement. Such finding, and the basis upon which the finding is made, will be recorded fully in the minute books of the appropriate Fund.
2. Applicants will comply with all provisions of rule 12d1-2 under the Act, except for paragraph (a)(2), to the extent that it restricts any Fund from investing in Other Investments as described in the application.
For the Commission, by the Division of Investment Management, under delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend Section 107 of the Amex
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 Exchange proposes to amend Sections 107D, 107E and 107F of the Company Guide to permit certain index-linked securities (“Index-Linked Securities”), commodity-linked securities (“Commodity-Linked Securities”), and currency-linked securities (“Currency-Linked Securities”) (collectively, “Exchange-Traded Notes or ETNs”) that offer a weekly redemption feature to be traded subject to the AEMI trading rules specific to ETFs.
The Exchange believes that the existence of a weekly redemption feature, at the option of the holder, ensures a strong correlation between the market price of the ETN and the performance of the underlying asset. This feature is similar to the daily redemption feature available in ETFs. In addition, the Exchange notes that these Exchange Traded Notes are typically continuously offered, on a daily basis, so that the issuer would have the ability to issue new securities from time to time at market prices. This process is similar to the manner in which ETFs are continuously offered via the creation/redemption process in Creation Unit aggregations (
The Exchange states that Securities listed pursuant to Section 107 of the
Section 107 Securities typically have a term of at least one (1) year but not greater than 30 years. The issuer may or may not provide for periodic interest payments to holders. The holder of a Section 107 Security may or may not be fully exposed to the appreciation and/or depreciation of the underlying asset.
A number of Section 107 Securities based on securities indexes that are listed and traded on the Exchange provide for a payment amount in a multiple of the positive index return or performance, subject to a maximum gain or cap. The Exchange's generic listing standards in connection with Section 107 Securities allow for the multiple performance on the upside but prohibit payment at maturity based on a multiple of the negative performance of an underlying asset. Section 107 Securities may or may not provide for a minimum guaranteed amount to be repaid,
Section 107 Securities do not give the holder a right to receive the underlying asset or any other ownership right or interest in the underlying portfolio. The current value of the underlying asset is required to be widely disseminated at least every 15 seconds during the trading day.
The Exchange submits that Section 107 Securities are “hybrid” securities whose rates of return are largely the result of the performance of an underlying asset. Prior to the listing and trading of Section 107 Securities, the Exchange states that it typically highlights and discloses the special risks and characteristics of such security in an Information Circular.
Sections 107D,
Because the current Rules deem ETNs and other Section 107 Securities as “equity instruments,” the full range of AEMI trading rules specific to equities apply to all Section 107 Securities regardless of the particular structure of the Section 107 Security. In connection with an ETN that is continuously-offered with a weekly redemption option (such as BWV), the Exchange believes that the AEMI trading rules applicable to ETFs (rather than equities) should equally apply to such ETN.
In order to qualify, the ETN would be required to offer a weekly redemption option to holders (“Eligible ETNs”).
The following rules specifically applicable to ETF trading would apply to the trading of Eligible ETNs:
• Rule 108—AEMI(c). The execution of Eligible ETN orders at the opening would be effected in the same manner as ETFs so that orders in Eligible ETNs would be executed before any broker-dealer bids or offers.
• Rule 110—AEMI(p). A Registered Trader in ETFs (including Eligible ETNs) would only actively quote ETFs traded on the same or contiguous panels for a maximum of three contiguous panels. A Registered Trader would also not actively quote more than a maximum of 15 ETFs (including Eligible ETNs). A Senior Floor Official of the Exchange may modify this restriction if a Registered Trader is able to appropriately fulfill his obligations to the market due to the level of activity in the ETFs and their proximity.
• Rule 128A—AEMI(d)(iv). Any quotation in an ETF entered into the AEMI platform by the specialist or Registered Trader while Auto-Ex is enabled that would cause the Amex Published Quote (APQ) to be locked or crossed would be automatically executed. In the case of a non-ETF Amex-listed security or a non-Nasdaq UTP equity security, quotations that are entered into the AEMI platform by the specialist while Auto-Ex is enabled that would cause the APQ to cross would be rejected. Therefore, Eligible ETNs would be automatically executed, rather than rejected, when a specialist or Registered Trader quotation causes the APQ to be locked/crossed when Auto-Ex is enabled.
• Rule 128A—AEMI(f)(iv). AEMI does not automatically execute non-ETF orders when the automatic execution of an order exceeds the price change parameters of the “1%, 2, 1,
• Rule 131—AEMI(o). AEMI rejects “too marketable” non-ETF stop and stop limit orders. “Too marketable” is defined as a buy stop order received during the regular trading session with a stop price equal to the bid or lower, or a sell stop order received during the regular trading session with a stop price equal to the offer or higher. ETF stop orders that are “too marketable” are executed by AEMI under this Rule, and accordingly, Eligible ETN stop orders would similarly be executed.
• Rule 131—AEMI(r). AEMI does not accept electronic cross orders for non-ETFs and non-Nasdaq UTP securities. As a result, electronic cross orders are acceptable only for ETFs. As proposed, electronic cross orders for Eligible ETNs would be acceptable in AEMI.
• Rule 154—AEMI(c)(i). The Stop Order Rule requires floor official approval prior to the specialist electing a stop order by selling to the bid/buying on the offer. Prior floor official approval is not required for ETFs and would similarly not apply to Eligible ETNs.
• Rule 154—AEMI(c)(ii). Stop and stop limit orders in ETFs are elected by a quotation, although such orders in non-ETFs are not. Accordingly, stop and stop limit orders in Eligible ETNs would similarly be elected by quotation, pursuant to this rule.
• Rule 154—AEMI(e). Maximum price variation requirements are set forth in Rule 154—AEMI(e) (also known as the “1%-2, 1, .5 Point Rule). This Rule specifically provides that it does not apply to the trading of ETFs. Accordingly, Rule 154—AEMI(e) would similarly not apply to Eligible ETNs.
• Commentary .03 to Rule 170—AEMI. A specialist quotation, made for his own account, should be such that a transaction effected at his quoted price or within the quoted spread, whether having the effect of reducing or increasing the specialist's position, would bear a proper relation, in the case of ETFs or other derivatively-based securities, to the value of underlying or related securities. Eligible ETNs would similarly be subject to this requirement.
• Commentary .11 to Rule 170—AEMI. Commentary .11 to Rule 170—AEMI specifically exempts ETFs from the stabilization requirements. Accordingly, Eligible ETNs would similarly be exempt.
• Rule 206—AEMI. This Rule prohibits a specialist from crossing the market for the purpose of electing odd-lots and requires floor official approval in various circumstances for non-ETFs. The exemption for ETFs would similarly apply to Eligible ETNs.
Eligible ETNs would be subject to the same parity allocation as currently exists for ETFs and other equity-traded products that are not listed stocks, UTP stocks, or closed-end funds. In addition, Rule 110—AEMI (o), among other things, permits market makers (
The Exchange believes 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.
The Exchange did not receive any written comment on the proposed rule change.
Within 35 days of the date of publication of this notice in the
A. By order approve the proposed rule change or
B. Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On June 29, 2007, the American Stock Exchange LLC (“Amex” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”) a proposed rule change pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to list and trade Units issued by USHO and USG pursuant to Amex Rules 1500-AEMI and 1501 through 1505.
Each Unit represents ownership of a fractional undivided beneficial interest in the net assets of USHO and USG.
USHO may also invest in other heating-oil-related investments such as cash-settled options on Futures Contracts, forward contracts for heating oil, and over-the-counter (“OTC”) contracts that are based on the price of heating oil, oil and other petroleum-based fuels, Futures Contracts, and indices based on the foregoing (collectively, “Other Heating Oil Related Investments”). Futures Contracts and Other Heating Oil Related Investments collectively are referred to as “Heating Oil Interests.”
Similarly, USG may also invest in other gasoline-related investments such as cash-settled options on Futures Contracts, forward contracts for gasoline, and OTC transactions based on the price of gasoline, oil, and other petroleum-based fuels, Futures Contracts, and indices based on the
Each of USHO and USG will invest in Heating Oil Interests and Gasoline Interests, respectively, to the fullest extent possible without being leveraged or unable to satisfy its current or potential margin or collateral obligations. In pursuing this objective, the primary focus of USHO's and USG's investment manager, Victoria Bay Asset Management, LLC (“Victoria Bay” or “General Partner”), will be investment in Futures Contracts and the management of Partnership investments in short-term obligations of the United States of two years or less (“Treasuries”), and cash and cash equivalents (collectively, “Cash”) for margining purposes and as collateral. Each Partnership seeks to track price changes in percentage terms of an underlying commodity as measured by a benchmark defined to be the price of a specified futures contract. Each Partnership seeks to track price changes in percentage terms of an underlying commodity as measured by a benchmark defined to be the price of a specified futures contract.
Accordingly, the investment objective of USHO is for the changes in percentage terms of a Unit's net asset value (“NAV”) to reflect the changes in percentage terms of a specified price of heating oil (also known as No. 2 fuel) delivered at the New York harbor, as measured by the changes in the price of the heating oil futures contract traded on the NYMEX (the “Heating Oil Benchmark Futures Contract”), less USHO's expenses. Similarly, the investment objective of USG is for changes in percentage terms of a Unit's NAV to reflect the changes in percentage terms of the price of unleaded gasoline (also known as reformulated gasoline blendstock for oxygen blending or “RBOB”), for delivery to New York harbor, as measured by the changes in the price of a specified unleaded gasoline futures contract traded on the NYMEX (the “Gasoline Benchmark Futures Contract”), less USG's expenses. The Heating Oil Benchmark Futures Contract and Gasoline Benchmark Futures Contract employed are, in each case, the near month expiration contract, except when the near month contract is within two weeks of expiration, in which case it will invest in the next expiration month.
The General Partner will attempt to place USHO's trades in Heating Oil Interests and otherwise manage USHO's investments so that “A” will be within plus/minus 10% of “B”, where:
• A is the average daily change in USHO's NAV for any period of 30 successive valuation days,
• B is the average daily change in the price of the Benchmark Futures Contract over the same period.
The General Partner will attempt to place USG's trades in Gasoline Interests and otherwise manage USG's investments so that “A” will be within plus/minus 10% of “B”, where:
• A is the average daily change in USG's NAV for any period of 30 successive valuation days,
• B is the average daily change in the price of the Benchmark Futures Contract over the same period.
After careful review, 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 Commission further believes that the proposal is consistent with Section 11A(a)(1)(C)(iii) of the Act,
Furthermore, the Commission believes that the proposal to list and trade the Units is reasonably designed to promote fair disclosure of information that may be necessary to price the Units appropriately and to prevent trading when a reasonable degree of transparency cannot be assured. The Commission also believes that the Exchange's trading halt rules are reasonably designed to prevent trading in the Units when transparency is impaired. Trading in the Units will be halted in the event the market volatility trading halt parameters set forth in Amex Rule 117 have been reached. If the IPV or the underlying benchmark futures contract of a Partnership is not being disseminated as required, the Exchange may halt trading during the day in which the interruption to the dissemination occurs. If the interruption to the dissemination of the IPV or the underlying benchmark futures contract persists past the trading day in which it occurred, the Exchange will halt trading no later than the beginning of the trading day following the interruption.
The Commission further believes that the trading rules and procedures to which the Units will be subject pursuant to this proposal are consistent with the Act. The Exchange has represented that the Units will be traded on the Exchange similar to other equity securities.
In support of this proposal, the Exchange has made the following representations:
(1) The Exchange will obtain a representation from each Partnership, prior to listing, that the NAV per Unit for USHO and USG will be calculated daily and made available to all market participants at the same time. In addition, the Exchange represents that disclosure of the portfolio composition for each Partnership will be made to all market participants at the same time.
(2) The Exchange's surveillance procedures are adequate to deter and detect violations of Exchange rules relating to trading of the Units. Specifically, the surveillance procedures will be similar to those used for units of the United States Oil Fund, LP and the United States Natural Gas Fund, LP
(3) Prior to the commencement of trading, the Exchange will inform its members and member organizations in an Information Circular. The Information Circular will discuss the special characteristics, and risks, of trading in the Units. Specifically, the Information Circular, among other things, will discuss what the Units are, how a basket of Units is created and redeemed, the requirement that members and member firms deliver a prospectus to investors purchasing the Units prior to, or concurrently with, the confirmation of a transaction, applicable Amex rules, dissemination of information regarding the per-Unit IPV, trading information, and applicable suitability rules. The Information Circular will also reference the fact that there is no regulated source of last sale information regarding physical commodities, and describe the regulatory framework relating to the trading of heating oil and gasoline based futures contracts and related options. The Information Circular will also discuss any relief, if granted, by the Commission or the staff from any rules under the Act.
(4) The Trust is required to comply with Rule 10A-3 under the Act
This approval order is based on the Exchange's representations.
The Commission finds good cause, pursuant to Section 19(b)(2) of the Act,
Accordingly, the Commission finds that there is good cause, consistent with Section 6(b)(5) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to extend the effective date of the amended rule governing the Exchange's Directed Order process on the Boston Options Exchange (“BOX”) from January 31, 2008, to January 31, 2009. The text of the proposed rule change is available on BSE's Web site at
In its filing with the Commission, the BSE 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 BSE has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
On March 14, 2006, the BSE proposed an amendment to its rules governing its Directed Order
On June 20, 2006, the Exchange proposed extending the effective date of the rule governing its Directed Order process on BOX from June 30, 2006 to September 30, 2006,
On September 11, 2006, January 16, 2007, and July 2, 2007, the Exchange proposed extending the effective date of the amended rule governing the Directed Order process on the BOX from September 30, 2006 until January 31, 2007,
This filing from the Exchange again proposes extending the effective date of the amended rule governing its Directed Order process on BOX, from January 31, 2008 to January 31, 2009.
The amended rule is designed to clarify the information contained in a Directed Order. This proposed rule filing seeks to extend the amended rule's effectiveness from January 31, 2008 to January 31, 2009. This extension will afford the Commission the necessary time to consider the Exchange's corresponding proposal to amend its rule to permit EPs to choose the firms from whom they will accept Directed Orders while providing complete anonymity of the firm entering a Directed Order. Accordingly, the Exchange believes that this proposal is consistent with the requirements of 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.
The Exchange has neither solicited nor received comments on the proposed rule change.
Because the foregoing proposed rule change: (1) Does not significantly affect
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of such proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes 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 Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Chicago Board Options Exchange, Incorporated (“CBOE” or “Exchange”) proposes to amend its Fees Schedule to make various changes for Fiscal Year 2008. The text of the proposed rule change is available at the CBOE, on the Exchange's Web site at
In its filing with the Commission, CBOE 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
The purpose of this proposed rule change is to amend the CBOE Fees Schedule to make various fee changes. The proposed changes are the product of the Exchange's annual budget review. The fee changes were approved by the Exchange's Board of Directors pursuant to CBOE Rule 2.22 and will take effect on January 1, 2008.
The Exchange proposes to amend the following fees:
In January 2007, the Exchange adopted a “Liquidity Provider Sliding Scale” program, which reduces a Liquidity Provider's per contract transaction fee based on the number of contracts the Liquidity Provider trades in a month.
Under the current program, a Liquidity Provider's $.20 per contract transaction fee is reduced if the Liquidity Provider reaches the volume thresholds set forth in the sliding scale in a month. As a Liquidity Provider's monthly volume increases, its per contract transaction fee decreases. The first 50,000 contracts traded in a month (first tier) are assessed at $.20 per contract. The next 950,000 contracts traded (up to 1 million total contracts traded—second tier) are assessed at $.18 per contract. The next 1.5 million contracts traded (up to 2.5 million total contracts traded—third tier) are assessed at $.15 per contract and the next 1.5 million contracts traded (up to 4 million total contracts traded—fourth tier) are assessed at $.10 per contract. All contracts above 4 million contracts traded in a month (fifth tier) are assessed at $.02 per contract. The Exchange aggregates the trading activity of separate Liquidity Provider firms for purposes of the sliding scale if there is at least 75% common ownership between the firms as reflected on each firm's Form BD, Schedule A.
The Exchange proposes to increase the sliding scale volume thresholds for fiscal year 2008 due to increased volume on the Exchange. Specifically, the Exchange proposes to increase the first tier threshold from 50,000 contracts to 75,000 contracts, the second tier threshold from 950,000 contracts to 1,125,000 contracts (up to 1.2 million total contracts traded), the third tier threshold from 1.5 million contracts to 1.8 million contracts (up to 3 million total contracts traded), the fourth tier threshold from 1.5 million contracts to 1.8 million contracts (up to 4.8 million total contracts traded), and the fifth tier threshold from above 4 million contracts to above 4.8 million contracts. The Exchange also proposes to increase the fifth tier transaction fee rate from $.02 per contract to $.03 per contract.
Under the current program, the Exchange provides Liquidity Providers with two incentives to prepay annual transaction fees. First, in order to be eligible to participate in the sliding scale above 1 million contracts (
Pursuant to Section 20 of the CBOE Fees Schedule, the Exchange caps member firm proprietary fees at $125,000 per month per firm (“Member Firm Fee Cap”). The Exchange proposes to eliminate the Member Firm Fee Cap program and replace it with a sliding scale program (“Member Firm Proprietary Sliding Scale”) similar in operation to the Liquidity Provider Sliding Scale.
The proposed Member Firm Proprietary Sliding Scale would reduce the standard member firm proprietary per contract transaction fee (currently $.20 per contract) based on the number of contracts the member firm trades in a month, based on the following sliding scale:
The sliding scale would apply to member firm proprietary orders (“F” origin code) in all products, except for orders of joint back-office (“JBO”) participants.
A member firm's $.20 per contract transaction fee would be reduced if the member firm reaches the volume thresholds set forth in the sliding scale in a month. As a member firm's monthly volume increases, its per contract transaction fee would decrease. Under the proposed sliding scale, the first 400,000 contracts traded in a month would be assessed at $.20 per contract. The next 200,000 contracts traded (up to 600,000 total contracts traded) would be assessed at $.15 per contract. The next 150,000 contracts traded (up to 750,000 total contracts traded) would be assessed at $.10 per contract and the next 100,000 contracts traded (up to 850,000 contracts traded) would be assessed at $.05 per contract. All contracts above 850,000 contracts traded in a month would be assessed at $.02 per contract.
Due to the Exchange's obligation to pay license fees on certain products, the Exchange would assess a $.10 per contract license fee (a total of 10 cents per contract less any surcharge fees already assessed) on all licensed products when a firm reaches the fifth tier of the sliding scale.
The Exchange currently charges a $.04 per contract surcharge fee on transactions of all market participants in
The Exchange currently charges customers trading SPX options $.44 per contract if the premium is greater than or equal to $1 and $.27 per contract if the premium is less than $1. The Exchange proposes to increase the transaction fee rate if the premium is less than $1 from $.27 per contract to $.35 per contract.
Membership application fees are set forth in Section 11 of the CBOE Fees Schedule as well as in a regulatory circular (“Membership Fees Circular”). These fees have not changed in approximately four years. The Exchange proposes several changes to the membership application fees as reflected in the Fees Schedule and Membership Fees Circular included as Exhibit 5. The proposed changes would simplify the membership application fees schedule by consolidating certain fees. In addition, certain fees are proposed to be increased, certain fees are proposed to be eliminated, and one new fee is proposed to be established (Seat Transfer Fee).
The Exchange notes that while the proposed $4,000 Trading Firm Application Fee is significantly higher than the current firm application fee ($275), unlike the current fee the proposed new fee will encompass several other fees related to a firm's membership application,
The Exchange provides members with access to an online appointment system that allows CBOE market-makers and remote market-makers to view and update their market-maker appointments as often as necessary. Market-makers are still allowed to request appointment changes via email, phone call or in-person visits to the Exchange. In order to encourage market-makers to use the online appointments system, the Exchange proposes to charge members $50 for each appointment change request that is not executed through the online appointment system.
The Exchange proposes to amend an existing fee and establish several new fees related to CBOE's electronic trading system (CBOEdirect) and its Hybrid Trading System. First, the Exchange provides certain hardware (
Second, the Exchange proposes to establish three new monthly charges related to connectivity to CBOEdirect. The Exchange provides member firms with server hardware that enable the firms to connect to CBOE's two Application Protocol Interfaces (“APIs”): CMI (CBOE Market Interface) and Financial Information Exchange (“FIX”). Currently, members do not pay for this service. The Exchange proposes to charge members a $40 per month “CMI Application Server” fee for this service. In addition, the Exchange proposes to charge members a $40 per month “network access port” charge and a $40 per month “FIX port” charge for network hardware the Exchange provides to members for access to the Exchange's network.
Lastly, the Exchange provides cabinet space in the CBOE data center for co-locating member firm network and quoting engine hardware, to help members meet their need for high performance processing and low latency. The Exchange proposes to charge a co-location fee of $10 per “U” of shelf space (which is equal to 1.75 inches).
The Exchange proposes to amend the Customer Large Trade Discount program. The Customer Large Trade Discount program provides a discount in the form of a cap on the quantity of customer contracts that are assessed transaction fees for CBOE index, ETF and HOLDRs options.
The Exchange proposes two non-substantive clean-up changes to its Fees Schedule, as reflected in Exhibit 5. The Exchange proposes to delete a sentence from Footnote 7 of the Fees Schedule relating to a cabinet fee as the Exchange recently eliminated that fee.
The proposed rule change is consistent with Section 6(b) of the Act,
CBOE does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
Because the foregoing rule change establishes or changes a due, fee, or other charge imposed by the Exchange, it has become effective pursuant to Section 19(b)(3)(A) 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 Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The purpose of the proposed rule change is to revise DTC's fee schedule.
In its filing with the Commission, DTC 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. DTC has prepared summaries, set forth in sections (A), (B), and (C) below, of the most significant aspects of these statements.
The purpose of the proposed rule change is to revise fees for certain services provided by DTC.
These changes include:
(1) Decreases to Settlement Services fees to realign fees with costs incurred in providing the services.
(2) Increases in Securities Processing, Custody, and Asset Servicing fees to realign fees with costs scaled to reflect processing complexity.
(3) Elimination of certain Participant Output Services fees.
In addition, DTC is implementing certain disincentive fees to discourage activities which increase industry inefficiencies. These disincentive fees include:
(1) A disincentive fee related to underwritings of non-conforming structured securities (
(2) A disincentive fee for underwriters that submit incomplete information.
(3) Additional disincentive fees related to rejects and exceptions for Custody and Deposits.
DTC is introducing associated fees for new capabilities in Tax Services and Securities Processing. DTC is also introducing new Underwriting fees for the New Issue Information Dissemination Service (NIIDS). The effective date for the new Underwriting fees will be announced by DTC through an Important Notice upon the Commission's approval proposed rule change SR-DTC-2007-10.
These proposed fee revisions are consistent with DTC's overall pricing philosophy to align service fees with underlying costs, to discourage manual and exception processing, and to encourage immobilization and dematerialization of securities. Except as noted, the effective date for these fee adjustments was January 2, 2008.
DTC believes that the proposed rule change is consistent with the requirements of Section 17A(b)(3)(D) of the Act
DTC does not believe that the proposed rule change will have any impact on or impose any burden on competition.
No written comments relating to the proposed rule change have been solicited or received. DTC will notify the Commission of any written comments received by DTC.
The foregoing rule change has become effective upon filing pursuant to Section 19(b)(3)(A)(ii) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-DTC-2007-17 and should be submitted on or before February 20, 2008.
For the Commission by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The ISE is proposing to extend the pilot period for the system change that identifies to a Directed Market Maker (“DMM”) the identity of the firm entering a Directed Order until January 31, 2009.
In its filing with the Commission, the ISE 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 ISE has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
On January 5, 2006, the ISE initiated a system change to identify to a DMM the identity of the firm entering a Directed Order. The ISE filed this system change on a pilot basis under Section 19(b)(3)(A) of the Act and Rule 19b-4(f)(5) thereunder
The Exchange believes that the basis under the Act is found in Section 6(b)(5), in that the propose rule change is designed to promote just and equitable principles of trade, remove impediments to and perfect the mechanisms of a free and open market and a national market system and, in general, to protect investors and the public interest. Extension of the pilot program will allow the Exchange to continue operating the pilot while the Commission considers the Permanent Rule Change.
