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Presidential Documents
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Consult the Reader Aids section at the end of this issue for phone numbers, online rescources, finding aids, reminders, and notice of recently enacted public laws.
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Federal Aviation Administration (FAA), DOT.
Final rule.
This action establishes a low altitude Area Navigation (RNAV) route, designated T-274 in the State of Oregon. T-routes are low altitude Air Traffic Service (ATS) routes, based on RNAV, for use by aircraft having instrument flight rules (IFR)-approved Global Positioning System (GPS)/Global Navigation Satellite System (GNSS) equipment. The FAA is taking this action to enhance safety and improve the efficient use of the navigable airspace in Oregon.
Ken McElroy, Airspace and Rules Group, Office of System Operations Airspace and AIM, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone: (202) 267-8783.
On February 14, 2008, the FAA published in the
Low altitude RNAV routes are published in paragraph 6011 of FAA Order 7400.9R signed August 15, 2007, and effective September 15, 2007, which is incorporated by reference in 14 CFR 71.1. The low altitude RNAV routes listed in this document will be published subsequently in the Order.
This amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 establishes a low altitude RNAV route in southwest Oregon. The route is designated T-274, and will be depicted on the appropriate IFR En Route Low Altitude charts. T-routes are low altitude RNAV ATS routes, similar to VOR Federal airways, but based on GNSS navigation. RNAV-equipped aircraft capable of filing flight plan equipment suffix “G” may file for these routes.
The T-route described in this rule will enhance safety, and facilitate more flexible and efficient use of the navigable airspace for en route IFR operations transitioning through mountainous terrain of southwest Oregon.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA'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 the 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 an RNAV T-route in southwest Oregon.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” paragraph 311a, 311b, and 311k. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA) is issuing an order prohibiting the extralabel use of cephalosporin antimicrobial drugs in food-producing animals. We are issuing this order based on evidence that extralabel use of these drugs in food-producing animals will likely cause an adverse event in humans and, as such, presents a risk to the public health.
This rule becomes effective October 1, 2008. Submit written or electronic comments on this document by September 2, 2008.
You may submit comments, identified by [Docket No. FDA-2008-N-0326], by any of the following methods:
Submit electronic comments in the following way:
• Federal eRulemaking Portal:
Submit written submissions in the following ways:
• FAX: 301-827-6870.
• Mail/Hand delivery/Courier [For paper, disk, or CD-ROM submissions]: Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852.
To ensure more timely processing of comments, FDA is no longer accepting comments submitted to the agency by e-mail. FDA encourages you to continue to submit electronic comments by using the Federal eRulemaking Portal, as described previously, in the
Neal Bataller, Center for Veterinary Medicine (HFV-230), Food and Drug Administration, 7519 Standish Pl., Rockville, MD, 20855, 240-276-9200, e-mail:
The Animal Medicinal Drug Use Clarification Act of 1994 (AMDUCA) (Public Law 103-396) was signed into law on October 22, 1994. It amended the Federal Food, Drug, and Cosmetic Act (the act) to permit licensed veterinarians to prescribe extralabel uses of approved animal and human drugs in animals. In the
We may issue a prohibition order if we find that extralabel use of a drug in animals presents a risk to the public health. Under § 530.3(e), this means that we have evidence demonstrating that the use of the drug has caused, or likely will cause an adverse event.
Section 530.25 provides for a public comment period of not less than 60 days. It also provides that the order of prohibition become effective 90 days after the date of publication, unless we revoke or modify the order, or extend the period of public comment. The list of drugs prohibited from extralabel use is found in § 530.41.
Cephalosporins are members of the β-lactam class of antimicrobials. These antimicrobials work by targeting synthesis of the bacterial cell wall, resulting in increased permeability and eventual hydrolysis of the cell. Members of the cephalosporin class have a β-lactam ring fused to a sulfur-containing ring-expanded system (Ref. 1).
Certain cephalosporins are currently approved for use in a number of animal species. These approved uses include the treatment of respiratory disease in cattle, swine, sheep, and goats, as well as acute bovine interdigital necrobacillosis, acute metritis, and clinical and sub-clinical mastitis in cattle. They are also approved for the control of bovine respiratory disease, and the control of early mortality associated with
Cephalosporins are also some of the most widely used antimicrobial agents in human medicine. Older agents are widely used as therapy for skin and soft tissue infections caused by
FDA is concerned that the extralabel use of cephalosporins in food-producing animals is likely to lead to the emergence of cephalosporin-resistant strains of foodborne bacterial pathogens. If these drug-resistant bacterial strains infect humans, it is likely that cephalosporins will no longer be effective for treating disease in those people. Therefore, FDA is issuing an order prohibiting the extralabel use of cephalosporins because, as discussed in section II of this document, the agency has determined that such extralabel use will likely cause an adverse event and as such presents a risk to the public health.
A recent review of β-lactam resistance in bacteria of animal origin states that an emerging issue of concern is the increase in reports of broad-spectrum β-lactamases (CMY-2 and CTX-M) (Ref. 3). Acquired resistance to β-lactams in animal isolates has been observed in surveillance programs such as the Canadian Integrated Program for Antimicrobial Resistance Surveillance (CIPARS), Danish Integrated Antimicrobial Resistance Monitoring and Research Programme (DANMAP), and the U.S. National Antimicrobial Resistance Monitoring System (NARMS).
The 2005 European Antimicrobial Resistance Surveillance System (EARSS) report indicated that most European countries reported less than 5 percent resistance to third generation cephalosporins in foodborne pathogens including
Ceftiofur is a third generation cephalosporin approved for certain uses in animals. Since 1997, the NARMS program has monitored ceftiofur resistance in
Food-producing animals have been shown to be a source of resistant
Although ceftiofur is not used in human medicine, the observed trend of increasing resistance to this drug in human isolates highlights concerns about the movement of foodborne bacterial pathogens between animals and humans. In particular, as discussed in more detail in this document, resistance to certain cephalosporins is of public health concern in light of the evidence of cross-resistance among drugs in the cephalosporin class. Expanded-spectrum cephalosporins (e.g., ceftriaxone and cefotaxime) are the antimicrobial agents of choice for invasive
The cephalosporins are one of the most diverse classes of antimicrobials, and have been subject to several different classification schemes, including those using chemical structure, microbial activity, pharmacokinetics, or marketing date to divide the various molecular entities into distinct groups. While there is considerable overlap among proposed schemes, individual cephalosporin drugs do not always fall into the same groups in all classifications. For example, a commonly used scheme that classifies cephalosporins into “generations” provides some general idea of the first marketing date for the various cephalosporins. However, classification by generation does not necessarily group together cephalosporins with similar microbiological or pharmacokinetic characteristics. Therefore, because classification into “generations” is not based on specific properties of individual cephalosporins, there can be disagreement on which drugs belong in which generation.
FDA considered the possibility of limiting the order of prohibition to certain individual cephalosporin drugs or to certain generations of cephalosporins. However, given the potential for confusion regarding the classification of individual cephalosporin drugs into various generations, FDA concluded that it would be problematic to define the scope of the prohibition based on cephalosporin “generation.” Furthermore, as discussed in more detail in this document, data regarding mechanisms by which bacteria become resistant to cephalosporins have demonstrated cross-resistance among various individual cephalosporin drugs and among various generations of cephalosporin drugs.
In general, there are three mechanisms by which bacteria become resistant to antimicrobial agents: (1) Alteration of the antimicrobial target, (2) efflux of the antimicrobial or changes in permeability of the bacterial cell, and (3) inactivation of the antimicrobial agent itself. Gram negative bacterial resistance to cephalosporins occurs mainly through inactivation of the cephalosporin by β-lactamases. These enzymes can be both innate and acquired (Ref. 9).
Among bacteria of human health concern, the two most important classes of β-lactamase enzymes are the AmpC cephalosporinases and the extended-spectrum β-lactamases (ESBL). AmpC enzymes are found on the chromosome of most
ESBLs present in bacteria of human health concern include members of the TEM, SHV, and CTX-M families. These enzymes are plasmid mediated and have the potential to provide resistance to all
In a review of the CTX-M family of ESBLs, Livermore et al. (Ref. 11) noted that until the late 1990s, European surveys found the TEM and SHV families of ESBLs almost exclusively. CTX-M enzymes were recorded rarely, although large outbreaks of
Given that β-lactamases have been identified in zoonotic bacteria of human health concern, and given that β-lactamases can impart cross-resistance among cephalosporins (Ref. 12), FDA concluded that measures to prohibit extralabel use should be directed at the entire cephalosporin class of drugs.
As summarized previously, certain cephalosporins are currently approved for use in a number of animal species for a variety of indications. However, under the provisions of AMDUCA, cephalosporins that are approved for use in animals or humans may be used in an extralabel manner in animals provided certain conditions are met. Although few data are available regarding the extent to which such extralabel use currently occurs in the various food-producing animal species, evidence exists that extralabel use is occurring. FDA conducted inspections at U.S. poultry hatcheries in 2001 and examined records relating to the hatcheries' antimicrobial use during the 30-day period prior to inspection. FDA found that six of the eight hatcheries inspected that used ceftiofur during that period were doing so in an extralabel manner (Ref. 13). For example, ceftiofur was being administered at unapproved dosing levels or by unapproved methods of administration. In particular, ceftiofur was being administered by egg injection, rather than by the approved method of administering the drug to day-old chicks.
As is recognized for the use of antimicrobial drugs in general, the use of cephalosporins provides selection pressure that favors expansion of resistant variants. FDA believes the extralabel use of cephalosporins likely will contribute to the emergence of resistance and compromise human therapy. Given the importance of the cephalosporin class of drugs for treating disease in humans, FDA believes that preserving the effectiveness of such drugs is critical. Therefore, FDA believes it is necessary to take action to limit the extent to which extralabel use of cephalosporin in animals may be contributing to the emergence of resistant variants.
FDA is particularly concerned about the extralabel use of cephalosporins in food-producing animals given that such animals are known reservoirs of foodborne bacterial pathogens such as
Interested persons may submit to the Division of Dockets Management (see
Please note that on January 15, 2008, the FDA Division of Dockets Management Web site transitioned to the Federal Dockets Management System (FDMS). FDMS is a Government-wide, electronic docket management system. Electronic comments or submissions will be accepted by FDA only through FDMS at
Therefore, I hereby issue the following order under § § 530.21 and 530.25. We find that extralabel use of the cephalosporin class of antimicrobial drugs in food-producing animals likely will cause an adverse event, which constitutes a finding that extralabel use of these drugs presents a risk to the public health. Therefore, we are prohibiting the extralabel use of the cephalosporin class of antimicrobial drugs in food-producing animals.
The following references have been placed on display in the Division of Dockets Management (see
1. Livermore, D. M. and L. D. Williams, “β-Lactams: Mode of Action and Mechanisms of Resistance,” pp. 502-578, Victor Lorian (ed.),
2. U.S. Food and Drug Administration, Maxipime (cefepime hydrochloride) for injection, NDA 50-679/S-021,
3. Li, X. Z., M. Mehrotra, S. Ghimire, and L. Adewoye, “β-Lactam Resistance and β-Lactamases in Bacteria of Animal Origin,”
4. European Antimicrobial Resistance Surveillance System, EARSS Annual Report 2005, pp. 1-147, Bilthoven, The Netherlands, 2006.
5. U.S. Department of Health and Human Services, National Antimicrobial Resistance Monitoring System/Enteric Bacteria (NARMS/EB) Salmonella Annual Veterinary Isolates Data, U.S. Department of Agriculture,
6. Holmberg, S. D., J. G. Wells, and M. L. Cohen, “Animal-to-Man Transmission of Antimicrobial-Resistant
7. CDC, “National Antimicrobial Resistance Monitoring System for Enteric Bacteria (NARMS): Human Isolates Final Report,” 2004, Atlanta, GA, U.S. Department of Health and Human Services, CDC, 2007.
8. Giles, W.P. , A. K. Benson, M. E. Olson, R. W. Hutkins, J. M. Whichard, P. L. Winokur, and P. D. Fey, “DNA Sequence Analysis of Regions Surrounding blaCMY-2 From Multiple
9. Livermore, D. M., “Beta-Lactamases in Laboratory and Clinical Resistance,”
10. Clinical and Laboratory Standards Institute, Performance Standards for Antimicrobial Susceptibility Testing: Sixteenth Informational Supplement, M100-S16, Wayne, PA, USA: CLSI, 2006.
11. Livermore, D. M., R. Canton, M. Gniadkowski, P. Nordmann, G. M. Rossolini, G. Arlet, J. Ayala, T. M. Coque, I. Kern-Zdanowicz, F. Luzzaro, L. Poirel, and N. Woodford, “CTX-M: Changing the Face of ESBLs in Europe,”
12. Jacoby, G. A. and L. S. Munoz-Price, “The New B-Lactamases,”
13. U.S. Food and Drug Administration, Center for Veterinary Medicine, unpublished report, Summary of Data From Hatchery Inspections Conducted September-October 2001, April 15, 2002.
Administrative practice and procedure, Advertising, Animal drugs, Labeling, Reporting and recordkeeping requirements.
15 U.S.C. 1453, 1454, 1455; 21 U.S.C. 321, 331, 351, 352, 353, 355, 357, 360b, 371, 379e.
(a) * * *
(13) Cephalosporins.
Internal Revenue Service (IRS), Treasury.
Final and temporary regulations.
This document contains final and temporary regulations addressing the treatment of certain income and assets related to the leasing of aircraft or vessels in foreign commerce under sections 367, 954, and 956 of the Internal Revenue Code (Code). The regulations reflect statutory changes made by section 415 of the American Jobs Creation Act of 2004 (AJCA). In general, the regulations will affect United States shareholders of controlled foreign corporations that derive income from the leasing of aircraft or vessels in foreign commerce and U.S. persons that transfer property subject to these leases to a foreign corporation. The text of these temporary regulations also serves as the text of the proposed regulations set forth in the Proposed Rules section in this issue of the
Concerning the temporary regulations under section 367, John H. Seibert, at (202) 622-3860; concerning the temporary regulations under section 954 or 956, Paul J. Carlino at (202) 622-3840; concerning submissions of comments, Richard A. Hurst at
This document contains amendments to 26 CFR Part 1 under sections 367, 954 and 956 of the Code. Section 415(a) of the AJCA, Public Law 108-357 (118 Stat. 1418) repealed sections 954(a)(4) and (f), the foreign base company shipping income provisions of subpart F. Following repeal of the foreign base company shipping income provisions, rents derived from leasing an aircraft or vessel in foreign commerce may be included in subpart F income only if the rents are described in another category of subpart F income, such as foreign personal holding company income (FPHCI) defined in section 954(c). Rents are included in FPHCI under section 954(c)(1)(A). Section 954(c)(2)(A) excludes from FPHCI rents received from unrelated persons and derived in the active conduct of a trade or business.
Rents derived by a controlled foreign corporation (CFC) are considered to be derived in the active conduct of a trade or business if the rents are derived under any one of four circumstances described in the Treasury regulations under section 954(c)(2)(A). One such circumstance, provided in § 1.954-2(c)(1)(iv), is when rents are derived from property leased as a result of the performance of marketing functions by the lessor CFC. These rents are considered to be derived in the active conduct of a trade or business if the lessor CFC, through its own officers or staff of employees located in a foreign country, maintains and operates an organization in the foreign country that is regularly engaged in the business of marketing, or of marketing and servicing, the leased property and that is substantial in relation to the amount of rents derived from leasing the property.
Section 1.954-2(c)(2)(ii) provides that the determination of whether the organization in the foreign country is substantial in relation to the amount of rents derived is based on all the facts and circumstances. However, under § 1.954-2(c)(2)(ii), the organization will be considered substantial in relation to the amount of rents if active leasing expenses, as defined in § 1.954-2(c)(2)(iii), equal or exceed 25 percent of the adjusted leasing profit, as defined in § 1.954-2(c)(2)(iv).
Section 415(b) of the AJCA amended section 954(c)(2)(A) to create a new marketing safe harbor for the exclusion from FPHCI for rents derived from leasing an aircraft or vessel in foreign commerce. The amendment to section 954(c)(2)(A) provides:
[R]ents derived from leasing an aircraft or vessel in foreign commerce shall not fail to be treated as derived in the active conduct of a trade or business if, as determined under regulations prescribed by the Secretary, the active leasing expenses are not less than 10 percent of the profit on the lease.
An aircraft or vessel will qualify for the new safe harbor under section 954(c)(2)(A) only if it is leased in “foreign commerce.” The legislative history provides that, for purposes of this safe harbor,
An aircraft or vessel will be considered to be leased in foreign commerce if it is used for the transportation of property or passengers between a port (or airport) in the United States and one in a foreign country or between foreign ports (or airports), provided the aircraft or vessel is used predominantly outside the United States. An aircraft or vessel will be considered used predominantly outside the United States if more than 50 percent of the miles during the taxable year are traversed outside the United States or the aircraft or vessel is located outside the United States more than 50 percent of the time during such taxable year.
As an alternative to the new safe harbor, the legislative history makes clear that a lessor may qualify for the marketing exception by satisfying a facts and circumstances test. The report of the House of Representatives provides that:
The safe harbor will not prevent a lessor from otherwise showing that it actively carries on a trade or business. In this regard, the requirements of section 954(c)(2)(A) will be met if a lessor regularly and directly performs active and substantial marketing, remarketing, management and operational functions with respect to the leasing of an aircraft or vessel (or component engines).
The 2004 Conference Report also clarifies that the marketing exception for aircraft and vessels will apply whether the lessor engages in the marketing of the lease as a form of financing (versus marketing the property as such) or whether the lease is classified as a finance lease or operating lease for financial accounting purposes. 2004 Conference Report at 390. The exception will also apply to an existing lease acquired by a lessor, if, following the acquisition, the lessor performs active and substantial management, operational, and remarketing functions with respect to the leased property.
The legislative history directs the Secretary of the Treasury to make conforming changes to the current regulations “including guidance that aircraft or vessel leasing activity that satisfies the requirements of section 954(c)(2)(A) shall also satisfy the requirements for avoiding income inclusion under section 956 and section 367(a).” Id. This legislative history indicates that Congress anticipated that taxpayers might restructure their operations with minimal tax cost to take advantage of the new benefits under subpart F provided by section 415 of the AJCA, namely the repeal of the foreign base company shipping income provisions and a liberalized marketing safe harbor for excluding active leasing income from aircraft or vessels engaged in foreign commerce from FPHCI.
Notice 2006-48 (2006-1 CB 922), released on May 2, 2006, provided guidance and announced the Treasury Department's and IRS' intention to amend the regulations under sections 367(a), 954, and 956 in accord with section 415 of the AJCA, and the accompanying legislative history. The notice provided that the future regulations would generally be effective beginning on or after May 2, 2006. These temporary regulations incorporate the rules of Notice 2006-48 with minor changes. See § 601.601(d)(2)(ii)(b).
The temporary regulations provide guidance with respect to the treatment of certain income and assets related to the leasing of aircraft or vessels in foreign commerce under sections 367, 954, and 956 of the Code in light of section 415 of the AJCA.
The temporary regulations add a new marketing safe harbor for purposes of determining whether rents derived from leasing aircraft or vessels (including component parts, such as engines, that are leased separately from an aircraft or vessel) in foreign commerce qualify for the active rents exclusion under section 954(c)(2)(A). This new safe harbor provides that an organization will be considered substantial under § 1.954-2(c)(2)(ii) if active leasing expenses equal or exceed 10 percent of the adjusted leasing profit. The temporary regulations retain the rules in the current regulations regarding how to determine active leasing expenses and adjusted leasing profit and that as an alternative to the safe harbor test, a CFC can satisfy the substantiality test based upon its facts and circumstances. The temporary regulations also amend the current regulations to include a definition of foreign commerce and predominant use of an aircraft or vessel outside the United States in accordance with the definitions given such terms in the legislative history to section 415(b) of the AJCA. The temporary regulations also clarify that rents derived from certain finance leases and acquired leases are eligible for the active rents exclusion.
Section 956(c)(1)(A) provides that the term “United States property” generally includes tangible property located in the United States. Section 956(c)(2) provides exceptions to the general definition of U.S. property. Section 956(c)(2)(D) excludes from the term U.S. property any aircraft, railroad rolling stock, vessel, motor vehicle, or container used in the transportation of persons or property in foreign commerce and used predominantly outside the United States.
Section 1.956-2(b)(1)(vi) provides that whether an aircraft, railroad rolling stock, vessel, motor vehicle, or container is used predominantly outside the United States depends on the facts and circumstances in each case. The regulations also provide that as a general rule, such transportation property will be considered used predominantly outside the United States if 70 percent or more of the miles traversed in the use of such property are traversed outside the United States or if such property is located outside the United States 70 percent of the time during such taxable year. The temporary regulations amend § 1.956-2(b)(1)(vi) to provide that an aircraft or vessel is excluded from U.S. property if rents derived from leasing such aircraft or vessel are excluded from FPHCI under section 954(c)(2)(A).
Section 367 provides that if a U.S. person transfers property to a foreign corporation in an exchange described in sections 332, 351, 354, 356, or 361 of the Code, the foreign corporation will not be considered a corporation for purposes of determining the extent to which gain will be recognized on such transfer. However, section 367(a)(3)(A) generally provides an exception to this rule if the property is used by the foreign corporation in the active conduct of a trade or business outside of the United States. In general, this exception does not apply to property of which the
Section 1.367(a)-2T(a) provides, in part, that section 367(a)(1) does not apply to property transferred to a foreign corporation if the property is transferred for use by that corporation in the active conduct of a trade or business outside of the United States and certain reporting requirements are met. Section 1.367(a)-2T(b)(3) provides that the principles of § 1.954-2(d)(1) are used to determine whether a trade or business that produces rents or royalties is actively conducted, without regard to whether the rents or royalties are received from an unrelated person. Section 1.367(a)-2T(b)(4) provides generally that a foreign corporation conducts a trade or business outside of the United States if the primary managerial and operational activities of the trade or business are located outside of the United States and if immediately after the transfer the transferred assets are located outside of the United States.
Section 1.367(a)-4T(c) through (f) contains rules for determining whether certain types of property are transferred for use in the active conduct of a trade or business outside the United States. Section 1.367(a)-4T(c)(1) provides that if the transferred property will be leased by the transferee foreign corporation, the property generally is considered to be transferred for use in the active conduct of a trade or business outside of the United States only if all three of the following conditions are met: (i) The transferee's leasing constitutes the active conduct of a leasing business; (ii) the lessee does not use the property in the United States; and (iii) the transferee has need for substantial investment in assets of the type transferred.
Section 1.367(a)-4T(b)(1) provides that even if property qualifies for the active trade or business exception, when a U.S. person transfers U.S. depreciated property to a foreign corporation, that person must include as ordinary income in the year of the transfer the gain realized that would have been included as ordinary income under section 617(d)(1), 1245(a), 1250(a), 1252(a), or 1254(a) of the Code if the taxpayer had sold the property at its fair market value on the date of the transfer (section 367 recapture). Section 1.367(a)-4T(b)(2)(ii) provides that, for this purpose, U.S. depreciated property includes property that has been used in the United States or has qualified as section 38 property by virtue of section 48(a)(2)(B).
Section 1.367(a)-4T(b)(3) provides a methodology to compute the section 367 recapture amount if the property has been used partly outside the United States. In this circumstance, the amount of the section 367 depreciation recapture is determined by multiplying the full section 367 recapture amount by a fraction, the numerator of which is the U.S. use of the property and denominator of which is the total use of the property. For this purpose, U.S. use is the number of months that the property either was used within the United States or qualified as section 38 property by virtue of section 48(a)(2)(B) and was subject to depreciation by the transferor or a related person. Total use is the total number of months that the property was used (or was available for use), and subject to depreciation, by the transferor or a related person. Property is not considered to be used outside the United States during any period in which the property was, for purposes of section 38 or 168, treated as property not used predominantly outside the United States pursuant to the provisions of section 48(a)(2)(B).
Section 1.367(a)-5T(f) provides that, regardless of use in an active trade or business, section 367(a)(1) applies to a transfer of tangible property with respect to which the transferor is a lessor at the time of the transfer unless: (i) The transferee was the lessee and the transferee will not lease to third persons; or (ii) the transferee will lease to third persons and the transferee satisfies the conditions of § 1.367(a)-4T(c)(1) or (2).
The temporary regulations amend the section 367(a) regulations to provide that the principles of section 954(c)(2)(A) and the related regulations shall apply to determine whether a trade or business that produces rents or royalties is actively conducted under § 1.367(a)-2T(b)(3). For purposes of applying § 1.367(a)-2T(b)(4), § 1.367(a)-4T(c)(3) provides that the substantial managerial and operational activities of the trade or business of leasing an aircraft or vessel must be conducted outside of the United States, and the aircraft or vessel must be used predominantly outside of the United States, as defined in section 954 and under the amended regulation. A lessee that uses an aircraft or vessel predominantly outside of the United States will satisfy the requirement in § 1.367(a)-4T(c)(1)(ii).
In addition, Notice 2006-48 states that the Treasury Department and IRS were considering future guidance regarding how to determine whether an aircraft or vessel was used predominantly outside the United States for a particular month for purposes of calculating section 367 recapture. The Notice also states that until further guidance is issued, taxpayers are permitted to use any reasonable method to make this determination. The Treasury Department and IRS continue to study this issue and therefore taxpayers may continue to use any reasonable method to make this determination until further guidance is issued.
It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. For applicability of the Regulatory Flexibility Act (5 U.S.C. Ch. 6) please refer to the cross-reference notice of proposed rule making published elsewhere in this
The principal authors of these regulations are John H. Seibert and Paul J. Carlino, Office of Associate Chief Counsel (International). However, other personnel from the IRS and Treasury Department participated in their development.
Income taxes, Reporting and recordkeeping requirements.
26 U.S.C. 7805. * * *
(e)
(2)
(3)
(c) * * *
(3)
(A) The employees of the foreign corporation perform substantial managerial and operational activities of leasing aircraft or vessels outside the United States; and
(B) The leased tangible personal property is predominantly used outside the United States, as determined under § 1.954-2T(c)(2)(v).
(i)
(2)
(f) * * *
(3)(i) With respect to vessels and aircraft, including their component parts, that will be leased by the transferee to third persons, the transferee satisfies the conditions set forth in § 1.367(a)-4T(c).
(ii)
(iii)
(c) * * *
(2) * * *
(ii)[Reserved]. For further guidance, see § 1.954-2T(c)(2)(ii).
(v) [Reserved]. For further guidance, see § 1.954-2T(c)(2)(v).
(vi) [Reserved]. For further guidance, see § 1.954-2T(c)(2)(vi).
(3) * * *
(i) [Reserved]. For further guidance, see § 1.954-2T(i).
(a) through (c)(2)(i) [Reserved]. For further guidance see, § 1.954-2(a) through (c)(2)(i).
(ii)
(c)(2)(iii) through (c)(2)(iv) [Reserved]. For further guidance see, § 1.954-2(c)(2)(iii) through (c)(2)(iv).
(v)
(vi)
(vii)
(3)
The facts are the same as in
(d) through (h) [Reserved]. For further guidance, see § 1.954-2(d) through (h).
(i)(1)
(2)
The revisions and addition read as follows:
(b) * * *
(1) * * *
(vi) [Reserved]. For further guidance, see § 1.956-2T(b)(1)(vi).
(e) [Reserved]. For further guidance, see § 1.956-2T(e).
The revisions and addition read as follows:
(a) through (b)(1)(v) [Reserved]. For further guidance, see § 1.956-2(a) through (b)(1)(v).
(vi) Any aircraft, railroad rolling stock, vessel, motor vehicle, or container used in the transportation of persons or property in foreign commerce and used predominantly outside the United States. Whether transportation property described in this subdivision is used in foreign commerce and predominantly outside the United States is to be determined from all the facts and circumstances of each case. As a general rule, such transportation property will be considered to be used predominantly outside the United States if 70 percent or more of the miles traversed (during the taxable year at the close of which a determination is made under section 956(a)(2)) in the use of such property are traversed outside the United States or if such property is located outside the United States 70 percent of the time during such taxable year. Notwithstanding the above, an aircraft or vessel (as the term is defined in § 1.954-2T(c)(2)(ii)) is excluded from U.S. property if rents derived from leasing such aircraft or vessel are excluded from foreign personal holding company income under section 954(c)(2)(A). See paragraph (e) of this section for the effective/applicability dates of this paragraph (b)(1)(vi).
(c) through (d)(1) [Reserved]. For further guidance, see § 1.956-2(b)(1)(vii) through (d)(1).
(e)
(2)
Pension Benefit Guaranty Corporation.
Final rule.
Pension Benefit Guaranty Corporation (PBGC) is amending its regulation on Administrative Review of Agency Decisions to clarify that the agency's Appeals Board may refer certain categories of appeals to other PBGC departments for a written response and to remove determinations under section 4022A of the Employee Retirement Income Security Act of 1974 (ERISA) from the scope of part 4003. The amendments also include minor clarifying and technical changes to the rules for administrative review of agency decisions.
Effective August 4, 2008.
Joseph J. Shelton, Attorney, Office of the General Counsel or Catherine B. Klion, Manager, Regulatory and Policy Division, Legislative and Regulatory Department, Pension Benefit Guaranty Corporation, 1200 K Street, NW., Washington, DC 20005-4026; 202-326-4024. (TTY/TDD users may call the Federal relay service toll-free at 1-800-877-8339 and ask to be connected to 202-326-4024.)
On October 18, 2007, PBGC published (at 72 FR 59050) a proposed rule to amend
PBGC administers the pension plan termination insurance program under Title IV of ERISA. Under PBGC's regulation for Administrative Review of Agency Decisions, persons aggrieved by certain PBGC determinations may appeal to the agency's Appeals Board. 29 CFR part 4003.
The powers of the Appeals Board are set forth in, among other places, § 4003.58 of the regulations. It states that “the Appeals Board may request the submission of any information or the appearance of any person it considers necessary to resolve a matter before it and to enter any order it considers necessary for or appropriate to the disposition of any matter before it.” 29 CFR 4003.58. The decision of the Appeals Board constitutes final agency action by PBGC with respect to the determination which was the subject of the appeal and is binding on all parties who participated in the appeal. 29 CFR 4003.59(b).
The Appeals Board reviews the following categories of determinations:
• Determinations that a plan is not covered under section 4021 of ERISA;
• Determinations under section 4022(a) or (c) or section 4022A(a) of ERISA with respect to benefit entitlement of participants and beneficiaries under covered plans and determinations that a domestic relations order is or is not a qualified domestic relations order under section 206(d)(3) of ERISA and section 414(p) of the Internal Revenue Code;
• Determinations under section 4022(b) or (c), section 4022A(b) through (e), or section 4022B of ERISA of the amount of benefits payable to participants and beneficiaries under covered plans;
• Determinations of the amount of money subject to recapture under section 4045 of ERISA;
• Determinations of the amount of liability under section 4062(b)(1), section 4063, or section 4064 of ERISA; and
• Determinations that the amount of a participant's or beneficiary's benefit under section 4050(a)(3) of ERISA has been correctly computed based on the designated benefit paid to PBGC under section 4050(b)(2) of ERISA, or that the designated benefit is correct, but only to the extent that the benefit to be paid does not exceed the participant's or beneficiary's guaranteed benefit.
A person who is adversely affected by a determination involving any of the matters listed above has not exhausted his or her administrative remedies, and thus may not challenge the determination in court, until he or she has filed an appeal under § 4003.51 and a decision granting or denying the relief requested has been issued by the Appeals Board. 29 CFR 4003.7. An appeal must be filed within 45 days after the date of the determination being appealed, unless the appellant requests an extension of time to file within the 45-day period and the request is granted. 29 CFR 4003.52, 4003.4, 4003.5.
An appeal must be in writing, be clearly designated as an appeal, contain a statement of the ground on which it is based and the relief sought, reference all pertinent information already in the possession of PBGC, and include any additional information or data that the appellant believes is relevant. 29 CFR 4003.54. The filing of an appeal generally stays the effectiveness of a determination until a decision on the appeal has been issued by the Appeals Board. 29 CFR 4003.22(a), (b).
This final regulation formalizes the Appeals Board's practice of referring certain routine appeals, such as those that allege a mistake of fact or that request a more detailed benefit explanation, to other PBGC departments or Appeals Board staff for a written response. The practice began after the agency concluded that other PBGC departments, such as the Benefits Administration and Payment Department (BAPD), could handle these types of appeals efficiently given their familiarity with the relevant facts underlying the initial benefit determinations.
At the same time, the agency concluded that it would be appropriate for Appeals Board staff (rather than the Appeals Board) to respond to untimely and premature appeals, as well as appeals alleging that benefit reductions required by law will work a financial hardship. Appeals Board staff provide support to the Appeals Board in the areas of receipt, review, and closing of appeals and other correspondence. Appeals Board staff also analyze incoming correspondence to determine whether it should be addressed by the Appeals Board as an appeal, referred to another PBGC department, such as BAPD, or retained by Appeals Board staff for response as an inquiry, extension request, or a request for additional information.
In 2006, approximately 35% of the appeals received by the Appeals Board involved simple factual disputes, or requested only a more detailed explanation of a benefit determination. These appeals were referred to other PBGC departments for a response and were answered, on average, within 45 days. In situations where PBGC's initial determination is incorrect, BAPD can quickly resolve the matter, without the need for an Appeals Board decision, by issuing a corrected benefit determination. Similarly, if an appellant only requests—in the form of an appeal—a more detailed explanation of his or her initial benefit determination, BAPD can quickly provide a detailed explanation given its familiarity with the initial determination and the relevant participant data.
Under current practice, when an appeal is referred to another PBGC department or Appeals Board staff for a written response, the time period for filing a request for Appeals Board review is extended for an additional 30 days from the date of the written response. As discussed more fully below, under the final regulation, the time period for filing a request for Appeals Board review will be extended for an additional 45 days from the date of the PBGC department's or Appeals Board staff's written response.
The regulation amends § 4003.58 of the regulations to clarify that the Appeals Board may refer certain appeals to other PBGC departments or Appeals Board staff for a response. Appeals that will be subject to referral include those that (1) request an explanation of a covered initial benefit determination, (2)
The PBGC department's or Appeals Board staff's response will be in writing and address the matters raised in the appeal. Alternatively, appeals referred to BAPD may be answered in the form of a corrected benefit determination. The written response or corrected benefit determination will provide that the appellant may file a written request for review by the Appeals Board within 45 days of the date of the written response or corrected benefit determination. If a written request for review is not filed with the Appeals Board within 45 days, the Appeals Board will not review the case and the initial determination or corrected benefit determination will become effective under § 4003.22(a).
A written response or corrected benefit determination will not be a decision of the Appeals Board within the meaning of § 4003.59 of the regulations. Thus, a person who is issued such a response or corrected benefit determination will not have exhausted his or her administrative remedies under § 4003.7 of the regulations unless and until he or she files a request for review by the Appeals Board and a decision granting or denying the relief requested has been issued.
Under PBGC's multiemployer program, when a plan becomes insolvent, PBGC provides financial assistance to the plan sufficient to pay guaranteed benefits to participants and administrative expenses. Section 4022A of ERISA sets forth PBGC's guarantee for multiemployer pension plan benefits. A multiemployer plan is considered insolvent if the plan is unable to pay benefits (at least equal to PBGC's guaranteed benefit limit) when due. The plan must repay this financial assistance in accordance with terms and conditions specified by PBGC.
Unlike the situation with single-employer plans, however, PBGC does not trustee or otherwise assume responsibility for the liabilities of a financially troubled multiemployer plan. As a result, PBGC does not issue determinations under section 4022A of ERISA with respect to benefit entitlement of participants and beneficiaries. Accordingly, PBGC is amending § 4003.1(b)(6) and (7) to remove the reference to section 4022A. The effect of this amendment will be to remove determinations under section 4022A from the scope of part 4003.
Section 4003.54(3) and (4) of the regulation are amended to reflect the plain language used in the “Your Right to Appeal” brochure that currently accompanies all benefit determinations and is available on PBGC's Web site,
Section 4003.54(3) states that an appeal shall “[c]ontain a statement of the grounds upon which it is brought and the relief sought.” Addressing the same requirement, the brochure states that an appeal must “[s]pecifically explain why PBGC's determination is wrong and the result you are seeking.” The regulation replaces the language in § 4003.54(3) with language similar to that which is currently used in the brochure.
PBGC is also amending § 4003.54(4) of the regulation, which states that an appeal shall “[r]eference all pertinent information already in the possession of the PBGC and include any additional information believed to be relevant.” Addressing the same requirement, the “Your Right to Appeal” brochure states, in part, that an appeal must “[d]escribe the relevant information you believe is known by PBGC and include copies of documents that provide additional information that the Appeals Board should consider.” The final regulation replaces the language in § 4003.54(4) with language similar to that which is currently used in the brochure.
PBGC is amending § 4003.53 of the regulations, which provides information on where to file an appeal, to remove the filing address for appeals and requests for filing extensions because it is no longer accurate. In its place, PBGC is incorporating § 4000.4, which provides general instructions on where to file submissions to PBGC.
On August 17, 2006, the President signed into law the Pension Protection Act of 2006, Public Law 109-280 (“PPA 2006”). Section 411 of PPA 2006 amended section 4002(a) of ERISA to state that PBGC shall be administered by a Director, who shall be appointed by the President, by and with the advice and consent of the Senate. Thus, PBGC is replacing all references to the term “Executive Director” in part 4003 with the term “Director.”
The amendments in this final rule are applicable to appeals filed on or after the effective date of the final rule.
PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866. Pursuant to section 1(b)(1) of E.O. 12866 (as amended by Executive Order 13422), PBGC has determined that regulatory action is required in this area. Principally, this regulatory action is necessary to update PBGC's rules for administrative review of agency decisions to accurately reflect the agency's appeals handling procedures. In addition, because PBGC does not issue determinations under section 4022A of ERISA with respect to benefit entitlement of participants and beneficiaries, the final rule removes determinations under section 4022A of ERISA from the scope of part 4003. Finally, the final rule contains minor clarifying and technical changes to the rules for administrative review of agency decisions that will streamline the appeals process and make the rules governing administrative appeals easier to understand.
As a rule of agency organization, procedure, or practice, this rule is exempt from notice and public comment and delayed effective date requirements of section 553 of the Administrative Procedure Act. Because no general notice of proposed rulemaking was required, the Regulatory Flexibility Act does not apply to this rule.
PBGC has determined that these changes do not modify the information collection requirements under Administrative Appeals (OMB control number 1212-0061, expires 1/31/10).
Administrative practice and procedure, Organization and functions (Government agencies), Pension insurance, Pensions.
29 U.S.C. 1302(b)(3).
(a) * * *
(3) Specifically explain why PBGC's determination is wrong and the result the appellant is seeking;
(4) Describe the relevant information the appellant believes is known by PBGC, and summarize any other information the appellant believes is relevant. It is important to include copies of any documentation that support the appellant's claim or the appellant's assertions about this information;
(b) The Appeals Board may refer certain appeals to another PBGC department or to Appeals Board staff to provide a response to the appellant. The response from another PBGC department or Board staff shall be in writing and address the matters raised in the appeal. The response may be in the form of an explanation or corrected benefit determination. In either case, the appellant will have 45 calendar-days from the date of the response to file a written request for review by the Appeals Board. If a written request for review is not filed with the Appeals Board within the 45-calendar-day period the determination shall become effective pursuant to § 4003.22(a).
(1) Appeals that may be referred to another PBGC department or to the Board staff include those that—
(i) Request an explanation of the initial determination being appealed;
(ii) Dispute specific data used in the determination, such as date of hire, date of retirement, date of termination of employment, length of service, compensation, marital status and form of benefit elected; or
(iii) Request an explanation of the limits on benefits payable by PBGC under Part 4022, Subpart B, such as the maximum guaranteeable benefit and phase-in of the PBGC guarantee.
(2) An explanation or corrected benefit determination issued under this subsection is not considered a decision of the Appeals Board. If an appellant aggrieved by PBGC's initial determination is issued an explanation or corrected benefit determination under this section, the appellant has not exhausted his or her administrative remedies until the appellant has filed a timely request with the Appeals Board for review and the Appeals Board has issued a decision granting or denying the relief requested. See § 4003.7 of this part.
Issued on the date set forth above pursuant to a resolution of the Board of Directors authorizing its Chairman to issue this final rule.
Coast Guard, DHS.
Temporary final rule.