The Exchange believes that the proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any written comments from members or other interested parties.
Because the foregoing proposed rule change effects a change in an existing order entry or trading system that (i) does not significantly affect the protection of investors or the public interest; (ii) does not impose any significant burden on competition; and (iii) does not have the effect of limiting access to or availability of the system, it has become effective pursuant to Section 19(b)(3)(A)(iii) of the Act
At any time within 60 days of the filing of such proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-ISE-2008-08. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The purpose of the proposed rule change is to: (1) Clarify the appropriate use of NSCC's Correspondent Clearing Service and (2) make technical corrections, clarification, and organizational changes relative to its Trade Recording and Special Representative Services.
In its filing with the Commission, NSCC 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. NSCC has prepared summaries, set forth in sections (A), (B), and (C) below, of the most significant aspects of these statements.
The purpose of the proposed rule change is to: (1) Clarify the appropriate use of NSCC's Correspondent Clearing Service and (2) make technical corrections, clarification, and organizational changes relative to its Trade Recording and Special Representative Services.
NSCC is modifying its Procedure IV (Special Representative Service) to clarify the appropriate use of the Correspondent Clearing Service.
The Correspondent Clearing Service is designed to provide an automated vehicle by which a Member, acting as a Special Representative, may move a position that it has in the process of clearance at NSCC to the account of another Member (its correspondent) on whose behalf the original trade was executed. The Correspondent Clearing Service is not a mechanism for original trade submission.
The Correspondent Clearing Service was not designed as a mechanism to permit a Special Representative, acting as a Qualified Special Representative (“QSR”), to submit original locked-in trade data, and it should not be used as such. A QSR is a Member that either (i) operates an automated execution system where it is always the contra-side of every trade, (ii) is the parent or affiliate of an entity operating such an automated system, where it is the contra-side of every trade, or (iii) clears for a broker-dealer that operates such a system, and the subscribers to the system acknowledge the clearing Member's role in the clearance and settlement of these trades.
Accordingly, the proposed revisions provide that the Correspondent Clearing Service may only be used in the following situations: (1) To accommodate a Member with multiple affiliate accounts that wishes to move a position resulting from an “original trade” in the process of clearance from one affiliate account to another and (2) to accommodate a Member that relies on its Special Representative to execute a trade in a market that the Member is precluded from due either to membership requirements (
At this time, as part of updating its Rules and Procedures relative to the Trade Recording and Special Representative Services, NSCC is making certain technical corrections, clarifications, and organizational changes to:
(1) Rule 7, including moving the definitions of “Special Representative,” “Qualified Special Representative,” and “Index Receipt Agent” from Rule 39 (where they currently appear) to Rule 7 (where these terms are first used) and renumbering the rules accordingly; and
(2) Procedure II (Trade Comparison and Recording Service) to (i) add clarifying language to the introductory paragraph to describe the procedure used by NSCC to confirm locked-in trade data and (ii) add back language relating to receipt of locked-in trade data from QSRs that was inadvertently deleted in error in rule change SR-NSCC SR-2003-12.
NSCC believes that the proposed rule change is consistent with the requirements of Section 17A(b)(3)(A) of the Act
NSCC does not believe that the proposed rule change will have any impact on or impose any burden on competition.
No written comments relating to the proposed rule change have been solicited or received. NSCC will notify the Commission of any written comments received by NSCC.
The foregoing rule change has become effective upon filing pursuant to Section 19(b)(3)(A)(i) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule changes are 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 Trading and Markets, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The proposed rule change would implement a new discounted fee schedule and continue the market maker scratch fee discount with all changes being effective January 1, 2008.
In its filing with the Commission, OCC 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. OCC has prepared summaries, set forth in sections (A), (B), and (C) below, of the most significant aspects of these statements.
Effective May 1, 2007, OCC adopted a new permanent reduced clearing fee schedule for (i) securities options and
The discounted clearing fee schedule and market maker scratch fee will remain in effect until further action by OCC's Board of Directors.
The adoption of the new discounted fee schedule reflects the strong contract volume experienced by OCC in 2007. OCC believes that these discounted fees will financially benefit clearing members and other market participants without adversely affecting OCC's ability to meet its expenses and maintain an acceptable level of retained earnings.
The proposed rule change is consistent with the requirements of section 17A of the Act
OCC does not believe that the proposed rule change would impose any burden on competition.
Written comments were not and are not intended to be solicited with respect to the proposed rule change, and none have been received.
The foregoing rule change has become effective upon filing pursuant to section 19(b)(3)(A)(ii) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-OCC-2007-17. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission by the Division of Trading and Markets, pursuant to delegated authority.
Social Security Administration (SSA).
Proposed New System of Records and Proposed Routine Uses.
In accordance with the Privacy Act (5 U.S.C. 552a(e)(4) and (e)(11)), we are issuing public notice of our intent to establish a new system of records entitled,
We filed a report of
Interested individuals may comment on this publication by writing to the Executive Director, Office of Public Disclosure, Office of the General Counsel, Social Security Administration, Room 3-A-6 Operations Building, 6401 Security Boulevard, Baltimore, Maryland 21235-6401. All comments received will be available for public inspection at the above address.
Ms. Earlene Whitworth Hill, Social Insurance Specialist, Disclosure Policy Development and Services Division 1, Office of Public Disclosure, Office of the General Counsel, Social Security Administration, Room 3-A-6 Operations Building, 6401 Security Boulevard, Baltimore, Maryland 21235-6401, telephone at (410) 965-1817, or e-mail:
• Workload Counts.
• Performance Measure.
• Time Allocation.
• Customer Service Record.
• Managerial Cost Accountability.
SSA will collect and maintain information in
The information maintained in
We are proposing to establish routine uses of information that will be maintained in
1.
We will disclose information under this routine use only in situations in which an individual contacts the Office of the President, seeking that Office's assistance in a matter relating to information contained in
2.
We will disclose information under this routine use only in situations in which an individual asks his or her congressional representative to intercede in a matter relating to information contained in
3.
(a)
(b)
(c)
(d)
We will disclose information under this routine use only as necessary to enable DOJ to effectively defend SSA, its components or employees, in litigation involving
4.
We will disclose information about our employees to the EEOC, as necessary, to assist in reassessing individuals' requests for reasonable accommodations; to assist in investigations into alleged or possible discriminatory practices in the Federal sector; to combat and prevent fraud, waste, and abuse under the Rehabilitation Act of 1973; and to assist the Commission in carrying out its other functions.
5.
We will disclose information about our employees under this routine use, as necessary, to the Federal Labor Relations Authority, the General Counsel, the Federal Mediation and Conciliation Service, and the Federal Service Impasses Panel or an arbitrator, in which all or part of the allegations involve
6.
We will disclose information about our employees under this routine use, as necessary, to the Merit Systems Protection Board or the Office of the Special Counsel, in which all or part of the allegations in the appeal or action involve
7.
We will disclose information under this routine use only in situations where SSA enters into a contractual agreement or similar agreement with a third party to assist in accomplishing an Agency function relating to
8.
Under certain Federal statutes, SSA is authorized to use the service of volunteers and participants in certain educational, training, employment, and community service programs. Examples of such statutes and programs include 5 U.S.C. 3111, which pertain to student volunteers, and 42 U.S.C. 2753, which pertain to the College Work-Study Program. We contemplate disclosing information under this routine use only when SSA uses the services of these individuals and they need access to information in this system to perform their assigned Agency duties.
9.
The Administrator of GSA and the Archivist of NARA are authorized by 44 U.S.C. 2904, as amended, to promulgate standards, procedures and guidelines regarding record management and conducting records management studies. GSA and NARA are authorized to inspect Federal agencies' records, for records management purposes, and agencies are expected to cooperate with GSA and NARA (44 U.S.C. 2906). In such instances, the routine use will allow disclosure.
10.
•
•
We will disclose information under this routine use to law enforcement agencies and private security contractors when information is needed to respond to, investigate, or prevent activities that jeopardize the security and safety of SSA customers, employees, or workplaces, or that otherwise disrupt the operation of SSA facilities. Information would also be disclosed to assist in the prosecution of persons charged with violating Federal, State, or local law in connection with such activities.
11.
We will disclose information under this routine use as directed in section 704(e)(1)(B) of the Social Security Independence and Program Improvements Act of 1994, which mandates certain disclosures to HHS components.
12.
This routine use specifically permits the disclosure of SSA information in connection with response and remediation efforts in the event of an unintentional release of Agency information, otherwise known as a “data security breach.” This routine use serves to protect the interests of the person whose information is at risk by allowing us to take appropriate steps to facilitate a timely and effective response to a data breach. It will also help us to improve our ability to prevent, minimize, or remedy any harm that may result from a compromise of data maintained in this system of records.
The Privacy Act (5 U.S.C. 552a(b)(3)) and our disclosure regulations (20 CFR Part 401) permit us to disclose information under a published notice of
We will maintain information in
DDS and contractor personnel having access to data in
SSA, DDS, and contractor personnel having access to the data on this system will be informed of the criminal penalties of the Privacy Act for unauthorized access to, or disclosure of, information maintained in this system.
60-0371.
None.
Office of Systems, SSA, 6401 Security Boulevard, Baltimore, Maryland 21235-6401.
SSA employees, individuals who do business with SSA (e.g., Social Security claimants, beneficiaries, attorney or non-attorney representatives, and representative payees), the State Disability Determination Services (DDS) employees and contractors who assist the Agency in administering the Agency's programs.
We collect records maintained in
The records will consist of information from SSA's mainframe and web-based computer usage files (log files); payroll and human resource databases; security files including the Internet verification file and Internet enterprise security interface; and programmatic work measurement data collected from all SSA processing locations.
Section 205(a) of the Social Security Act (42 U.S.C. 405(a)).
Chief Financial Officers (CFO) Act (1990)—Provides for the integration and modernization of Federal financial systems and requires development of reporting of cost information.
Government Performance and Results Act (GPRA) (1993)—GPRA requires development of Agency strategic plans and performance goals, measurement and reporting on actual performance compared to goals, computation of costs and unit costs as key performance indicators, and comparison of costs with outputs and outcomes.
Government Management Reform Act (GMRA) (1994)—Requires an agency-wide performance and financial statement, an audited statement, and cost information.
Federal Financial Management Improvement Act (FFMIA) (1996)—Mandates that agencies establish financial management systems that comply with Federal standards and requirements. It directs auditors to report on compliance as part of the review of agency financial statements.
Office of Management and Budget (OMB) Standards—Require SSA to implement a modern managerial cost accounting system that satisfies all needs at all managerial decision levels.
• Improve customer service and enhance the Agency's ability to monitor customer service;
• Create a unified work measurement and work power (i.e., the amount of time it takes to do one piece of work) identification system providing simpler access to information for reporting data;
• Produce detailed reports that will assist us in assessing office, unit, and employee performance;
• Consolidate the Agency workload structure and provide data at any office level, down to a specific employee;
• Allocate work-time usage information consistently for all components, workload activities, and the time that it takes to perform work and calculate productivity;
• Accommodate new workloads in a flexible work-measurement system by shifting work to locations where capacity exists, improving customer service;
• Ensure an accurate cost allocation of work performed by SSA;
• Manage and account for resources through one uniform source of MI;
• Measure outcomes, determine full costs, control resources, assess performance and provide timely feedback to managers to enhance the Agency's accountability and customer service; and
• Satisfy government-wide managerial cost accounting regulations and enable the Agency to link resource expenditures with performance, as required by legislation and other government-wide requirements stated in:
1. CFO Act of 1990;
2. GPRA Act of 1993;
3. GMRA Act of 1994;
4. FFMIA Act of 1996; and
5. OMB Standards.
Disclosure may be made for routine uses as indicated below.
1. To the Office of the President for the purpose of responding to an individual pursuant to an inquiry received from that individual or from a third party on his or her behalf.
2. To a congressional office in response to an inquiry from that office made at the request of the subject of a record.
3. To the Department of Justice (DOJ), a court or other tribunal, or another party before such tribunal when:
a. SSA, or any component thereof; or
b. Any SSA employee in his or her official capacity; or
c. Any SSA employee in his or her individual capacity where DOJ (or SSA where it is authorized to do so) has agreed to represent the employee; or
d. The United States or any agency thereof where SSA determines that the litigation is likely to affect the operations of SSA or any of its components, is a party to litigation or has an interest in such litigation, and SSA determines that the use of such records by DOJ, a court or other tribunal, or another party before such tribunal, is relevant and necessary to the litigation, provided, however, that in each case, SSA determines that such disclosure is compatible with the purpose for which the records were collected.
4. To the Equal Employment Opportunity Commission when requesting information in connection with investigations into alleged or possible discriminatory practices in the Federal sector, examination of Federal affirmative employment programs, compliance by Federal agencies with the Uniform Guidelines on Employee Selection Procedures, or other functions vested in the Commission.
5. To the Federal Labor Relations Authority, the General Counsel, the Federal Mediation and Conciliation Service, the Federal Service Impasses Panel, or an arbitrator when information is requested in connection with the investigations of allegations of unfair practices or of other matters before an arbitrator or the Federal Impasses Panel.
6. To the Merit Systems Protection Board or the Office of the Special Counsel in connection with appeals, special studies of the civil service and other merit systems, review of rules and regulations, investigation of alleged or possible prohibited personnel practices, and other such functions promulgated in 5 U.S.C. Chapter 12, or as may be authorized by law.
7. To contractors and other Federal agencies, as necessary, for the purpose of assisting SSA in the efficient administration of its programs. We contemplate disclosing information under this routine use only in situations in which SSA may enter into a contractual or similar agreement with a third party to assist in accomplishing an Agency function relating to this system of records.
8. To student volunteers, individuals working under a personal service contract, and other workers who technically do not have the status of Federal employees, when they are performing work for the SSA, as authorized by law, and they need access to personally identifiable information in SSA records in order to perform their assigned Agency functions.
9. To General Services Administration and the National Archives and Records Administration (NARA) under 44 U.S.C. 2904 and 2906, as amended by NARA Act of 1984, information which is not restricted from disclosure by Federal law for the use of those agencies in conducting records management studies.
10. To Federal, State, and local law enforcement agencies and private security contractors, as appropriate, information necessary:
• To enable them to protect the safety of SSA employees and customers, the security of the SSA workplace, or the operation of SSA facilities, or
• To assist investigations or prosecutions with respect to activities that affect such safety and security or activities that disrupt the operation of SSA facilities.
11. To the Secretary of Health and Human Services or to any State, we will disclose any record or information requested in writing by the Secretary for the purpose of administering any program administered by the Secretary, if records or information of such type were so disclosed under applicable rules, regulations, and procedures in effect before the date of enactment of the Social Security Independence and Program Improvements Act of 1994.
12. To appropriate Federal, State, and local agencies, entities, and persons when (1) We suspect or confirm that the security or confidentiality of information in this system of records has been compromised; (2) we determine that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs of SSA that rely upon the compromised information; and (3) we determine that disclosing the information to such agencies, entities, and persons is necessary to assist in our efforts to respond to the suspected or confirmed compromise and to prevent, minimize, or remedy such harm. We will use this routine use to respond only to those incidents involving an unintentional release of our records.
We maintain and store records in
We retrieve records in
Security measures include the use of access codes to enter the computer system that maintains the data; computerized records will be stored in secured areas that are accessible only to employees who require the information in performing their official duties. All paper records will be kept in locked cabinets or in otherwise secure areas. SSA and DDS employees who have access to the data will be informed of the criminal penalties of the Privacy Act for unauthorized access to or disclosure of information maintained in the system.
Contractor personnel having access to data in the system of records will be required to adhere to SSA rules concerning safeguards, access, and use of the data.
The project will adhere to NARA record retention standards as outlined in the
(1) Data source extract records housed in the
(2) Active detail records and corresponding summary records housed in the
(3) Long term offline archive of summary data housed in the
(4) MI housed in the Operational Data Stores (ODS) will be retained for a maximum of 5 years.
(5) Reference data housed in reference tables within the active data warehouse will be maintained in the active data warehouse for 50 years.
An individual may determine if this system contains a record about him or her by writing to the systems manager(s) at the above address and providing his or her name, SSN, or other information that may be in the system of records that will identify him or her. An individual requesting notification of records in person should provide the same information, as well as provide an identity document, preferably with a photograph, such as a driver's license, or some other means of identification. If an individual does not have any identification documents sufficient to establish his or her identity, the individual must certify in writing that he or she is the person he or she claims to be and that he or she understands that the knowing and willful request for, or acquisition of, a record pertaining to another individual under false pretenses is a criminal offense.
If notification is requested by telephone, an individual must verify his or her identity by providing identifying information that parallels the record to which notification is being requested. The individual will be required to submit a request in writing or in person, if we determine that the identifying information provided by telephone is insufficient. If an individual is requesting information by telephone on behalf of another individual, the subject individual must be connected with SSA and the requesting individual in the same phone call. SSA will establish the subject individual's identity (his or her name, SSN, address, date of birth, and place of birth, along with one other piece of information such as mother's maiden name) and ask for his or her permission to provide the information to the requesting individual.
If a request for notification is submitted by mail, an individual must include a notarized statement to SSA to verify his or her identity or must certify in the request that he or she is the person he or she claims to be and that he or she understands that the knowing and willful request for, or acquisition of, a record pertaining to another individual under false pretenses is a criminal offense. These procedures are in accordance with SSA regulations (20 CFR 401.40).
Same as Notification procedures. Requesters also should reasonably specify the record contents they are seeking. These procedures are in accordance with SSA regulations (20 CFR 401.40).
Same as Notification procedures. Requesters should also reasonably identify the record, specify the information they are contesting, and state the corrective action sought and the reasons for the correction with supporting justification showing how the record is untimely, incomplete, inaccurate, or irrelevant. These procedures are in accordance with SSA Regulations (20 CFR 401.65).
The information that SSA will collect and maintain in
None.
The Department of State announces that the Secretary of State's Advisory Committee on Transformational Diplomacy (“Committee”) will submit its report of recommendations on Tuesday, January 29, 2008, from 1:15 p.m. to 1:45 p.m., at the Department of State, 2201 C Street, Washington, DC in the Treaty Room. This event will not be a meeting of the Committee.
The Committee is composed of persons from the private sector and academia who provide advice on the Department's worldwide management operations, including structuring, leading and managing large global enterprises, communicating governmental missions and policies to relevant publics, and better use of information technology. The report is comprised of committee findings and recommendations to the Department that support transformational diplomacy in the areas including budgets, integration of foreign affairs and national security efforts, personnel recruiting and fortification, public private partnerships, upgrades to technological infrastructure, as well as tracking and measuring efforts. The
Entry to the building is controlled and will be facilitated by advance clearance. Members of the public (including government employees and Department of State employees) who wish to attend the event should provide by no later than January 28, 2008, their name; date of birth; citizenship (country); ID number from one of the following—Driver's License Number and State of issue; Passport Number; U.S. Government ID; U.S. Military ID; as well as their professional affiliation, address and telephone number to the office of the Executive Director of the Committee at 202-647-2652 or fax to 202-647-2529.
One of the following valid photo IDs will be required for admittance to the State Department building: U.S. driver's license, U.S. passport, or U.S. Government Agency ID. Members of the public must use the “C” Street entrance, after going through the exterior screening facilities. Members of the public will be escorted to the event and therefore should arrive in time to be cleared into the building no later than 12:45 p.m. For additional information, contact the Office of the Executive Director of the Committee, Henrietta Holsman Fore, 202-647-2652.
Federal Highway Administration (FHWA), TxDOT.
Cancellation of Bolivar Bridge EIS.
In Vol. 7, No. 28/Friday, February 10, 2006/Notices, FHWA issued a Notice of Intent to advise the public that an Environmental Impact Statement (EIS) would be prepared for a proposed SH Highway (SH 87) bridge connecting Galveston Island and Bolivar Peninsula in Galveston County, Texas. The project is now cancelled; therefore, no further project activities will occur.
Mr. Donald Davis, Federal Highway Administration, Texas Division, 300 East 8th Street, Room 826, Austin, Texas 78701, Telephone (512) 536-5960.
Federal Transit Administration, Department of Transportation.
Notice of intent to prepare an Environmental Impact Statement (EIS).
The Federal Transit Administration (FTA) and the Kansas City Area Transportation Authority (KCATA) intend to prepare an Environmental Impact Statement (EIS) in accordance with the National Environmental Policy Act (NEPA) to assess the environmental and community impacts of transit improvements proposed by KCATA and the City of Kansas City, Missouri in a 12-mile North/South travel corridor in the Kansas City metropolitan area. Because KCATA may decide to seek FTA New Starts funding for transit improvements in the corridor, this work will also satisfy the FTA requirement for an Alternatives Analysis through the development of a combined Alternatives Analysis/Draft Environmental Impact Statement (AA/DEIS).
Possible transit improvements in the corridor are intended to improve access to the major employment center located in the central portion of the region, especially for that segment of the population that does not have access to the auto-oriented transportation system. Additionally, new transit facilities would support sustainable development patterns in the corridor. Alternatives proposed to be considered for accomplishing these purposes include (1) The Future No-Build Alternative, (2) a Transportation System Management (TSM) alternative that includes improvements to bus services, and (3) various fixed-guideway transit alternatives, including the light rail transit (LRT) line developed by the Citizens' Light Rail Task Force.
Scoping of the EIS will be accomplished through meetings and correspondence with interested individuals, organizations, Federal, State, and local governmental agencies, and Native American tribes.
Interagency Coordination: An interagency scoping meeting will be held at 1 p.m. on Wednesday, February 27, 2008 at the KCATA administration building, 1200 East 18th Street, Kansas City, Missouri 64108.
Send written comments on the EIS scope to Dick Jarrold, KCATA Project Manager, 1200 E. 18th St., Kansas City, MO 64108.
Joan Roeseler, Federal Transit Administration, Region VII at (816) 329-3920 or by e-mail at
The FTA and KCATA invite all interested individuals, organizations, businesses, and Federal, state, and local agencies to comment on the scope of the EIS, including the project's purpose and need, the alternative transit actions to be considered, and the impacts to be evaluated. During the scoping process, comments should focus on the purpose and need for a project, identifying specific transportation problems to be evaluated, or on proposing transportation alternatives that may be less costly, more effective, and have fewer environmental impacts while improving mobility in the corridor. Scoping information is available in hardcopy by request from Dick Jarrold as indicated above under
During the scoping process, KCATA and FTA will extend an invitation to
During the scoping process, KCATA will develop, in accordance with Section 6002 of SAFETEA-LU, a coordination plan that identifies milestones and details the lead agencies' expectations for review and comment by the participating agencies at those milestones. The coordination plan will also detail how the public outreach activities with interested parties or groups will continue throughout the duration of work on the EIS. The coordination plan will be posted on the project Web site,
The study area extends from approximately the intersection of I-29 with North Oak Trafficway and US-169 in the northern portion of Kansas City, Missouri south through the City of North Kansas City, across the Missouri River and into downtown Kansas City, Missouri and continuing south to the Country Club Plaza and Prospect Avenue areas in Kansas City, Missouri. The corridor is in the center of the metropolitan region and includes Kansas City's most concentrated employment and residential areas and many of the region's significant institutional and cultural attractions, including the North Kansas City business district, downtown Central Business District, Crown Center, Country Club Plaza, Penn Valley Park, and Union Station. Existing transit service in the portion of the corridor south of the Missouri River includes both regular bus routes and the MAX bus rapid transit (BRT) line. North of the Missouri River, only limited bus service is available and there are limited transit connections across the river.
Mobility is restricted due to the multiple employment and activity concentrations spread throughout the corridor, limited mobility connections over the Missouri River, and difficulty connecting lower income areas on the east side of Kansas City with the disbursed employment centers in the corridor. The primary purpose of an investment in transit in the North/South Corridor is to provide improved transit connections between the disbursed employment and activity centers, connect residential concentrations particularly low income centers on the east side to these centers, improve mobility and connections between the north and south parts of Kansas City that are separated by the Missouri River, promote desirable development along a fixed guideway in the center of the region and preserve the city center's economic competitiveness with fringe areas.
The growing mobility challenges, coupled with limited opportunity for highway capacity expansion, make an investment in expanding existing transit service and extending transit into new markets throughout the corridor a potentially promising solution.