The U.S. Coast Guard is establishing a temporary security zone in the Thea Foss Waterway, Tacoma, Washington during a reception at the Museum of Glass. This security zone is necessary to ensure the safety of dignitaries while attending the reception. Entry into, transit through, mooring, or anchoring within this zone is prohibited unless authorized by the Captain of the Port, Puget Sound or his designated representatives.
This rule is effective from 6 p.m. (PDT) to 11:59 p.m. (PDT) on July 3, 2008.
Documents indicated in this preamble as being available in the docket are part of docket USCG-2008-0539 and are available for inspection or copying at USCG Sector Seattle, Waterways Management Division between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays.
If you have questions concerning this rule, call Ensign Heidi A. Bevis, Waterways Management Division, U.S. Coast Guard Sector Seattle, at 206-217-6147.
We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. Publishing
Under 5 U.S.C. 553(d)(3), the U.S. Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The U.S. Coast Guard is establishing a temporary security zone in the Thea Foss Waterway, Tacoma, Washington to provide for the safety of visiting dignitaries while attending a reception at the Museum of Glass. The reception is one of many events planned in the Puget Sound during the annual ASTA Pacific Tall Ships Challenge and the Tacoma Tall Ships 2008 Event. The U.S. Coast Guard is establishing this zone to ensure that no unauthorized vessels or persons enter into the security zone. The security zone is needed to protect the dignitaries from any waterborne threats.
This rule will control the movement of all vessels and persons in a security zone that includes all waters within a line connecting the following points 47°14.80 N, 122°26.00 W; 47°14.80 N, 122°25.97 W; 47°14.60 N, 122°25.92 W; and 47°14.6 N, 122°25.95 W. The security zone does not extend on land.
The U.S. Coast Guard through this action intends to promote the security of personnel while attending the reception at the Museum of Glass, which is located on the waterfront of the Thea Foss Waterway, Tacoma, WA. Entry into this zone by all vessels or persons will be prohibited unless authorized by the Captain of the Port. This security zone will be enforced by U.S. Coast Guard personnel. The Captain of the Port may be assisted by other federal, state, or local agencies as needed.
This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. This rule will be in effect for less than 6 hours and vessel traffic can pass safely around the security zone.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The U.S. Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
This security zone will not have a significant economic impact on a substantial number of small entities for the following reasons. This rule will be in effect for less than 6 hours and vessel traffic can pass safely around the security zone. Before the effective period, we will issue maritime advisories widely available throughout the Puget Sound.
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Commandant Instruction M16475.lD and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Under figure 2-1, paragraph (34)(g), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule because it concerns an emergency situation of less than 1 week in duration.
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
33 U.S.C. 1226, 1231; 46 U.S.C. Chapters 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1
(a)
(b)
(c)
Environmental Protection Agency (EPA).
Direct final rule.
EPA is taking direct final action to approve revisions to the South Coast Air Quality Management District (SCAQMD) portion of the California State Implementation Plan (SIP). These revisions concern oxides of nitrogen (NO
This rule is effective on September 2, 2008 without further notice, unless EPA receives adverse comments by August 4, 2008. If we receive such comments, we will publish a timely withdrawal in the
Submit comments, identified by docket number EPA-R09-OAR-2008-0337, by one of the following methods:
1.
2.
3.
Lily Wong, EPA Region IX, (415) 947-4114,
Throughout this document, “we,” “us” and “our” refer to EPA.
Table 1 lists the rules we are approving with the dates that they were adopted by the SCAQMD and submitted by the California Air Resources Board (CARB).
On April 17, 2008, this rule submittal was found to meet the completeness criteria in 40 CFR Part 51 Appendix V, which must be met before formal EPA review.
Table 2 lists the previous versions of these rules approved into the SIP.
NO
The primary purposes of the amendments to the RECLAIM rules were to provide some relief on reporting and to improve clarity and enforceability of the rules. The amendments to Rule 2004 relieve sources from submitting quarterly certification reports when there are zero emissions. The amendments to Rule 2007 clarify the reporting requirements for certain contractual agreements called forward contracts and address enforceability of the program to parties who participate in trading but do not live in California. The amendments to Rule 2010 clarify that if a facility has excess emissions violations and changes operators, the old and new operators are both liable for past violations. The amendments include a mechanism to assign liability. EPA's technical support document (TSD) has more information about these rules.
Generally, SIP rules must be enforceable (see section 110(a) of the Act), must require Reasonably Available Control Technology (RACT) for each category of sources covered by a Control Techniques Guidelines (CTG) document as well as each major source in nonattainment areas (see sections 182(a)(2) and 182(f)), and must not relax existing requirements (see sections 110(l) and 193). The SCAQMD regulates an ozone nonattainment area (see 40 CFR part 81), so Regulation XX (Rules 2000 through 2020) must fulfill RACT.
Guidance and policy documents that we use to help evaluate enforceability and RACT requirements consistently include the following:
1. “State Implementation Plans; Nitrogen Oxides Supplement to the General Preamble; Clean Air Act Amendments of 1990 Implementation of Title I; Proposed Rule,” (the NO
2. “Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations,” EPA, May 25, 1988 (the Bluebook).
3. “Guidance Document for Correcting Common VOC & Other Rule Deficiencies,” EPA Region 9, August 21, 2001 (the Little Bluebook).
4. “Improving Air Quality with Economic Incentive Programs,” EPA-452/R01-001 (the EIP guidance), January 2001.
We believe these rules are consistent with the relevant policy and guidance regarding enforceability, SIP relaxations, and economic incentive programs. The TSD has more information on our evaluation.
As authorized in section 110(k)(3) of the Act, EPA is fully approving the submitted rules because we believe they fulfill all relevant requirements. We do not think anyone will object to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this
Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• 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);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 2, 2008. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements.
42 U.S.C. 7401
(c) * * *
(354) New and amended regulations for the following APCDs were submitted on March 7, 2008, by the Governor's designee.
(i) Incorporation by reference.
(A) South Coast Air Quality Management District.
(
(
(
Environmental Protection Agency (EPA).
Final rule.
EPA is approving certain submittals by the State of Nevada of revisions to the Nevada state implementation plan that are intended to provide for attainment and maintenance of the carbon monoxide national ambient air quality standard in the Truckee Meadows nonattainment area located within Washoe County, Nevada. These revisions include a local wintertime oxygenated gasoline rule, a “basic” vehicle inspection and maintenance program (including a performance standard evaluation), current statutory provisions and State rules governing mobile sources, a maintenance plan and related motor vehicle emissions budgets. EPA is also approving Nevada's request to redesignate the Truckee Meadows carbon monoxide nonattainment area to attainment. EPA is deferring action on the proposal to rescind a provision previously approved in the plan and related to inspection and maintenance of vehicles operated on Federal installations. EPA is taking these actions pursuant to those provisions of the
EPA has established docket number EPA-R09-OAR-2007-0561 for this action. The index to the docket is available electronically at
Eleanor Kaplan, EPA Region IX, (415) 947-4147,
Throughout this document, the terms “we,” “us,” and “our” refer to EPA. This supplementary information is organized as follows:
On January 7, 2008 (73 FR 1175), under section 110(k)(3) of the Clean Air Act, as amended in 1990 (CAA or “Act”), EPA proposed to approve certain submittals of revisions to the Nevada state implementation plan (SIP) by the Nevada Division of Environmental Protection (NDEP). These revisions are intended to provide for attainment and maintenance of the carbon monoxide (CO) national ambient air quality standards (NAAQS) in the Truckee Meadows nonattainment area located within Washoe County, Nevada. The specific SIP revision submittals that we proposed to approve are listed in the following table:
Specifically, we proposed to approve NDEP's SIP revision submittal dated November 4, 2005 of the wintertime oxygenated gasoline rule as amended on September 22, 2005 by the Washoe County District Board of Health (“District”) and codified as District Regulations Governing Air Quality Management section 040.095 (“District rule 040.095”). In our proposed rule, we found that District rule 040.095 fulfills the requirements of section 211(m) of the Act and applicable EPA regulations.
We also proposed to approve the SIP revision submittal dated June 3, 1994 of the
In connection with our proposed approval of the State's Basic I/M SIP, as supplemented and amended in submittals dated November 2, 2006 and May 11, 2007, we proposed no action on submitted rule Nevada Administrative Code (NAC) subsection 445B.595(2) (“NAC 445B.595(2)”), which relates to State I/M requirements for motor vehicles operated on Federal
In our January 7, 2008 proposed rule, we proposed to approve NDEP's SIP revision submittal (dated November 4, 2005) of the
Lastly, based on our evaluation of the various SIP requirements and submittals discussed above, we concluded that, upon our final approval of the SIP submittals evaluated in the proposed rule, the State will have met all section 110 and part D requirements that apply to the Truckee Meadows moderate CO nonattainment area and thereby satisfied the criteria for redesignation under CAA section 107(d)(3)(E) and proposed to approve the State's request (dated November 4, 2005) for redesignation of Truckee Meadows to attainment accordingly.
Please see the proposed rule for additional information on the various SIP revision submittals and the redesignation request and on our corresponding evaluation and rationale for proposed action.
EPA's January 7, 2008 proposed rule provided a 30-day public comment period. Comments were received from the Air Quality Management Division (AQMD) of the Washoe County District Health Department, the Nevada Division of Environmental Protection (NDEP), and the Western States Petroleum Association (WSPA). Responses to the comments from each entity are provided below.
For the reasons set forth in the proposed rule (see 73 FR 1175, at 1178-1179), we find that the District's wintertime gasoline oxygen content requirements (i.e., District Rule 040.095) meet applicable CAA criteria, including public notice and hearing prior to adoption and submittal, as well as the substantive criteria of section 211(m) and meet applicable EPA regulations. WSPA does not object to our finding that the District's requirements meet applicable CAA criteria and applicable EPA regulations, but rather WSPA contends that the rule is no longer needed for maintenance of the CO NAAQS in Truckee Meadows. However, for the reasons set forth above, we do not have the authority to disapprove the District's choice (endorsed by the applicable State agency, NDEP) to include the wintertime oxygenated gasoline requirement as part of their CO maintenance strategy on such grounds. If NDEP and the District choose to revise the SIP to suspend implementation of the wintertime oxygenated gasoline requirement and to adopt the requirement as a contingency measure, they may do so with a demonstration that the area would continue to maintain the CO NAAQS without the benefit of the related emissions reductions, subject to compliance with CAA procedural requirements and subject to EPA approval.
As authorized under section 110(k) of the Act, and for the reasons summarized in section I of this document and, in greater detail, in our proposed rule, EPA is approving certain submittals by NDEP of revisions to the Nevada SIP that are required to provide for attainment of the CO NAAQS in the Truckee Meadows “moderate” CO nonattainment area and is approving a maintenance plan under section 175A of the Act. EPA is also approving, under section 107(d)(3) of the Act, NDEP's request to redesignate Truckee Meadows to attainment for the CO NAAQS. Our specific approvals are as follows:
First, we are approving the local oxygenated gasoline regulation, District Rule 040.095, as amended on September 22, 2005) as fulfilling the requirements of section 211(m) of the CAA.
Second, we are approving the State of Nevada's SIP revisions containing the “basic” vehicle I/M program for Truckee Meadows because we find that the program meets all applicable requirements under CAA section 187(a)(4) and EPA regulations. Specifically, we are approving three I/M-related SIP revisions submitted by NDEP:
(i)
(ii) Basic I/M Performance Standard Evaluation for motor vehicles in the Truckee Meadows planning area, submitted on November 2, 2006; and
(iii) Current Nevada mobile source statutory and regulatory provisions and rules, including those related to I/M, and updated exhaust gas analyzer (NV2000) specifications, submitted by NDEP on May 11, 2007.
• Nevada Revised Statutes (2005), chapter 365: section 365.060; chapter 366, section 366.060; chapter 445B, sections 445B.210, 445B.700-845 (excluding NRS 445B.776, 445B.777, and 445B.778); chapter 481, sections 481.019-481.087; chapter 482, sections 482.029, 482.155-482.290, 482.385, 482.461, and 482.565; and chapter 484, sections 484.101, 484.644 and 484.6441;
• Nevada Administrative Code, chapter 445B (January 2007 revision by the Legislative Counsel Bureau), sections 445B.400 to 445B.735, excluding subsection (2) of section 445B.595.
Third, we are approving the
In connection with our approval of the Truckee Meadows CO Maintenance Plan, we find the following plan elements to be acceptable:
• Baseline (2002) emissions inventory and future year (2010 and 2016) inventory projections;
• Commitment to continue operating an appropriate ambient CO monitoring network;
• Commitment to verify continued attainment through ambient monitoring and the preparation and submittal of periodic inventory updates and surveys of residential woodburning;
• Contingency provisions that establish a two-tier approach with specific triggering events and regulatory responses: The first involving a lowering of the stage 1 (alert) episode level (tier 1) by the next CO season and the second involving a recommendation and timetable for action by the Washoe County District Board of Health or the State Environmental Commission to tighten certain requirements, potentially including a higher wintertime gasoline oxygen content or higher waiver amounts in the State's vehicle I/M program, to promptly correct any violation of the CO NAAQS after redesignation;
• Commitment to prepare and submit a subsequent CO maintenance plan for
• CO motor vehicle emissions budgets (in terms of pounds per typical CO season day) of 330,678 pounds per typical CO season day in year 2010 and 321,319 pounds per typical CO season day in year 2016.
Fourth, under section 107(d)(3), we are approving NDEP's request (dated November 4, 2005) to redesignate the Truckee Meadows CO nonattainment area to attainment. In so doing, we find that:
• The Truckee Meadows nonattainment area has attained the CO NAAQS;
• EPA has fully approved the applicable SIP for this area under section 110(k) of the CAA;
• The improvement in ambient CO conditions in Truckee Meadows is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable SIP and applicable Federal air pollutant control regulations and other permanent and enforceable reductions;
• The State has met all requirements applicable to Truckee Meadows under section 110 and part D (of title I) of the CAA;
• As described above, we are approving the Truckee Meadows CO Maintenance Plan as meeting the requirements of CAA section 175A.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements. 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
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 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves state law 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 is not economically significant.
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
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 2, 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 for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements.
Environmental protection, Air pollution control, National parks, Wilderness areas.
42 U.S.C. 7401
(c) * * *
(68) The following plan revision was submitted on June 3, 1994 by the Governor's designee.
(i) Incorporation by reference.
(A) Nevada Division of Environmental Protection.
(
(ii) Additional material.
(A) Nevada Division of Environmental Protection.
(
(69) The following plan revision was submitted on November 4, 2005 by the Governor's designee.
(i) Incorporation by reference.
(A) Washoe County District Health Department.
(
(
(
(70) The following plan revision was submitted on November 2, 2006 by the Governor's designee.
(i) Incorporation by reference.
(A) Washoe County District Health Department.
(
(
(ii) Additional material.
(A) Washoe County District Health Department.
(
(71) The following plan revision was submitted on May 11, 2007 by the Governor's designee.
(i) Incorporation by reference.
(A) Nevada Division of Environmental Protection.
(
(
(ii) Additional material.
(A) Nevada Division of Environmental Protection.
(
42 U.S.C. 7401
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 BFEs and modified BFEs for each community. This date may be obtained by contacting the office where the maps are available for inspection as indicated on the table below.
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 Assistant Administrator of the Mitigation Directorate 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
Federal Communications Commission.
Final rule.
In response to a
Effective July 28, 2008.
Secretary, Federal Communications Commission, 445 Twelfth Street, SW., Washington, DC 20554.
R. Barthen Gorman, Media Bureau, (202) 418-2180.
This is a synopsis of the Commission's
Radio, Radio broadcasting.
47 U.S.C. 154, 303, 334, 336.
Federal Communications Commission.
Final rule.
The Audio Division, at the request of Katherine Pyeatt, allots FM Channel 256C3 at Harper, Texas, as that community's first local service. Channel 259C3 can be allotted at Harper, Texas, in compliance with the Commission's minimum distance separation requirements with a site restriction of 12.9 km (8.0 miles) east of Harper at the following reference coordinates: 30-16-20 North Latitude and 99-07-25 West Longitude. Concurrence in the allotment by the Government of Mexico is required because the proposed allotment is located within 320 kilometers (199 miles) of the U.S.-Mexican border. Although Mexican concurrence has been requested, notification has not been received. If a construction permit for Channel 228C3 at Paulden, Arizona, is granted prior to receipt of formal concurrence by the Mexican government, the authorization will include the following condition: “Operation with the facilities specified herein for Paulden, Arizona, is subject to modification, suspension, or termination without right to hearing, if found by the Commission to be necessary in order to conform to the Mexico-United States FM Broadcast Agreement, or if specifically objected to by the Government of Mexico.” In addition, the allotment of Channel 256C3 at Harper, Texas, is subject to the final outcome of MM Docket No. 00-148 and MB Docket No. 05-112, and the Harper channel will not be available for auction until the dismissals of mutually-exclusive counterproposals in those proceedings are final.
Effective July 28, 2008.
Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554.
Deborah Dupont, Media Bureau, (202) 418-2180.
This is a synopsis of the Commission's
Radio, Radio broadcasting.
47 U.S.C. 154, 303, 334, 336.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
NMFS issues this final rule to implement Amendment 30A to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP) prepared by the Gulf of Mexico Fishery Management Council (Council). This final rule establishes accountability measures for the commercial and recreational fisheries for greater amberjack and gray triggerfish, establishes commercial quotas for greater amberjack and gray triggerfish, establishes a recreational quota for greater amberjack and recreational catch limits for gray triggerfish, increases the commercial and recreational minimum size limit for gray triggerfish, increases the recreational minimum size limit for greater amberjack, and reduces the greater amberjack bag limit to zero for captain and crew of a vessel operating as a charter vessel or headboat. In addition, Amendment 30A establishes management targets and thresholds for gray triggerfish consistent with the requirements of the Sustainable Fisheries Act. This final rule is intended to end overfishing of greater amberjack and gray triggerfish and to rebuild these stocks to sustainable levels.
This final rule is effective August 4, 2008.
Copies of the Final Supplemental Environmental Impact Statement (FSEIS), the Final Regulatory Flexibility Analysis (FRFA), and the Record of Decision (ROD) may be obtained from Peter Hood, NMFS, Southeast Regional Office, 263 13th Avenue South, St. Petersburg, FL 33701; telephone 727-824-5305; fax 727-824-5308; e-mail peter.hood@noaa.gov.
Peter Hood, telephone 727-824-5305; fax 727-824-5308; e-mail
The reef fish fishery of the Gulf of Mexico is
On March 31, 2008, NMFS published a notice of availability of Amendment 30A and requested public comments (73 FR 16829). On April 8, 2008, NMFS published the proposed rule to implement Amendment 30A and requested public comments (73 FR 19040). NMFS approved Amendment 30A on June 20, 2008. The rationale for the measures in Amendment 30A is provided in the amendment and in the preamble to the proposed rule and is not repeated here.
NMFS received one public comment on Amendment 30A and the proposed rule. The following is a summary of the comment and NMFS' response.
The Administrator, Southeast Region, NMFS, determined that Amendment 30A is necessary for the conservation and management of the greater amberjack and gray triggerfish fisheries in the Gulf of Mexico and that it is consistent with the Magnuson-Stevens Act, and other applicable laws.
This final rule has been determined to be not significant for purposes of Executive Order 12866.
NMFS prepared an SEIS for this amendment. A notice of availability for the draft SEIS was published on December 14, 2007 (72 FR 71137). A notice of availability for the FSEIS was published on April 18, 2008 (73 FR 21124).
An FRFA was prepared. The FRFA incorporates the initial regulatory flexibility analysis, a summary of the significant economic issues raised by public comments, NMFS responses to those comments, and a summary of the analyses completed to support the action. A copy of the full analysis is available from NMFS (see
This final rule will directly affect vessels that operate in the Gulf of Mexico commercial reef fish fishery and for-hire reef fish fisheries, and reef fish dealers or processors. The Small Business Administration (SBA) has established size criteria for all major industry sectors in the U.S. including fish harvesters, for-hire operations, fish processors, and fish dealers. A business involved in fish harvesting is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $4.0 million (NAICS code 114111, finfish fishing) for all affiliated operations worldwide. For for-hire operations, the other qualifiers apply, and the annual receipts threshold is $6.5 million (NAICS code 713990, recreational industries). For seafood processors and dealers, rather than a receipts threshold, the SBA uses an employee threshold of 500 or fewer persons on a full-time, part-time, temporary, or other basis, at all affiliated operations for a seafood processor and 100 or fewer persons for a seafood dealer.
Due to incomplete 2006 and 2007 data at the time the assessments were conducted, 2005 fishing data were used to evaluate the expected economic impacts of the final actions. A commercial reef fish permit is required to operate in the Gulf of Mexico commercial reef fish fishery, and a moratorium on the issuance of new permits has been in effect since 1992. On July 1, 2005, 1,209 commercial reef fish permits were either active (i.e., not expired--1,118 permits) or expired but eligible for renewal (91 permits), and this is considered to comprise the universe of commercial harvest operations in the fishery. However, 1,285 vessels reported reef fish landings in 2005, including vessels that transferred permits during the year. While all commercial reef fish permitted vessels can harvest greater amberjack or gray triggerfish, only 519 vessels landed greater amberjack, and 477 vessels landed gray triggerfish in 2005.
The annual average gross revenue and net income per vessel for vessels in the greater amberjack or gray triggerfish fishery is unknown. For all vessels in the commercial reef fish fishery, the average annual gross and net revenue, respectively, for vertical line vessels are estimated to range from approximately $24,100 (2005 dollars; $6,800 net revenue) to $110,100 ($28,500 net revenue), while the values for bottom longline vessels are approximately $87,600 (2005 dollars; $15,000 net revenue) to $117,000 ($25,500 net revenue). Some fleet behavior is known to exist in the commercial reef fish fishery, but the extent of such is unknown, though the maximum number of permits reported to be owned by the same entity is six. Additional permits in this and other fisheries (and associated revenues) may be linked through affiliation rules, but these links cannot be made using existing data. Nevertheless, based on the average annual gross revenue information for all commercial reef fish vessels, NMFS determines, for the purpose of this analysis, that all commercial reef fish entities potentially affected by this final rule are small business entities.
An estimated 1,692 vessels are permitted to operate in the Gulf of Mexico reef fish for-hire fishery. It is unknown how many of these vessels operate as headboats or charterboats, a distinction which is based on pricing behavior, and individual vessels may operate as both types of operations at different times. However, 76 vessels participate in the Federal headboat logbook program. Several entities own multiple for-hire permits, with at least one entity owning as many as 12 permits.
The average charterboat is estimated to generate approximately $77,000 (2005 dollars) in annual revenues, while the comparable figure for an average headboat is approximately $404,000 (2005 dollars). Based on the average annual gross revenue information for these vessels, NMFS determines, for the
An estimated 227 dealers are permitted to buy and sell Gulf of Mexico reef fish species. Based on vessel logbook records for 2005, 192 of these dealers actively bought and sold greater amberjack, while 177 bought and sold gray triggerfish. All reef fish processors would be included in this total since a processor must be a dealer. Dealers often hold multiple types of permits and operate in both Federal and state fisheries. It is unknown what percentage of any of the average dealer's business comes from either greater amberjack or gray triggerfish.
Average employment information per reef fish dealer is unknown. Although dealers and processors are not synonymous entities, total employment for reef fish processors in the Southeast is estimated at approximately 700 individuals, both part- and full-time. While all processors must be dealers, a dealer need not be a processor. Further, processing is a much more labor-intensive exercise than dealing. Therefore, given the employment estimate for the processing sector and the total number of dealers operating in the reef fish fishery, NMFS determines that the average number of employees per dealer and processor does not surpass the SBA employment benchmark and, NMFS determines, for the purpose of this analysis, that all dealers potentially affected by this rule are small entities.
This final action will reduce greater amberjack harvests by 26 percent in the recreational sector and 43 percent in the commercial sector, and gray triggerfish harvests by 60 percent and 61 percent for the recreational and commercial sectors, respectively. Although the expected harvest reductions are large, the subsequent impact on vessel profits will depend on the importance of these species to vessel revenues. In the commercial reef fish fishery, only 120 vessels landed more than 1,000 lb (454 kg) of greater amberjack in 2005 and only 31 vessels landed more than 10,000 lb (4,536 kg) of greater amberjack. For gray triggerfish, 44 vessels landed more than 1,000 lb (454 kg), and no vessels landed more than 10,000 lb (4,536 kg). Thus, 399 vessels, or approximately 77 percent of the fleet, landed less than 1,000 lb (454 kg) of greater amberjack, while 433 vessels, or approximately 91 percent of the fleet landed less than 1,000 lb (454 kg) of gray triggerfish. This suggests that relatively few vessels in the commercial reef fish fishery are dependent on greater amberjack, and even fewer would be expected to be dependent on gray triggerfish.
The final actions for greater amberjack are projected to result in a reduction of approximately $1.3 million in net revenues to commercial reef fish vessels over the 2008-2012 rebuilding period, or approximately $260,000 per year. This annual loss equates to an average of approximately $500 if distributed across all vessels landing greater amberjack (519) or $2,200 per vessel if distributed across just vessels landing greater than 1,000 lb (454 kg) (120). The final actions for gray triggerfish are projected to result in a reduction of approximately $716,000 in net income during the 2008-2012 rebuilding period, or $145,200 per year. This annual loss equates to approximately $300 per vessel if distributed among all vessels landing gray triggerfish (477) or $3,300 if distributed across only those vessels landing more than 1,000 lb (454 kg) of gray triggerfish (44).
While for-hire vessels do not derive revenues from greater amberjack or gray triggerfish sales, most vessels target these species at some time during the year. Assuming angler demand declines in response to the restrictions for these species, revenue and profit reductions can be projected. As a result of the final actions for greater amberjack, the for-hire sector is projected to experience a loss in net income of approximately $763,000 per year, while the final actions for gray triggerfish are projected to result in a loss of approximately $514,000 per year. If these losses were distributed equally across all vessels in the fishery, the resulting loss per vessel would be less than $800 per vessel. Some vessels are likely more dependent on these species than other vessels due to where they fish and client preferences and, thus, may be more severely impacted by the management measures.
Three alternatives, including the status quo, were considered for the action to modify the greater amberjack rebuilding plan. The final action, which is the status quo, will maintain the current stepped rebuilding plan, but will update the plan with data from the 2006 stock assessment. The first alternative to the final action would use the same yield projections as the final action, but would increase the TAC annually instead of stepped increases. The second alternative to the final action would also increase the TAC annually but would limit the total harvest over the 5 years of the plan to equal that under the final action. These alternatives were not selected for the final action because the Council believed the step increases will allow greater stability to the fishery while still allowing harvest to progressively increase.
Three alternatives, including the status quo, were considered for the action to specify accountability measures for greater amberjack. The final action will implement corrective action based on single-year fishery harvest totals. Because the greater amberjack fishery is nearer the end of the rebuilding plan, the single-year approach provides the greatest probability of ending overfishing and rebuilding the stock. The first alternative to the final action, the status quo, would not specify accountability measures and would not satisfy the requirements of the Magnuson-Stevens Act and was therefore rejected. The second alternative to the final action would trigger accountability measures on the single year projections for the 2008 fishing season, but would trigger accountability measures through multi-year analyses thereafter. This alternative was not selected for the final action because multi-year assessments and corrective actions would be expected to delay stock rebuilding, resulting in slower realization of benefits from a rebuilt stock.
Five alternatives, including the status quo, were considered for the action to establish management measures for the greater amberjack recreational fishery. The first alternative to the final suite of management measures, the status quo, would not alter current management measures and would not result in sufficient harvest reduction to satisfy the rebuilding plan. This alternative would not, therefore, achieve the Council's objective. The second alternative to the final action would impose a higher size limit and, thus, was rejected because it would result in more adverse economic impacts. The third alternative to the final action would impose a 2-month seasonal closure. Since a closure would result in trip cancellations, this alternative would result in more adverse economic impacts than the final action which will simply restrict the catch but otherwise allow the fishery to remain open. The last alternative to the final action would impose both a seasonal closure and a higher size limit, and, thus, was rejected because it would result in even more adverse economic impacts.
Five alternatives, including the status quo, were considered for the action to establish management measures for the greater amberjack commercial fishery. The first alternative to the final suite of management measures, the status quo, would not alter current management measures and would not result in
Three alternatives, including sub-options and the status quo, were considered for the action to define stock benchmarks for gray triggerfish. The first alternative to the final action, the status quo, would maintain current definitions of optimum yield and maximum fishing mortality threshold, but would not set an overfished threshold (minimum stock size threshold (MSST)), which is a required component of a fishery management plan. This alternative would not, therefore, achieve the Council's objective and thus was rejected. The second alternative to the final action would establish a less conservative MSST, which would increase the risk of not maintaining a healthy resource relative to the final action. For this reason, this alternative was rejected.
Three alternatives, including the status quo, were considered for the action to establish a gray triggerfish rebuilding plan. The first alternative to the final rebuilding plan, the status quo, would not establish a gray triggerfish rebuilding plan and thus it was rejected because it would not achieve the Council's objective. The second alternative to the final rebuilding plan would establish a stepped plan rather than the constant fishing mortality rebuilding plan under the final action. This alternative is projected to result in greater adverse short-term economic impacts than the final action, and thus was rejected.
Five alternatives were considered for the action to specify accountability measures for gray triggerfish. The final action will impose accountability measures for the recreational sector, with the period of evaluation increasing from a 1-year to a 2-year to a 3-year running average of landings as the rebuilding plan progresses. For the commercial sector, the final action will evaluate landings on an annual basis. The first alternative to the final gray triggerfish accountability measures, the status quo, would not specify accountability measures and thus it was rejected because it would not satisfy the requirements of the Magnuson-Stevens Act. The second and third alternatives to the final accountability measures would require corrective action only if the combined harvests of both the commercial and recreational sectors exceed the overall target levels, differing by the type of corrective action, allowing either a range of management harvest reduction tools, such as trip, bag, season, or minimum size adjustments, or limiting the corrective action to season length (closure). These alternatives were not chosen for the final action because they would not preserve the balance of sector allocations and would not achieve the enhanced stock recovery benefits of the final action. The fourth alternative to the final accountability measures would impose the same sector-specific and period-of-assessment requirements of the final action, but would result in a delay of corrective action because such action could only be imposed via temporary rulemaking as opposed to simple notice under the final action. This delay would be expected to increase the severity of corrective actions, thereby imposing greater adverse economic impacts relative to the final action.
Two alternatives, including the status quo, were considered for the action on regional gray triggerfish management. The final action is the status quo, which will not establish different gray triggerfish management measures for the eastern and western Gulf. The only other alternative to the final action would divide the management area for gray triggerfish into two regions, namely, east and west of the Mississippi River, and limit all gray triggerfish restrictive measures to the region east of the Mississippi River. This alternative would be inconsistent with the identification of the species as a single stock throughout the Gulf of Mexico and would not rebuild the resource uniformly throughout its range and, thus, would not achieve the Council's objective.
Four alternatives, including the status quo, were considered for the action to establish management measures for the recreational gray triggerfish fishery. The first alternative to the final suite of management measures, the status quo, would not alter current management measures and would not result in sufficient harvest reduction to satisfy the rebuilding plan. For these reasons, this alternative was rejected. The second alternative to the final action would establish a bag limit and increase the size limit for gray triggerfish while the third alternative to the final action would impose an even lower bag limit but retain the size limit for gray triggerfish. These two additional alternatives would not achieve the necessary harvest reductions for the recreational sector and would not, therefore, achieve the Council's objective. Thus these alternatives were rejected.
Six alternatives, including the status quo, were considered for the action to establish management measures for the commercial gray triggerfish fishery. The first alternative to the final suite of management measures, the status quo, would not alter current management measures and would not result in sufficient harvest reduction to satisfy the rebuilding plan. Thus this alternative was rejected. The other four alternatives to the final action would: (1) Establish a very low trip limit; (2) increase the size limit; (3) increase the size limit and impose a trip limit; and, (4) slightly increase the size limit and impose a lower trip limit. These four other alternatives are projected to result in greater harvest reductions than are required to satisfy the rebuilding plan. Also, these alternatives were not selected for the final action because specifying a quota in addition to the minimum size limit, as will occur under the final action, was expected to provide greater control over total harvest and better ensure that rebuilding plan goals are realized.
Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping requirements, Virgin Islands.
16 U.S.C. 1801
(d) * * *
(3) * * *
(i) Gray triggerfish -14 inches (35.6 cm), fork length.
(iv) Greater amberjack -30 inches (76 cm), fork length, for a fish taken by a person subject to the bag limit specified in § 622.39(b)(1)(i) and 36 inches (91.4 cm), fork length, for a fish taken by a person not subject to the bag limit.
(b) * * *
(1) * * *
(i) Greater amberjack—1. However, no greater amberjack may be retained by the captain or crew of a vessel operating as a charter vessel or headboat. The bag limit for such captain and crew is zero.
(a) * * *
(1) * * *
(v) Greater amberjack—503,000 lb (228,157 kg), round weight.
(vi) Gray triggerfish—(A)
(B) For fishing year 2009 -93,000 lb (42,184 kg), round weight.
(C)
(2)
(i)
(ii)
(a) * * *
(1) * * *
(iii)
(a)
(ii)
(2)
(ii)
(b) [Reserved]
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
This final rule amends the regulations governing the renewal of Atlantic tunas longline limited access permits (LAPs), and amends the workshop attendance requirements for businesses issued Atlantic shark dealer permits. Specifically, these regulatory changes allow for the renewal of Atlantic tunas longline LAPs that have been expired for more than one year by the most recent permit holder of record, provided that the applicant has been issued a swordfish LAP (other than a handgear LAP) and a shark LAP, and all other requirements for permit renewal are met. Also, this rule amends the Atlantic Shark Identification Workshop requirements by: specifying that a workshop certificate be submitted upon permit renewal, and later possessed and available for inspection, for each place of business listed on the dealer permit which first receives Atlantic sharks by way of purchase, barter, or trade (rather than for each location listed on their dealer permit); and requiring that extensions of a dealer's business, such as trucks or other conveyances, must possess a copy of a valid dealer or proxy certificate issued to a place of business listed on the dealer permit.
This final rule is effective August 4, 2008.
Copies of the final Regulatory Impact Review/Final Regulatory Flexibility Analysis (Final RIR/FRFA); and, related documents including a 2007 Final Environmental Assessment (EA) and final rule (72 FR 31688, June 7, 2007) implementing revised vessel upgrading regulations for vessels issued Atlantic tunas longline, swordfish, and shark LAPs; and the 2006 Final Consolidated Atlantic Highly Migratory Species Fishery Management Plan (Consolidated HMS FMP) and its final rule (71 FR 58058, October 2, 2006) implementing Atlantic Shark Identification Workshops are available from the HMS Management Division website at:
Richard A. Pearson, by phone: 727-824-5399; by fax: 727-824-5398.
Atlantic tuna and swordfish fisheries are managed under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) and the Atlantic Tunas Convention Act (ATCA). Atlantic sharks are managed under the authority of the Magnuson-Stevens Act. The Consolidated HMS FMP is implemented by regulations at 50 CFR part 635.
LAPs were first implemented in HMS fisheries in 1999 primarily to provide a limit on harvesting capacity in Atlantic swordfish and shark fisheries to reduce the likelihood of exceeding the available quota for these species, and to facilitate other fishery management measures implemented at the time. The Atlantic tunas longline LAP was also established at that time because of the potential for encountering swordfish and sharks when fishing with pelagic longline (PLL) gear for Atlantic tunas, and vice-versa. In recognition of the interrelationship between these longline fisheries, the Atlantic tunas longline LAP complemented the management measures that had been developed for Atlantic swordfish and shark.
Since 1999, vessel owners have been required to simultaneously possess three permits (Atlantic tunas longline; swordfish directed or incidental; and, shark directed or incidental) in order to retain Atlantic tunas caught with longline gear, or to retain swordfish caught with any gear other than handgear. An Atlantic tunas longline LAP is only considered valid, or useable, if the vessel has also been issued both a shark LAP and a swordfish LAP (other than handgear). Similarly, a swordfish LAP (other than handgear) is only considered valid, or useable, when a vessel has also been issued both a shark LAP and an Atlantic tunas longline LAP. The current regulations for each of these permits specify that only persons holding non-expired LAPs in the preceding year are eligible to renew those permits.
In 2007, NMFS identified approximately 40 vessel owners that had allowed their Atlantic tunas longline LAPs to lapse for more than one year, thus making them ineligible to renew that permit. In most cases, the vessel owners had maintained their accompanying swordfish and shark LAPs through timely renewal. However, because they are ineligible to renew their Atlantic tunas longline LAP, they are not currently allowed to fish for tunas with PLL gear or to retain swordfish, even though they have been issued a swordfish permit. Currently, the number of available Atlantic tunas longline LAPs is insufficient to match the number of available swordfish and shark incidental or directed permits, thus rendering many swordfish permits invalid, or unusable, because all three permits are required to retain swordfish (with any gear other than handgear).
The scope of this problem was not fully recognized until September 2007, when NMFS was determining which vessels qualified for revised vessel upgrading regulations (72 FR 31688, June 7, 2007), depending upon whether the vessel was concurrently issued a directed or incidental swordfish LAP, a directed or incidental shark LAP, and an Atlantic tunas longline LAP. At that time, NMFS learned that approximately 40 vessel owners had inadvertently failed to renew their Atlantic tunas longline LAP because of operational constraints associated with the Atlantic tunas longline permit issuance system, or because of significant differences in the renewal procedures for swordfish/shark LAPs and the Atlantic tunas longline LAP.
There was confusion within the fishing industry regarding the renewal, issuance, eligibility, and applicability of the one-year renewal requirement for the Atlantic tunas longline LAP because the operational procedures for renewing an Atlantic tunas longline LAP were substantially different than for swordfish and shark LAPs. The Atlantic tunas longline permit renewal system was originally developed as a self-service, web-based electronic system that was administered by a non-NMFS contractor for the primary purpose of issuing open access permits. In contrast, swordfish and shark LAPs are issued and renewed by submitting paper applications to NMFS' Southeast Region permits office. A significant difference between the two permit systems is that the Atlantic tunas longline LAP cannot be held in “no vessel” status, meaning that the permit cannot be renewed without specifying a vessel. An Atlantic tunas longline permit holder must either move the permit to a replacement vessel
Another difference between the Atlantic tunas longline LAP and swordfish and shark LAPs is that the Atlantic tunas longline LAP does not have a unique permit number associated with it that stays unchanged if the permit is transferred to another vessel, whereas swordfish and shark permits do. Therefore, “ownership” of the Atlantic tunas longline LAP is more difficult to track over time because the permit number changes with each transfer of the permit to another vessel.
This final rule amends the HMS regulations to remove the one-year renewal timeframe for Atlantic tunas longline LAPs. This modification will better reflect the operational capabilities of the Atlantic tunas longline permit renewal system and reduce the potential for future confusion. It will allow NMFS, upon receipt of a complete permit application, to reissue an Atlantic tunas longline LAP to the most recent permit holder of record even if the permit had not been renewed within one year of expiration, provided that the applicant has already been issued a swordfish LAP (other than a handgear LAP), a shark LAP, and all other current requirements for permit renewal are met. This final rule does not amend the permit renewal regulations for swordfish and shark LAPs which will continue to specify that only persons holding non-expired swordfish and shark LAPs in the preceding year are eligible to renew those permits. Also, the requirement to possess all three valid LAPs (swordfish incidental or directed; shark incidental or directed; and Atlantic tunas longline) in order to fish for tunas with PLL gear and to retain commercially-caught swordfish (other than with a swordfish handgear LAP) remains unchanged. Thus, the final management measures will not increase the number of Atlantic tunas longline LAPs issued to an amount higher than the number of swordfish LAPs (incidental or directed) that are currently issued or are eligible to be renewed.
This action will help to ensure that an adequate number of complementary Atlantic tunas longline LAPs are available for swordfish and shark commercial LAP holders to fish legally for Atlantic swordfish and tunas with PLL gear. Consistent with the Magnuson-Stevens Act and ATCA, it will also help provide a reasonable opportunity for U.S. vessels to more fully harvest the domestic swordfish quota, which is derived from the recommendations of the International Commission for the Conservation of Atlantic Tunas (ICCAT). This final rule reinforces recent efforts by NMFS to “revitalize” the PLL fishery, recognizing that the North Atlantic stock is almost fully rebuilt (B = 0.99Bmsy) but domestic landings have been well below the U.S. swordfish quota in recent years. In doing so, this action could help the United States retain its historic swordfish quota allocation at ICCAT.