The Study Area includes a substantial amount of the city's low income and minority areas. As employment and activity centers disperse, lower income residents without ready access to automobiles have reduced access to employment opportunities. A high capacity transit investment would enhance access to, and retain employment opportunities in the study area.
In addition to the employment concentrations, a transit investment in the North/South corridor offers a unique opportunity to provide seamless access to some of the city's premier cultural attractions in the corridor, including River Market, Crown Center, Union Station, Country Club Plaza and the University of Missouri-Kansas City. A high capacity, user friendly transit system would be attractive to visitors and increase accessibility to cultural and recreation centers to a wider range of patrons.
In November 2006, the voters of Kansas City approved a ballot initiative that provided a funding mechanism and specified in detail a light rail line in Kansas City. In November 2007, the City Council of Kansas City, Missouri, repealed that ballot initiative and committed the City to continued work with KCATA to consider transit alternatives, including rail options, and identify reasonable transit improvements for the corridor.
Phase I of this work included a technical review of the November 2006 initiative and the early identification and screening of conceptual alternatives; it has been completed. Phase II is the preparation of an AA/DEIS that will evaluate the Future No Build, Transportation System Management (TSM), and Build alternatives described herein, and any additional reasonable alternatives that emerge from the scoping process.
The Future No Build Alternative will include existing transportation facilities and services and committed and funded transportation services, facilities, and system management improvements. These are included in the metropolitan transportation plan of the Mid-America Regional Council (MARC).
The Transportation System Management (TSM) Alternative will include operational and low-cost capital investments to the existing transit services in the corridor that go beyond the Future No Build in attempting to address the purpose and need for transit improvements in the corridor. The TSM alternative will include consideration of both improvements in regular bus service and extensions of the MAX BRT service.
The Build Alternatives will consist of street-running rail alternatives, including but not limited to the Citizens' Task Force November 2007 recommendation of a 12-mile light rail or streetcar line starting north of the Missouri River and extending south of the river to the Country Club Plaza area with an eastward line to Prospect Avenue. Additional reasonable alternatives emerging from the scoping process, if any, will also be considered. An information packet including the Citizens' Task Force recommendations and an initial purpose and need statement are available from KCATA and are posted on the project Web site.
The EIS will evaluate the impacts of all reasonable alternatives emerging from the scoping process. The project team anticipates that issues of particular
The EIS will take into account both short-term construction-related impacts and long-term impacts associated with operation of the transit system. The EIS will identify measures to avoid or mitigate adverse environmental and community impacts.
To ensure that all significant issues related to this proposed action are identified and addressed, comments and suggestions are invited from all interested parties on the impact areas to be studied and the methodologies. Comments and questions should be directed to KCATA as noted in the
KCATA is seeking FTA financial assistance provided by 49 United States Code (U.S.C.) § 5309 to construct the proposed project and will, therefore, be subject to the regulation at 49 Code of Federal Regulations (CFR) part 611 related to such New Starts projects. The New Starts regulation requires that an Alternatives Analysis be conducted to support a local decision on the preferred alternative that is then incorporated into the official metropolitan transportation plan adopted by MARC. KCATA and FTA propose to perform the Alternatives Analysis (AA) and preparation of the draft EIS together and produce an AA/DEIS document. The AA/DEIS will be distributed for public and agency review and a public hearing will be held. KCATA and MARC will select a locally preferred alternative based on the AA/DEIS and the public and agency comments received. Following selection of the locally preferred alternative and its adoption by MARC into the transportation plan, KCATA will seek FTA approval to initiate preliminary engineering (PE) of that alternative. The NEPA review will be completed during PE with publication of the final EIS.
The EIS will be prepared in accordance with the NEPA implementing regulations issued by the Council on Environmental Quality (40 CFR parts 1500-1508) and with the FTA/Federal Highway Administration regulations “Environmental Impact and Related Procedures” (23 CFR part 771). In accordance with 23 CFR 771.105(a) and 771.133, KCATA and FTA will comply with all Federal environmental laws, regulations, and executive orders applicable to the proposed project to the maximum extent possible during the environmental review process. These requirements include, but are not limited to, the environmental and public hearing provisions of Federal transit laws (49 U.S.C. 5323(b) and 5324(b)); the project-level air quality conformity regulation of the U.S. Environmental Protection Agency (EPA) (40 CFR part 93); the section 404(b)(1) guidelines of EPA (40 CFR part 230); the regulation implementing section 106 of the National Historic Preservation Act (36 CFR part 800); the regulation implementing section 7 of the Endangered Species Act (50 CFR part 402); section 4(f) of the Department of Transportation Act (23 CFR 771.135); and Executive Orders 12898 on environmental justice, 11988 on floodplain management, and 11990 on protection of wetlands.
National Highway Traffic Safety Administration, DOT.
Request for public comment on proposed collection of information.
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Comments must be submitted on or before February 22, 2008.
Mr. Paul Simmons at the National Highway Traffic Safety Administration, Office of Defects Investigation, NHTSA, 1200 New Jersey Avenue SE., Washington, DC 20590. Mr. Simmons can be contacted at (202)366-2315. Please identify the relevant collection of information by referring to its OMB Control Number.
Send comments, within 30 days, to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725-17th Street, NW., Washington, DC 20503, Attention NHTSA Desk Officer.
Before a Federal agency can collect certain information from the public, it must receive approval from the Office of Management and Budget (OMB). Under procedures established by the Paperwork Reduction Act of 1995, before seeking OMB approval, Federal agencies must solicit public comment on proposed collections of information, including extensions and reinstatement of previously approved collections.
Send comments, within 30 days, to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725-17th Street, NW., Washington, DC 20503. Attention NHTSA Desk Officer.
Financial Crimes Enforcement Network (“FinCEN”), Department of the Treasury.
Notice and request for comments.
FinCEN, a bureau of the U.S. Department of the Treasury, invites all interested parties to comment on its continuing collection of information requirements in 31 CFR 103.22-103.29, 103.32-103.38, 103.64, 103.81-103.87, and Form TD F 90-22.1, Report of Foreign Bank and Financial Accounts. This request for comments is made pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35).
Written comments should be received on or before March 31, 2008 to be assured of consideration.
Direct all written comments to: Regulatory Policy and Programs Division, Financial Crimes Enforcement Network, U.S. Department of the Treasury, P.O. Box 39, Vienna, VA 22183, Attention: PRA Comments—31 CFR part 103. Comments also may be submitted by electronic mail to the following Internet address: “
Financial Crimes Enforcement Network, Regulatory Policy and Programs Division at (800) 949-2732. A searchable guide to the Code of Federal Regulations can be found on the Internet at:
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31 CFR 103.33(e)-(f). The estimated number of recordkeepers is 35,500. The estimated annual recordkeeping burden per recordkeeper is 16 hours, for a total estimated annual recordkeeping burden of 568,000.
31 CFR 103.33(g). The estimated number of recordkeepers is 35,500. The estimated annual recordkeeping burden per recordkeeper is 12 hours, for a total estimated annual recordkeeping burden of 426,000.
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31 CFR 103.36(b)(9). The estimated number of recordkeepers is 480. The estimated annual recordkeeping burden per recordkeeper is 7.5 hours, for a total estimated annual recordkeeping burden of 3,600 hours.
31 CFR 103.36(b)(11). The estimated number of recordkeepers is 62. The estimated number of transactions is 215,000 annually and the total estimated annual recordkeeping burden is 686 hours.
31 CFR 103.36(c). The estimated number of respondents is 480. The estimated annual recordkeeping burden per recordkeeper is 4 hours, for a total estimated annual recordkeeping burden of 1,920 hours.
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The following paragraph applies to all the collections of information addressed in this notice: An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Records required to be retained under the Bank Secrecy Act must be retained for five years. Generally, information collected pursuant to the Bank Secrecy Act is confidential, but may be shared as provided by law with regulatory and law enforcement authorities.
U.S.-China Economic and Security Review Commission.
Notice of open public hearing—February 27, 2008, Washington, DC.
Notice is hereby given of the following hearing of the U.S.-China Economic and Security Review Commission.
The Commission is mandated by Congress to investigate, assess, evaluate and report to Congress annually on “the national security implications and impact of the bilateral trade and economic relationship between the United States and the People's Republic of China.”
Pursuant to this mandate, the Commission will hold a public hearing in Washington, DC on February 27, 2008 to address “China's Views of Sovereignty and Methods of Access Control.”
This event is the second in a series of public hearings the Commission will hold during its 2008 report cycle to collect input from leading academic, industry, and government experts on the impact of the economic and national security implications of the U.S. bilateral trade and economic relationship with China. The February 27 hearing is being conducted to obtain testimony on China's views of sovereignty, arguments given for its views, how they differ from U.S. views of sovereignty, and the security implications that follow from these differences. Chinese internal ministerial differences on issues of sovereignty, as well as the ways in which China might use sovereignty claims to expand its territory and its influence through military and non-military means will also be examined. Other topics covered will include China's growing naval presence and ways that China may be influencing the development of international sovereignty laws and norms in space and cyberspace.
The February 27 hearing will address “China's Views of Sovereignty and Methods of Access Control.” and will be Co-chaired by Commissioners Mark Esper and Jeffrey Fiedler.
Information on hearings, as well as transcripts of past Commission hearings, can be obtained from the USCC Web Site
Copies of the hearing agenda will be made available on the Commission's Web Site
Wednesday, February 27, 2008, 8:30 a.m. to 5 p.m. Eastern Standard Time. A detailed agenda for the hearing will be posted to the Commission's Web Site at
The hearing will be held on Capitol Hill in Room 562 Dirksen Senate Office Building located at First Street and Constitution Avenue, NE., Washington, DC 20510. Public seating is limited to about 50 people on a first come, first served basis. Advance reservations are not required.
Any member of the public wishing further information concerning the hearing should contact Kathy Michels, Associate Director for the U.S.-China Economic and Security Review Commission, 444 North Capitol Street, NW., Suite 602, Washington DC 20001; phone: 202-624-1409, or via e-mail at
Congress created the U.S.-China Economic and Security Review Commission in 2000 in the National Defense Authorization Act (Pub. L. 106-398), as amended by Division P of the Consolidated
Federal Communications Commission.
Final rule.
This document issues the final rules in the third periodic review of the transition of the nation's broadcast television system from analog to digital television. It provides a progress report on the DTV transition and issues the procedures and rule changes necessary to ensure that broadcasters timely complete their transitions. Congress has mandated that after February 17, 2009, full-power television broadcast stations must transmit only digital signals, and may no longer transmit analog signals. The rules in this document establish deadlines for broadcasters to complete construction of their final, post-transition (digital) facilities.
Effective January 30, 2008, except for Sections 73.682(d), 73.8000(b)(2) and (4), and 73.9000(k), which are effective May 29, 2008 and, except for the following sections which contain information collection requirements that have not been approved by OMB: Sections 73.624(g) and 73.1201(b). The Commission will publish a document in the
Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554. In addition to filing comments with the Office of the Secretary, a copy of any comments on the Paperwork Reduction Act information collection requirements contained herein should be submitted to Cathy Williams, Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554, or via the Internet to
For additional information on this proceeding, please contact Evan Baranoff,
For additional information concerning the Paperwork Reduction Act information collection requirements contained in this document, contact Cathy Williams on (202) 418-2918, or via the Internet at
This is a summary of the Commission's
This Report and Order has been analyzed with respect to the Paperwork Reduction Act of 1995 (“PRA”), and contains new and modified information collection requirements for full-power television broadcast stations, including the following: (1) Stations must file forms no later than February 18, 2008 detailing their transition plans and status (using FCC Form 387) and must update this form as events warrant and by October 20, 2008 if they have not completed construction; (2) Stations without a construction permit for their final, post-transition (DTV) facility must file an application to construct or modify that facility (using FCC Forms 301 and 340), stations without a license for their final, post-transition (DTV) facility must file an application for a license to cover that facility (using FCC Form 302 DTV), and stations may request authority to transition early to their post-transition channel (also using FCC Forms 301 and 340); (3) Stations with a construction deadline on or before February 17, 2009 may file a request for an extension of time to construct their final, post-transition (DTV) facility (using FCC Form 337); (4) Stations with a construction deadline occurring February 18, 2009 or later may file a notification of an event that would toll their deadline to construct their final, post-transition (DTV) facility (using FCC Informal Application Form); (5) Stations may file a request for STA approval to temporarily remain on their in-core pre-transition DTV channel after the transition date (using FCC Informal Application Form); (6) Stations may file a request for STA approval to build less than full, authorized post-transition facility by the transition date (using FCC Informal Application Form); (7) Stations may file a notification pursuant to section 73.1615 to temporarily reduce or cease existing analog or pre-transition DTV service where necessary to facilitate construction of final, post-transition facilities (using FCC Informal Application Form); (8) Stations may file a request for STA approval to permanently reduce or terminate analog or pre-transition DTV service where necessary to facilitate construction of final, post-transition facilities (using FCC Informal Application Form); (9) Stations may file a notification to permanently reduce or terminate analog or pre-transition DTV service within 90 days of the transition date (using FCC Informal Application Form); (10) Stations must comply with the PSIP requirement to populate the Event Information Tables (“EITs”) with accurate information about each event and to update the EIT if more accurate information becomes available; (11) Stations must comply with the station identification rules that require a DTV station which chooses to identify a licensee that it is transmitting on one of its multicast streams to follow a specific format for making such a station identification announcement; (12) Stations must comply with a viewer notification requirement (
The Commission, as part of its continuing effort to reduce paperwork burdens, invited the Office of Management and Budget (“OMB”) and the general public to comment on the information collection requirements contained in the
The information collection requirements adopted in this Report and Order will be submitted to OMB for final review under section 3507(d) of the PRA, and OMB and the public will be afforded an opportunity to file comments on these final information collections. The Commission will seek emergency approval from OMB for Items 1-3 (noted above in paragraph 193) based, in part, on the prior submission for OMB approval of these information collection requirements. The Commission will publish a
1. Congress has mandated that after February 17, 2009, full-power television broadcast stations must transmit only digital signals and may no longer transmit analog signals. (
2. With the DTV transition deadline less than 14 months away, our focus is now on overseeing broadcasters' construction of facilities that will reach viewers in their authorized service areas by the time they must cease broadcasting in analog. Specifically, this Report and Order adopts rules to ensure that broadcasters meet their statutory responsibilities and can begin operations on their final, post-transition (digital) channels upon expiration of the February 17, 2009 transition deadline. We want to ensure that no consumers are left behind in the DTV transition. We recognize that the transition is a complex undertaking presenting many challenges to the broadcast industry and that some disruption of television service may be unavoidable leading up to the analog turn-off. Therefore, we adopt rules to offer broadcasters regulatory flexibility, while at the same time requiring broadcasters to maintain the best possible television service to the public and meet viewers' over-the-air reception expectations after the transition date. (We note that the statutory transition deadline applies only to full-power stations. The transition timing for low power, translator and Class A stations will be addressed in a separate proceeding.)
3. In this Report and Order in our third periodic review, we (1) provide a progress report on the transition; (2) describe the status and readiness of stations to complete their transition; (3) adopt procedures and rule changes necessary to ensure that broadcasters meet the statutory transition deadline and complete construction of their final, post-transition facilities while maintaining the best possible television service to their viewers; and (4) address other issues related to the transition. Stations face many challenges in order to be ready to make their transition by the February 17, 2009 statutory transition deadline. Stations must focus their full attention on constructing their final digital facilities before they must
• We establish February 17, 2009 as the construction deadline for stations building digital facilities based on a new channel allotment in the post-transition DTV Table of Allotments (“DTV Table”) and accompanying Appendix B (“DTV Table Appendix B”), i.e., stations that will be returning to their analog channel or moving to a new digital channel for post-transition operations. These stations will not be required to construct a digital facility on their pre-transition DTV channel and will be permitted to forego further construction to the extent such a facility has been partially built. (The details of each station's channel assignment, including technical facilities and predicted service and interference information, are set forth in the DTV Table Appendix B. 47 CFR 73.622(i) codifies the post-transition DTV Table). The Commission proposed channel assignments and reference facilities for stations' post-transition operations in a 2006 Notice of Proposed Rule Making in MB Docket No. 87-268.
• We establish May 18, 2008 as the construction deadline for stations that will use their pre-transition DTV channel for post-transition operations and already have a construction permit that matches their post-transition (DTV Table Appendix B) facilities.
• We establish August 18, 2008 as the construction deadline for stations that will use their pre-transition DTV channel for post-transition operations, but which do not have a construction permit that matches their post-transition (DTV Table Appendix B) facilities.
• We establish February 17, 2009 as the construction deadline for stations demonstrating that a unique technical challenge, such as the need to reposition a side-mounted antenna, prevents them from completing construction of their final DTV facilities.
• We establish stricter standards for granting extensions of time to construct digital facilities for all construction deadlines on or before February 17, 2009. In addition, for construction deadlines occurring February 18, 2009 or later, we will consider such requests under the tolling standard set forth in section 73.3598(b) of the rules. We adopt our revised FCC Form 337, as proposed.
• We adopt FCC Form 387 and require all full-power television stations to file it by February 18, 2008, detailing their current transition status, additional steps necessary for digital-only operation upon expiration of the February 17, 2009 transition deadline, and a timeline for making those steps. Stations must update the form as events warrant and by October 20, 2008 if they have not completed construction.
• We will permit stations that are moving to a different DTV channel for post-transition operations to temporarily remain on their pre-transition DTV channel while they complete construction of their final digital facilities, provided: (1) They build facilities that serve at least the same population that receives their current analog TV and DTV service so that over-the-air viewers will not lose TV service; and (2) they do not cause impermissible interference to other stations or prevent other stations from making their transition.
• We will permit stations to operate their post-transition facilities, pursuant to special temporary authority (“STA”), at less than their full, authorized facilities, provided: (1) They demonstrate a unique technical challenge (as defined in section V.B.5., infra) and they can serve at least 85 percent of the same population that receives their current analog TV and DTV service; or (2) a significant technical impediment to the construction of their full, authorized facilities that would not otherwise qualify for an extension of time to construct facilities under the new, stricter standard adopted herein and they serve at least 100 percent of the same population that receives their current analog TV and DTV service so that over-the-air viewers will not lose TV service. In addition, stations must demonstrate that they do not cause impermissible interference to other stations or prevent other stations from making their transition. Finally, stations that cannot serve at least 100 percent of the same population that receives their current analog TV and DTV service must comply with a viewer notification requirement.
• We clarify that, under existing rules, a station may temporarily reduce or cease service on their pre-transition analog or digital channel for a period of 30 days or less, upon notification to the Commission and without prior approval, when necessary to complete construction of the post-transition digital facility.
• We will provide stations with the flexibility to permanently reduce or terminate their analog or pre-transition digital service before the transition date, provided the station satisfies the following two requirements: (1) The station demonstrates that its service reduction or termination is directly related to the construction and operation of its, or another station's, post-transition facilities; and (2) the station notifies viewers on its pre-transition channel(s) about the planned service reduction or termination and informs them about how they can continue to receive the station.
• To provide additional flexibility within 90 days of the February 17, 2009 transition date (
• We will permit stations that are moving to a different DTV channel for post-transition operations to cease operations on their pre-transition digital channels and begin operating on their new channels before the transition date, provided: (1) The early transitioning stations will not cause impermissible interference to another station; and (2) the early transitioning stations continue to serve their existing viewers for the remainder of the transition and commence their full, authorized post-transition operations upon expiration of the February 17, 2009 transition deadline.
• We will offer expedited processing of stations' applications to build their post-transition facilities, provided that their application: (1) Does not seek to expand the station's facilities beyond its final DTV Table Appendix B facilities; (2) specifies facilities that are no more than five percent smaller than those specified in the post-transition DTV Table Appendix B (with respect to predicted population); and (3) is filed within 45 days of the effective date of this Report and Order. We adopt our revised FCC Forms 301 and 340, as proposed.
• We announce our intent to lift the freeze on the filing of maximization applications on August 17, 2008, the date by which we expect to have completed processing stations' applications to build their post-transition facilities. Until this date, we will maintain our freeze and will not accept maximization applications to expand facilities.
• We adopt a waiver policy that will permit rapid approval of minor (
• We adopt a 0.5 percent new interference standard (
• We update the Commission's rules to reflect the latest revisions to the ATSC standards concerning DTV transmission and PSIP.
• We revise section 73.624(g) to require DTV stations that are permittees operating pursuant to an STA or any other FCC instrument authorizing DTV transmissions to file FCC Form 317 and pay fees on any revenue derived from feeable ancillary or supplementary services in the same way required of DTV licensees.
• We clarify our station identification requirements for digital stations in situations where one of a station's multicast streams is being used to air programming provided by another broadcast station, such as a low power station, or another programming source.
• We discuss MVPDs' obligations with respect to carriage of digital stations after the transition.
4. Congress specifically requires the Commission to periodically evaluate the progress of the nation's transition to DTV. The Commission initiated this third DTV periodic review in April 2007. The previous two DTV periodic reviews began in March 2000 and January 2003, respectively. In addition to these periodic reviews, the Commission conducts the ongoing DTV proceeding, in which we recently established the DTV Table of Allotments for stations' post-transition operations (“post-transition DTV Table”). (
5. In early 2006, Congress enacted significant statutory changes to the DTV transition in the DTV Act. Most importantly, it set February 17, 2009, as the date certain for the end of the DTV transition, at which time all full-power television broadcast stations must cease their analog transmissions. (
6. In April 2007, the Commission initiated this third periodic review of the nation's conversion from analog to DTV broadcasting. The Commission sought comment on a range of proposals intended to ensure that broadcasters meet their statutory responsibilities and can begin operations on their final, post-transition (digital) channels upon expiration of the February 17, 2009 transition deadline. The Commission made a number of proposals regarding the procedures and standards applicants must follow in filing applications for facilities specified in the final, post-transition DTV Table of Allotments (“DTV Table”).
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8. The channel election process culminated in the adoption of the post-
9. Approximately 123 Petitions for Reconsideration of the
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11. Prior to the DTV Act, the Commission reallocated the 700 MHz Band in separate proceedings, first for the 60 megahertz covering TV Channels 60-69 (“Upper 700 MHz Band”) and then for the 48 megahertz covering TV Channels 52-59 (“Lower 700 MHz Band”). In the Balanced Budget Act of 1997 (“Balanced Budget Act”), Congress specifically directed that the allocation of the Upper 700 MHz Band include 24 megahertz of spectrum for public safety and 36 megahertz for commercial services. Accordingly, the Commission divided the Upper 700 MHz Band to include a 24-megahertz allocation for public safety use, and a 36-megahertz allocation for commercial use, of which 6 megahertz comprised the Guard Bands spectrum. With regard to the Lower 700 MHz Band, Congress also directed that the Commission “reclaim and organize” spectrum beyond that in the Upper 700 MHz Band, “in a manner consistent with the objectives” of Section 309(j)(3) of the Act. While Congress did not direct the amount of spectrum to be reclaimed, the Commission determined that all broadcasters using digital transmission systems could be accommodated in the core TV spectrum (
12. In 1997, the Commission adopted a DTV construction schedule that provided for varying construction deadlines based on the size of the market and type of station, with all stations required to construct by May 1, 2003. (Under this schedule, television stations in the 10 largest TV markets and affiliated with the top four television networks (ABC, CBS, Fox, and NBC) were required to build DTV facilities by May 1, 1999. Stations affiliated with those networks in
13. In the
14. In 2007, the Commission in the
15. The transition to DTV is a complex undertaking, affecting virtually every segment of the television industry and every American who watches television. The Commission has been facilitating the transition to DTV by adopting a standard for digital broadcasting, creating an initial and post-transition DTV Table, awarding DTV licenses, establishing operating rules for the new service, monitoring the physical build-out of DTV broadcast stations, and helping to educate consumers about the transition. At the end of the transition, television broadcast operations will be limited to the core TV spectrum. (The “core spectrum” is comprised of low-VHF channels 2 to 4 (54-72 MHz) and 5 to 6 (76-88 MHz), high-VHF channels 7 to 13 (174-216 MHz) and UHF channels 14-51 (470-698 MHz), but does not include TV channel 37 (608-614 MHz), which is used for radio astronomy research.