To improve the identification and reporting of shark species by dealers for accurate quota monitoring and stock assessments, existing HMS regulations at 50 CFR 635.8 require that Atlantic shark dealers attend an Atlantic Shark Identification Workshop and submit a copy of the workshop certificate in order to renew their permit. If a dealer attends and successfully completes a workshop, the dealer will receive a workshop certificate for each location listed on their Atlantic shark dealer permit. If the dealer chooses to send a proxy to a workshop, the existing regulations require them to send a proxy for each location listed on their Atlantic shark dealer permit. Under these regulations, Atlantic shark dealers may not renew their Atlantic shark dealer permit without submitting either a dealer or proxy certificate for each location listed on their Atlantic shark dealer permit. Additionally, Atlantic shark dealers may not act as the “first-receivers” of shark products at any location unless a valid workshop certificate is on the premises of each place of business listed on their shark dealer permit. As described in the final rule for Amendment 2 for the Management of Atlantic Shark Fisheries (73 FR 35778, June 24, 2008), “first-receiver” means any entity, person, or company that takes, for commercial purposes (other than solely for transport), immediate possession of the fish, or any part of the fish, as the fish are offloaded from a fishing vessel of the United States, as defined under § 600.10 of this chapter, whose owner or operator has been issued, or should be have been issued, a valid permit under this part.
Since the implementation of these requirements, NMFS has learned that some shark dealers may not be acting as the first receiver of shark products at all of the locations listed on their permit. For example, a dealer may purchase red snapper at one location, and shark at another location. However, because the shark dealer's permit lists both locations as owned by the dealer, including the snapper-only site, the existing regulations require them to submit an Atlantic Shark Identification Workshop certificate (proxy or dealer) upon permit renewal for both the shark site and the snapper site, and to later possess the certificate at both sites. This is an impractical and unnecessary result. When NMFS recognized that the existing regulations required this practice, the agency decided to correct and amend the process.
For technical and programmatic reasons, it is not feasible for NMFS to modify the permit database to specify only locations on the shark dealer permit that actually receive shark products if the dealer also has other locations where other species are received. To remedy this situation, the final rule amends the HMS regulations by specifying that, when applying for or renewing an Atlantic shark dealer permit, an applicant must submit an Atlantic Shark Identification Workshop certificate (dealer or proxy) for each place of business listed on the shark dealer permit which first receives Atlantic sharks by way of purchase, barter, or trade, rather than for each location listed on the shark dealer permit. This will eliminate the need for a shark dealer to send a proxy to a workshop to obtain a certificate for a location that does not actually receive Atlantic shark products. Similarly, the requirement to possess, and make available for inspection, an Atlantic Shark Identification Workshop certificate will only be required at locations listed on the dealer permit where sharks are first received rather than from each location listed on the shark dealer permit. Finally, this final rule requires that extensions of a dealer's business, such as trucks or other conveyances, must possess a copy of a valid dealer or proxy certificate issued to a place of business covered by the dealer permit. This will immediately identify trucks or other conveyances as extensions of a NMFS-certified place of business which is eligible to receive Atlantic sharks. With these minor amendments, the objective of improved identification and reporting of shark species is expected to continue, while impacts on dealers may be lessened.
In this final rule, NMFS also makes a technical clarification in the “gear operation and deployment restrictions” section of the HMS regulations regarding which permit holders are authorized to utilize buoy gear. This
A description of the alternatives for this action was provided in the Classification section of the proposed rule (73 FR 19795, April 11, 2008) and is not repeated here. Additional information can be found in the Final RIR/FRFA prepared for this rule and is available from NMFS (see
The public comment period for the proposed rule (73 FR 19795, April 11, 2008) was open from April 11, 2008, to May 12, 2008. During that time, NMFS conducted three public hearings in Gloucester, MA (May 1, 2008), St. Petersburg, FL (May 6, 2008), and Silver Spring, MD (May 7, 2008). In addition, the HMS Advisory Panel (HMS AP) received a presentation and was provided with an opportunity to comment on the proposed rule on April 16, 2008. The Agency received six written or electronic comment letters, and several verbal comments from the HMS AP and at public hearings. A summary of the major comments (26 total) received, along with NMFS' response, is provided below.
These comments and responses are divided into two major categories: those that discuss the renewal of Atlantic tunas longline LAPs (23 comments) and those that discuss Atlantic shark dealer workshop requirements (3 comments).
There are no changes from the proposed rule.
The Assistant Administrator, NMFS, has determined that this final rule is necessary for the conservation and management of the HMS fishery and that it is consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws.
This final rule has been determined to be not significant for purposes of Executive Order 12866.
A Final Regulatory Flexibility Analysis (FRFA) was prepared. The FRFA incorporates the IRFA, a summary of the significant issues raised by the public comments in response to the IRFA, NMFS' responses to those comments, and a summary of the analyses. The full FRFA is available from NMFS (see
Section 604(a)(1) of the Regulatory Flexibility Act (RFA) requires the Agency to state the objective and need for the rule. As stated in the proposed rule, the objective of this final rule regarding the renewal of expired Atlantic tunas longline LAPs is to help ensure that an adequate number of complementary Atlantic tunas longline LAPs are available for swordfish and shark LAP holders to fish legally for Atlantic swordfish and tunas with PLL gear. Consistent with the Magnuson-Stevens Act and ATCA, this action is also intended to help provide a reasonable opportunity for U.S. vessels to harvest quota allocations recommended by ICCAT, in recognition of the improved stock status of North Atlantic swordfish (B = 0.99Bmsy).
The amendment regarding attendance requirements at Atlantic Shark Identification Workshops is necessary because some shark dealers do not receive shark products at all of the locations listed on their permit, thus making it unnecessary to require workshop certification for those locations where sharks are not received. For technical and administrative reasons, it is not currently feasible for NMFS to list only locations on the shark dealer permit where sharks are first received, if a dealer also has other locations where other species are received. This final rule requires dealers to submit an Atlantic Shark Identification Workshop certificate (dealer or proxy) for each place of business listed on the shark dealer permit which first receives Atlantic sharks by way of purchase, barter, or trade, rather than from each location listed on their dealer permit. This will eliminate the need for a dealer to send a proxy to a workshop to obtain a certificate for a business location that does not first receive Atlantic shark products for the sole purpose of renewing their Atlantic shark dealer permit. The requirement to possess, and make available for inspection, an Atlantic Shark Identification Workshop certificate is similarly only required at locations listed on the dealer permit where sharks are first received. Additionally, this final rule requires that extensions of a dealer's business, such as trucks or other conveyances, must possess a copy of a valid dealer or proxy certificate issued to a place of business covered by the dealer permit. This will allow trucks or other conveyances of a NMFS-certified place of business to be immediately identified as being eligible to first receive Atlantic sharks.
Section 604(a)(2) of the RFA requires the Agency to summarize significant issues raised by the public comments in response to the IRFA, summarize the assessment of the Agency of such issues, and state any changes made in the rule as a result of such comments. NMFS received several comments on the proposed rule during the public comment period. A summary of the comments and the Agency's responses are included in the preamble of this final rule. NMFS did not receive any comments specific to the IRFA, but did receive a limited number of comments related to economic issues and concerns. These comments are responded to with the other comments (see Comments 11, 16, and 17). The comments on economic concerns are also summarized here.
A comment was received indicating that the preferred alternative for the renewal of Atlantic tunas longline LAPs would allow some
Another commenter stated that the preferred alternative would allow people who did not follow the regulations regarding permit renewal to obtain a new Atlantic tunas longline LAP, whereas some fishermen had to pay for the permit. In response, NMFS stated that the intent of the final rule is to help ensure that the number of available Atlantic tunas longline LAPs is sufficient to match the number of available swordfish and shark LAPs. Furthermore, all of the individuals affected by this rule either originally qualified for an Atlantic tunas longline LAP, or obtained it through transfer. NMFS will not be issuing new permits to everyone who submits an application. The Atlantic tunas longline permit remains a limited access permit. Unless a person is the most recent Atlantic tunas longline permit holder of record, the permit can only be obtained through transfer.
Finally, NMFS received a comment stating that the preferred alternative provides an opportunity for individuals to sell their newly reissued Atlantic tunas longline LAP for their own economic benefit, possibly to south Florida vessel owners that want to fish with buoy gear. In response, NMFS believes it would be beneficial for achieving the domestic north Atlantic swordfish quota if some people who want to fish for swordfish are able to do so legally. Some of the transferred permits could be used to participate in the buoy gear fishery in south Florida. NMFS will continue to monitor the buoy gear fishery to determine if additional regulations are needed.
No changes to the final rule were made as a result of these comments.
Section 604(a)(3) of the RFA requires the Agency to describe and estimate the number of small entities to which the final rule will apply. NMFS considers all commercial permit holders to be small entities as reflected in the Small Business Administration's (SBA) size standards for defining a small business entity (gross receipts less than $4.0 million). The final action to modify permit renewal requirements for Atlantic tunas longline LAPs would most immediately impact approximately 40 vessel owners that are the most recent permit holders of record, but are not eligible to renew that permit because it has been expired for more than one year. Potentially, 245 vessel owners that are concurrently issued Atlantic tunas longline, swordfish, and shark LAPs could be affected by this action if, in the future, they fail to renew their Atlantic tunas longline LAP within one year of expiration.
Based upon information obtained from the Southeast Regional Office permits shop, as of May 19, 2008, NMFS had issued 142 Atlantic shark dealer permits (not counting Atlantic shark dealers located in Pacific states (5 in CA, and 2 in HI)). Of these, 41 individual dealers had multiple locations (ranging from two to eight locations) listed on their permit. Eighty-four of these shark dealers had been issued a workshop certificate for at least one location, and 58 shark dealers had not been issued any workshop certificates for any locations. Approximately 8 of the 41 dealers with multiple locations had been issued at least one certificate, but not certificates for all of the locations listed on their permit. Thus, under the current regulations, these 8 dealers would not be eligible to renew their shark dealer permit. The 8 Atlantic shark dealers who have not been issued proxy certificates for all of their locations are most immediately affected by this final rule because, as a result of this rule, they would be eligible to renew their shark dealer permit by submitting workshop certificates only for locations that actually receive shark products. Potentially, any of the 41 Atlantic shark dealers with multiple locations listed on their permit could also be impacted by this action. All of the aforementioned businesses are considered small business entities according to the Small Business Administration's standard for defining a small entity.
Section 604(a)(4) of the RFA requires NMFS to describe the projected reporting, recordkeeping, and other compliance requirements of the final rule, including an estimate of the classes of small entities that will be subject to the requirements of the report or record. This final rule does not contain any new reporting, recordkeeping, or other compliance requirements that will require new Paperwork Reduction Act filings. Atlantic shark dealers will need to comply with a new requirement to possess a copy of their Atlantic Shark Identification Workshop certificate (dealer or proxy) in their trucks or other conveyances which serve as extensions of a dealer's place of business. This will help to facilitate the identification of trucks or other conveyances as extensions of a NMFS-certified place of business which is eligible to receive Atlantic sharks.
Section 604(a)(5) of the RFA requires the Agency to describe the steps taken to minimize the significant economic impact on small entities consistent with the stated objectives of the applicable statutes, including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other significant alternatives to the rule considered by the agency which affect the impact on small entities was rejected. Additionally, the RFA (5 U.S.C. 603(c)(1) through (4)) lists four general categories of “significant” alternatives that would assist an agency in the development of significant alternatives. These categories of alternatives are:
1. Establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities;
2. Clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities;
3. Use of performance rather than design standards; and
4. Exemptions from coverage of the rule for small entities.
As noted earlier, NMFS considers all commercial permit holders to be small entities. In order to meet the objectives of this final rule, consistent with the Magnuson-Stevens Act, ATCA, and the ESA, NMFS cannot exempt small entities or change the compliance requirements only for small entities. Thus, there are no alternatives that fall under the first and fourth categories described above.
With regards to category two, none of the alternatives considered would result in additional reporting requirements. The selected alternative for Atlantic Shark Identification Workshops requires shark dealers to possess a copy of their workshop certificate (dealer or proxy) in trucks or other conveyances which serve as extensions of a dealers' place of business. The only compliance requirement involves making a photocopy of the workshop certificate, and possessing that copy inside dealer's trucks or conveyances. This requirement will facilitate the identification of vehicles which serve as extensions of a NMFS-certified place of business that is eligible to receive Atlantic sharks.
Category three emphasizes the use of performance standards rather than design standards in the development of alternatives. None of the alternatives require compliance with standards, so there are no alternatives that fall under this category.
NMFS considered two alternatives to address the renewal of Atlantic tunas
Alternative 1 for the renewal of Atlantic tunas longline LAPs (alternative 2.1.1 in the FRFA) is the no action, or status quo, alternative. Current HMS regulations at 50 CFR 635.4(m)(2) specify that only persons holding a non-expired Atlantic tunas longline LAP in the preceding year are eligible to renew that permit. Under alternative 1, there would be no change in the existing regulations and, as such, no change in the current baseline economic impacts. However, the situation regarding the renewal of Atlantic tunas longline LAPs is unique. Until September 2007, the procedures for renewing Atlantic tunas longline LAPs were implemented differently than for swordfish and shark LAPs. Since September 2007, the permit renewal regulations have been administered similarly. Thus, the no action alternative would continue any existing economic impacts, but those impacts have only been in existence since September 2007.
The no action alternative was not selected because it has the largest associated adverse economic impacts. Without an Atlantic tunas longline LAP, a permit holder is prohibited from fishing for tunas with PLL gear and from retaining swordfish, even if the vessel has been issued a directed or incidental swordfish permit. As many as 40 commercial fishing vessels that previously qualified for LAPs to participate in the PLL fishery would continue to be prohibited from participating in the fishery, harvesting the U.S. swordfish quota, and creating jobs. Thus a failure to take action would prevent the realization of economic gains associated with increased swordfish fishing.
Under the selected alternative (preferred alternative 2.1.2 in the FRFA), NMFS would remove the one-year renewal timeframe for Atlantic tunas longline LAPs. This would allow the Agency to reissue the permit to the most recent permit holder of record, even if the Atlantic tunas longline LAP had not been renewed within one year of expiration, provided that they were issued swordfish and shark LAPs and all other requirements for permit renewal were met. The requirement to possess swordfish and shark LAPs in order to obtain an Atlantic tunas longline LAP would remain in effect. Also, current regulations which specify that only persons holding non-expired swordfish and shark LAPs in the preceding year are eligible to renew those permits would remain in effect.
Relative to the no action alternative, removing the one-year renewal timeframe for Atlantic tunas longline LAPs is projected to potentially increase net and gross revenues for approximately 40 vessel owners who are otherwise qualified to fish for swordfish and tunas with PLL gear, except that they are currently ineligible to renew their Atlantic tunas longline LAP. Overall fleet-wide gross economic benefits could potentially increase as much as $7,842,280 under this alternative, relative to the baseline. Also, an overall fleet-wide increase in net revenues (profits) of approximately $200,000 to $721,839 could occur, distributed among the 40 vessels potentially impacted by this alternative. Under this alternative, each individual vessel owner could see an increase in annual net revenues ranging from $0 to potentially over $100,000, depending upon the profitability of their business.
Another important benefit associated with the selected alternative is that it could help to maintain the domestic swordfish and tuna PLL fishery at historical levels by allowing 35 - 40 vessels to participate in the fishery that, since September 2007, have not been permitted to do so. All of the potentially affected vessels/permit holders originally qualified for the longline fishery in 1999, or received the necessary permits through transfer. Thus, relative to August 2007 and years prior, there would be no change in historical fishing practices, fishing effort, or economic impact. However, relative to September 2007 and beyond, potential economic benefits to the affected permit holders would result. The selected alternative could also help the United States retain its historic swordfish quota allocation at ICCAT and sustain employment opportunities in the domestic PLL fleet. Maintaining a viable domestic PLL fishery is important because it could help to demonstrate that a well-managed, environmentally-sound fishery can also be profitable. This could eventually provide an incentive for other nations to adopt similar management measures that are currently required of the U.S. PLL fleet such as circle hooks, careful release gears, and other measures described in the response to Comment 1 above.
A related potential impact associated with both alternatives is that changes to the value of an Atlantic tunas longline LAP could occur by changing the supply of available permits. The no action alternative would likely reduce the supply of available permits over time, thereby increasing the value of the permit. The selected alternative could initially increase the supply relative to the period since September 2007, and thereby reduce the value. These impacts would be either positive or negative for small business entities, depending upon whether the Atlantic tunas longline LAP was being bought or sold.
There are no other significant alternatives for the renewal of Atlantic tunas longline permits, except for the two aforementioned alternatives. The selected alternative achieves the objectives of this rulemaking, provides benefits to small entities, and has few associated impacts because the regulatory changes will be more representative of the actual operational capabilities of the Atlantic tunas longline LAP renewal system. The selected alternative will help to ensure that an adequate number of Atlantic tunas longline LAPs are available to match the available number of swordfish and shark LAPs, which is important because all three permits are needed to retain swordfish (other than with the swordfish handgear LAP) and to fish for tunas with PLL gear.
Alternative 1 for attendance requirements at Atlantic Shark Identification Workshops (alternative 2.2.1 in the FRFA) is the no action alternative. All dealers intending to renew their Atlantic shark dealer permit would continue to be required to become certified at an Atlantic Shark Identification Workshop, or to have their proxies certified. Dealers with multiple locations listed on their permit would receive certificates for each location listed on their permit. Dealers opting not to become certified and to send a proxy would continue to be required to send a proxy for each location listed on their Atlantic shark dealer permit. Atlantic shark dealers would not be allowed to renew their permit without submitting either a dealer or proxy certificate for each location listed on their Atlantic shark dealer permit. Additionally, Atlantic shark dealers could not receive shark products at a location that does not have a valid workshop certificate for that address on the premises.
There are approximately 41 Atlantic shark dealers with more than one location listed on their permit. These dealers have the choice of becoming certified themselves, or sending a proxy to the workshops for each location listed on a permit. As described in the Consolidated HMS FMP and its final
The selected alternative for Atlantic Shark Identification Workshop attendance requirements (preferred alternative 2.2.2 in the FRFA) specifies that, upon permit renewal, a dealer must submit an Atlantic Shark Identification Workshop certificate (dealer or proxy) for each place of business listed on the dealer permit which first receives Atlantic sharks by way of purchase, barter, or trade, rather than from each location listed on their dealer permit. The requirement to possess, and make available for inspection, an Atlantic Shark Identification Workshop certificate is similarly only required at locations listed on the dealer permit where sharks are first received. This eliminates the need for a dealer to send a proxy to a workshop to obtain a certificate for a business location that does not first receive Atlantic shark products.
As mentioned above, there are currently 41 shark dealers with multiple locations listed on their permit which could be impacted by the proposed action. Of these, 8 Atlantic shark dealers have not currently been issued Atlantic Shark Identification Workshop certificates for all of the locations listed on their permit.
NMFS estimates that the total costs (travel costs and opportunity costs) associated with the selected alternative for Atlantic Shark Identification Workshop attendance requirements will be lower than those associated with the no action alternative, but only for Atlantic shark dealers that: (1) opt to send a proxy (or proxies) to the workshop; (2) have multiple locations listed on their permit; and, (3) only first receive shark products at some of the locations listed on their Atlantic shark dealer permit. Costs will remain unchanged for shark dealers that do not meet these three criteria. For dealers that meet these criteria, the costs will be reduced by an amount equivalent to sending proxies for each location listed on the permit that do not first receive shark products. For example, if a dealer chooses to send proxies and has four locations listed on the permit, but only two of those locations first receive shark products, the costs would be reduced by the amount equivalent to sending two proxies to an Atlantic Shark Identification Workshop.
The selected alternative also requires that extensions of a dealer's business, such as trucks or other conveyances, must possess a copy of a valid dealer or proxy certificate issued to a place of business covered by the dealer permit. This requirement allows trucks or other conveyances to be immediately identified as extensions of a NMFS-certified place of business which is eligible to receive Atlantic sharks. NMFS anticipates that this requirement will have minimal costs but will improve the enforceability of existing Atlantic shark regulations.
There are no other significant alternatives for Atlantic Shark Identification Workshop attendance requirements except for these two alternatives. Administratively it is not currently feasible, for both technical and programmatic reasons, to modify the NMFS permits database to accommodate dealers having different locations where they receive different species. The selected alternative requires dealers to display an Atlantic Shark Identification Workshop certificate at all locations where sharks are first received. Therefore, it achieves the objective of improving the identification and reporting of shark species, while simultaneously lessening impacts on dealers. The selected alternative will also improve the enforceability of existing Atlantic shark regulations by requiring extensions of a dealer's business, such as trucks or other conveyances, to possess a copy of a valid dealer or proxy certificate issued to a place of business covered by the dealer permit.
Fisheries, Fishing, Fishing vessels, Management, Penalties, Reporting and recordkeeping requirements.
16 U.S.C. 971
(m) * * *
(2)
(b) * * *
(4) Dealers may send a proxy to the Atlantic shark identification workshops. If a dealer opts to send a proxy, the dealer must designate at least one proxy from each place of business listed on the dealer permit, issued pursuant to § 635.4(g)(2), which first receives Atlantic shark by way of purchase, barter, or trade. The proxy must be a person who is currently employed by a place of business covered by the dealer's permit; is a primary participant in the identification, weighing, and/or first receipt of fish as they are offloaded from a vessel; and fills out dealer reports as required under § 635.5. Only one certificate will be issued to each proxy. If a proxy is no longer employed by a place of business covered by the dealer's permit, the dealer or another proxy must be certified as having completed a workshop pursuant to this section. At least one individual from each place of business listed on the dealer permit which first receives Atlantic sharks by way of purchase, barter, or trade must possess a valid Atlantic shark identification workshop certificate.
(5) A Federal Atlantic shark dealer issued or required to be issued a shark dealer permit pursuant to § 635.4(g)(2) must possess and make available for
(c) * * *
(4) An Atlantic shark dealer may not first receive, purchase, trade, or barter for Atlantic shark without a valid Atlantic shark identification workshop certificate. A valid Atlantic shark identification workshop certificate must be maintained on the premises of each place of business listed on the dealer permit which first receives Atlantic sharks by way of purchase, barter, or trade. An Atlantic shark dealer may not renew a Federal dealer permit issued pursuant to § 635.4(g)(2) unless a valid Atlantic shark identification workshop certificate has been submitted with the permit renewal application. If the dealer is not certified, the dealer must submit a copy of a proxy certificate for each place of business listed on the dealer permit which first receives Atlantic sharks by way of purchase, barter, or trade.
(e) * * *
(4) * * *
(iii) A person aboard a vessel issued or required to be issued a valid directed handgear LAP for Atlantic swordfish may not fish for swordfish with any gear other than handgear. A swordfish will be deemed to have been harvested by longline when the fish is on board or offloaded from a vessel using or having on board longline gear. Only vessels that have been issued, or that are required to have been issued, a valid directed or handgear swordfish LAP under this part may utilize or possess buoy gear. Vessels utilizing buoy gear may not possess or deploy more than 35 floatation devices, and may not deploy more than 35 individual buoy gears per vessel. Buoy gear must be constructed and deployed so that the hooks and/or gangions are attached to the vertical portion of the mainline. Floatation devices may be attached to one but not both ends of the mainline, and no hooks or gangions may be attached to any floatation device or horizontal portion of the mainline. If more than one floatation device is attached to a buoy gear, no hook or gangion may be attached to the mainline between them. Individual buoy gears may not be linked, clipped, or connected together in any way. Buoy gears must be released and retrieved by hand. All deployed buoy gear must have some type of monitoring equipment affixed to it including, but not limited to, radar reflectors, beeper devices, lights, or reflective tape. If only reflective tape is affixed, the vessel deploying the buoy gear must possess on board an operable spotlight capable of illuminating deployed floatation devices. If a gear monitoring device is positively buoyant, and rigged to be attached to a fishing gear, it is included in the 35 floatation device vessel limit and must be marked appropriately.
(d) * * *
(14) Receive, purchase, trade, or barter for Atlantic shark without making available for inspection, at each of the dealer's places of business listed on the dealer permit which first receives Atlantic sharks by way of purchase, barter, or trade, a valid Atlantic shark identification workshop certificate issued by NMFS in violation of § 635.8(b), except that trucks or other conveyances of the business must possess a copy of such certificate.
Food and Nutrition Service, USDA.
Proposed rule.
This proposed rule would amend regulations for the Food Distribution Program on Indian Reservations (FDPIR). The changes are intended to improve program service, ensure consistency between FDPIR and the Food Stamp Program, and respond to concerns expressed by the National Association of Food Distribution Programs on Indian Reservations (NAFDPIR) that the current FDPIR resource limit was insufficient for the target population and served as a barrier to participation. The proposed rule would increase the maximum level of allowable resources to the same level permitted under the Food Stamp Program (including annual adjustments for inflation in accordance with Section 4104 of the Food, Conservation, and Energy Act of 2008 (Pub. L. 110-234)), allow a resource exclusion for the first $1,500 of the value of one pre-paid funeral arrangement per household member, and allow households in which all members are elderly and/or disabled to be certified for up to 24 months. The rule would also implement Section 4107 of the Farm Security and Rural Investment Act of 2002 (Pub. L. 107-171), which established a resource limit of $3,000 for Food Stamp Program households with a disabled member.
To be assured of consideration, comments must be received on or before September 2, 2008.
The Food and Nutrition Service (FNS) invites interested persons to submit comments on this proposed rule. You may submit comments identified by Regulatory Identifier Number (RIN) 0584-AD12, by any of the following methods:
• Fax: Submit comments by facsimile transmission to (703) 305-2420.
• Disk or CD-ROM: Submit comments on disk to Lillie F. Ragan, Assistant Branch Chief, Policy Branch, Food Distribution Division, Food and Nutrition Service, U.S. Department of Agriculture, 3101 Park Center Drive, Room 506, Alexandria, Virginia 22302-1594.
• Mail: Send comments to Lillie F. Ragan at the above address.
• Hand Delivery or Courier: Deliver comments to the above address.
• Federal eRulemaking Portal: Go to
Comments submitted in response to this rule will be included in the record and will be made available to the public. Please be advised that the substance of the comments and the identity of the individuals or entities submitting the comments will be subject to public disclosure. The Department will make the comments publicly available on the Internet via
All written submissions will be available for public inspection at the address above during regular business hours (8:30 a.m. to 5:30 p.m.), Monday through Friday, except Federal holidays.
Lillie F. Ragan at the above address, or telephone (703) 305-2662.
Your written comments on this proposed rule should be specific, should be confined to issues pertinent to the proposed rule, and should explain the reason(s) for any change you recommend or proposal(s) you oppose. Where possible, you should reference the specific section or paragraph of the proposal you are addressing. Comments received after the close of the comment period (see
Executive Order 12866 requires each agency to write regulations that are simple and easy to understand. We invite your comments on how to make these regulations easier to understand, including answers to questions such as the following:
(1) Are the requirements in the rule clearly stated?
(2) Does the rule contain technical language or jargon that interferes with its clarity?
(3) Does the format of the rule (e.g., grouping and order of sections, use of headings, and paragraphing) make it clearer or less clear?
(4) Would the rule be easier to understand if it were divided into more (but shorter) sections?
(5) Is the description of the rule in the preamble section entitled “Background and Discussion of the Proposed Rule” helpful in understanding the rule? How could this description be more helpful in making the rule easier to understand?
This proposed rule has been determined to be significant, and was reviewed by the Office of Management and Budget (OMB) under Executive Order 12866.
This action is needed to ensure that regulations pertaining to certification period assignments for elderly and/or disabled households and resource standards are consistent between FDPIR and the Food Stamp Program and to reflect provisions contained in the Farm Security and Rural Investment Act of 2002 (Pub. L. 107-171), which established a resource limit of $3,000 for Food Stamp Program households with a
This rule would amend FDPIR regulations by aligning several provisions with their counterparts in the Food Stamp Program. These regulatory changes are designed to help ensure that FDPIR benefits are provided to low-income households living on or near Indian reservations that are in need of nutrition assistance. Because FDPIR regulations regarding resource limits and exclusions would be altered by this rule, participation could potentially increase, thus expanding access to those eligible for the program and increasing nutritional benefits to the targeted population.
FNS has projected the impact of each proposed change on FDPIR participation. However, we are unable to determine the total number of individuals that might be added as a result of this rule. An individual might benefit from more than one provision and the effect of the overlap could not be determined.
This action is not expected to significantly increase costs of State and local agencies, or their commercial contractors, in using donated foods. The combined impact of the proposed changes in this rulemaking is projected to increase program costs by $90,000 in FY 2009 and $473,000 over a five-year period (FY 2009-2013). These increased costs are attributable to potential increases in participation.
This proposed rule has been reviewed with regard to the requirements of the Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612). The Under Secretary for Food, Nutrition and Consumer Services has certified that this action will not have a significant impact on a substantial number of small entities. While program participants and Indian Tribal Organizations (ITOs) and State agencies that administer the FDPIR and the Food Distribution Program for Indian Households in Oklahoma (FDPIHO) will be affected by this rulemaking, the economic effect will not be significant.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments and the private sector. Under section 202 of the UMRA, the Department 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, or Tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. When such a statement is needed for a rule, section 205 of the UMRA generally requires the Department to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, more cost-effective or least burdensome alternative that achieves the objectives of the rule.
This rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) that impose on State, local or Tribal governments or the private sector of $100 million or more in any one year. This rule is, therefore, not subject to the requirements of sections 202 and 205 of the UMRA.
The program addressed in this action is listed in the Catalog of Federal Domestic Assistance under No. 10.567. For the reasons set forth in the final rule in 7 CFR part 3015, subpart V and related Notice published at 48 FR 29114, June 24, 1983, the donation of foods in such programs is included in the scope of Executive Order 12372, which requires intergovernmental consultation with State and local officials.
Executive Order 13132 requires Federal agencies to consider the impact of their regulatory actions on State and local governments. Where such actions have federalism implications, agencies are directed to provide a statement for inclusion in the preamble to the regulations describing the agency's considerations in terms of the three categories called for under section (6)(b)(2)(B) of Executive Order 13132.
The programs affected by the regulatory proposals in this rule are all Tribal or State-administered, federally funded programs. FNS' national headquarters and regional offices have formal and informal discussions with State officials on an ongoing basis regarding program issues relating to the distribution of donated foods. FNS meets annually with the National Association of Food Distribution Programs on Indian Reservations (NAFDPIR), a national group of State agencies, to discuss issues relating to food distribution.
This rule is intended to provide consistency between FDPIR and the Food Stamp Program in regard to certification period assignments for elderly and/or disabled households and resource standards. The rule was prompted, in part, by a resolution passed by NAFDPIR in fiscal year 2000. NAFDPIR expressed concern that the current FDPIR resource limit was insufficient for the target population and served as a barrier to participation. The rule was also prompted, in part, by a provision contained in the Farm Security and Rural Investment Act of 2002 (Pub. L. 107-171), enacted on May 13, 2002. Section 4107 of Public Law 107-171 established a Food Stamp Program resource limit of $3,000 for households with a disabled member. Section 4104 of the Food, Conservation, and Energy Act of 2008 (Pub. L. 110-234), enacted on May 22, 2008, established an annual inflation factor adjustment to the Food Stamp Program resource limits. This provision is effective October 1, 2008. The other regulatory provisions proposed in this rule are also consistent with Food Stamp Program provisions.
The Department has considered the impact of the proposed rule on State agencies. The Department does not expect the provisions of this rule to conflict with any State or local law, regulations or policies. The overall effect of this rule is to ensure that low-income households living on or near Indian reservations receive nutrition assistance. This rule would ensure consistency between FDPIR and the Food Stamp Program in regard to certification period assignments for elderly and/or disabled households and resource standards.
This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. Although the provisions of this rule are not expected to conflict with any State or local law, regulations, or policies, the rule is intended to have preemptive effect with respect to any State or local laws, regulations or policies that conflict with its provisions or that would otherwise impede its full
The Department has reviewed this rule in accordance with the Department Regulation 4300-4, “Civil Rights Impact Analysis,” to identify and address any major civil rights impacts the rule might have on minorities, women, and persons with disabilities. After a careful review of the rule's intent and provisions, the Department has determined that this rule will not in any way limit or reduce the ability of participants to receive the benefits of donated foods in food distribution programs on the basis of an individual's or group's race, color, national origin, sex, age, political beliefs, religious creed, or disability. The Department found no factors that would negatively and disproportionately affect any group of individuals.
The Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35; see 5 CFR part 1320) requires that OMB approve all collections of information by a Federal agency from the public before they can be implemented. Respondents are not required to respond to any collection of information unless it displays a current valid OMB control number. This proposed rule does not contain any new information collection requirements subject to review and approval by OMB.
The Department 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.
The Department is proposing to amend the regulations for FDPIR at 7 CFR part 253. The changes would improve program service by: (1) Bringing the maximum level of allowable resources in line with the Food Stamp Program, including the establishment of a resource limit of $3,000 for households with a disabled member and an annual inflation adjustment to the resource limits starting in fiscal year 2009; (2) allowing a resource exclusion for the first $1,500 of the value of one pre-paid funeral arrangement per household member; and (3) allowing households in which all members are elderly and/or disabled to be certified for up to 24 months. These changes would also impact the operation of the Food Distribution Program for Indian Households in Oklahoma (FDPIHO), 7 CFR part 254, under which the eligibility and certification provisions of 7 CFR part 253 are adopted by reference at 7 CFR 254.5(a).
In the following discussion and regulatory text, the term “State agency,” as defined at 7 CFR 253.2, is used to include ITOs authorized to operate FDPIR and FDPIHO in accordance with 7 CFR parts 253 and 254. The term “FDPIR” is used in this proposed rule to refer collectively to FDPIR and FDPIHO.
This proposed rule would amend 7 CFR 253.6(d)(1) to bring the maximum level of allowable resources in FDPIR in line with those established for the Food Stamp Program under Section 5(g) of the Food Stamp Act of 1977 (7 U.S.C. 2014(g)). This would mean: (1) Establishing a new resource limit of $3,000 for households with a disabled member; (2) increasing the resource limit from $1,750 to $2,000 for households without elderly or disabled members; and (3) adjusting the above resource limits for inflation on an annual basis starting in fiscal year 2009, in accordance with Section 4104 of Public Law 110-234.
The Department is proposing an additional change to ensure consistency with the Food Stamp Program in the treatment of the resources of elderly households. The Food Stamp Program allows all households that include one or more elderly members to have a resource limit of $3,000. Under FDPIR, only households with two or more elderly members are allowed a resource limit of $3,000. This rule proposes to amend 7 CFR 253.6(d)(1) to allow one-person elderly households to have a resource limit of $3,000.
As indicated above, the resource limits would be adjusted for inflation on an annual basis starting in fiscal year 2009, in accordance with Section 4104 of Public Law 110-234. That section of the Act requires the annual adjustment of the Food Stamp Program resource standards to reflect changes in the Consumer Price Index for All Urban Consumers for the 12-month period ending the preceding June. The Consumer Price Index is published by the Bureau of Labor Statistics of the U.S. Department of Labor. This rule proposes to amend 7 CFR 253.6(d) to ensure that the FDPIR resource standards reflect the annual adjustments made to the Food Stamp Program resources standards.
This rule also proposes to amend 7 CFR 253.7(c)(1), which contains the requirement that households report within 10 days when their countable resources exceed $1,750. This provision would be revised to specify that households must report within 10 days when their countable resources exceed the applicable maximum allowable limit. Also, this rule proposes to clarify 7 CFR 253.7(c)(1) to specify that the referenced 10-day period means 10 calendar days.
The current regulations for FDPIR do not define “elderly” or “disabled”. Since FDPIR serves as an alternative nutrition assistance program to the Food Stamp Program, this rule proposes the adoption of the definitions used under the Food Stamp Program at 7 CFR 271.2. Accordingly, this rule proposes to amend 7 CFR 253.2 to include the definitions for elderly and disabled used under the Food Stamp Program.
The National Association of Food Distribution Programs on Indian Reservations has expressed concerns, in the form of a resolution passed by that Association, regarding households that are determined ineligible for FDPIR because of resources earmarked for funeral expenses. Families commonly commingle funds earmarked for funeral expenses with other household savings. Generally, there is no verifiable way to distinguish the funds held for funeral expenses from a household's general savings, which are considered available to the household for normal living expenses. To resolve this issue, Food Stamp Program regulations (7 CFR 273.8(e)(2)) allow a resource exclusion for “the value of one bona fide funeral agreement per household member, provided that the agreement does not exceed $1,500 in equity value, in which event the value above $1,500 is counted.” This provision allows each household member to ensure that the cost of their funeral will be covered, without jeopardizing the household's eligibility for food stamp benefits.
This rule proposes to amend the regulations at 7 CFR 253.6(d)(2)(i) to ensure consistent treatment of pre-paid funeral agreements between FDPIR and the Food Stamp Program by allowing a resource exclusion for the first $1,500 of
This rule proposes to amend the regulations at 7 CFR 253.7(b)(2) to allow households in which all members are elderly and/or disabled to be certified for up to 24 months. Under current policy, certification periods are assigned according to the stability of a household's circumstances. Households consisting entirely of persons who only receive unearned income, such as Supplemental Security Income or Social Security payments, may be certified for up to 12 months, provided other household circumstances are expected to remain stable.
In accordance with Section 801 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Pub. L. 193-104), which amended Section 3(c) of the Food Stamp Act of 1977 (7 U.S.C. 2012(c)), the Department published a final rulemaking (65 FR 70134) on November 21, 2000, that implemented the above provision under the Food Stamp Program. This provision would also benefit the elderly and disabled participants of FDPIR. The elderly and/or disabled households often have stable incomes, and their other household circumstances change infrequently. Also, because of health and transportation problems, these households often have difficulty in attending face-to-face interviews.
Accordingly, this rule proposes to amend 7 CFR 253.7(b)(2) to state that FDPIR certification periods cannot exceed 12 months, except that households in which all adult members are elderly and/or disabled, as defined in the proposed definition at 7 CFR 253.2, may be certified for up to 24 months. This rule also proposes to require that the State agency must contact the household every 12 months. This means that if a household in which all adult members are elderly and/or disabled is certified for 24 months, the State agency would be required to have at least one direct contact with the household by the end of the first 12 months. The purpose of the contact is to determine: (1) That the household wishes to continue to participate in FDPIR; and (2) whether there are any changes in household circumstances that would warrant a redetermination of eligibility or a change in benefit level. In most cases, this contact could be made when the household receives its monthly distribution at the warehouse or tailgate site. However, some elderly and/or disabled households may rely on authorized representatives to pick up their commodities each month. In these instances, the State agency would be required to employ another method to contact the household. The State agency may use any method(s) it chooses for this contact, such as a telephone call or home visit. Contact with the authorized representative would not satisfy this requirement—a household member must be contacted. As with all actions taken by the State agency, the contact with the household must be documented in the case file to include the date of contact, method of contact, name of person contacted, whether the household wishes to continue to participate, and whether changes in household circumstances would warrant a redetermination of eligibility or a change in benefit level.
Administrative practice and procedure, Food assistance programs, Grant programs, Social programs, Indians, Reporting and recordkeeping requirements, Surplus agricultural commodities.
Accordingly, 7 CFR part 253 is proposed to be amended as follows:
1. The authority citation for 7 CFR part 253 is revised to read as follows:
91 Stat. 958 (7 U.S.C. 2011-2036).
2. In § 253.2:
a. Remove paragraph designations (a) through (j) and list the definitions in alphabetical order.
b. Add new definitions entitled “Disabled member” and “Elderly member” in alphabetical order to read as follows:
(1) Receives supplemental security income benefits under title XVI of the Social Security Act or disability or blindness payments under titles I, II, X, XIV, or XVI of the Social Security Act;
(2) Receives federally- or State-administered supplemental benefits under section 1616(a) of the Social Security Act provided that the eligibility to receive the benefits is based upon the disability or blindness criteria used under title XVI of the Social Security Act;
(3) Receives federally- or State-administered supplemental benefits under section 212(a) of Public Law 93-66;
(4) Receives disability retirement benefits from a governmental agency because of a disability considered permanent under section 221(i) of the Social Security Act;
(5) Is a veteran with a service-connected or non-service-connected disability rated by the Veteran's Administration (VA) as total or paid as total by the VA under title 38 of the United States Code;
(6) Is a veteran considered by the VA to be in need of regular aid and attendance or permanently housebound under title 38 of the United States Code;
(7) Is a surviving spouse of a veteran and considered by the VA to be in need of regular aid and attendance or permanently housebound or a surviving child of a veteran and considered by the VA to be permanently incapable of self-support under title 38 of the United States Code;
(8) Is a surviving spouse or surviving child of a veteran and considered by the VA to be entitled to compensation for a service-connected death or pension benefits for a non-service-connected death under title 38 of the United States Code and has a disability considered permanent under section 221(i) of the Social Security Act. “Entitled” as used in this definition refers to those veterans' surviving spouses and surviving children who are receiving the compensation or pension benefits stated or have been approved for such payments, but are not yet receiving them;
(9) Receives an annuity payment under: Section 2(a)(1)(iv) of the Railroad Retirement Act of 1974 and is determined to be eligible to receive Medicare by the Railroad Retirement Board; or section 2(a)(1)(v) of the Railroad Retirement Act of 1974 and is determined to be disabled based upon the criteria used under title XVI of the Social Security Act; or
(10) Is a recipient of interim assistance benefits pending the receipt of Supplemented Security Income, a recipient of disability related medical assistance under title XIX of the Social Security Act, or a recipient of disability-based State general assistance benefits provided that the eligibility to receive any of these benefits is based upon disability or blindness criteria
3. In § 253.6:
a. Amend paragraph (d)(1) by revising the second sentence;
b. Revise paragraph (d)(2)(i).