16. As of December 17, 2007, 1,706 television stations in all markets (representing approximately 99 percent of all stations) have been granted a DTV construction permit (“CP”) or license. A total of 1,635 stations are now broadcasting a digital signal. Of these, 1,396 stations have authorized licensed facilities or program test authority and 239 stations are operating pursuant to STA or experimental DTV authority.
17. In the top 30 television markets, all 119 top-four network-affiliated television stations are on the air in digital; 113 are licensed DTV facilities or program test authority and six have STAs. In markets 1-10, all 40 top-four network affiliated stations are providing digital service, 38 with licensed DTV facilities and two with STAs. In markets 11-30, all 79 top-four network affiliated stations are providing DTV service, 75 with licensed DTV facilities and four with STAs.
18. Approximately 1,230 commercial television stations were due to commence digital broadcasts by May 1, 2002. As of December 17, 2007, 1,157 of these stations (94 percent) are broadcasting a digital signal. In addition, approximately 373 NCE television stations were required to commence digital operations by May 1, 2003. As of December 17, 2007, 359 (96 percent) of these stations are broadcasting a digital signal.
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20. The demand for DTV sets has grown with increased availability of DTV programming and receiving equipment and a steady drop in the price of such equipment. The Consumer Electronics Association (“CEA”) reports that the consumer electronics industry has invested $66.7 billion in DTV products since 1998. Moreover, CEA reports more than $75 billion in consumer investment in DTV products. According to CEA, 23.9 million DTV sets and monitors were sold in 2006. CEA predicts that 29.2 million DTV products will be sold in 2007, 33.4 million in 2008, 35.2 million in 2009 and 36.4 million in 2010. CEA estimates that total digital display unit sales will increase by 30 percent in 2007, as compared to 2006. Sales of high-definition television sets are expected to increase to 20.7 million in 2007, a significant increase from 17.3 million sold the previous year.
21. To promote the availability of reception equipment and protect consumers by ensuring that their television sets continue to work in the digital world just as they do today, the Commission established a DTV tuner mandate, which required that all television receiver equipment (
22. In another consumer protection effort, the Commission adopted an order in April 2007, to require that, as of May 25, 2007, retailers that continue to sell analog-only television equipment provide consumers with information regarding the February 17, 2009 transition date at the point of sale of DTV television receiving equipment. Specifically, the Commission now requires sellers of television receiving equipment that does not include a digital tuner to disclose at the point-of-sale that such devices include only an analog tuner and, therefore, will require a converter box to receive over-the-air broadcast television after the February 17, 2009 transition date. (Specifically, the
23. We also note that subsidized digital-to-analog (“D-to-A”) converter boxes will be available to eligible consumers starting January 2008, further promoting access to digital reception equipment. (47 U.S.C.A. Section 309 Note. 47 CFR part 301. Starting January 1, 2008, all U.S. households will be eligible to request up to two $40 coupons to be used toward the purchase of up to two D-to-A converter boxes, while the initial $990 million allocated for the program is available. 47 CFR 301.3-4. If the initial funds are used up and the additional funds (up to $510 million) are authorized, eligibility for the coupons will be limited to over-the-air-only television households. Eligible consumers will have until March 31, 2009, to make a request for these coupons.) This subsidy program, which was created by the DTV Act, will allow consumers with analog-only TV sets to receive over-the-air broadcast programming after the February 17, 2009, transition date, when analog broadcasting ends. Congress directed the National Telecommunications and Information Administration (“NTIA”) of the U.S. Department of Commerce to administer this subsidy program. (The DTV Act Section 3005(a)(1) directs the Assistant Secretary for Communications and Information to “implement and administer a program through which households in the United States may obtain coupons that can be applied toward the purchase of digital-to-analog converter boxes.” The purpose of the program is to enable consumers to continue receiving broadcast programming over the air using analog-only televisions not connected to cable or satellite service.) In March 2007, NTIA issued final rules to implement the program, which subsidizes the purchase of D-to-A converter boxes. (NTIA established rules for the coupon program in 47 CFR part 301. The rules became effective April 16, 2007.) The Commission is working with NTIA to test the D-to-A converters for eligibility to be certified for the coupon program.
24. The Commission has also taken action to ensure that all cable subscribers, including those with analog TV sets, can view broadcast television after the DTV transition. Approximately 35 percent of all television homes, or approximately 40 million households, are analog-only cable subscribers.
25. In September 2007, the Commission adopted rules ensuring that the 98 million TV viewers retain the same access to their local stations after the transition as they do today. The rules will require cable operators to comply with the statutory viewability requirement by choosing to either: (1) Carry digital signals in analog format, or (2) for all-digital systems, carry the signals only in digital format, provided that all subscribers have the necessary equipment to view the broadcast content. The viewability requirements will be in force from the date of the transition through February 2012 subject to review by the Commission during the last year of this period.
26. The Commission also reaffirmed the existing material degradation standard for cable carriage of digital signals, including the requirement that cable systems carry high definition (“HD”) broadcast signals in HD format. In addition, the Commission has taken several actions to increase consumer awareness about the impending DTV transition. Successful completion of the DTV transition depends upon government and industry working together to promote consumer awareness and minimize the burdens borne by consumers. In July 2007, the Commission adopted a Notice of Proposed Rulemaking for the Commission's Digital Television Consumer Education Initiative (
27. In addition, on September 26, 2007, the Commission held the first in a series of Commission Digital Television Consumer Education Workshops. (The workshops will focus on communities that have been identified as being likely to be disproportionately impacted by the transition and least aware of it. These communities include, for example, seniors, minorities and non-English speakers, people with disabilities, low-income earners, and those living in rural areas. On November 8, 2007, the Commission hosted a workshop that addressed issues related to ensuring that seniors are prepared for the DTV transition. On December 4, 2007, the Commission hosted a workshop that addressed issues related to ensuring that minority and non-English-speaking consumers are prepared for the DTV transition.) These workshops provide an opportunity for all interested parties to jointly discuss the challenges associated with the upcoming transition and explore ways to develop coordinated consumer education activities. The Commission invites organizations representing a broad range of consumers and other stakeholders to participate, including those who represent senior citizens, low-income consumers, non-English speakers, people with disabilities, tribes, and public interest organizations working on behalf of
28. By statute, full-power television broadcast stations must cease analog operations by 11:59 p.m. on February 17, 2009. Accordingly, our focus is now on overseeing broadcasters' construction of facilities that will reach viewers in their authorized service areas by the time they must cease broadcasting in analog. Specifically, this Report and Order adopts rules to ensure that broadcasters meet their statutory responsibilities and can begin operations on their final, post-transition (digital) channels by the expiration of the transition deadline on February 17, 2009. We take seriously our goal to ensure that consumers who have diligently prepared for the transition by obtaining the necessary DTV receiver equipment are able to, at a minimum, continue to watch their existing television programming after the transition date. In order to make this transition as smooth as possible for consumers, stations must have their digital facilities in place and ready to commence operations no later than 12:00 a.m. on February 18, 2009. We recognize that the transition is a complex undertaking presenting many challenges to the broadcast industry and that some disruption of television service may be unavoidable leading up to the analog turn-off. Accordingly, we adopt rules, where possible, to offer broadcasters some regulatory flexibility. At the same time, however, we must still ensure that DTV broadcasters will at least reach the audiences that they have been serving with their analog service and that, after the transition date, viewers will continue to have access to the stations that they are accustomed to receiving over the air.
29. Stations are reminded that their authority to operate on a pre-transition channel, whether analog or digital, ends on February 17, 2009. Continued operation of analog or pre-transition digital facilities after that date is operation without a license and will result in the imposition of sanctions for unauthorized operations. Only stations that have applied for and been granted specific authority to remain on a pre-transition digital channel may continue operating on that channel. As noted in the
30. We begin by, first, adopting our proposal to gather information about each station's transition status and plan to meet the deadline. Second, we adopt our proposed deadlines for the construction and operation of stations' final digital facilities. Third, we adopt our proposed stricter standards for granting stations extensions of time to construct digital facilities. Fourth, we adopt our proposals to permit qualifying stations to make a “phased transition” in an effort to afford regulatory relief without undermining the expectations of over-the-air viewers. Fifth, we adopt flexible rules allowing stations to reduce and/or terminate their analog and pre-transition digital television service before the transition deadline if doing so is necessary to achieve their transition. Sixth, we adopt our proposal to permit qualifying stations to transition early. Seventh, we address the rules, procedures and interference standards for stations to file applications for construction permits to build their final, post-transition facilities and to request authorization to maximize their facilities. Finally, we address a variety of other issues related to the DTV transition. (We note the Commission's rules for full-power television will need to be updated to eliminate outdated references to analog and out-of-core television service and clarify engineering issues that differ for digital transmission and analog transmission. Such housekeeping matters will be addressed in a separate rulemaking in the DTV proceeding, MB Docket No. 87-268.)
31. Stations are responsible for meeting the statutory deadline for the DTV transition. The Commission has no discretion to waive or change this transition date. Full-power broadcast stations not ready to commence digital operations upon expiration of the deadline for the transition on February 17, 2009, must go dark on their analog channel and risk losing their authorizations to operate after the transition date.
32. We have finalized post-transition channel assignments for every eligible station. (
33. The process of transitioning the entire TV broadcast industry to digital-only operation on each station's final channels will be complex. Accordingly, most stations should have their plans in place for their transition to digital-only service on their post-transition channel. Some stations may now be ready, or very close to ready, to make their transition. Other stations, however, will need to take significant steps to accomplish their transition. Stations' situations will vary based on their final channel assignments in the new DTV Table and whether they must change their transmission facilities to operate on their post-transition channels.
34. We adopt our proposal in the
35. We will require stations to file these forms no later than February 18, 2008. (Although the Commission originally proposed December 1, 2007 as the date broadcasters must file their forms, in response to the comments, we instead adopt February 18, 2008 as that date. We expect that, by February 18, 2008, this Report and Order will have been published in the
36. There are more than 800 stations that have built their post-transition facility. (This number is increasing as stations complete construction of their post-transition facilities and file for licenses to cover.) These stations have built and licensed or applied to license their full authorized DTV facilities as defined in the post-transition DTV Table Appendix B (
37. We establish the following deadlines for full-power television broadcast stations to construct their full, authorized post-transition (digital) facilities (as defined in the post-transition DTV Table Appendix B):
• February 17, 2009 will be the construction deadline for stations building digital facilities based on a new channel allotment in the post-transition DTV Table,
• February 17, 2009 will also be the construction deadline for stations demonstrating that a unique technical challenge, such as the need to reposition a side-mounted antenna, prevents them from completing construction of their final DTV facilities.
• May 18, 2008 will be the construction deadline for stations that will use their pre-transition DTV channel for post-transition operations and already have a construction permit that matches their post-transition (DTV Table Appendix B) facilities.
• August 18, 2008 will be the construction deadline for stations that will use their pre-transition DTV channel for post-transition operations, but do not have a license or construction permit that matches their post-transition (DTV Table Appendix B) facilities.
As discussed in more detail below, we establish particular deadlines and procedures for stations falling into specific defined circumstances. Stations using their pre-transition DTV channel for post-transition operations that do not have a construction permit that matches their post-transition facilities, should apply now for a new or modified construction permit. Stations that have a construction permit that has not yet expired remain subject to that expiration date. For stations granted “checklist” waivers and denied extensions or “use or lose” waivers, their deadline will depend upon whether a station's pre-transition DTV channel is the same or different from its post-transition channel. Finally, we adopt a stricter standard for stations to obtain an extension of time to construct their post-transition facilities, but offer flexibility to certain stations if they can build facilities that would serve at least the same population that is served by their current television service and would not cause impermissible interference to other stations.
38. Commenters generally disagreed with our proposed deadlines and sought more time to complete construction of their full, authorized post-transition facilities. Many commenters noted that Congress did not expressly mandate the date by which broadcasters must operate at full, authorized facilities on their post-transition channel, only that stations must operate in digital and inside the TV core spectrum. Thus, several commenters argued for
39. We find that compliance with our construction deadlines is necessary to ensure that consumers are not left behind in the transition. (As discussed further below, we will afford regulatory flexibility to stations where doing so would not cause existing viewers to lose service.) Viewers who have prepared for the DTV transition should be able to receive television service when analog transmissions cease on February 17, 2009. To achieve this goal, it is imperative that all stations finalize construction of their post-transition facilities and operate at full, authorized facilities by the deadline. Given the February 17, 2009 deadline established by Congress for full-power stations to end analog service, stations' primary goal must now be to ensure that DTV stations will be operating at their full, authorized facilities on their final, post-transition channels by that date. Previously, our efforts had been to facilitate the initiation of DTV service to the public during the transition. This approach was designed, in part, to accomplish the goal of completing the transition by the original December 31, 2006 deadline established by Congress, a deadline that could have been extended under several circumstances. We recognize, as noted by some commenters, that strict compliance with our DTV construction deadlines would require some stations to reduce or terminate their analog service before the transition date. In those cases in which the potential impact of the loss of service prior to the transition would be more disruptive than the effect of reduced coverage area for a limited period of time after the transition, we are providing for flexibility. However, in other cases, the loss of a station's analog service to some viewers pre-transition, will be necessary to enable construction of post-transition facilities and can be preferable to viewers losing all television service from that station after the transition date if DTV facilities are not ready and analog service must cease. To ensure that this flexibility serves the public interest, we are requiring that stations that choose either pre-transition service reduction or post-transition phase-in must inform their viewers of what to expect and the options for continuing to have service.
40. We reject commenters' arguments that we should provide blanket authority for stations to operate at less than full, authorized post-transition facilities after the transition date. Commenters offered several reasons why they may need more time to build their final DTV facilities, which reasons include the following: (1) Stations may need to make “complicated technical changes” to their facilities to achieve their transition (
41. While we set strict construction deadlines in this Report and Order, we also adopt flexible rules and procedures that will address the specific concerns raised by commenters, such as those noted above. For example, we are affording stations facing unique technical challenges, such as the need to reposition their side-mount antennas, until the transition date to construct their full, authorized post-transition facilities, and we anticipate that many of these stations may also qualify for extensions—even under our stricter extension criteria, as well as for the provisions for a “phased transition.” We also expect that these stations will benefit from the new flexible rules for service reduction and termination in advance of the transition date. Similarly, while we generally will not consider extension requests by stations on the basis of weather or a shortage of equipment and qualified tower crews, our new extension rules will still allow consideration of requests from those stations with demonstrable and genuine difficulties because of weather or equipment problems. Furthermore, we expect that many stations will transition early and begin operating their final post-transition facilities in advance of the deadline and the onset of the winter months. Finally, we adopt rules for the expedited processing of stations' post-transition construction permit applications to address commenters' concerns about the potential for delays in obtaining the necessary Commission authorizations to construct their final DTV facilities. (Stations that apply for the facilities to which they certified in 2004 and, thus, are now specified for them in the post-transition DTV Table Appendix B will have this opportunity for expedited processing.) In addition, our processing rules address commenters' concerns that stations may not be able to use their existing analog channel antennas because the antenna patterns of those antennas may not match the antenna patterns specified for them in the post-transition DTV Table Appendix B. In sum, we find that the rules and policies we adopt in this Report and Order will ensure that stations have sufficient time to complete construction of their final DTV facilities by their respective deadlines.
42. For stations whose pre-transition DTV channel is different from their post-transition channel (
(1) Establish February 17, 2009 as the deadline by which these stations must complete their post-transition (DTV Table Appendix B) facilities; and
(2) Permit these stations to forego construction of their pre-transition DTV channel.
Approximately 634 stations fall into this category. We find that these stations face a greater challenge than stations that will remain on the same DTV channel for post-transition operations. Stations moving to a new channel must apply for a construction permit on that channel and build new facilities based on the channel allotments in the post-transition DTV Table Appendix B. We
43. We also find that these stations may terminate further construction of their pre-transition DTV channel facilities in order to focus their efforts on constructing their permanent DTV facilities on their post-transition channel. Our examination of the record strongly favors affording stations whose pre-transition DTV channels are different from their post-transition channels the flexibility to stop construction of their pre-transition DTV channel facilities. We agree with commenters that argue in favor of such flexibility and find that requiring stations to build or expand facilities that would only be operated until the end of the transition—
44. We recognize that many of these stations (whose pre-transition DTV channels are different from their post-transition channels) have been diligent in meeting the deadlines established by the Commission for completing construction of their pre-transition facilities in order to provide DTV service to the public and to be permitted to carry over interference protection to their permanent DTV channel. We do not intend to treat these stations unfairly or reward stations that have been less diligent in providing DTV service during the transition. We note that many stations that have not built their transitional facilities have faced impediments to doing so. In addition, most stations that have applied for an extension of time to construct and/or a waiver of the applicable use-or-lose deadline have had those requests granted, indicating that we found they have a valid reason for not meeting the applicable deadline. Finally, we find that we must permit stations to cease investing time and resources in completing pre-transition DTV facilities to ensure that stations are focused on finalizing their post-transition facilities so that viewers will continue to receive television service when analog service ends.
45.
46.
47. For stations whose post-transition channel is the same as their pre-transition DTV channel (
(1) May 18, 2008 will be the construction deadline for stations in this category that already have a construction permit that matches their post-transition (DTV Table Appendix B) facilities.
(2) August 18, 2008 will be the construction deadline for stations in this category, but which do not have a license or construction permit that matches their post-transition (DTV Table Appendix B) facilities and, therefore, need to apply for a new or modified construction permit.
Although we are moving back the deadline we proposed in the
48.
49.
50. We find that the stations in this group (
51. We recognize that some stations in this group cannot commence operations at their final DTV Table Appendix B facilities because doing so would cause impermissible interference to other current television operations. These stations must build and operate their currently authorized digital facilities reflected in their existing CP by the August 18, 2008 deadline and may seek an extension of time to February 17, 2009, at which time they could file their modification application to conform to those facilities specified in the post-transition DTV Table Appendix B. We expect, however, that these stations will apply now to modify their facilities to match the post-transition DTV Table Appendix B and will begin operations at full, authorized facilities as soon as the impermissible pre-transition interference concerns are resolved (
52.
53. We adopt our proposal in
54. However, as discussed above, we cannot give stations blanket authority for more construction time beyond the transition date without risking the availability of post-transition television service to viewers. We do agree with commenters, however, that our rules and policies must be flexible to enable stations with unique technical challenges to make a smooth transition. In particular, we expect that stations facing unique technical challenges will benefit from our provisions for a “phased transition.” (We note that not all of the stations granted a use or lose waiver in this category have the type of situation that is likely to warrant further time to complete construction after the transition date.) For example, Allbritton has requested that the Commission permit a station with a top-mounted analog antenna to delay the start of construction of top-mounted, post transition DTV facilities until after the analog shut-down, provided that station's existing DTV facility provides service to 100 percent of its replication area. We find that the “phased transition” alternative build-out policy that we adopt below will provide an avenue for the relief requested by Allbritton.
55. We adopt our proposals concerning the treatment of stations granted a waiver of the August 4, 2005 “checklist” deadline and stations denied an extension of time to construct a pre-transition DTV facility or a “use or lose” waiver request. (These stations sought a waiver of the August 4, 2005 deadline established for all television stations to construct and operate a “checklist” DTV facility.)
56.
57.
58. Of the three stations that were denied an extension and admonished, only one station, WTVA-DT, channel 8, Tupelo, Mississippi, has still not built its pre-transition facility. (We note that the two other stations that were denied extensions and admonished have since reported the completion of their final DTV facility and, therefore, do not require further consideration. These stations are KJUD-DT, Juneau, Alaska and KECY-DT, El Centro, California. KECY-DT sought reconsideration of the Commission's admonishment of its failure to complete construction in a timely manner. That reconsideration will be addressed in a separate proceeding.) WTVA-DT has a post-transition channel that is different from its pre-transition DTV channel. We stated in the
59.
60. There is no reason to distinguish between stations that failed to complete construction of their pre-transition facility by the use-or-lose deadline based on whether or not the facility would also be used for post-transition operation. In this case, the required build-out was specifically to provide pre-transition service and the failure to provide that service without a valid justification cannot be excused. Accordingly, we will not reevaluate here our decision to remove interference protection for these stations. These stations will not lose their license and must comply with the relevant deadline for operation of their post-transition facility if it differs from their pre-transition facility. (The five stations whose pre-transition channel is not the same as their post-transition channel are required to complete construction of their post-transition facility by February 17, 2009, but have lost interference protection to that part of their service area that they failed to serve by the use-or-lose deadline. One of these stations, KUAM, did not file a petition for reconsideration and their denial is final. When KUAM applies for its construction permit, its application should reflect this modification.) We note that four of these stations have sought reconsideration of the denial of their use or lose waivers. (Stations KBDI-DT, Denver-Broomfield, Colorado, WDHS-DT, Iron Mountain, Michigan, WDTV-DT, Weston, WV, and WTXX-DT, Waterbury, Connecticut, all filed such petitions for reconsideration. If their petitions are denied, their applications for CP to construct their post-transition facilities must include the necessary modification to reflect the service area lost.) We will address these petitions for reconsiderations in a separate proceeding.
61. In this section, we adopt our proposed revisions to section 73.624(d)(3) of the rules to tighten the standard for extension of DTV construction deadlines. However, we also clarify that we will consider, on a case by case basis in very limited circumstances, requests for an extension that do not meet our stricter criteria adopted herein where the station can show extraordinary circumstances that warrant providing additional time to complete construction. We also conclude that there will no longer be a separate treatment of “use-or-lose” deadlines, rather all requests for more time to complete construction of full authorized facilities will be dealt with as requests for CP extensions. In addition, we will require stations seeking an extension under section 73.624(d)(3) to comply with a viewer notification requirement (detailed below). Finally, as we proposed in the
62. Specifically, we take the following steps with respect to requests for additional time to construct post-transition facilities:
(1) Absent extraordinary circumstances we will no longer consider lack of equipment in the evaluation of whether to grant a request for extension of time to construct a DTV facility.
(2) We continue to consider circumstances beyond the licensee's control in evaluating requests for extension of time, including delays related to zoning issues or international coordination.
(3) We eliminate the existing four-part test for an extension of time on the grounds of financial hardship. Under the new test adopted herein, absent extraordinary circumstances, to obtain an extension on the grounds of financial hardship we will require that the station show that it is (a) the subject of a bankruptcy or receivership proceeding, or (b) experiencing severe financial hardship, as defined by negative cash flow for the past three years.
(4) Requests for extension must be received at least 60 days prior to the deadline for which the extension is requested to ensure review prior to the deadline.
(5) Beginning at least 30 days prior to the station's termination of analog service, stations must notify their viewers about any delays in completing construction that will prevent the station from providing post-transition digital service to all viewers. (The station must air such notifications on its analog channel.)
(6) For all requests for additional time to construct DTV facilities for construction deadlines occurring on February 18, 2009 or later, we will consider such requests under the tolling standard set forth in section 73.3598(b) of the rules. This rule provides that the period of construction for an original construction permit shall toll when construction is prevented due to an act of God (
63. Stations that cannot finalize construction of their final DTV facilities by the February 17, 2009 deadline have
64. The stations that face the most significant amount of construction to finalize their post-transition facilities are those that are moving to a different channel for post-transition operation. It is important to note that in this Report and Order we provide these stations the maximum amount of time—
65. Stations that have an earlier deadline to construct post-transition facilities generally do not have a significant amount of construction remaining to complete their final DTV facility. (Stations whose pre- and post-transition channels are the same have until May 18, 2008 to finalize construction of the post-transition facility.) In some cases, however, these stations do face genuine obstacles to completing construction, such as zoning issues or weather-related damages to facilities. For these stations, the revised standard we adopt herein will continue to consider these kinds of issues in evaluating extension requests. For stations moving to a new channel post-transition and that are subject to either the May 18, 2008 or August 18, 2008 construction deadline, those that need an extension and can satisfy the new criteria adopted herein will be granted an extension until February 18, 2009.