The revisions and addition read as follows:
(d) * * *
(1) * * * The household's maximum allowable resources shall not exceed the limits established for the Food Stamp Program.
(2) * * *
(i) The cash value of life insurance polices; pension funds, including funds in pension plans with interest penalties for early withdrawals, such as a Keogh plan or an Individual Retirement Account, as long as the funds remain in the pension plans; and the first $1,500 of the equity value of one bona fide pre-paid funeral agreement per household member.
4. In § 253.7:
a. Amend paragraph (b)(2)(iii) by removing the last sentence;
b. Add new paragraph (b)(2)(iv);
c. Amend paragraph (c)(1) by revising the third sentence;
The revision and addition read as follows:
(b) * * *
(2) * * *
(iv) In no event may a certification period exceed 12 months, except that households in which all adult members are elderly and/or disabled may be certified for up to 24 months. Households assigned certification periods that are longer than 12 months must be contacted by the State agency at least once every 12 months to determine if the household wishes to continue to participate in the program and whether there are any changes in household circumstances that would warrant a redetermination of eligibility or a change in benefit level. The State agency may use any method it chooses for this contact, including a face-to-face interview, telephone call or a home visit. Contact with the household's authorized representative would not satisfy this requirement; the State agency must contact a household member. The case file must document the contact with the household and include the date of contact, method of contact, name of person contacted, whether the household wishes to continue to participate, and whether changes in household circumstances would warrant a redetermination of eligibility or a change in benefit level.
(c) * * *
(1) * * * Households must also report within 10 calendar days when countable resources, which are identified in § 253.6(d)(2), exceed the maximum allowable limits as described at § 253.6(d)(1). * * *
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Extension of comment period for the Framework Document and subsequent public meeting request from interested parties.
On June 6, 2008, the Department of Energy (DOE) published a notice of public meeting and availability of the Framework Document to the
The Framework document is written to inform stakeholders and to facilitate explanation of DOE's rulemaking process. It details the analytical approach and identifies several issues on which DOE is particularly interested in receiving comment. The Department of Energy is initiating the rulemaking and data collection process to consider establishing amended energy conservation standards for residential central air conditioners and heat pumps. DOE welcomes written comments from the public on this rulemaking. A copy of the Framework Document is available at:
Comments must be received at DOE on or before 4:30 PM (EDT) July 31, 2008.
Please submit written comments to the U.S. Department of Energy, Forrestal Building, Mailstop EE-2J, 1000 Independence Avenue, SW., Washington, DC 20585-0121. Stakeholder's comments should be identified by docket number EERE-2008-BT-STD-0006 and/or Regulation Identifier Number (RIN) 1904-AB47, by any of the following methods:
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•
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Mr. Wes Anderson, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies, EE-2J, 1000 Independence Avenue, SW., Washington, DC 20585-0121. Telephone: (202) 586-7335.
Mr. Eric Stas or Mr. Michael Kido, U.S. Department of Energy, Office of the General Counsel, GC-72, 1000 Independence Avenue, SW., Washington, DC 20585-0121. Telephone: (202) 586-9507.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for the products listed above that would supersede an existing AD. This proposed AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as:
AD 2007-0315-E was issued to address a possible fuel leakage in the gear compartment in front of the engine and mandated inspections and replacement of fuel plastic-made connectors by connectors made of metal. Since its publication, another fuel leakage has been reported on a S10-VT which had implemented the STEMME Service Bulletin (SB) A31-10-082 as required by AD 2007-0315-E.
It has been determined that the fuel leak may have been caused by the deformation that the originally installed clamps created on the fuel hoses and thus preventing the new clamps from being sufficiently pinched to perform a correct tightening.
We must receive comments on this proposed AD by August 4, 2008.
You may send comments by any of the following methods:
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•
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You may examine the AD docket on the Internet at
Greg Davison, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329-4130; fax: (816) 329-4090.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
On May 23, 2008, we issued AD 2008-11-20, Amendment 39-15543 (73 FR 31355; June 2, 2008). That AD required actions intended to address an unsafe condition on the products listed above.
AD 2008-11-20 was issued as an interim action in order to address the need for the immediate prevention of leaks in the area of the fuel line.
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued Emergency AD No. 2008-0053-E, dated March 5, 2008 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products.
The EASA AD requires mandatory replacement of STEMME part number (P/N) M476 single-ear clamps in the fuel system with P/N 10M-181 single-ear clamps on all affected sailplanes within 12 months after the effective date of the AD.
The Administrative Procedure Act does not permit the FAA to “bootstrap” a long-term requirement into an urgent safety of flight action where the rule becomes effective at the same time the public has the opportunity to comment. The short-term action and the long-term action are analyzed separately for justification to bypass prior public notice.
We are issuing this AD to address the mandatory replacement of all P/Ns M476 in the fuel system with P/Ns 10M-181.
STEMME F & D has issued Service Bulletin A31-10-083, Am-Index: 01.a, dated February 26, 2008. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.
We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.
We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD.
Based on the service information, we estimate that this proposed AD will affect 46 products of U.S. registry. We also estimate that it would take about 3 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour.
Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $11,040, or $240 per product.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by removing Amendment 39-15543 (73 FR 31355; June 2, 2008), and adding the following new AD:
(a) We must receive comments by August 4, 2008.
(b) This AD supersedes AD 2008-11-20, Amendment 39-15543.
(c) This AD applies to Model S10-VT powered sailplanes, serial numbers 11-001 through 11-112, certificated in any category.
(d) Air Transport Association of America (ATA) Code 28: Fuel.
(e) The mandatory continuing airworthiness information (MCAI) states:
AD 2007-0315-E was issued to address a possible fuel leakage in the gear compartment in front of the engine and mandated inspections and replacement of fuel plastic-made connectors by connectors made of metal. Since its publication, another fuel leakage has been reported on a S10-VT which had implemented the STEMME Service Bulletin (SB) A31-10-082 as required by AD 2007-0315-E.
It has been determined that the fuel leak may have been caused by the deformation that the originally installed clamps created on the fuel hoses and thus preventing the new clamps from being sufficiently pinched to perform a correct tightening.
The present Airworthiness Directive (AD) supersedes AD 2007-0315-E and requires you to check the fuel system according to the STEMME SB A31-10-083 as well as to replace single-ear clamps and plastic connectors.
The actions specified by this AD are intended to reduce the potential for a fire to ignite and which could lead to loss of control of the sailplane.
(f) Unless already done, do the following actions:
(1)
Serial numbers 11-036, 11-067, 11-068, and 11-090 had the plastic T- and Y-connectors in the fuel system replaced with metal connectors by the manufacturer.
(2)
(3)
(4)
(5) If a leak is found during the leak test required in paragraph (f)(4) of this AD, before further flight, repair the leak following an FAA-approved procedure. The appropriate maintenance manual contains these procedures.
(6)
(7) Before further flight after doing the replacement required in paragraph (f)(6) of this AD, do a leak test as specified in STEMME F & D Service Bulletin A31-10-083, Am-Index: 01.a, dated February 26, 2008.
(8) If a leak is found during the leak test required in paragraph (f)(7) of this AD, before further flight, repair the leak following an FAA-approved procedure. The appropriate maintenance manual contains these procedures.
(9)
This AD differs from the MCAI and/or service information as follows: No differences.
(g) The following provisions also apply to this AD:
(1)
(2)
(3)
(h) Refer to MCAI European Aviation Safety Agency (EASA) Emergency AD No. 2008-0053-E, dated March 5, 2008; STEMME F & D Service Bulletin A31-10-082, AM.-Index: 01.a, dated November 30, 2007; and STEMME F & D Service Bulletin A31-10-083, Am-Index: 01.a, dated February 26, 2008, for related information.
Internal Revenue Service (IRS), Treasury.
Notice of proposed rulemaking by cross-reference to temporary regulations and notice of proposed rulemaking.
In the Rules and Regulations section of this issue of the
Written or electronic comments and requests for a public hearing must be received by October 1, 2008.
Send submissions to: CC:PA:LPD:PR (REG-138355-07), Internal Revenue Service, PO Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand delivered between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG-138355-07), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue, NW., Washington, DC., or sent electronically, via the Federal eRulemaking Portal at
Concerning the proposed regulations under section 367, John H. Seibert, at (202) 622-3860; concerning the proposed regulations under section 954 or 956, Paul J. Carlino at (202) 622-3840; concerning submissions of comments or a public hearing, Richard Hurst, at (202) 622-7180 (not toll-free numbers).
Temporary regulations in this issue of the
It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and because the proposed regulation does not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. Ch. 6) does not apply.
Before these proposed regulations are adopted as final regulations, consideration will be given to any written (a signed original and eight (8) copies) or electronic comments that are submitted timely to the IRS. The IRS and Treasury Department request comments on the clarity of the proposed rules and how they can be made easier to understand. All comments will be available for public inspection and copying. A public hearing will be scheduled if requested in writing by any person that timely submits written comments. If a public hearing is scheduled, notice of the date, time, and place for the public hearing will be published in the
The principal authors of these regulations are John H. Seibert and Paul J. Carlino, Office of Associate Chief Counsel (International). However, other personnel from the IRS and Treasury Department participated in their development.
Income taxes, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 1 is proposed to be amended as follows:
26 U.S.C. 7805. * * *
[The text of the proposed § 1.367(a)-2 is the same as the text for § 1.367(a)-2T(a) through (e)(2) published elsewhere in this issue of the
[The text of the proposed § 1.367(a)-4 is the same as the text for § 1.367(a)-4T(a) through (i)(1) published elsewhere in this issue of the
[The text of the proposed § 1.367(a)-5 is the same as the text for § 1.367(a)-5T(a) through (f)(3)(ii) published elsewhere in this issue of the
(c) * * *
(2) * * *
(ii) [The text of the proposed amendment to § 1.954-2(c)(2)(ii) is the same as the text of § 1.954-2T(c)(2)(ii) published elsewhere in this issue of the
(v) [The text of the proposed amendment to § 1.954-2(c)(2)(v) is the same as the text for § 1.954-2T(c)(2)(v) published elsewhere in this issue of the
(vi) [The text of the proposed amendment to § 1.954-2(c)(2)(vi) is the same as the text for § 1.954-2T(c)(2)(vi) published elsewhere in this issue of the
(vii) [The text of the proposed amendment to § 1.954-2(c)(2)(vii) is the same as the text for § 1.954-2T(c)(2)(vii) published elsewhere in this issue of the
(3) * * *
(i) [The text of the proposed amendment to § 1.954-2(c)(3)(i) is the same as the text for § 1.954-2T(c)(3)(i) published elsewhere in this issue of the
(b) * * *
(1) * * *
(vi) [The text of the proposed amendment to § 1.956-2(b)(1)(vi) is the same as the text for § 1.956-2T(b)(1)(vi) published elsewhere in this issue of the
(e) [The text of the proposed amendment to § 1.956-2(e) is the same as the text of § 1.956-2T(e) published elsewhere in this issue of the
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to approve revisions to the South Coast Air Quality Management District (SCAQMD) portion of the California State Implementation Plan (SIP). These revisions concern oxides of nitrogen (NO
Any comments on this proposal must arrive by August 4, 2008.
Submit comments, identified by docket number EPA-R09-OAR-2008-0337, by one of the following methods:
1.
2.
3.
Lily Wong, EPA Region IX, (415) 947-4114,
This proposal addresses the following SCAQMD rules: Rule 2004, Rule 2007, and Rule 2010. In the Rules and Regulations section of this
We do not plan to open a second comment period, so anyone interested in commenting should do so at this time. If we do not receive adverse comments, no further activity is planned. For further information, please see the direct final action.
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Advance notice of proposed rulemaking (ANPRM); reopening of comment period and announcement of public meeting.
PHMSA is concerned that current requirements may not adequately address the risks associated with the storage of explosives while they are in transportation. On November 16, 2005, we published an advance notice of proposed rulemaking to solicit comments concerning measures to reduce those risks. The comment period closed February 14, 2006. To ensure that our stakeholders are fully aware of the risks we are addressing and given sufficient opportunity to comment, this ANPRM re-opens the comment period, summarizes the comments already in the docket, and announces a public meeting.
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Susan Gorsky or Ben Supko, Office of Hazardous Materials Standards, telephone (202) 366-8553, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, East Building, PHH-10, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001.
On November 16, 2005 PHMSA published an advance notice of proposed rulemaking (ANPRM) under Docket HM-238 (70 FR 69493) to solicit comments concerning measures to reduce the risks posed by the storage of explosives while they are in transportation. For persons interested in viewing the ANPRM, it is accessible by PHMSA docket number (PHMSA-2005-22987) through the Federal eRulemaking Portal (
As indicated in the ANPRM, we are concerned that the current regulations do not adequately address the safety and security risks associated with the storage of explosives while they are in transportation. Brief summaries of the Federal Motor Carrier Safety Regulations (FMCSRs; 49 CFR parts 390-397) and Hazardous Materials Regulations (HMR; 49 CFR parts 171-180), as discussed in the ANPRM, are provided below:
The FMCSRs are administered by the Federal Motor Carrier Safety Administration (FMCSA) to address driver qualifications; vehicle parts and accessories; driving requirements and hours of service; vehicle inspection, repair and maintenance; driving and parking rules for the transportation of hazardous materials; hazardous materials safety permits; and written route plans. The FMCSRs include requirements for storage of explosives incidental to movement. In accordance with the FMCSRs, a motor vehicle that contains Division 1.1, 1.2, or 1.3 explosives must be attended at all times, including during incidental storage, unless the motor vehicle is located on the motor carrier's property, the shipper or consignee's property, or at a “safe haven” (49 CFR 397.5).
Under the FMCSRs, a “safe haven” is defined as an area specifically approved in writing by Federal, State, or local government authorities for the parking of unattended vehicles containing Division 1.1, 1.2, and 1.3 explosive materials (49 CFR 397.5(d)(3)). The decision as to what constitutes a safe haven is generally made by the local competent authority having jurisdiction over the area. The FMCSRs do not include requirements for safety or security measures for safe havens.
The FMCSRs require any person who files a Motor Carrier Identification Report Form (MCS-150) according to the schedule set forth in § 390.19(a) of the 49 CFR and transports more than 25 kg (55 pounds) of a Division 1.1, 1.2, or 1.3 material or an amount of a Division 1.5 (explosive) material that requires placarding under part 172 of the 49 CFR to hold a valid safety permit. A safety permit is a document issued by FMCSA that contains a permit number and confers authority to transport in commerce the hazardous materials listed in § 385.403 (49 CFR 385.402). Persons holding a safety permit and transporting Division 1.1, 1.2, and 1.3 materials must prepare a written route plan that meets the requirements of § 397.67. The route plan requires carriers to establish a route that avoids heavily populated areas, places where crowds are assembled, tunnels, narrow streets, or alleys (49 CFR 397.67).
In addition, a motor vehicle containing a Division 1.1, 1.2, or 1.3 explosive may not be parked on or within 5 feet of the traveled portion of a public highway or street; on private property without the consent of the person in charge of the property; or within 300 feet of a bridge, tunnel, dwelling, or place where people work or congregate unless for brief periods when parking in such locations is unavoidable (49 CFR 397.7(a)).
In accordance with the HMR, the same requirements apply to the transportation of hazardous materials whether the materials are incidentally stored or actually moving (e.g., shipping papers, emergency response information, hazard communication, packaging, and segregation). As a result, the HMR require each person who incidentally stores explosives during transportation to have a security plan. The security plan must be based on an assessment of possible security risks and must include measures to address those risks. Otherwise, the HMR do not provide standards or incorporate guidelines for facilities to follow when storing explosives incidental to transportation.
In the November 2005 ANPRM, we summarized government and industry standards for explosives storage. The standards focus on explosives storage, but vary greatly by mode of transportation, type of explosives, and whether the explosive is in transportation. The standards covered in the ANPRM are listed below. Detailed information on the standards may be obtained by accessing the public docket for this rulemaking.
• Hazardous Materials Regulations (49 CFR parts 171-180).
• Federal Motor Carrier Safety Regulations (49 CFR parts 350-399).
• United States Coast Guard Requirements applicable to explosives storage (33 CFR parts 101-126).
• Bureau of Alcohol, Tobacco, Firearms, and Explosives Regulations for explosives in commerce (27 CFR part 555).
• National Fire Protection Association's NFPA 498, “Standard for Safe Havens and Interchange Lots for Vehicles Transporting Explosives” (NFPA 498).
• Institute of Makers of Explosives Safety Library Publication No. 27, “Security in Manufacturing, Transportation, Storage and Use of Commercial Explosives.”
• Surface Deployment and Distribution Command, “SDDC Freight Traffic Rules Publication NO. 1C (MFTRP NO. 1C).”
The purpose of this ANPRM is to re-open the comment period, which originally closed February 14, 2006, and to announce a public meeting to solicit comments and discussion on the lack of uniform standards for establishing, approving, and maintaining safe havens for the temporary storage of explosives during motor vehicle transportation. As described in the sections above, there are currently no minimum or uniform criteria for federal, state, or local governments use when approving the establishment and operation of safe havens. In addition, it is likely that current, approved, safe havens do not comply with the very minimum requirements established by Part 397 of the FMCSRs.
One way to decrease the risk associated with motor vehicles transporting explosives being left unattended at rest and truck stops is to require explosives to be attended at all times through the use of driver teams. However, historical experience indicates that this would increase the potential risk to the general public. Enforcing an “attendance” requirement is difficult at best. There would be little incentive for operators of vehicles to comply, they may even remove the placards and other visible evidence of the explosive being transported in order to leave the vehicles unattended at locations of their choice, such as residential communities and business districts.
Another way of decreasing risk is to ensure that explosives are stored safely during transportation. Industry consensus standards, such as those provided in NFPA 498, and other guidelines could be incorporated into the HMR to establish a uniform baseline for safe haven locations. This is also a complicated issue that may actually reduce the number of safe havens. Owners of safe havens may be unwilling to absorb the cost required to bring their property into compliance. Development of new, less stringent standards may be an alternative that will balance the risk of unattended explosives with the cost of establishing and maintaining adequate safe haven locations.
While our November 16, 2005 ANPRM focused primarily on safety issues related to the temporary storage of explosives transported by highway, we also discussed additional concerns
PHMSA and Transportation Security Administration (TSA) are working cooperatively to address security issues related to the transportation by rail of high-hazard materials—toxic-inhalation-hazard (TIH) materials, radioactive materials, and explosives. On December 21, 2006, PHMSA, in consultation with the Federal Railroad Administration (FRA) and TSA, published a notice of proposed rulemaking (NPRM; 71 FR 76833) proposing to revise the current requirements in the HMR applicable to the safe and secure transportation of hazardous materials transported in commerce by rail. Based on comments received in response to the NPRM and the provisions of the 9/11 Commission Act, we are adopting the following revisions to the security plan provisions:
• Rail carriers must compile information and data on the commodities transported, including the routes over which these commodities are transported.
• Rail carriers transporting the specified hazardous materials must use the data they compile and relevant information from state, local, and tribal officials, as appropriate, regarding security risks to high-consequence targets along or in proximity to a route to analyze the safety and security risks for each route used and practicable alternative routes to the route used.
• Using these analyses, rail carriers must select the safest and most secure practicable route for the specified hazardous materials.