66. In general, at this stage in the transition it would be a disservice to the public to permit stations to continue to obtain extensions of time to construct due to equipment shortages associated with poor planning or a reluctance to commit financial resources to construction of full digital facilities. While most of the commenters that addressed our proposals to tighten the standards for grant of additional time to construct DTV facilities disagreed with our proposals, we believe it is necessary that these standards be tightened to ensure continued, necessary progress by stations toward completion of their post-transition facilities. Because we are close to the end of the transition—the ultimate deadline—we can no longer allow extensions except in the most serious, extraordinary, or truly unavoidable circumstances, such as bankruptcy or zoning or other impediments beyond the station's control. Stations that cannot satisfy these criteria and yet do not complete construction of their post-transition facility will be admonished, placed in remedial programs, subjected to forfeitures, will lose interference protection to their unbuilt service areas, and/or will not be permitted to apply for expanded facilities. These stations will also be required to notify their viewers that the station will not be serving some or all of these viewers beginning February 18, 2009.
67. We have determined that there is no further need for separate “use or lose” and construction deadlines at this point in the transition. Our “use or lose” deadlines were an effort to ensure that stations were operating full power pre-transition DTV facilities during the course of the DTV transition. As we are nearing the end of the DTV transition, stations must complete their final, post-transition facilities, and the less than full facilities that were permitted by the use-or-lose deadlines will no longer be sufficient. Therefore, from this point on, we will enforce only construction deadlines for all stations. Any station whose DTV facility is either unbuilt or built but operating at less than full power may submit an application for extension if it wants to retain protection to the authorized service area and would meet the new extension criteria. (We also note that stations that do not intend to build out to their full authorized facility should apply for a license to cover the facility they have built.)
68.
69. Under the current rules, the Media Bureau may grant a six-month extension of time to construct a DTV station if the licensee or permittee can show that the “failure to meet the construction deadline is due to circumstances that are either unforeseeable or beyond the licensee's control where the licensee has taken all reasonable steps to resolve the problem expeditiously.” The rules state: “[s]uch circumstances shall include, but are not limited to (A) [i]nability to construct and place in operation a facility * * * because of delays in obtaining zoning or FAA approvals, or similar constraints; (B) the lack of equipment necessary to obtain a digital television signal; or (C) where the cost of meeting the minimum build-out requirements exceeds the station's financial resources.” (
70. In the
71.
72. While requests for an extension of time on the grounds of a lack of equipment will no longer generally be granted, we recognize that for some stations difficulties beyond their control in obtaining or installing equipment may still pose unavoidable delays in completing construction, either because of real equipment shortages, the lack of sufficient tower crews, or because of a delay in scheduling equipment installation due to weather. Therefore, while we adopt our proposal to eliminate the equipment shortage justification as a general ground for grant of an extension of time, and amend the rule accordingly, we will consider, on a case by case basis, requests for an extension where a station can demonstrate that, despite timely orders, there is a delay in delivery of equipment due to a shortage of supply or that there is a delay in installing equipment on hand or in completing tower construction due to a shortage of qualified tower crews. Only stations that can demonstrate that they placed their equipment orders and requested tower crews well in advance will be considered eligible for an extension on these grounds. In addition, we will also consider requests for an extension where the station can demonstrate that tower construction cannot be completed because of weather conditions or that equipment is on hand but that weather conditions have delayed installation. In each case, we will require the station to provide specific, detailed information and supporting documentation to demonstrate that grant of an extension of time to construct is warranted because of a genuine, specific, verifiable delay due to equipment or manpower shortages or weather. Such documentation could include, for example, proof that equipment was timely ordered together with a letter from the equipment supplier confirming a delay in filling orders and an estimated date by when the equipment will be delivered, or proof that equipment is on hand together with a letter from the equipment installer confirming a delay in scheduling installation and an estimated date for installation. With respect to delays due to weather, we will consider proof that the equipment is on hand or that tower construction has commenced or is ready to commence together with information confirming unsuitable weather conditions and an estimated date for finalizing tower construction and/or equipment installation. Stations must also note on FCC Form 387 the status of the station's transition and any delays related to delivery or installation of equipment and must update the form to keep the Commission apprised of changes or continuing delays.
73. This approach responds to the concerns raised by MSTV and NAB who specifically opposed our proposal to eliminate the equipment shortage justification for an extension of time. MSTV and NAB argued that eliminating the equipment shortage justification was inappropriate given the enormous anticipated demand for equipment and the relatively small number of manufacturers and installers, which could lead to very real shortages. We agree that there are instances in which stations may face legitimate delays in obtaining or installing equipment because of high demand or weather considerations and we will consider
74.
75. Our goal in adopting this stricter financial hardship standard is to limit extensions to situations where stations clearly are unable to make the financial commitment necessary to complete construction of their post-transition DTV facilities. While we recognize that a number of stations face financial obstacles to completing construction, at this relatively late stage in the transition it is imperative that stations devise and implement a plan to complete their final DTV facilities. Analog broadcasts must cease at midnight on February 17, 2009. In order to ensure that viewers continue to receive television service after the transition, stations must complete their post-transition facilities now. It is difficult to imagine a more compelling use of funds than to ensure continued service to the viewing public. Thus, only stations that can demonstrate no available funds or source of funding to complete construction may be granted an extension on this ground.
76. While we adopt our proposal to tighten our financial hardship standard, and amend the rule accordingly, we recognize that some stations, including some noncommercial educational stations and some smaller stations, face extraordinary financial circumstances that do not fit within the new financial hardship criteria but that nonetheless may warrant an extension of time to finalize construction. Therefore, we will consider, on a case by case basis, requests for an extension that do not meet our revised financial hardship criteria where a station can demonstrate extraordinary circumstances. In this regard, we will consider situations where the station can demonstrate, for example, that it is awaiting expected funding in the form of a station grant or similar funding together with a date by when such funding is expected to be received. We will also consider situations in which the station can show that it has a detailed, step-by-step plan for constructing its post-transition facilities by February 17, 2009 and that it is making and will continue to make timely progress in implementing this plan. We caution stations that extensions on the grounds of extraordinary circumstances will not be routinely granted.
77. We will require that all stations requesting an extension submit proof of the circumstances that warrant an extension of time, and provide a firm estimate of when construction will be completed. Stations will also be required to provide information on FCC Form 387 regarding the status of the station's transition and to update this information on a regular basis.
78.
79.
80.
81.
82. While the commenters that addressed the tolling issue generally opposed implementation of this approach, we find that once the transition to an all-digital broadcast service has occurred, it is appropriate to apply a stricter “tolling” approach to construction deadlines. Once DTV is the sole broadcast service, we find requests for additional time to construct should be treated as we now treat such requests for all analog stations and DTV singletons. Once the transition deadline has passed, stations will no longer be required to operate dual facilities and the demand for scarce resources by industry will level off. In the
83. 47 CFR 73.3598 provides that the period of construction for an original construction permit shall toll when construction is prevented due to an act of God (
84. As proposed in the
85. We remind stations that they will be subject to sanctions if they fail to meet their deadline for the construction of their final, post-transition DTV facilities, fail to justify an extension of their deadline pursuant to the revised procedures and policies, or are otherwise unable to qualify for the “phased transition” provisions. For example, a station failing to meet its construction deadline may be subject to license revocation procedures, the issuance of forfeitures, loss of interference protection to unserved DTV service area, or other remedial measures, such as admonishment and the imposition of periodic reporting requirements. We also remind licensees that “if a broadcasting station fails to transmit broadcast signals for any consecutive 12-month period, then the station license granted for the operation of that broadcast station expires at the end of that period, notwithstanding any
86. We find that these sanctions continue to be the appropriate methods to encourage stations to meet their DTV construction deadlines and to ensure that all stations are constructed and operating with their full, authorized post-transition DTV facilities at the end of the DTV transition. We note that approximately 100 stations have been placed in the DTV remedial program since its adoption in 2003. All but one station completed construction and began operating their DTV facilities within six months of enrollment in the program, thus eliminating the need for further sanctions. Therefore, with one slight modification, we find that continued use of the DTV construction remedial program will ensure that non-complying stations are able to quickly bring their stations into compliance with their DTV construction obligations.
87. Currently, stations placed in the remedial program are initially admonished and are provided with a six-month period to complete construction of their DTV facilities in order to avoid further sanctions such as the imposition of forfeiture. As we are nearing the completion of the DTV transition, we find that it is appropriate to accelerate our remedial procedures and require stations to complete construction of their DTV facilities in a shorter period of time in order to avoid further sanctions. Therefore, we modify the first stage in our remedial program and provide stations with three months to complete construction of their DTV facilities in order to avoid the imposition of further sanctions. By requiring compliance in a three-month period, we seek to ensure that non-compliant stations will come into compliance with our DTV construction rule and be ready for the final DTV transition.
88. We adopt two provisions for a “phased transition” in an effort to offer broadcasters regulatory flexibility in meeting their post-transition construction deadlines without disappointing viewer expectations after the transition date. (As discussed above, stations whose post-transition channel is different from their pre-transition DTV channel must build their full, authorized post-transition (digital) facilities no later than February 17, 2009. Stations whose post-transition channel is the same as their pre-transition DTV channel must build their full, authorized facilities no later than the expiration date of their current construction permit, which date was extended until November 18, 2007 for stations whose applications for extensions of time to construct DTV facilities and/or “use or lose” waivers were addressed in either the
89. We adopt these measures, which were discussed in the
90. Because qualification for the regulatory relief offered by these provisions will require stations to serve all or most of the same population that receives their current television (analog and digital) service, we find that these provisions strike the right balance of offering regulatory flexibility to broadcasters while not undermining viewers' over-the-air reception expectations after the transition date. (The noise limited service contour for DTV stations covers an area that is larger than the station's community of license. Thus, a significant number of a station's viewers may reside outside of the station's community of license and outside the community of license coverage contour, but within its noise limited service area.
91.
92. To provide flexibility to the post-transition construction deadlines established above, we adopt our proposal in the
(1) They serve at least the same population that receives their current analog TV and DTV service so that over-the-air viewers will not lose TV service; (As noted above, we recognize that after the transition there will be some changes in population served based on the service area authorized for post-transition operation consistent with the station's application, channel election, or other modifications, such as change of antenna site. To qualify for this flexibility, the station is not required to continue serving population that it will not be required to serve with its authorized facility after the transition. Stations must ensure that viewers within the station's authorized service area who have television equipment with a digital receiver, including those who obtain a digital-to-analog converter box through the NTIA program, will be capable of receiving DTV signals over-the-air post-transition. Stations that cannot satisfy this presumption, may still request Commission approval on a case-by-case basis for continued interim operations upon demonstration that they would provide digital service to a greater population than would their incomplete post-transition facility. These stations, however, must obtain Commission approval under the stricter standard for an extension of time to construct their post-transition facilities.)
(2) They do not cause impermissible interference to other stations or prevent other stations from making their transition. We adopt our tentative conclusion that the 0.5 percent interference standard established for post-transition operations (in section F, below) would apply because such operations would occur after the transition deadline. (We also agree with MSTV/NAB that the 0.5 percent interference standard would apply when evaluating two interim stations that temporarily continue to operate on their pre-transition DTV channels after the transition date.)
The record clearly supports adoption of the temporary use of in-core pre-transition channels. We agree with commenters that some stations that are returning to their analog channel or moving to a new channel for post-transition operations may be able to temporarily remain on their in-core pre-transition DTV channel and provide adequate service after the transition date without causing impermissible interference to other stations or preventing other stations from making their transition. Moreover, we expect that this provision for regulatory relief will advance the transition by freeing scarce transition resources for those stations that cannot utilize the opportunities afforded for a phased transition.
93. Stations' authority to operate on a pre-transition channel, including their digital channel, ends on February 17, 2009. (The post-transition DTV Table, which was adopted in the
94. As an additional approach to provide flexibility to the post-transition construction deadlines established above, we will consider stations' requests for STA to operate their post-transition facilities on post-transition channels at less than their full, authorized facilities (as defined by the DTV Table Appendix B). We will authorize STAs for this purpose, provided stations can demonstrate:
(1) A unique technical challenge (as defined in section V.B.5. above) and they can serve at least 85 percent of the same population that receives their current analog TV and DTV service; (For example, stations with side-mounted antenna-related issues, particularly those with towers in northern climates or at higher altitudes, face unique technical challenges that would warrant this relief. In addition, stations
(2) A significant technical impediment to the construction of their full, authorized facilities that would not otherwise qualify for an extension of time to construct facilities under the new, stricter standard adopted herein and they serve at least 100 percent of the same population that receives their current analog TV and DTV service so that over-the-air viewers will not lose TV service. (As noted above, stations must ensure that consumers served pre-transition that obtain a D-to-A converter box through the NTIA program or who otherwise purchase DTV receiver equipment will be capable of receiving off-the-air DTV signals post-transition.)
Furthermore, in either case, stations must also demonstrate that the STA facility they request will not cause impermissible interference,
95. We sought comment on this issue in the
96. Stations must request STA approval for this relief in accordance with our existing filing procedures. (Requests for STA, pursuant to 47 CFR 73.1635, may be submitted by informal letter or e-mail. Stations may file requests electronically through CDBS or e-mail courtesy copies of their STA requests to
97.
98. In this section we provide stations with the flexibility to reduce or terminate existing analog or pre-transition digital service prior to the February 17, 2009 transition date where necessary to permit stations to finalize construction of their post-transition facilities. Commenters discussed a wide range of possible circumstances in which stations may need to reduce or terminate such existing service either temporarily or permanently in order to complete construction of final DTV facilities. For example, some stations may need to remove a top-mounted analog antenna on a tower in order to replace it with a permanent digital antenna at the top position. In other cases, a new antenna may need to be added to an existing tower, or an existing analog antenna may need to be altered for digital use. Some towers may be able to support the weight of additional antennas, while others may need to be strengthened before another antenna is installed or an existing
99. In general, commenters argued that, at this stage in the transition, the Commission should provide the maximum possible flexibility to stations to permit them to finalize construction of their post-transition facilities in a manner that best suits the station's particular circumstances. Our goal in this section is to provide stations with this flexibility, while still ensuring that viewers are not deprived of existing service except where necessary or clearly beneficial to permit the maximum number of stations to accomplish the transition by February 17, 2009. We discuss below four kinds of service disruptions that may take place to facilitate construction of final DTV facilities:
(1) Temporary service disruptions (generally no more than 30 days);
(2) Permanent or extended (
(3) Permanent or extended (
(4) Permanent service reduction or termination of analog or pre-transition digital service 90 days before the transition date.
100. Under section 73.1615 of the Commission's rules, stations may reduce or cease service temporarily without prior Commission approval in order to modify existing facilities. We clarify that stations may use this existing provision to temporarily reduce or cease existing analog or pre-transition digital service where necessary to facilitate construction of final post-transition facilities. Because this provision does not require prior Commission authorization, and does not require licensees to justify the need for the service disruption, this provision gives stations substantial flexibility to temporarily reduce or cease analog or digital service pre-transition.
101. Section 73.1615 provides that, where the licensee of an existing television station is in the process of modifying facilities as authorized by a construction permit, the licensee may discontinue operation or operate with temporary facilities, upon notification to the Commission, for a period of 30 days, in order to continue to provide program service. (We note that, although rule 47 CFR 73.1615(a) and (c) refer to “licensees” permittees may also use the flexibility offered under this rule to temporarily reduce or cease television broadcast operation.) Where the station operates temporary facilities, including reduced facilities, such facilities should maintain as nearly as possible, but not exceed, the size of the presently licensed coverage area.
102. Stations must notify the Commission before commencing the temporary reduction or cessation of service, but do not need prior Commission approval. We will require that such notifications pursuant to section 73.1615, when made for purposes of facilitating the conversion to DTV, be filed electronically through the CDBS and using the Informal Application filing form. This is the form traditionally used for requests for Special Temporary Operating Authority. We emphasize that this form, when used in connection with service disruptions related to the DTV transition, must be filed electronically. Paper copies will not be accepted. There will be no fee for filing this form. All temporary service disruption notifications pursuant to sections 73.1615 must be filed electronically using the Informal Filings Menu of CDBS. (For more information on Informal Filings in CDBS, please refer to this web page:
103. The flexibility accorded by section 73.1615 is intended for service disruptions of 30 days or less. Some stations may use this provision to reduce or cease their analog or pre-transition digital service for 30 days or less, and then return to full service on the pre-transition channel for the remainder of the transition. Other stations may choose to permanently reduce or cease pre-transition service in the 30 days immediately preceding the transition date, in order to accomplish the transition, and then commence operation on the post-transition channel on the transition date. In both cases, the stations may use the flexibility provided by section 73.1615; however, for stations in the latter situation (
104. Where a licensee has filed a notification pursuant to section 73.1615 and, subsequently, determines that the reduction or termination of service must continue for a short period beyond 30 days, the licensee may make an additional informal letter request to the Commission prior to the 30th day. This second notification filed pursuant to section 73.1615 must be filed in the same manner as the initial temporary service disruption notification and must explain why the service disruption should not be considered to be a long term or permanent service disruption requiring prior Commission approval.
105. Once an informal letter request is made pursuant to section 73.1615(c)(1), the licensee may then continue the service reduction or termination until notified otherwise by the Commission. In general, we anticipate that stations will use section 73.1615(c)(1) to extend a temporary service reduction or cessation under section 73.1615 only when unexpected circumstances require a somewhat longer service disruption than initially anticipated. Stations will not be permitted to utilize the procedures set forth in section 73.1615 for service reductions or cessations that extend for a lengthy period beyond 30 days. If the service disruption continues substantially beyond 30 days, we may require the station to reapply under the procedures outlined below for permanent analog or digital service
106.
107. For stations needing long term or permanent reduction or termination (significantly more than 30 days), we adopt streamlined procedures to provide stations with the flexibility to permanently reduce or terminate their analog service before the transition date if necessary to achieve their transition. (We will consider a reduction or termination of analog service to be “permanent” if the station seeks to discontinue operation on that channel for more than 30 days.) Specifically, we will permit a station to reduce or terminate its analog service before the transition date, provided the station satisfies the following two requirements:
(1) The station demonstrates that its analog service reduction or termination is directly related to the construction and operation of its, or another station's, post-transition facilities; and
(2) The station notifies viewers on its analog channel about the planned service reduction or termination and informs them about how they can continue to receive the station, as detailed below.
Stations must obtain prior Commission approval in order to reduce or terminate their analog service before the transition date. To allow the Media Bureau sufficient time to process these requests, and to afford viewers adequate time to obtain digital reception equipment, stations should file these requests for STA approval at least 90 days in advance of their planned service reduction or termination. Stations must file these requests electronically through the CDBS using the Informal Application filing form.
108. In light of the fast-approaching hard date for analog turn-off, the significant public interest in ensuring that stations meet the transition deadline now weighs in favor of permitting early reduction or termination of analog service where necessary to facilitate the transition. The procedures we adopt herein will provide stations with clear guidelines for how and when they may reduce and/or terminate their analog service early. At the same time, these procedures will ensure that viewers are informed about when they may lose analog service and what they can do to continue to view the station.
109. The record strongly favors affording stations the flexibility to permanently reduce and/or terminate their analog service before the statutory deadline if the station's technical facilities and the conditions in its market warrant such reduction or termination to complete their transition. We agree with commenters that, at this point in the DTV transition, some stations must be allowed to “wind-down” their analog service in order to meet the transition deadline. To be clear, we note that we are not requiring stations to reduce or terminate analog service early and expect that stations will not do so unless absolutely necessary to complete their transition.
110.
111. Comments responding to the
112. While most commenters support giving stations the flexibility to reduce or terminate analog service before the transition date, they favor a “bright-line” test and streamlined approval or notification process, instead of the proposed six-factor public interest analysis. Commenters proposed a variety of different standards to permit flexible analog service reduction or termination. In their joint comments, MSTV and NAB assert that stations should be allowed to reduce analog service starting one year prior to the transition date (
113. We are persuaded that our proposed six-factor test should be adjusted to provide additional flexibility at this stage in the transition. However, we disagree with the suggestion of MSTV/NAB and Tribune that we should permit all stations to elect to terminate or reduce analog service early, starting on dates suggested by these commenters, without justification. We find that stations should be granted broad flexibility to reduce or terminate analog service as needed to further a station's transition, but should not be granted blanket authority to reduce or terminate analog service without providing a legitimate reason why the action is necessary. We have an important responsibility as guardians of the public interest to ensure that stations show a legitimate need for an early analog reduction or termination. In addition, we must ensure that viewers are informed about any permanent loss of analog service. Accordingly, as discussed more fully below, we steer a middle course by adopting a procedure that provides certainty to broadcasters regarding when pre-transition analog reduction and termination will be permitted. We find that our reduced showing requirement will reduce the administrative burden on stations and eliminate the delays that can occur with a more detailed approval process during this critical time in the DTV transition.
114.
115.
116. The following are examples of situations where the service reduction or termination would be considered to be “directly related” to the construction and operation of post-transition facilities: (1) Stations that need to reposition their digital and analog antennas before the end of the transition; (2) Stations that need to add a third antenna to their tower but cannot do so without reducing or terminating analog service because the tower cannot support the weight of the additional transmission facilities; (3) Stations on a collocated tower that must coordinate a reduction or termination with other stations in order to configure their final, post-transition facilities; (4) Stations with equipment currently in use with their analog operations that they plan to use with their digital operations; and (5) Stations that must terminate operation on their analog channel in order to permit another station to construct its post-transition DTV facilities on that channel. We recognize, however, that there may be other legitimate situations where stations may be able to demonstrate that their planned service reduction or termination is directly related to the construction and operation of post-transition facilities and we will also consider these requests on a case-by-case basis.
117.
118. In addition to the temporary disruption rules and the long term or permanent analog reduction or termination, we will also provide stations that will be returning to their analog channel or moving to a new channel for post-transition operations with the flexibility to reduce or terminate existing digital service on their pre-transition DTV channels prior to the transition date. (Stations that will be using their same digital channel for post-transition operations may not use the procedures outlined in this section.) We are hopeful that the vast majority of stations currently providing digital service to the public on pre-transition DTV channels will continue to do so, until they convert to operations on their post-transition channel. However, we recognize that, in some instances, these stations may have to reduce or terminate their pre-transition digital service in order to complete the station's post-transition facilities. Thus, we provide flexibility to stations to reduce or terminate pre-transition digital service where a station can demonstrate that doing so is necessary to complete construction of, and commence operations on, its new post-transition channel. As discussed above, a station whose pre-transition digital channel is unbuilt and/or non-operational may choose to return the construction permit for that channel to the Commission and focus its efforts on construction of its post-transition channel.
119. The following options are available for stations that need to reduce or cease operation on their pre-transition DTV channel prior to the transition date:
(1) As explained above, a station may, pursuant to section 73.1615, temporarily reduce or cease service a period of 30 days or less, upon notification to the Commission and without prior approval, when necessary to complete construction of its post-transition facility;
(2) A station may choose to transition early to its post-transition channel by terminating operation on its pre-transition DTV channel and commencing service on its post-transition channel prior to the transition date; or
(3) A station may permanently reduce or terminate their pre-transition digital service before the transition date, provided it satisfies the following two requirements:
a. First, the station must demonstrate that its service reduction or termination is directly related to the construction and operation of its, or another station's, post-transition facilities; and
b. Second, the station notifies viewers on its pre-transition channel(s) about the planned service reduction or termination and informs them about how they can continue to receive the station.
120. In general, our goal is to ensure the continuation of digital service that is now being provided to viewers. However, a substantial number of
121. We adopt our proposal in the
(1) The early transitioning station must not cause impermissible interference to another station; and
(2) The early transitioning station must continue to serve its existing viewers for the remainder of the transition and commence its full, authorized post-transition operations on February 18, 2009.
The record supports the allowance of early post-transition operations, although (as previously discussed above) some commenters oppose any accompanying restrictions on stations' ability to reduce or terminate pre-transition television service. (For example, MSTV/NAB and APTS/PBS argue that a station should be permitted to transition early subject only to interference concerns. NAB/MSTV comments at 14-16; APTS/PBS Comments at 20-21.) We agree that early transitions will advance and facilitate the transition by freeing engineering and construction resources for those stations building later. For example, MSTV/NAB states that early post-transition operations may advance the transition by setting in motion “daisy-chains” of early transitions,
122. We will permit early transitioning stations to operate at facilities that are less than their full, authorized facilities until the date of their construction deadline, at which date these stations must commence their full, authorized post-transition operations. MSTV/NAB suggest that we require early transitioning stations to serve only their respective communities of license during the transition period. We disagree with MSTV/NAB that market factors alone will protect against viewer disenfranchisement and find that, absent a showing of good cause, stations must maintain current digital service to consumers, who have prepared for the transition and will expect to continue to receive such service. Broadcasters seeking to commence early post-transition operations must indicate in their applications for post-transition facilities whether such operations will result in a loss of their own analog or digital service.
123.
124. For stations needing long term or permanent reduction or termination (significantly more than 30 days), we adopt streamlined procedures to provide stations with the flexibility to permanently reduce or terminate their pre-transition digital service before the transition date if necessary to complete their transition. (We will consider a reduction or termination of pre-transition digital service to be “permanent” if the station seeks to discontinue operation on that channel for more than 30 days. If the station intends to discontinue operation on that channel for the remainder of the transition, the station must return the pre-transition channel to the Commission and flash cut directly from operation on their analog channel to operation on their post-transition (digital) channel on or before the transition date.) The Commission has previously granted general approval for satellite stations and most stations with an out-of-core DTV channel to terminate pre-transition digital service and transition directly from their analog to their post-transition digital channel (
(1) The station demonstrates that its pre-transition digital service reduction or termination is directly related to the construction and operation of its, or another station's, post-transition facility; and
(2) The station notifies viewers on its pre-transition channel(s) about the planned service reduction or termination and informs them about how they can continue to receive the station.
Stations must obtain prior Commission approval in order to reduce or terminate their pre-transition digital service before the transition date. To allow the Media Bureau sufficient time to process these requests, stations should file these requests for STA approval at least 60 days in advance of their planned service reduction or termination. Stations must file these requests electronically through the CDBS using the Informal Application filing form. We expect that stations that will reduce or terminate their pre-transition digital service will commence
125.
126. In the
127. Commenters responding to the
128.
129. In an effort to provide additional flexibility to out-of-core stations, we adopt our proposal to extend the current band-clearing “rebuttable presumption” favoring band-clearing arrangements for stations on TV channels 59-69 to cover the requests of all out-of-core stations (
130.
131.
132.
133. As an exception to the approval process described above for permanent service reductions and terminations, we instead adopt a streamlined notification procedure for stations planning a permanent service reduction or termination (analog or digital) within 90 days of the February 17, 2009, transition date (
134.
135. As we stated in the
136.
137.
138. Second, some stations whose pre- and post-transition DTV channels are the same may want to request changes to Appendix B as adopted in the
139. Third, there are some stations that already have a license to operate or a CP to construct their post-transition channel that matches the facility specified in the new DTV Table Appendix B for that station. These stations do not need to file any additional CP applications. These stations are building their post-transition facilities on the CPs granted for pre-transition operation. Once these stations have completed construction and have begun operating pursuant to program test authority, they must file an application for a license to cover (FCC Form 302).
140. As we stated in the
(1) The application does not seek to expand the station's facilities beyond its final post-transition DTV Table Appendix B facilities; (Applications for such expanded facilities will be processed as quickly as possible after processing is completed for stations eligible for expedited processing.)
(2) The application specifies facilities that match or closely approximate the DTV Table Appendix B facilities (
(3) The application is filed within 45 days of the effective date of this Report and Order, pending OMB approval.
141. In general, the commenters agreed that expedited processing of applications is important to ensure that stations can meet the transition deadline. We find that setting an application filing deadline for expedited processing of 45 days after the effective date of this Report and Order will give stations time to prepare for these filings. (We expect that the 45-day application deadline will coincide with final OMB approval for revised FCC Forms 301 and 340. The Media Bureau will issue a public notice announcing that the forms have been approved and are ready for use, as well as the date by which applications must be filed to take advantage of expedited processing.) We anticipate that we will be able to process qualified applications expeditiously, generally within 10 days of filing. We remind stations that expedited processing does not necessarily mean that the application will be granted. (The application still must satisfy the criteria on Form 301 (or 340 for NCEs), as revised in this proceeding. Stations that do not qualify for expedited processing will not necessarily have their applications denied; rather, their applications simply will not be processed on an expedited basis.) Applications that receive expedited review but that are not readily grantable by the Commission will require further action by the station. (To be eligible for grant, the applicant must certify in the application that the proposed facility: (1) Will not have a significant environmental impact; (2) will serve the principal community of license; (3) will provide necessary protection to radio astronomy installations and FCC monitoring stations; and (4) has had its tower approved by FAA, if necessary.
142. Some commenters proposed that we designate additional categories of stations that would be eligible for expedited processing. Specifically, APTS argues that we should provide expedited processing to stations with Congressionally-authorized funding that is contingent upon the receipt of a construction permit. In addition, West Virginia Media Holdings suggests that we provide expedited processing to stations moving to a different post-transition channel. We note that the criteria and procedures we adopt today encompass a broader group of stations than the categories identified by APTS and West Virginia Media Holdings and will provide relief both to these stations as well as others that may need expedited application processing.
143. A number of stations proposed that we further streamline our procedures by adopting a one-step application process for certain stations. For example, MSTV/NAB propose that, where the proposed facilities conform to Appendix B, the Commission should not require a construction permit application but instead should only require an application for license. MSTV/NAB maintain that this proposal would streamline the current “two-
144. Upon careful consideration, we find that the procedures suggested by MSTV/NAB, Norwell, and APTS pose more potential risk than might be warranted by the potential benefit. Under these suggested approaches, a station could make modifications to its final DTV facility and begin operating that facility without prior authorization from the Commission and then report the changes on its license application. We continue to believe that the best policy is for a station to first obtain approval of its modified facilities prior to initiating operation. Otherwise, a station could modify its facility, begin operating without prior approval, and cause harmful interference to existing broadcast stations, stations in other services such as mobile operations, and to medical devices. (Certain very minor changes to television facilities may be reported on a license application but none of the more complicated changes proposed by MSTV/NAB.) Although, as MSTV/NAB reminds us, Congress amended section 319 to provide the Commission with the discretion to allow for one-step licensing, we have exercised this discretion and allowed this procedure only in cases where the potential for interference was much smaller. For example, we permitted one-step licensing for FM stations that were proposing to reduce their power from a level previously authorized. Similarly, we permitted one-step licensing in the Instructional Television Fixed Service where the power levels involved were much lower and the potential for interference much smaller. We do not find such factors in this case. Furthermore, departing from our long-standing “two-step” process is not necessary in this case as it will not help to greatly expedite the final DTV transition. If a station completes its final DTV facilities pursuant to a previously-issued construction permit and finds that it needs to make last-minute changes, that station may avail itself of our expedited processing procedures and expect a quick evaluation of its application. We find that the procedures we adopt today will provide stations that need to make changes to their facilities more than enough time to complete their final DTV facilities even if last-minute corrective filings are necessary.
145. In response to the comments of Broadcasting Company of Sarasota, we note that the Commission currently accepts electronically-filed requests for STA through our CDBS database and will continue to do so. (Like other requests for STA, these requests must be filed electronically using the Informal Filings Menu of CDBS. As requests are submitted, CDBS will automatically generate public notice of these filings. For more information on Informal Filings in CDBS, please refer to this web page:
146. Finally, a number of commenters suggested that the Commission expedite application processing by approving applications where the proposed service contour does not exceed the contour predicted by the Appendix B facility by more than a certain amount.
147. As we stated in the
148. We announce our intent to lift the freeze on the filing of maximization applications on August 17, 2008, the date by which we expect to have completed processing stations' applications to build their post-transition facilities. Until this date, we will maintain the freeze and will not accept maximization applications to expand facilities. We will, nevertheless, consider requests to waive the freeze before August 17, 2008 in certain specified situations to provide for minimally expanded facilities where necessary to ensure that stations can serve their existing television viewers with their post-transition facilities, thereby meeting viewers' over-the-air reception expectations after the transition date.
149. During the channel election process, stations defined their post-transition facilities, deciding whether they would (1) replicate their allotted facilities, (2) maximize to their currently authorized facilities, or (3) reduce to a currently authorized smaller facility. Stations, however, were not allowed to seek facilities that would expand their coverage areas beyond that provided by their allotted facilities or authorized by a license, CP or STA. The filing freeze precluded such expansion to provide a stable database for developing the post-transition DTV Table.
150.
151.
(1) Would allow the station to use its analog antenna or a new antenna to avoid a significant reduction in post-transition service from its analog service area;
(2) Would be no more than five miles larger in any direction than their authorized service area, as defined by the post-transition DTV Table Appendix B; and
(3) Would not cause impermissible interference,
152. We find that this waiver policy will allow added flexibility for stations that wish to use their existing analog channel antenna, which provides benefits for the successful completion of the transition by reducing the demands on equipment suppliers and installation crews during a critical time as the transition date nears. This waiver policy addresses the concerns of those stations returning to their analog channel that may face significantly reduced facilities if some minimal expansion is not permitted. For example, Tribune and Allbritton argue that many stations returning to their analog channels for post-transition operation plan to use their analog antennas but face the prospect of significant service losses because the “unbuildable, theoretical pattern” in Appendix B does not match the analog antenna pattern. As previously discussed, several stations that faced this problem filed comments in our DTV Table proceeding. In the
153.
154.
155. We are generally adopting the interference standards as proposed in the
• We will permit stations a limit of 0.5 percent new interference in addition to that in the DTV Table Appendix B. We will evaluate stations' applications to construct post-transition facilities using an engineering criteria based requirement (limiting the predicted interference that a station may cause to a protected station's service population) instead of using a geographic spacing requirement.
• We will discontinue the 10 percent cap on total interference.
• We will continue to evaluate requests for new DTV allotments using the DTV-to-DTV geographic spacing requirements contained in section 73.623(d).
• For approximately a year after lifting the filing freeze, we will protect all stations' DTV Table Appendix B facilities, after which we will protect each station's new DTV Table Appendix B facilities' coverage only until the station has a CP or license for its post-transition operation, at which time we will limit its interference protection to its authorized coverage area.
• We will revise the OET 69 interference analysis methodology to make the results more accurate and ensure consistent methodology. Specifically, we adopt the use of 2000 census data for use in all applications and we adopt a limited set of cell sizes, which include 2 km, 1 km, and 0.5 km.
• We will eliminate the 1 dB power reduction requirement for UHF stations that use more than 1 degree of antenna beamtilt.
156.
157. A study by du Triel, Lundin & Rackley, Inc (dLR) found that 50 percent of all VHF allotments already cause more than 0.5 percent interference and 40 percent of all VHF allotments already cause more than 1.0 percent interference, so that an absolute 0.5 percent limit would prevent many stations from expanding at all. MSTV/NAB noted that a number of commenters argue that the FCC should apply the proposed 0.5 percent standard by using the DTV Table Appendix B facilities as a baseline so that stations would be permitted to create no more than 0.5 percent additional interference beyond the level authorized in the DTV Table Appendix B. MSTV/NAB support this approach on the grounds that it will ensure that stations have sufficient flexibility to expand or modify facilities, but will prevent substantial increases in interference between stations. Several other commenters wrote that the proposed 0.5 percent interference standard may be too strict and proposed alternate standards. Upper Cumberland Broadcast Council (UCBC) would permit up to 2 percent interference. Multicultural Television Broadcasting (MTB) supports a limit of 1 percent with no rounding and the masking of other stations taken into account and asks that we permit minor modifications where the increase in existing interference is less than or equal to 0.1 percent. Khanna & Guill Inc. proposed an alternative that would limit interference to small service areas to no more than 1,000 people and to large service areas to no more than 50,000 people.
158. For purposes of the channel election process, the Commission generally applied the 0.1 percent interference standard to minimize as much as possible any interference as a result of a station moving to its analog channel for post-transition operation, rather than remaining on its pre-transition digital channel for post-transition service. For stations that had to change channels for post-transition operation,
159. In addition, we agree with the majority of commenters that new interference under the 0.5 percent standard should be evaluated using the DTV Table Appendix B allotments as a baseline in interference calculations. In contrast, as indicated by the dLR study, an absolute interference limit would preclude many stations from having the flexibility to modify their facilities. Even increasing the absolute interference limit to 1.0 percent as suggested by UCBC would still preclude 40 percent of VHF stations from having such flexibility, and using a higher interference limit would potentially subject stations to large amounts of new interference. Therefore, to provide an opportunity for at least modest modifications, we will allow stations to
160. We also proposed to discontinue the 10 percent cap on total interference to a station from all sources, and instead proposed to limit the total interference any station would receive from all sources by requiring that stations already predicted to cause more than 0.5 percent interference to another station would not be allowed to increase the interference they are authorized to cause to that station. MTB concurs with this proposal. MSTV/NAB also submits that removing the cap would contribute to making the interference standard “simpler to administer than the 2 percent/10 percent rule (which requires consideration of the total amount of interference a station is receiving from all sources).” Since we are adopting the 0.5 percent interference standard, which is significantly more protection than the previous 2.0 percent standard, we find that the amount of new interference that will be accumulated by any one station is minimal. Removing the cap would also help those few stations in situations that exceed the 10 percent interference level share the flexibility to expand or modify their facilities. Therefore, as proposed, we will discontinue the 10 percent cap on total interference.
161.
162.
163.
164. As proposed, we adopt the use of 2000 census data for use in all
165. We also adopt use of specific smaller cell sizes for the Longley-Rice analysis as described in OET 69. Commenters were divided on the issue of the use of smaller cell sizes. As we explained in the
166.
167.
168.
169.
170. We establish no new rules governing the coordination of broadcasters and MVPDs, but remind all parties of their existing obligations, and observe that some coordination issues must be resolved in other dockets. As we recognized in the
171. As discussed above, we adopt the requirement that broadcasters file a Transition Status Report (Form 387) with the Commission no later than February 18, 2008, and we will make the information from those forms publicly available. Broadcasters may also report their coordination efforts with MVPDs in their transition status reports. This information collection and availability is in line with that supported by a number of commenters, including NCTA. NCTA argues that a wide range of information must be available to “provide adequate lead time for cable operators to make technical modifications at cable headends, conduct tests, and provide timely notice to customers of channel changes and any other changes in their service.” These reports will provide a base of common information that broadcasters and MVPDs can look to in their voluntary coordination efforts, and will allow time for the resolution of those efforts. Reports filed with the Commission are, however, no substitute for direct communication between broadcasters and MVPDs and we strongly encourage active coordination between them.
172. Although NAB and MSTV propose that MVPDs themselves file Transition Status Reports similar to Form 387, they do not elaborate on this proposal. We find insufficient support in the record for imposing this filing because it would provide information that is already generally available. NAB and MSTV also propose that MVPDs be required to register their headends and contact information, such that it will be available to broadcasters who wish to coordinate carriage issues. As noted above, we strongly support active coordination between the parties, and urge broadcasters to directly contact the MVPDs that carry their stations if they require specific information from MVPDs to ensure a successful transition. We also remind cable operators in particular of their existing requirement to notify all stations carried pursuant to must carry at least 60 days prior to any change in the designation of their principal headend. Furthermore, contact information for cable operators is already widely and publicly available through the FCC Cable Operations and Licensing System (“COALS”). Broadcasters can access this information online at any time. (COALS is a publicly accessible online database that contains extensive information about cable operators. Cable operators are required to maintain updated contact information with the Commission.
173. The Commission's primary concern in this process is to ensure that the entire viewing public, those who watch broadcast stations on cable as well as those who watch them over the air, is able to view these signals as easily on February 18, 2009 as they can today. We remind cable operators that they have an obligation to carry digital must-carry signals, and to have reception equipment operational to receive those digital signals that go on the air on February 18, 2009. Furthermore, we remind them of their carriage obligations regarding digital-only stations established in the
174. The Commission has previously established that, for cable companies, a “good quality digital signal” is one that provides a signal strength at the headend equal to −61 dBm. For purposes of clarity, we find that it is now advisable to adjust section 76.55 of our rules to conform to these requirements established in 2001. Two broadcast commenters expressed concerns that stations could lose carriage rights for a full election cycle because of a temporary reduction in signal strength or area during their digital build-out. UNC proposes that the Commission impose an interim quality standard, presumably requiring lower signal strength to qualify. Norwell suggests that, where the predicted digital signal strength is at least as high as the analog signal it is replacing, the MVPD be required to carry the digital signal. We decline to adopt these proposals. When the Commission adopted the −61 dBm standard for cable carriage, analysis indicated that it was the strength “necessary to provide a good quality digital television signal at a cable system's principal headend.”
175. We reiterate that MVPDs must work with broadcasters to ensure a smooth transition, and direct the parties to the DBS Carriage proceeding, MB Docket No. 00-96, where the final rules governing satellite carriage of digital broadcast signals will be adopted. (Although signal strength requirements for the delivery of digital signals to satellite receive facilities have not been finalized, we remind DBS providers of their obligation to carry local broadcast stations that provide a “good quality signal.”
176. In the
177. PCOs provide cable service on private property, and do not cross public rights of way. Typically they serve multiple dwelling units (“MDUs”) and private residential communities, such as condominiums and homeowner associations. PCOs generally provide local TV broadcast signals to the residents/subscribers via one of four methods. The first alternative is to contract with a DBS provider that is providing local-into-local service, set up a DBS dish in a central location (
178. After the digital transition, PCOs who rely on the first or second alternatives will not need to make any changes. The satellite signal or signals will continue to be received in digital and can continue to be remodulated into analog for the residents/subscribers. If this alternative is used, however, there will be no digital signals, including high definition signals, available to the residents/subscribers, although they will all continue to receive television service without buying new equipment. PCOs under option three are already relying on an all-digital headend and distribution network, and will face no changes after the transition because all equipment on the system, including residents/subscribers' television receivers, is already capable of receiving, conveying, and displaying digital signals. PCOs who rely on local receive antennas will have two options, the same as those confronting operators of master antenna systems. First, they could use a digital-to-analog converter on all over-the-air signals to convert the digital broadcast signal to analog before being retransmitted to residents/subscribers, who will therefore be able to continue to rely on their existing television equipment. This solution results in the same problem faced by DBS subscribers, however; all residents/subscribers will receive television programming, but none will receive a standard or high definition digital signal. The other alternative is to retransmit the signal in digital format. In this case, residents/subscribers have access to the full benefits of the digital transition, but only if they have digital equipment. We recognize that some residents/subscribers may think of themselves as “cable subscribers,” and therefore expect that the DTV transition will have no impact on their service, based on the Commission's recent decision ensuring continued viewability of stations carried on cable. This problem can be largely ameliorated by proper education efforts by PCOs and MATV operators. In addition the OTA digital signal provided by PCOs will be processed, but not remodulated; therefore, off-the-shelf digital-to-analog converters, including those that will be available as part of the NTIA converter box coupon program, can be used by residents/subscribers with analog equipment to view the signal.
179. We adopt our proposal in the
180. We find that it is desirable and appropriate to update section 73.682(d) of the rules to specify the use of the latest version of this ATSC DTV transmission standard, A/53:2007. All commenters on this issue support the adoption of the latest version of the standard into our rules. The ATSC notes that it has made further changes to its DTV transmission standard since the release of the
181. The A/53:2007 version of the standard differs from the previously used standard, A/53-B, in several respects. First, A/53:2007 includes the specifications for, but does not require, Enhanced 8-VSB (“E8-VSB”) for terrestrial broadcast. E8-VSB enables Enhanced Services, which allow broadcasters to allocate the base 19.39 Mbps data rate between Main Service data and Enhanced Services data. Enhanced Services data is designed to have higher immunity to certain channel impairments than Main Service data, but Enhanced Services data is delivered at a reduced information rate selected by the broadcaster from the specified options. A/53:2007 further describes the coding constraints that apply to the use of the MPEG-2 systems specification in the DTV system, including mandatory main and optional enhanced services. It also improves the Active Format Description (“AFD”) specifications by revising and clarifying the relevant standards.
182. Given these advantages, we find that updating the rules with the latest version of the ATSC DTV transmission standard today will benefit both broadcasters and consumers by allowing broadcasters the flexibility to offer new technological services. We cannot, however, establish Harris' proposed streamlined approach to automatically update our rules when ATSC updates its standards.
183. We will not require broadcasters to use AFD. Broadcasters that choose to use AFD, however, must adhere to the ATSC DTV transmission standard A/53:2007. Although the latest ATSC DTV transmission standard does not require the use of AFD, we sought comment in the
184. We agree with commenters that it would be premature to require mandatory broadcaster use of AFD, given that the standard is relatively new and has not yet been required through the ATSC standard. We do, however, encourage television manufacturers to implement the SMPTE standard and CEA-CEB16 into their TV sets, which will better allow broadcasters to take advantage of tools such as AFD to ensure that viewers receive a signal that is optimized for their TV set. We find that these voluntary, industry driven efforts are sufficient and, thus, will not require broadcasters to use AFD until such time that AFD data can be consistently deployed by manufacturers and content providers, and received by the public. For example, we recognize that not all content providers now uniformly provide AFD data to broadcasters. Moreover, not all consumers are equipped to obtain the benefits of AFD. We will monitor and may revisit it when more content providers provide AFD data to broadcasters and when more consumers obtain DTV receiving equipment that could pass through the AFD data to them. We expect that broadcasters will have an incentive to use AFD to make their programming attractive to viewers when they are ready and able to do so. We note that we will address the issue raised in comments concerning requirements that certain MVPDs pass through AFD data to their subscribers. This issue is raised in the
185. We adopt our proposal in the
186. PSIP data is transmitted along with a station's DTV signal and provides DTV receivers with information about the station and what is being broadcast. PSIP data provides a method for DTV receivers to identify a DTV station and to determine how a receiver can tune to it. For any given station, the PSIP data transmitted along with the digital signal identifies both its DTV channel number and its analog channel number (referred to as the “major” channel number), thereby making it easy for viewers to tune to the station's DTV channel even if they only know the station's major channel number. In addition, PSIP data tells the receiver whether multiple program streams are being broadcast and, if so, how to find them. It also identifies whether the programs are closed captioned, conveys available V-chip information, and provides program information, among other things.
187. The updated ATSC PSIP standard further enhances the PSIP standard and support for delivery of data. This latest revision requires
188. We expect broadcasters to fully implement PSIP to the extent that ATSC A/65C requires, once the revised section 73.682(d) becomes effective. We remind broadcasters of the need to be consistent at all times and locations. For example, if a broadcaster transmits a program in standard definition, the PSIP information should state that the programming is being broadcast in standard definition, as opposed to High Definition. In addition, the Transport Stream Identifier (“TSID”) information should be consistent in the Terrestrial Virtual Channel Table (“TVCT”), Program Association Table (“PAT”). Moreover, when a program goes overtime, the station should update the EIT. Proper implementation of the standard requires broadcasters to populate the required tables and descriptors with the correct information to help receivers assemble functioning guides. Adoption of this standard also mandates completing tables and descriptors that require one time setup to be set correctly, including TSID, Short Channel Names, Service Type, Modulation Mode Source ID and Service Location Descriptor. Also, broadcasters must accurately fill the contents of the fields and the descriptors of each event descriptor loop with the known information about each event at the time the event is created and shall update each field if more accurate information becomes available. The Commission will continue to monitor these issues and act accordingly.
189. Finally, a couple of comments noted, in response to our inquiry in the
190.
191.
15.120 Program blocking technology requirements for television receivers.
(b) Effective January 1, 2000, all TV broadcast receivers as defined in section 15.3(w) of this chapter, including personal computer systems meeting that definition, with picture screens 33 cm (13 in) or larger in diameter shipped in interstate commerce or manufactured in the United States shall comply with the provisions of paragraphs (c), (d), and (e) of this section.
192. In 2004, the
Additionally, we are adopting our proposal to apply v-chip rules to digital television receivers with displays in the 16:9 aspect ratio that are 7.8 inches or greater in height. Furthermore, we are requiring that v-chip technology be included in all digital television receivers with integrated 4:3 displays measuring at least 13 inches diagonally.
193. The Commission, however, did not make the corresponding revisions to section 15.120(b) as codified in the CFR to reflect these changes. We now make this adjustment to the codified rule to reflect the revision adopted in 2004. We also correct the rule reference to “diameter,” which should have been “measured diagonally” in the rules to conform with the description adopted in the
194. These changes are permitted because they simply conform the codified rule to the rule amendment adopted by the Commission in the
195. We hereby revise section 73.624(g) to include permittees operating pursuant to an STA or any other FCC instrument authorizing DTV transmissions that earn revenue from feeable ancillary and supplementary services. As currently written, this rule refers to the payment of such fees only by “DTV licensees.” In the
196. The Telecommunications Act of 1996 (“1996 Act”) established the framework for licensing DTV spectrum
197. The Commission has allowed some DTV stations to provide DTV service pursuant to an STA. Because the Commission's rules apply the fee requirement to “licensees,” however, stations operating pursuant to an STA have not been filing Form 317 or paying fees on any feeable services they might be providing.
198. Section 336(e) of the Act uses the term “licensees” in directing the Commission to collect fees for ancillary or supplementary use of a frequency. However, neither the statute nor the legislative history suggest that the use of the term “licensee” was intended to create a limited identifiable class of DTV broadcasters that would be subject to the fee provisions of section 336(e). In addition, we note that a primary goal of the legislation is: “(i) To recover for the public a portion of the value of the public spectrum resource made available for such commercial use, and (ii) to avoid unjust enrichment through the method employed to permit such uses of that resource.” (We revise FCC Form 317, accordingly.) The statute is silent on the precise issue at hand, i.e., whether DTV broadcasters that are operating pursuant to STA or other FCC authorization should similarly be required to pay fees on revenues received in connection with feeable ancillary or supplementary services. However, we conclude that the current system, by excluding some broadcasters, limits the public's recovery and thus unfairly advantages those who fall outside the scope of the current rule. Accordingly, we will widen the class of broadcasters included in Section 73.624(g) to better carry out our obligation under Section 336(e) to ensure that the public recovers a portion of the value of the public spectrum resource made available for commercial use and avoid unjust enrichment of broadcasters that use that resource.
199. We revise our rules regarding station identification requirements for digital stations in circumstances in which one of a station's multicast streams is being used to air programming provided by another broadcast station, such as a low power station, or another programming source. In these situations, we will not require that the source of the programming be identified by the station whose multicast stream is being used to carry the programming. (Thus, if Station WYYY-DT is using one of its multicast streams to carry the programming of WXXX, WYYY-DT is not required to identify WXXX as the source of this programming. However, both WYYY and WXXX must otherwise comply with the station identification requirements in 47 CFR 73.1201 and must air station identification announcements for programming being transmitted by the station. Thus, for example, WXXX must air announcements with respect to its transmissions in its local market.) However, if the station whose multicast stream is being used to carry the programming chooses to identify the station that is the source of the programming, we will require that the following format be used:
Station WYYY-DT, community of license (call sign and community of license of the station whose multicast stream is transmitting the programming), bringing you WXXX, community of license (call sign and community of license of the licensee providing the programming).
200. We invited comment in the
201.
202. A station choosing to include its channel number in its station identification must use the major (analog) channel number. (Thus, a broadcaster who operates an NTSC service on channel “26” and a DTV service on channel “27” would use the major channel “26” in station identification announcements.) The Commission adopted the ATSC A/65B standard and noted that PSIP, which is part of that standard, allows viewers to see a broadcaster's major channel number regardless of the broadcaster's allotted frequency for its digital broadcast channel. (This allows broadcasters to keep their existing channel number in the digital world,
203.
204. As required by the Regulatory Flexibility Act of 1980 (5 U.S.C. 603. The RFA, see 5 U.S.C. 601
205. This Report and Order in the third periodic review of the Commission's rules and policies affecting the conversion of the nation's broadcast television system to digital television (“DTV”) resolves issues necessary to complete this transition from analog to DTV. The Commission conducts these periodic reviews in order to assess the progress of the DTV transition and make any necessary adjustments to the Commission's rules and policies to facilitate the introduction of DTV service and the recovery of spectrum at the end of the transition. In 2005, Congress mandated that, after February 17, 2009, full-power television broadcast stations must transmit only in digital signals, and may no longer transmit analog signals.
206. With the DTV transition deadline less than 14 months away, our focus is now on overseeing broadcasters' construction of facilities that will reach viewers in their authorized service areas by the time they must cease broadcasting in analog. Specifically, this Report and Order adopts rules to ensure that broadcasters meet their statutory responsibilities and can begin operations on their final, post-transition (digital) channels upon expiration of the February 17, 2009 transition deadline. The Commission wants to ensure that no consumers are left behind in the DTV transition. The Commission recognizes that the transition is a complex undertaking presenting many challenges to the broadcast industry, and that some disruption of television service may be unavoidable leading up to the analog turn-off. Therefore, the Commission adopts rules to offer broadcasters regulatory flexibility, while at the same time requiring broadcasters to maintain the best possible television service to the public and meet viewers' over-the-air reception expectations after the transition date.
207. The purpose of this Report and Order, generally, is to (1) provide a progress report on the transition; (2) describe the status and readiness of full-power television broadcast stations to complete their transition; (3) adopt procedures and rule changes necessary to ensure that broadcasters meet the statutory transition deadline and complete construction of their final, post-transition facilities while maintaining the best possible television service to their viewers; and (4) address other issues related to the transition. Stations face many challenges in order to be ready to make their transition by the February 17, 2009 statutory transition deadline. Stations must focus their full attention on constructing their final digital facilities before they must cease analog operations.
208. The primary objective of this Report and Order is to ensure that, by the February 17, 2009 transition date, all full-power television broadcast stations (1) cease analog broadcasting and (2) complete construction of, and begin operations on, their final, DTV facility. In addition, the Report and Order offers broadcasters to the extent possible regulatory flexibility to meet these goals.
209.
210.
211. The Report and Order also adopts rules and policies to limit the situations in which stations may obtain more time to satisfy the construction deadlines adopted for completion of final, post-transition facilities. Stations with a construction deadline on or before February 17, 2009 must comply with the revised rule section 73.624(d). Specifically, the revised rule section 73.624(d) no longer grants stations additional time to construct because of equipment delays, absent extraordinary circumstances. (The proposed rule would continue to allow extension requests based on stations' inability to construct because of delays in obtaining zoning or FAA approvals, or similar constraints. 47 CFR 73.624(d)(3)(ii)(A).) The revised rule also requires a stronger demonstration of financial hardship than is now required. The revised financial hardship standard requires the licensee or permittee of a station to show that it is (1) the subject of a bankruptcy or receivership proceeding, or (2) experiencing severe financial hardship, as defined by negative cash flow for the past three years. Stations seeking an extension based upon financial considerations under this new rule would either (1) submit proof that they have filed for bankruptcy or that a receiver has been appointed, or (2) submit an audited financial statement for the previous three years. All such stations must submit a schedule of when they expect to complete construction. As previously required, stations making such requests must electronically file FCC Form 337. Stations with a construction deadline occurring February 18, 2009 or later may only obtain more time to meet their construction deadline under the tolling standard set forth in section 73.3598(b) of the rules, which now applies to DTV singletons, analog TV, and other broadcast services. Stations must file a notification to inform the Commission of the circumstances that it believes should toll its construction period. Stations filing such notifications must do so electronically through the CDBS using the Informal Application filing form (The proposed rule would continue to allow extension requests based on stations' inability to construct because of delays in obtaining zoning or FAA approvals, or similar constraints. 47 CFR 73.624(d)(3)(ii)(A)).
212. There were no comments filed that specifically addressed the rules and policies proposed in the IRFA.
213. The RFA directs the Commission to provide a description of and, where feasible, an estimate of the number of small entities that will be affected by the rules adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” small organization,” and “small government jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. (Pursuant to 5 U.S.C. 601(3), the statutory definition of a small business applies “unless an agency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition(s) in the
214. We adopt our tentative conclusion in the
215.
216. In addition, an element of the definition of “small business” is that the entity not be dominant in its field of operation. We are unable at this time to define or quantify the criteria that would establish whether a specific television station is dominant in its field of operation. Accordingly, the estimate of small businesses to which rules may apply do not exclude any television station from the definition of a small business on this basis and are therefore over-inclusive to that extent. Also as noted, an additional element of the definition of “small business” is that the entity must be independently owned and operated. We note that it is difficult at times to assess these criteria in the context of media entities and our estimates of small businesses to which they apply may be over-inclusive to this extent.
217.
218. We adopt our tentative conclusion that the rules adopted herein will not directly affect any other types of entities other than full-power television broadcast station licensees and permittees. In the
219. The rules and policies adopted by this Report and Order will impose mandatory compliance and reporting requirements on full-power television broadcast stations, including requiring that such stations: (1) Must file a form with the Commission no later than February 18, 2008 detailing their current transition status and their plans for completing their transitions by the statutory deadline, and must file updates to these forms as necessary—and at a minimum by October 20, 2008—until they report the completion of their transition; (2) must file an application for a new or modified construction permit for their final, post-transition (DTV) facility, if the station does not have an existing construction permit for such facility; (3) must file an application for a license to cover their final, post-transition (DTV) facility, if the station does not have an existing license for such facility; (4) must populate, and update as necessary, the Event Information Tables (“EITs”) in PSIP data with accurate information about each event, in accordance with the current version of the ATSC PSIP standard, A/65-C (PSIP data is transmitted along with a station's DTV signal and provides DTV receivers with information about the station and what is being broadcast); (5) must follow a specific format if choosing to identify a licensee that it is transmitting on one of its multicast streams; and (6) must file a notification to document their status as a station facing a “unique technical challenge” (warranting a February 17, 2009 construction deadline), if they do not file, or do not include such
220. In addition, the rules and policies adopted in this Report and Order will impose additional compliance and reporting requirements on full-power television broadcast stations that choose to take advantage of voluntary opportunities for regulatory flexibility offered by this Report and Order. Because these voluntary requirements may afford small television broadcast stations the opportunity for regulatory flexibility and reduced burdens, they are discussed in section E. of this FRFA. (To request various opportunities for regulatory flexibility, stations would have to file applications with the Commission.
221.
222.
223.
224.
225. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.
226. As previously noted, the Commission has no discretion to offer any regulatory flexibility to small television broadcasters concerning the mandatory analog turn-off on the February 17, 2009 transition date. Rather, to implement this statutory mandate, the Commission must ensure that all full-power television broadcast stations, including small stations, cease analog broadcasting as of the February 17, 2009 transition date.
227. The Report and Order, however, does offer stations opportunities for regulatory flexibility with respect to the other mandatory compliance requirements, most specifically to the post-transition construction deadlines. In formulating these opportunities for regulatory flexibility, the Commission considered the benefits of such regulatory relief to small stations, particularly to NCE stations and small market stations (
228. Such opportunities for regulatory flexibility adopted by this Report and Order that will benefit small stations include the following: (1) Stations may qualify for expedited processing of their applications to build post-transition facilities to speed their receipt of construction permits for such facilities; (2) Stations that will not use their pre-transition DTV channel for post-transition operations may forego further construction of their pre-transition DTV channel to the extent that such a facility has been partially built in order to focus their efforts on constructing their final DTV facility on their post-transition channel; (3) Stations may seek STA for one of two provisions for a “phased transition” that would afford qualifying stations regulatory relief in meeting their post-transition construction deadlines without disappointing viewer expectations after the transition date; and (4) Stations may request Commission approval to reduce or terminate analog TV or pre-transition DTV service before the transition date if doing so would facilitate their transition, provided they satisfy a viewer notification requirement.
229.
230.
231.
232. While establishing a stricter standard for requests for extension of time to construct DTV facilities, the Report and Order eliminates the requirement for some stations that they build pre-transition DTV facilities on channels that are not their post-transition channel. This will help many small stations facing financial challenges to complete construction of DTV facilities while also ensuring that broadcasters continue to focus on the timely construction of the facilities necessary to transition away from analog transmission by the transition date. The Report and Order also allows stations to operate on newly allotted post-transition facilities before the transition deadline provided they would not interfere with existing, pre-transition service.
233.
234.
235.
236.
237. None.
238. The Commission will send a copy of this Report and Order, including this FRFA, in a report to be sent to Congress pursuant to the Congressional Review Act. In addition, the Commission will send a copy of this Report and Order, including the FRFA, to the Chief Counsel for Advocacy of the Small Business Administration. A copy of this Report and Order and FRFA (or summaries thereof) will also be published in the
239.
240.
241.
242.
243.
244.
Communications equipment, Digital Television, and Digital Television Equipment.
Digital Television, incorporation by reference, Reporting and recordkeeping requirements, and Television.
Cable Television and Digital Television.
47 U.S.C. 154, 302, 303, 304, 307, 336, and 544A.
(i) * * *
(2) For purposes of this implementation schedule, screen sizes are to be measured diagonally across the picture viewing area.
(b) Effective January 1, 2000, all TV broadcast receivers as defined in § 15.3(w), including personal computer systems meeting that definition, with picture screens 33 cm (13 in) or larger in diameter or with displays in the 16:9 aspect ratio that are 19.8 cm (7.8 in) or greater in height and digital television receivers without an associated display device shipped in interstate commerce or manufactured in the United States shall comply with the provisions of paragraphs (c), (d), and (e) of this section.
47 U.S.C. 154, 303, 334 and 336.
(a) Applications seeking facilities that will operate prior to the end of the DTV transition must also comply with § 73.623.
(b) A petition to add a new channel to the post-transition DTV Table of Allotments contained in § 73.622(i) of this subpart will not be accepted unless it meets: the DTV-to-DTV geographic spacing requirements of § 73.623(d) with respect to all existing DTV allotments in the post-transition DTV Table; the principle community coverage requirements of § 73.625(a); the Class A TV and digital Class A TV protection requirements in paragraph (f) of this section; the land mobile protection requirements of § 73.623(e); and the FM radio protection requirement of § 73.623(f).
(c) The reference coordinates of a post-transition DTV allotment shall be the authorized transmitter site, or, where such a transmitter site is not available for use as a reference point, the coordinates as designated in the FCC order creating or modifying the post-transition DTV Table of Allotments.
(d) The protected facilities of a post-transition DTV allotment shall be the facilities (effective radiated power, antenna height and antenna directional radiation pattern, if any) authorized by a construction permit or license, or, where such an authorization is not available for establishing reference facilities, the facilities designated in the FCC order creating or modifying the post-transition DTV Table of Allotments.
(e) An application will not be accepted if it is predicted to cause interference to more than an additional 0.5 percent of the population served by another post-transition DTV station. For this purpose, the population served by the station receiving additional interference does not include portions of the population within the noise-limited service contour of that station that are predicted to receive interference from the post-transition DTV allotment facilities of the applicant or portions of that population receiving masking interference from any other station.
(1) For evaluating compliance with the requirements of this paragraph, interference to populations served is to be predicted based on the 2000 census population data and otherwise according to the procedure set forth in OET Bulletin No. 69: “Longley-Rice Methodology for Evaluating TV Coverage and Interference” (February 6, 2004) (incorporated by reference, see § 73.8000), including population served within service areas determined in accordance with § 73.622(e), consideration of whether F(50,10) undesired signals will exceed the following desired-to-undesired (D/U) signal ratios, assumed use of a directional receiving antenna, and use of the terrain dependent Longley-Rice point-to-point propagation model. Applicants may request the use of a cell size other than the default of 2.0 km per side, but only requests for cell sizes of 1.0 km per side or 0.5 km per side will be considered. The threshold levels at which interference is considered to occur are:
(i) For co-channel stations, the D/U ratio is +15 dB. This value is only valid at locations where the signal-to-noise ratio is 28 dB or greater. At the edge of the noise-limited service area, where the signal-to-noise (S/N) ratio is 16 dB, this value is +23 dB. At locations where the S/N ratio is greater than 16 dB but less than 28 dB, D/U values are computed from the following formula:
Where x = S/N-15.19 (minimum signal to noise ratio)
(ii) For interference from a lower first-adjacent channel, the D/U ratio is −28 dB.
(iii) For interference from an upper first-adjacent channel, the D/U ratio is −26 dB.
(2) Due to the frequency spacing that exists between Channels 4 and 5, between Channels 6 and 7, and between Channels 13 and 14, the minimum adjacent channel technical criteria specified in this section shall not be applicable to these pairs of channels (see § 73.603(a)).
(f) A petition to add a new channel to the post-transition DTV Table or a post-transition DTV station application that proposes to expand its allotted or authorized coverage area in any direction will not be accepted if it is predicted to cause interference to a Class A TV station or to a digital Class A TV station authorized pursuant to subpart J of this part, within the protected contour defined in § 73.6010.
(1) Interference is predicted to occur if the ratio in dB of the field strength of a Class A TV station at its protected contour to the field strength resulting from the facilities proposed in the DTV application (calculated using the appropriate F(50,10) chart from Figure 9a, 10a, or 10c of § 73.699) fails to meet the D/U signal ratios for “DTV-into-analog TV” specified in § 73.623(c)(2).
(2) Interference is predicted to occur if the ratio in dB of the field strength of a digital Class A TV station at its protected contour to the field strength resulting from the facilities proposed in the DTV application (calculated using the appropriate F(50,10) chart from Figure 9a, 10a, or 10c of § 73.699) fails to meet the D/U signal ratios specified in paragraph (e) of this section.
(3) In support of a request for waiver of the interference protection requirements of this section, an applicant for a post-transition DTV broadcast station may make full use of terrain shielding and Longley-Rice terrain dependent propagation methods to demonstrate that the proposed facility would not be likely to cause interference to Class A TV stations. Guidance on using the Longley-Rice methodology is provided in OET Bulletin No. 69, which is available through the Internet at
When this rule was adopted, the filing freeze announced in an August 2004 public notice (19 FCC Rcd 14810 (MB 2004)) remained in effect. For a short period of time after the filing freeze is lifted, until a date to be announced by a Media Bureau public notice, applicants must protect Appendix B facilities in addition to
(f) * * *
(4) UHF DTV stations may request an increase in power, up to a maximum of 1000 kW ERP, to enhance service within their authorized service area.
(a)
(d) * * *
(1)* * *
(v) May 18, 2008 in all markets for completion of construction of post-transition (DTV) facilities for all commercial and noncommercial television stations that will use the same channel used for pre-transition operation for post-transition operation and that, as of December 31, 2007, have a construction permit for facilities that conform to the facilities defined by the new DTV Table of Allotments and accompanying Appendix B, established by the Seventh Report and Order in MB Docket No. 87-268 and codified at 47 CFR 73.622(i).
(vi) August 18, 2008 in all markets for completion of construction of post-transition (DTV) facilities for all commercial and noncommercial television stations that will use the same channel used for pre-transition operation for post-transition operation but which, as of December 31, 2007, do not have a construction permit for facilities that conform to the facilities defined by the new DTV Table of Allotments and accompanying Appendix B, established by the Seventh Report and Order in MB Docket No. 87-268 and codified at 47 CFR 73.622(i).
(vii) February 17, 2009 in all markets for completion of construction of post-transition (DTV) facilities for all commercial and noncommercial television stations whose post-transition digital channel is different from their pre-transition digital channel and for those stations whose post-transition channel is the same as their pre-transition channel but that are subject to a unique technical challenge that has been specifically recognized as such by the Commission.
(3)
(ii) For construction deadlines occurring prior to February 18, 2009, the following circumstances may include, but shall not be limited to:
(A) Inability to construct and place in operation a facility necessary for transmitting digital television, such as a tower, because of delays in obtaining zoning or FAA approvals, or similar constraints; or
(B) Where the licensee or permittee is currently the subject of a bankruptcy or receivership proceeding, or is experiencing severe financial hardship as defined by negative cash flow for the past three years.
(iii) For construction deadlines occurring after February 17, 2009, the tolling provisions of § 73.3598 shall apply.
(iv) The Bureau may grant no more than two extension requests upon delegated authority. Subsequent extension requests shall be referred to the Commission. The Bureau may deny extension requests upon delegated authority.
(v) Applications for extension of time shall be filed no earlier than 90 and no later than 60 days prior to the relevant construction deadline, absent a showing of sufficient reasons for filing within less than 60 days of the relevant construction deadline.
(g) Commercial and noncommercial DTV licensees and permittees must annually remit a fee of five percent of the gross revenues derived from all ancillary or supplementary services, as defined by paragraph (b) of this section, which are
(2) Payment of fees. (i) Each December 1, all commercial and noncommercial DTV licensees and permittees will electronically report whether they provided ancillary or supplementary services in the 12-month period ending on the preceding September 30. Licensees and permittees will further report, for the applicable period:
(A) A brief description of the services provided;
(B) Which services were feeable ancillary or supplementary services;
(C) Whether any ancillary or supplementary services provided were not subject to a fee;
(D) Gross revenues received from all feeable ancillary and supplementary services provided during the applicable period; and
(E) The amount of bitstream used to provide ancillary or supplementary services during the applicable period. Licensees and permittees will certify under penalty of perjury the accuracy of the information reported. Failure to file regardless of revenues from ancillary or supplementary services or provision of such services may result in appropriate sanctions.
(ii) If a commercial or noncommercial DTV licensee or permittee has provided feeable ancillary or supplementary services at any point during a 12-month period ending on September 30, the licensee or permittee must additionally file the FCC's standard remittance form (Form 159) on the subsequent December 1. Licensees and permittees will certify the amount of gross revenues received from feeable ancillary or supplementary services for the applicable 12-month period and will remit the payment of the required fee.
(iii) The Commission reserves the right to audit each licensee's or permittee's records which support the calculation of the amount specified on line 23A of Form 159. Each licensee or permittee, therefore, is required to retain such records for three years from the date of remittance of fees.
(d) Digital broadcast television transmission standard. Effective May 29, 2008 transmission of digital broadcast television (DTV) signals shall comply with the standards for such transmissions set forth in ATSC A/52: “ATSC Standard Digital Audio Compression (AC-3)” (incorporated by reference, see § 73.8000), ATSC A/53, Parts 1-6: 2007 “ATSC Digital Television Standard,” (January 3, 2007), except for section 6.1.2 (“Compression Format Constraints”) of A/53 Part 4: 2007 (“MPEG-2 Video Systems Characteristics”) and the phrase “see Table 6.2” in section 6.1.1 Table 6.1 and section 6.1.3 Table 6.3 (incorporated by reference, see § 73.8000), and ATSC A/65C: “ATSC Program and System Information Protocol for Terrestrial Broadcast and Cable, Revision C With Amendment No. 1 dated May 9, 2006,” (January 2, 2006) (incorporated by reference, see § 73.8000). Although not incorporated by reference, licensees may also consult ATSC A/54A: “Recommended Practice: Guide to Use of the ATSC Digital Television Standard, including Corrigendum No. 1,” (December 4, 2003, Corrigendum No. 1 dated December 20, 2006, and ATSC A/69: “Recommended Practice PSIP Implementation Guidelines for Broadcasters,” (June 25, 2002) (Secs. 4, 5, 303, 48 Stat., as amended, 1066, 1068, 1082 (47 U.S.C. 154, 155, 303)). ATSC A/54A and ATSC A/69 are available from Advanced Television Systems Committee (ATSC), 1750 K Street, NW., Suite 1200, Washington, DC 20006, or at the ATSC Web site:
(b)
(a) Each original construction permit for the construction of a new TV (including full-power DTV), AM, FM or International Broadcast; low power TV; TV translator; TV booster; FM translator; or FM booster station, or to make changes in such existing stations, shall specify a period of three years from the date of issuance of the original construction permit within which construction shall be completed and application for license filed. Each original construction permit for the construction of a new LPFM station shall specify a period of eighteen months from the date of issuance of the construction permit within which construction shall be completed and application for license filed.
(b) The period of construction for an original construction permit shall toll when construction is prevented by the following causes not under the control of the permittee:
(1) Construction is prevented due to an act of God, defined in terms of natural disasters (
(2) The grant of the permit is the subject of administrative or judicial review (
(3) A request for international coordination, with respect to an original construction permit for a new DTV station, has been sent to Canada or Mexico on behalf of the station and no response from the country affected has been received, or the licensee or permittee is challenging the response from Canada or Mexico on the grounds that the facility as approved would not permit the station to serve the population that is both approved by the Commission and served by the station's TV (analog) facility to be vacated by February 17, 2009.
(a) The materials listed in this section are incorporated by reference in this part. These incorporations by reference were approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. These materials are incorporated as they exist on the date of the approval, and notice of any change in these materials will be published in the
(b) The following materials are available from Advanced Television Systems Committee (ATSC), 1750 K Street, NW., Suite 1200, Washington, DC 20006, or at the ATSC Web site:
(1) ATSC A/52: “ATSC Standard Digital Audio Compression (AC-3),” 1995, IBR approved for § 73.682.
(2) ATSC A/53 Parts 1-6: 2007 “ATSC Digital Television Standard,” (January 3, 2007) as listed below:
(i) A/53, Part 1:2007, “Digital Television System” (January 3, 2007), IBR approved for § 73.682.
(ii) A/53, Part 2:2007, “RF/Transmission System Characteristics” (January 3, 2007), IBR approved for § 73.682.
(iii) A/53, Part 3:2007, “Service Multiplex and Transport Subsystem Characteristics” (January 3, 2007), IBR approved for § 73.682.
(iv) A/53, Part 4:2007, “MPEG-2 Video System Characteristics” (January 3, 2007), IBR approved for § 73.682, except for § 6.1.2 of A/53 Part 4: 2007, and the phrase “see Table 6.2” in section 6.1.1 Table 6.1 and section 6.1.3 Table 6.3.
(v) A/53, Part 5:2007, “AC-3 Audio System Characteristics” (January 3, 2007), IBR approved for § 73.682.
(vi) A/53, Part 6:2007, “Enhanced AC-3 Audio System Characteristics” (January 3, 2007), IBR approved for § 73.682.
(3) ATSC A/65B: “ATSC Program and System Information Protocol for Terrestrial Broadcast and Cable,” (Revision B) March 18, 2003, and IBR approved for §§ 73.9000 and 73.9001.
(4) ATSC A/65C: “ATSC Program and System Information Protocol for Terrestrial Broadcast and Cable, Revision C With Amendment No. 1 dated May 9, 2006,” (January 2, 2006), IBR approved for §§ 73.682 and 73.9000.
(c) The following materials are available for purchase from American National Standards Institute (ANSI), 25 West 43rd Street, 4th Floor, New York, NY 10036 or at the ANSI Web site:
(1) International Standard ISO/IEC 13818-1:2000(E); “Information Technology Generic Coding of Moving Pictures and Associated Audio Information: Systems,” 2000, IBR approved for § 73.9000.
(2) [Reserved]
(d) The following materials are available at the FCC, 445 12th St., SW., Reference Information Center, Room CY-A257, Washington, DC 20554, or at the FCC's Office of Engineering and Technology (OET) Web site:
(1) OET Bulletin No. 69: “Longley-Rice Methodology for Evaluating TV Coverage and Interference” (February 6, 2004), IBR approved for § 73.616.
(2) [Reserved]
(k) EIT means Event Information Table as defined in ATSC A/65C: “ATSC Program and System Information Protocol for Terrestrial Broadcast and Cable, Revision C With Amendment No. 1 dated May 9, 2006,” (January 2, 2006), (incorporated by reference, see § 73.8000).
14. The authority citation for part 76 continues to read as follows:
47 U.S.C. 151, 152, 153, 154, 301, 302, 303, 303a, 307, 308, 309, 312, 315, 317, 325, 336, 338, 339, 503, 521, 522, 531, 532, 533, 534, 535, 536, 537, 543, 544, 544a, 545, 548, 549, 552, 554, 556, 558, 560, 561, 571, 572, 573.
(c) * * *
(3) A television broadcast station that does not deliver to the principal headend, as defined in § 76.5(pp), of a cable system a signal level of −45dBm for analog UHF signals, −49dBm for analog VHF signals, or −61dBm for digital signals at the input terminals of the signal processing equipment,
The following appendices will not appear in the Code of Federal Regulations.
The Federal Communications Commission revises FCC Form 301 as set forth below:
1. Main Form Section I—General Information, Question 4.b. (Service Type) on page one is revised to allow the filer to indicate whether the application is for pre-transition DTV facilities, post-transition DTV facilities, or both. The revised question will read as follows:
“b. Service Type: □ AM □ FM □ TV □ DTV Pre-Transition □ DTV Post-Transition □ DTV Both (Pre- and Post-Transition)”
2. Instructions Section I.D. (General Information), Item 4 is revised to explain the new service types for DTV applications: (a) DTV Pre-Transition, (b) DTV Post-Transition, (c) DTV Both (Pre- and Post-Transition). Item 4 is revised to add the following new paragraph:
“DTV Service Type: The DTV Pre-Transition service type is for a station whose application relates solely to its pre-transition DTV operation on a channel that is not allotted for post-transition use by this station and will not affect its authorized post-transition operation. The DTV Post-Transition service type is for a station whose application relates solely to its post-transition operation and will not affect its authorized pre-transition operation. The DTV Both (Pre- and Post-Transition) service type is for a station whose application relates to both its pre- and post-transition operation. Only a station whose pre-transition DTV channel is the same as its post-transition channel may use the DTV Both service type.”
3. Form Section III-D—DTV Engineering on page 17 is revised by changing the two paragraphs preceding Question 1. The revised paragraphs will read as follows:
“Complete Questions 1-5, and provide all data and information for the proposed facility, as requested in Technical Specifications, Items 1-13.
“Pre-Transition Certification Checklist. An application concerning a pre-transition channel must complete questions 1(a)-(c), and 2-5. A correct answer of “Yes” to all of these questions will ensure an expeditious grant of a construction permit application to modify pre-transition facilities. However, if the proposed facility is located within the Canadian or Mexican borders, coordination of the proposal under the appropriate treaties may be required prior to grant of the application. An answer of “No” will require additional evaluation of the applicable information in this form before a construction permit can be granted.
“Post-Transition Expedited Processing. An application concerning a post-transition channel must complete questions 1(a), (d)-(e), and 2-5. A station applying for a construction permit to build its post-transition channel will receive expedited processing if its application (1) does not seek to expand the noise-limited service contour in any direction beyond that established by Appendix B of the Seventh Report and Order in MB Docket No. 87-268 establishing the new DTV Table of Allotments in 47 CFR 73.622(i) (“new DTV Table Appendix B”); (2) specifies facilities that match or closely approximate those defined in the new DTV Table Appendix B facilities; and (3) is filed within 45 days of the effective date of the Report and Order in the Third DTV Periodic Review proceeding, MB Docket No. 07-91.”
4. Form Section III-D—DTV Engineering, Question 1 on page 17 is revised by changing (b) and (c) and by adding (d) and (e). Revised questions (b) and (c) and new questions (d) and (e) will read as follows:
“(b) It will operate a pre-transition facility from a transmitting antenna located within 5.0 km (3.1 miles) of the DTV reference site for this station as established in 47 CFR 73.622. □ Yes □ No
“(c) It will operate a pre-transition facility with an effective radiated power (ERP) and antenna height above average terrain (HAAT) that do not exceed the DTV reference ERP and HAAT for this station as established in 47 CFR 73.622. □ Yes □ No
“(d) It will operate at post-transition facilities that do not expand the noise-limited service contour in any direction beyond that established by Appendix B of the Seventh Report and Order in MB Docket No. 87-268 establishing the new DTV Table of Allotments in 47 CFR 73.622(i) (“new DTV Table Appendix B”). □ Yes □ No □ Don't Know”
“(e) It will operate at post-transition facilities that match or reduce by no more than five percent with respect to predicted population from those defined in the new DTV Table Appendix B. □ Yes □ No □ Don't Know
5. Instructions to Section III-D (DTV Engineering) is revised to explain that: (i) question 1(a) applies to all facility changes (and both the current and new DTV Tables in 47 CFR 73.622(b) and (i)), (ii) questions 1(b) and 1(c) apply only to applications for pre-transition facilities, and (iii) questions 1(d) and 1(e) apply only to applications for post-transition facilities. Item 1 (of Instructions Section III.H.) is revised as follows:
“Certifications Checklist. Items 1-5 set forth a series of certifications concerning the Commission's technical allotment standards and operational requirements for DTV stations.
“Item 1: The applicant must certify compliance with the digital television channel allotment and operational requirements contained in 47 CFR 73.622. Specifically, this question requires that the applicant certify that (a) the application specifies a channel and community in accordance with the Commission's Table of Television Allotments, 47 CFR 73.622(b) or (i), (b) it will operate a pre-transition facility with a transmitting antenna located within 5 kilometers of the DTV reference coordinates for the station, as referenced in Section 73.622(d) and set forth in the Sixth Report and Order in MM Docket No. 87-268, 12 FCC Rcd 14588 (1997), (c) it will operate with pre-transition facilities that do not exceed the power and antenna height maxima specified in Section 73.622(f), (d) it will operate at post-transition facilities that do not expand the noise-limited service contour in any direction beyond that established by Appendix B of the Seventh Report and Order in MB Docket No. 87-268 establishing the new DTV Table of Allotments in 47 CFR 73.622(i), and (e) it will operate at post-transition facilities that match or reduce by no more than five percent with respect to predicted population from those defined in the new DTV Table Appendix B.
“If any of items 1(a)-1(c) are answered “No” in an application of a pre-transition facility, the applicant must demonstrate in response to Section III-D, Item 11 that the proposal will not cause or increase interference to any other DTV broadcast application, DTV allotment, or analog TV broadcast authorization.
“Interference is to be predicted for pre-transition facilities in accordance with the procedure set forth in Appendix B of the Sixth Report and Order in MM Docket No. 87-268. See 47 CFR 73.623.
“If any of items 1(a), 1(d)-(e) are answered “No” in an application of a post-transition facility, the applicant will not qualify for expedited processing.
“Interference is to be predicted for post-transition facilities in accordance with the procedure set forth in the Third DTV Periodic Report and Order in MB Docket No. 07-91. See 47 CFR 73.616 and 73.623.”
6. Form Section III-D—DTV Engineering (TECHNICAL SPECIFICATIONS) TECH BOX Question 11, first paragraph, on page 19 is revised as follows:
“Does the proposed facility satisfy the pre-transition interference protection provisions of 47 CFR 73.623(a) (Applicable only if Certification Checklist Items 1(a), (b), or (c) are answered “No.”) and/or the post-transition interference protection provisions of 47 CFR 73.616? ☐ Yes ☐ No”
7. Form and Instructions Section III-D—DTV Engineering (TECHNICAL SPECIFICATIONS) TECH BOX Questions, is revised to make non-substantive conforming edits necessary because of the other changes.
The Federal Communications Commission revises FCC Form 340 as set forth below:
8. Main Form Section I—General Information, Question 4.b. (Service Type) on page one is revised to allow the filer to indicate whether the application is for pre-transition DTV facilities, post-transition DTV facilities, or both. The revised question will read as follows:
“b. Service Type: ☐ FM ☐ TV ☐ DTV Pre-Transition ☐ DTV Post-Transition ☐ DTV Both (Pre- and Post-Transition)”
9. Instructions for Section I. (General Information), Item (Question) 4 is revised to explain the new service types for DTV applications: (a) DTV Pre-Transition, (b) DTV Post-Transition, (c) DTV Both (Pre- and Post-Transition). Item (Question) 4 is revised to add the following new paragraph:
“DTV Service Type: The DTV Pre-Transition service type is for a station whose
10. Form Section VII-D—DTV Engineering on page 15 is revised by changing the two paragraphs preceding Question 1. The revised paragraphs will read as follows:
“Complete Questions 1-5, and provide all data and information for the proposed facility, as requested in Technical Specifications, Items 1-13.
“Pre-Transition Certification Checklist. An application concerning a pre-transition channel must complete questions 1(a)-(c), and 2-5. A correct answer of “Yes” to all of these questions will ensure an expeditious grant of a construction permit application to change pre-transition facilities. However, if the proposed facility is located within the Canadian or Mexican borders, coordination of the proposal under the appropriate treaties may be required prior to grant of the application. An answer of “No” will require additional evaluation of the applicable information in this form before a construction permit can be granted.
“Post-Transition Expedited Processing.” An application concerning a post-transition channel must complete questions 1(a), (d)-(e), and 2-5. A station applying for a construction permit to build its post-transition channel will receive expedited processing if its application (1) does not seek to expand the noise-limited service contour in any direction beyond that established by Appendix B of the Seventh Report and Order in MB Docket No. 87-268 establishing the new DTV Table of Allotments in 47 CFR 73.622(i) (“new DTV Table Appendix B”); (2) specifies facilities that match or closely approximate those defined in the new DTV Table Appendix B facilities; and (3) is filed within 45 days of the effective date of Section 73.616 of the rules adopted in the Report and Order in the Third DTV Periodic Review proceeding, MB Docket No. 07-91.
11. Form Section VII-D—DTV Engineering, Question 1, on page 15 is revised by changing (b) and (c) and by adding (d) and (e). Revised questions (b) and (c) and new questions (d) and (e) will read as follows:
“(b) It will operate a pre-transition facility from a transmitting antenna located within 5.0 km (3.1 miles) of the DTV reference site for this station as established in 47 CFR 73.622. ☐ Yes ☐ No
“(c) It will operate a pre-transition facility with an effective radiated power (ERP) and antenna height above average terrain (HAAT) that do not exceed the DTV reference ERP and HAAT for this station as established in 47 CFR 73.622. ☐ Yes ☐ No
“(d) It will operate at post-transition facilities that do not expand the noise-limited service contour in any direction beyond that established by Appendix B of the Seventh Report and Order in MB Docket No. 87-268 establishing the new DTV Table of Allotments in 47 CFR 73.622(i) (“new DTV Table Appendix B”). ☐ Yes ☐ No ☐ Don't Know
“(e) It will operate at post-transition facilities that match or reduce by no more than five percent with respect to predicted population from those defined in the new DTV Table Appendix B. ☐ Yes ☐ No ☐ Don't Know
12. Instructions to Section VII-D (DTV Engineering) is revised to explain that: (i) question 1(a) applies to all facility changes (see 47 CFR 73.622(a) and (i)), (ii) questions 1(b) and 1(c) apply only to applications for pre-transition facilities, and (iii) questions 1(d) and 1(e). Item 1 (of Instructions to Section VII) is revised as follows:
“Certifications Checklist. Items 1-5 set forth a series of certifications concerning the Commission's technical allotment standards and operational requirements for DTV stations.
“Item 1: The applicant must certify compliance with the digital television channel allotment and operational requirements contained in 47 CFR 73.622. Specifically, this question requires that the applicant certify that (a) the application specifies a channel and community in accordance with the Commission's Table of Television Allotments, 47 CFR 73.622(b) or (i), (b) it will operate a pre-transition facility with a transmitting antenna located within 5 kilometers of the DTV reference coordinates for the station, as referenced in Section 73.622(d) and set forth in the Sixth Report and Order in MM Docket No. 87-268, 12 FCC Rcd 14588 (1997), (c) it will operate with pre-transition facilities that do not exceed the power and antenna height maximum specified in Section 73.622(f), (d) it will operate at post-transition facilities that do not expand the noise-limited service contour in any direction beyond that established by Appendix B of the Seventh Report and Order in MB Docket No. 87-268 establishing the new DTV Table of Allotments in 47 CFR 73.622(i), and (e) it will operate at post-transition facilities that match or reduce by no more than five percent with respect to predicted population from those defined in the new DTV Table Appendix B.
“If any of items 1(a)-1(c) are answered “No” in an application of a pre-transition facility, the applicant must demonstrate in response to Section III-D, Item 11 that the proposal will not cause or increase interference to any other DTV broadcast application, DTV allotment, or analog TV broadcast authorization.
“Interference is to be predicted for a pre-transition facility in accordance with the procedure set forth in Appendix B of the Sixth Report and Order in MM Docket No. 87-268. See 47 CFR 73.623.
“If any of items 1(a), 1(d)-(e) are answered “No” in an application of a post-transition facility, the applicant will not qualify for expedited processing.
“Interference is to be predicted for a post-transition facility in accordance with the procedures set forth in the Report and Order in the Third DTV Periodic Review proceeding, MB Docket No. 07-91. See 47 CFR 73.616 and 73.623.”
13. Form Section VII-D—DTV Engineering (TECHNICAL SPECIFICATIONS) TECH BOX Question 11, first paragraph, on page 17 is revised as follows:
“Does the proposed facility satisfy the pre-transition interference protection provisions of 47 CFR 73.623(a) (Applicable only if Certification Checklist Items 1(a), (b), or (c) are answered “No.”) and/or the post-transition interference protection provisions of 47 CFR 73.616? ☐ Yes ☐ No”
14. Form and Instructions Section VII-D—DTV Engineering (TECHNICAL SPECIFICATIONS) TECH BOX Questions, is revised to make non-substantive conforming edits necessary because of the other changes.
The Federal Communications Commission revises FCC Form 317 as set forth below.
15. Form 317 and Instructions are revised to indicate that DTV permittees are required to file the form and report their ancillary and supplementary services.
The Federal Communications Commission revises FCC Form 337 as set forth below:
16. Main Form is revised to reflect the proposed rule revisions to 47 CFR 73.624(d) in section V.C.4. and Appendix A. Specifically, Question 5 on page 2 is revised as follows:
17. Instructions are revised to reflect the proposed rule revisions to 47 CFR 73.624(d) in section V.C.4. and Appendix A. Specifically, Item 5 is revised to by adding a new paragraphs and deleting the last paragraph as follows:
Item 5: Reason for Delay in Construction. In the Fifth Report and Order in MM Docket No. 87-268, 12 FCC Rcd 12809 (1997), on reconsideration, 13 FCC Rcd 6860 (1998), the Commission announced its willingness to grant, on a case-by-case basis, an extension to the applicable DTV construction deadline where a broadcaster has been unable to complete construction due to circumstances that are either unforeseeable or beyond the permittee's control, provided the broadcaster has taken all reasonable steps to resolve the problem expeditiously. The Commission also stated that it would modify its existing policies regarding extensions, taking into account problems encountered that are unique to the DTV conversion.
In the Report and Order in MB Docket No. 07-91, [_ FCC Rcd _] (2007), the Commission adopted a stricter standard for the grant of an extension of the applicable DTV construction deadline. See 47 CFR 73.624(d)(3).
First, stations may no longer obtain an extension because of technical reasons, such as equipment delays. Second, the Commission tightened the financial showing required for an extension. While previously requiring a showing that the cost of meeting the minimum build-out requirements exceeded the station's financial resources, the Commission now requires a showing that the station is (1) the subject of a bankruptcy or receivership proceeding, or (2) experiencing severe financial hardship, as defined by negative cash flow for the past
The Commission will continue to consider extension requests where the station is facing legal obstacles, where resolution of the issue is truly beyond the control of the station. Such circumstances may include, for example, where a station is awaiting Commission action on an application for a DTV construction permit and action is delayed for reasons beyond the station's control (
In addition, the Commission will continue to consider other circumstances that are either unforeseeable or beyond the station's control. Such circumstances may include, for example, acts of God, terrorism, and such natural disasters as floods, tornadoes, hurricanes, earthquakes and other calamities that are unforeseeable events warranting additional time to construct.
In responding to this question, the applicant should attest to the nature of the problem(s) preventing the timely completion of construction and provide a detailed explanation of the reason(s) requiring an additional time to construct its station's DTV facilities.
18. Form and Instructions are revised to make non-substantive changes necessary to update the form.
The Federal Communications Commission creates a new FCC Form—“FCC Form 387: DTV Transition Status Report”—as set forth below:
19. The new Form will contain the following data elements:
This Form must be filed by all full-power broadcast television stations (licensees and permittees) no later than February 18, 2008. Each Licensee/Permittee is responsible for the continuing accuracy and completeness of the information furnished in this Form. Each Licensee/Permittee must update this Form, as necessary, until such Licensee/Permittee reports the completion of its transition (i.e., that it has begun operating its full, authorized facility as defined in the post-transition DTV Table, 47 CFR 73.622(i), and accompanying Appendix B). In addition, Each Licensee/Permittee that has not reported the completion of its full, authorized post-transition facility on this Form on or before October 20, 2008, must update this Form to report their current status as of that date.
Item 1. Licensee/Permittee Information: Legal Name of the Licensee/Permittee; Mailing Address; City; State or Country (if foreign address); ZIP Code; Telephone Number (include area code); E-Mail Address (if available).
Item 2. Contact Information (if different from licensee/permittee): Contact Representative; Firm or Company Name; Mailing Address; City; State or Country (if foreign address); ZIP Code; Telephone Number (include area code); E-Mail Address (if available).
Item 3. Station/Facility Information: (a) FCC Registration Number; Call Sign; Facility ID Number; Community of License: City, State; Network Affiliation (if applicable); (b) Currently Assigned Channels: NTSC Channel; Post-Transition DTV Channel; Pre-Transition DTV Channel (if different from Post-Transition channel); (c) Relevant FCC File No. for Post-Transition Authorization, if on file with Commission (or indicate “Not Yet Filed”); (d) Post-Transition Construction Deadline: (i) February 17, 2009 if Pre-Transition DTV Channel is different from Post-Transition channel; (ii) Date 30 days after the effective date of the amendments to Section 73.624(d) of the rules adopted in the Report and Order in the Third DTV Periodic Review proceeding, MB Docket No. 07-91; (iii) February 17, 2009 if the station demonstrates that it faces a unique technical challenge (e.g., side-mounted antenna-related issue) preventing it from completing construction of its full, authorized post-transition facility; (iv) Expiration date of construction permit or pending application for an extension of time to construct a post-transition facility.
Item 1. Operational Status: Is the Licensee/Permittee now operating its fully authorized final, DTV (post-transition) facility? ☐ Yes or ☐ No (If YES, Licensee/Permittee is finished with this Form; If NO, go to Item 2.)
Item 2. If Item 1 is NO (i.e., not fully operational), then indicate operational status of final, DTV (post-transition) facility and indicate date Licensee/Permittee expects to begin full, authorized post-transition operations: (check one)
Item 3. Construction Status: Has the Licensee/Permittee completed construction of its final, DTV (post-transition) facility? ☐ Yes or ☐ No (If YES, skip Items 4-5 and go to Item 6(a); If NO, go to Item 4.)
Item 4. If Item 3 is NO (i.e., not fully constructed), then indicate construction status of final, DTV (post-transition) facility and indicate date Licensee/Permittee expects to complete construction: (check all that apply)
Item 5. Construction Permit Status: Does the Licensee/Permittee hold a license or construction permit for its final, DTV (post-transition) facility? ☐ Yes or ☐ No (If YES, then indicate relevant FCC File No. and go to Item 6(a); If NO, skip Item 6(a) and go to Item 6(b)).
Item 6(a). Does the Licensee/Permittee need to modify its license or construction permit in order to match the post-transition facilities defined for the Licensee/Permittee in the new DTV Table of Allotments, 47 CFR 73.622(i), as adopted in the Seventh Report and Order in MB Docket No. 87-268? ☐ Yes or ☐ No (If YES, go to 6(b); If NO, skip Item 6(b).)
Item 6(b). Has the Licensee/Permittee filed an application for a new or modified construction permit for its final, DTV (post-transition) facility? ☐ Yes or ☐ No (If YES, then indicate date filed and relevant FCC File No.; If NO, then indicate date Licensee/Permittee expects to file such application.) (NOTE: To qualify for expedited processing, the Licensee/Permittee must file its application within 45 days of the effective date of Section 73.616 of the rules adopted in the Third DTV Periodic Review proceeding, MB Docket No. 07-91, as well as meet other criteria described in that proceeding.)
At present, Licensee/Permittee has the following needs that must be addressed before it can fully construct and operate its final, DTV (post-transition) facility: (check all that apply and for all checked responses, describe issue and estimated date of resolution.)
Item 1. Status of Analog Service. (Check one.) Note: Full-power television broadcast stations must cease broadcasting in analog as of the transition date (i.e., February 17, 2009), as required by statute; see 47 U.S.C. 309(j)(14).
Licensee/Permittee must describe in detail its plans for ceasing analog broadcasting by the February 17, 2009 transition date and for completing construction of its post-transition facility by the deadline. For example, plan must include a detailed timeline of the Licensee/Permittee's plans to complete construction and any necessary testing of the Licensee/Permittee's full, authorized post-transition facility.
this Form will be posted on
20. The Instructions to the new Form will explain the data elements noted above.
Some stations listed above sought a further “use-or-lose” waiver but also filed an application to extend their underlying DTV construction deadline. We hereby dismiss these “use-or-lose” waiver requests and we grant the corresponding DTV extension applications.