• In developing their security plans, rail carriers must specifically address the security risks associated with shipments delayed in transit or temporarily stored in transit.
• Rail carriers transporting the covered hazardous materials must notify consignees of any significant unplanned delays affecting the delivery of the hazardous material.
• Rail carriers must work with shippers and consignees to minimize the time a rail car containing one of the specified hazardous materials is placed on track awaiting pick-up, delivery, or transfer.
• Rail carriers must conduct security visual inspections at ground level of rail cars containing hazardous materials that have been accepted for transportation or placed in a train to check for signs of tampering or the introduction of an improvised explosive device (IED).
Also on December 21, 2006, TSA published an NPRM proposing additional security requirements for rail transportation. The TSA rulemaking would enhance security in the rail transportation mode by proposing requirements on freight and passenger railroads, rail transit systems, and on facilities with rail connections that ship, receive, or unload certain hazardous materials. The TSA NPRM includes proposals applicable to the transportation of TIH materials, radioactive materials, and explosives by rail: (1) Location reporting of rail cars upon request from TSA; (2) enhanced chain-of custody procedures to ensure positive and secure change of physical custody when transferring rail cars between carriers and between carriers and rail hazardous materials shipper and receiver facilities; (3) enhanced physical security measures for rail cars awaiting pick-up at shippers' facilities; and (4) enhanced physical security measures for rail cars awaiting unloading at consignee facilities in high-threat urban areas.
The United States Coast Guard (USCG) issues regulations for the safe and secure handling and storage of explosives and other dangerous cargos that are within or contiguous to waterfront facilities. The USCG's primary statutory authority is set forth in title 46, U.S. Code, the Ports and Waterways Safety Act, 33 U.S.C. 1221,
The USCG regulations at 33 CFR part 126 establish requirements for designated waterfront facilities. Section 126.15 requires designated waterfront facilities that handle, store, stow, load, discharge, or transport dangerous cargo to meet specific conditions. These requirements adequately address safety issues associated with the temporary storage of explosives during transportation by vessel.
In August 2005, TSA initiated the “TSA Hazardous Materials Truck Security Pilot.” This congressionally mandated pilot program was designed to test the functionality and capabilities of a centralized truck tracking system. The pilot utilized specific protocols capable of interfacing with existing truck tracking systems, government intelligence centers, and first responders. The goal was for TSA to establish and test a prototype Truck Tracking Center that would allow TSA to “continually” track truck locations and specific hazardous materials load types in all 50 states. The tracking system also allowed for automatic or manual notification of exception based events. The TSA Hazardous Materials Truck Security Pilot, including the prototype Truck Tracking Center, ended in 2007.
As we indicated in a June 27, 2007 (72 FR 35211) notice withdrawing Docket HM-232A, entitled Security Requirements for Motor Carriers Transporting Hazardous Materials, any rulemaking to address motor carrier security tracking should be carried out under TSA's legal authority, rather than primarily as an amendment to the HMR. In the notice we advised the public that the TSA has assumed the lead role from PHMSA for rulemaking addressing the security of motor carrier shipments of hazardous materials under the HM-232A docket. Accordingly, we withdrew the ANPRM and closed the rulemaking proceeding. As described in the withdrawal notice, the action was consistent with and supportive of the respective transportation security roles and responsibilities of the DOT and DHS as delineated in a Memorandum of Understanding (MOU) signed September 28, 2004, and the roles of TSA and PHMSA as outlined in an Annex to that MOU signed August 7, 2006.
In light of these ongoing efforts and extensive consultation and coordination with TSA in several other areas to develop measures to enhance transportation security and to identify high-risk materials for which additional
We received 22 comments in response to the ANPRM, as follows:
The comments are available for review through the Federal eRulemaking Portal (
Several of the commenters provided comments highlighting security concerns including specific DHS security initiatives (e.g., transportation worker identity credential (TWIC), cargo security) that are beyond the scope of this rulemaking. We support TSA efforts and agree that the TWIC program, cargo chain security regulations, and the truck security pilot will, when implemented, provide for a more efficient and effective means of screening employees, securing cargo, and ensuring hazardous materials are transported securely. It is not our intention to propose requirements applicable to the storage of explosives in transportation that will conflict with or duplicate DHS regulations. If we determine to move forward with rulemaking, our goal will be to enhance the safety of explosives stored during transportation while providing additional flexibility for motor carriers transporting these materials.
Generally, commenters suggest that a lack of consistent regulations for the storage of explosives during transportation creates a significant safety concern. The commenters do not support a cookie-cutter solution that could limit transportation or create an undue burden for transportation by a particular mode. Commenters suggest that an effective approach would be one that promotes flexibility and provides several storage options for explosives while they are in transportation.
As indicated above, the intention of the ANPRM was to gather information from commenters to help us determine if our stakeholders support further regulatory action. Below we paraphrase the questions asked in the ANPRM and provide a summary of the applicable comments.
IME, NAAHAC, PMA, Boyle Transportation, VOHMA, Onyx , PPG, COSTHA, ASEPO, AAR, and ARKEMA provided comments regarding the effectiveness of different types of safety and security measures. Generally, these commenters suggest that current safety measures are on target, but could use some improvement.
In its comments, ARKEMA outlines several issues that should be addressed in a rulemaking proposal, such as a clear and consistent definition of what constitutes a safe haven, attendance, and the Hours of Service Rules when locating safe havens.
ONYX suggests constant attendance to effectively secure higher-risk explosives in Division 1.1, 1.2, and 1.3 during transportation. In addition, for materials in Division 1.4, 1.5 and 1.6, ONYX indicates adequate safety and security during transportation can be maintained by (1) expediting delivery, (2) minimizing the time the materials are located at a transfer facility, and (3) providing site-specific security measures for any transfer facility.
Boyle Transportation indicates handling and storage during transportation is adequately addressed by NFPA 498. According to Boyle Transportation, “This standard should be the baseline for any enhancements. And, if introduced into regulation, [NFPA 498] needs to be applicable to all modes so that these materials are consistently secured.”
ATA, COSTHA, AAR, PMA, and VOHMA express concern regarding the development of a one-size fits all rulemaking and provide support for the adequacy of current requirements. ATA indicates the trucking industry has already implemented measures to ensure the safe transportation of hazardous materials.
IME, PMA, Boyle Transportation, VOHMA, ONYX, ATA, and ARKEMA provided comments regarding the costs of implementing enhanced safety measures. Most comments revolve around the costs of physical security, the impact of additional regulations on the explosives transportation industry, and the cost of constructing and maintaining safe havens.
Boyle Transportation, ONYX, and ATA express concern regarding the
Boyle Transportation and ARKEMA provide additional comments regarding the number of safe havens and other storage locations for explosives. Boyle Transportation notes that less-than-truckload shipments were moved point-to-point as a result of carriers' inability to use terminals, generating much more mileage than previously consolidated shipments. ARKEMA indicates that, in an effort to meet guidelines and secure capacity to move their goods, explosives manufacturers might be forced to handle the transportation themselves or hire specialized carriers to perform the transportation. According to Boyle Transportation, a simple solution is to allow commercial vehicles transporting explosives to stop at Federally designated safe havens. In addition, Boyle Transportation states, “Most carriers that designed truck terminals for the handling and storage of explosives used NFPA 498 as a guideline.”
IME, PMA, Boyle Transportation, ONYX, and ATA provided comments in regard to safety and productivity benefits available to offset the costs of explosive storage standards. IME explains the key to explosives safety is exposing the minimum amount of people to the threat of an accidental explosion. Boyle Transportation states, “The safety benefit is insurance against the risk of a high consequence, low probability event. Most of this benefit accrues to the general public not the specific carrier.” According to ATA, the hazardous materials regulatory requirement to transport materials without undue delay has tremendous safety and security benefits.
IME, PMA, Boyle Transportation, ONYX, and ATA provided comments on the impact of implementing safety and security measures on the human environment. The comments were divided on this issue. IME expects little impact on the human environment. Boyle Transportation and ONYX indicate that reducing the safety and security risks associated with the transportation of explosives will benefit the public and regulated community. PMA and ATA suggest that disruptions in the flow of cargo may cause significant environmental and land use issues.
IME, NAAHAC, PMA, Boyle Transportation, ONYX, and ATA provided comments in response to this question. Generally, the commenters indicate citizens will benefit from the safe transportation of explosives and, therefore, it is beneficial for the government to promote such regulations. Funding methods provided by the commenters include reduced insurance rates, increased inspection protocols or frequencies, new or increased fines, tax credits or direct grants, surcharges or user fees on shipments, and research and education. Commenters suggest that these types of measures could be utilized to fund a more extensive safe haven program that accounts for the true costs and benefits it imposes.
The comments are divided when it comes to the safety and security of safe havens; however, commenters generally agree that the addition of accessible storage locations aids in the safe and secure transportation of explosives.
PMA, Baker Hughes, VOHMA, ATA, and SAAMI express concern regarding any mandated use of safe havens. Baker Hughes states, “Restricting shipments to major shipping lanes where safe havens would be located would not allow us to efficiently service our customers. Shipments would actually be in transit longer, thereby creating more risk rather than less.” VOHMA, ATA, and SAAMI indicate storing explosives and other high-hazard materials in concentrated locations such as safe havens may cause terrorist actions to be directed toward safe havens. According to ATA, a driver's best defense may be to blend in with other trucks on the road as well as in a rest area. ATA states, “A standard that allows trucks carrying extremely hazardous materials to be parked in areas that meet Federal security standards may be more appropriate than the use of designated safe havens.”
IME, NAAHAC, Boyle Transportation, ASEPO, and DGAC support the use of safe havens for the storage of explosives. ASEPO states, “a concerted effort on the part of the Federal government should be made to use its vast resource, including its land, to facilitate the creation of new safe havens in areas where those in private hands have been closed.” Boyle Transportation's comments indicate it agrees with the incorporation of safe havens into the HMR; however, different standards should be developed for temporary parking at truck stops and carrier terminals (less than 4 hours) than for handling or storage during transportation for up to 100 hours. IME and DGAC recommend the incorporation of
IME, NAAHAC, Boyle Transportation, and ONYX support the performance-based standards provided in NFPA 498 and indicate they pave that way for consistent reasonable requirements for in transit storage facilities provided they are readily available. However, IME requests “FMCSA strike its vague and arbitrary condition at 397.5(d)(3)” which indicates a safe haven is a location approved by state or local government for the unattended parking of Division 1.1, 1.2, or 1.3 materials. In addition ONYX states, it would be “unreasonable for the other lower-hazard explosive materials, particularly when these materials are present in
ATA, VOHMA, and DOE state their concerns regarding the mandated use of safe havens. ATA indicates that the current number of safe havens has been inadequate for years, and “Until there is an extensive network of safe havens, it is unreasonable to require carriers to use safe havens in the transportation of highly hazardous materials.” DOE and VOHMA express concern regarding the spacing and accessibility of safe havens. DOE indicates we must take into account a driver's ability to reach a designated safe haven based on weather conditions, emergencies, or other factors causing unanticipated delays. VOHMA's concerns focus around the placement of safe havens and the likelihood of frustrated shipments. VOHMA states, “The cost associated with frustrated cargoes for all goods is high, and certainly the costs associated with frustrated high hazard shipments would be even higher.”
IME, NAAHAC, PMA, Boyle Transportation, ONYX, and ATA support specific safety and security measures for certain explosives, but differ on which measures should apply and which materials should be subject. IME prefers the application of the safety and security measures provided in SLP-27, which are applicable to explosives in Division 1.1, 1.2, and 1.3. NAAHAC states, “Specific safety and security transportation measures should be limited to explosive shipments that require placards.” PMA recommends we follow the standards provided in USCG requirements applicable to explosives storage (33 CFR Part 126) as they apply to type and quantity of materials. Boyle Transportation supports increased safety and security measures for Division 1 through Division 1.4 explosives. In addition, Boyle states, “Shipments of explosives should require two drivers.” ONYX indicates the use of safe havens for lower-hazard explosives materials is not justified; however, it supports the current FMCSA requirements for Division 1.1, 1.2, and 1.3 explosives to be attended at all times. To limit extremely hazardous materials in one place, ATA states, “One concept that merits additional consideration is using the concept of maximum net explosive mass as a means of limiting the quantity of extremely hazardous materials that are allowed to be present on any one transport vehicle, train, ship, or in any one area.”
Shell Chemical, NAAHAC, PMA, Baker Hughes, VOHMA, CGA, and AAR oppose aggregation limits on the storage of explosives at a single facility during transportation. Shell Chemical states, “Limits on storage would place a burden on certain locations and disrupt their operational processes.” NAAHAC expresses concern regarding the likelihood of drivers being required to seek alternate safe haven due to the fact that a facility had already reached its “allowable” quantity of Class 1 hazardous materials. NAAHAC indicates under such circumstances the drivers may have to drive hundreds of miles to seek an alternate parking location and possibly violate the FMCSA hours of operation limit, providing for a greater risk.
IME, Boyle Transportation, ONYX, and ATA indicate they may support an aggregation limit on the amount of explosives stored at a single facility while in transportation. IME states, “Risk-based aggregation limits on the storage of explosives and other high-hazard materials at a single facility during transportation are appropriate.” ATA supports the concept of limiting the quantity based on a maximum net explosive mass.
Shell Chemical, IME, NAAHAC, PMA, ATA, and CGA indicate we should not consider limits on the amount of time explosives or other high-hazard materials may be stored during transportation. Shell Chemical indicates time limits will have an enormous impact on the supply systems for these materials and would do nothing more than shift the risk from one jurisdiction to others. IME and CGA indicate the requirement for materials to be transported without undue delay is sufficient. CGA states “DOT has also stated that anything should be deliverable within 10 days. This was their reason to require a shipping paper to be retained for 375 days before the recent change to the 2-year retention period.”
IME, Boyle Transportation, and ONYX agree that shipping documents should provide the locations where a shipment will be stored during transportation. IME states, “Shipping documents, specifically the route or trip plan, should indicate all stops which includes storage at a safe haven or other facility during transportation.” Boyle Transportation states “A documented route of travel (paper or electronic) and tracking systems that detect out of route conditions should be a requirement for all modes and stops for safe haven en route should be identified. ONYX indicates it would support the addition of storage locations on the route plan for Division 1.1, 1.2 or 1.3 materials but not for other explosives in Divisions 1.4, 1.5, and 1.6.
NAAHAC, PMA, Boyle Transportation, and CGA indicated we may want to review additional standards and programs for developing uniform storage requirements for explosives during transportation. Those standards and programs are listed below:
• Uniform Fire Code and International Fire Code;
• Requirements for a Declaration of Security under Coast Guard regulations;
• Hazards of Electromagnetic Radiation to Ordnance (HERO) certification required by DOD for any electronic system in a commercial vehicle used to transport DOD munitions.
• Safety Permit regulation to transport highly toxic (Zone A) and bulk quantities of dangerous goods
• Risk Management Programs—regulate the amounts of highly toxic dangerous goods stored at a facility
• CDL hazmat endorsement
• Driver background checks
• State laws pertaining to dangerous goods transport
Shell Chemical, Boyle Transportation, and ATA highlight the importance of involving industry representatives in the rulemaking process. IME and NAAHAC support our development of a rulemaking in this area. IME calls for the adoption of the consensus standard, NFPA 498. PMA, ONYX, and CGA indicate they do not support regulatory action in this area. ONYX indicates it supports the use and operation of safe havens, but “does not believe there is a need for PHMSA to pursue regulations for the transportation of explosive materials.”
We are holding a public meeting on Thursday, August 7, 2008 at U.S. DOT headquarters located at 1200 New Jersey Ave, SE., Washington, DC 20590. The meeting will begin at 9 a.m. in conference room 6 of our Conference Center, which is located in the atrium of the West Building. The main visitor's entrance is located in the West Building, on New Jersey Avenue and M Street. Upon entering the lobby, visitors must report to the security desk. Visitors should indicate that they will be attending the Explosives Storage Public Meeting and wait to be escorted to the Conference Center. Due to the limited amount of parking around DOT Headquarters, use of public transit is strongly advised. DOT is served by the Navy Yard Metrorail Station (Green line). The closest exit to DOT Headquarters is the Navy Yard exit. The West building is located diagonally across M Street from the Navy Yard Metrorail Station.
The public meeting will focus on safety issues associated with the temporary storage of explosives during transportation. PHMSA encourages all interested persons, including state and local officials, emergency response personnel, and explosives shippers and carriers, to participate in this meeting. We would like to use this forum to promote a dialogue among all interested stakeholders to help us identify the most appropriate strategies for enhancing the safe storage of explosives during transportation. Any person wishing to participate in the public meeting should provide their name and organization to Ben Supko or Susan Gorsky, by telephone or in writing no later than July 24, 2008. Providing this information will facilitate the security screening process for entry into the building on the day of the meeting. Participants do not need to prepare oral comments, but rather, be prepared to take part in an open discussion on issues raised by the comments summarized above. Some questions to consider before the meeting include:
1. Are safe havens currently available? How many? Where are they located?
2. Would a network of safe havens provide a safety benefit?
3. What is the value of a rest stop for the vehicle and the driver?
4. Would companies use safe havens or continue using driver teams? Does one promote safety more than the other?
5. Would the adoption of an industry consensus standard such as NFPA 498 promote the development of safe havens?
6. Do facilities that are being used as safe havens meet the requirements of NFPA 498?
7. Would you expect companies to convert existing facilities that meet NFPA 498 into safe havens?
8. How can we improve on the safety measures provided in NFPA 498? Should we include aggregation limits, time limits, etc.?
9. If we incorporate by reference NFPA 498 into the HMR, should we expect a drop in the number of carriers similar to what occurred when DOD implemented SDDS MFTRP No.1C?
10. Would it be more appropriate to align safe havens with the SDDC MFTRP No.1C than a consensus standard such as NFPA 498?
11. What is the impact of eliminating the requirement for safe havens to be approved by Federal, state, or local government officials?
12. Would state and local governments allow the development of safe havens without prior approval?
13. Are zoning restrictions the primary force against the development of safe havens?
14. What emergency response needs must be taken into consideration when selecting a location for a safe haven and how should they be addressed?
15. Are areas that house carrier facilities (close proximity to transportation arteries, industrial parks, etc.) sufficient locations for safe havens in terms of emergency response capabilities?
16. What costs apply to the operation of safe havens?
17. Would safe haven operators charge a fee to carriers for allowing them to use their safe haven?
18. Is the concept of temporary parking (less than 4 hours) at truck stops and carrier terminals a sufficient alternative to safe havens?
We also urge interested parties to identify issues we may have overlooked in the ANPRM. For example, the ANPRM made no mention of a final report entitled, “Recommended National Criteria for the Establishment and Operation of Safe Havens” that was published in November of 1990 by the Commercial Vehicle Safety Alliance (CVSA). The CVSA report may be outdated, but it did address available safe havens, future locations for safe havens, a national standard for safe havens, and several other issues pertinent to this docket. For persons interested in preparing comments or viewing the CVSA report, it is accessible by PHMSA docket number (PHMSA-2005-22987) on the Federal eRulemaking Portal (on the Web site
Executive Order 12866 requires agencies to regulate in the “most cost-effective manner,” to make a “reasoned determination that the benefits of the intended regulation justify its costs,” and to develop regulations that “impose the least burden on society.” We therefore request comments, including specific data if possible, concerning the costs and benefits that may be associated with adoption of specific storage requirements for carriers that include explosives storage as part of their transportation cycle.
Executive Order 13132 requires agencies to assure meaningful and timely input by State and local officials in the development of regulatory policies that may 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. We invite State and local governments with an interest in this rulemaking to comment on the effect that adoption of specific storage requirements for carriers that transport and store explosives in commerce may have on State or local safety or environmental protection programs.
Executive Order 13175 requires agencies to assure meaningful and timely input from Indian tribal government representatives in the development of rules that “significantly or uniquely affect” Indian communities and that impose “substantial and direct
Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 601
The National Environmental Policy Act of 1969 (NEPA) requires Federal agencies to consider the consequences of major Federal actions and that they prepare a detailed statement on actions significantly affecting the quality of the human environment. Interested parties are invited to address the potential environmental impacts of regulations applicable to the storage of explosives transported in commerce. We are particularly interested in comments about safety measures that would provide greater benefit to the human environment, or on alternative actions the agency could take that would provide beneficial impacts.
This rulemaking is issued under authority of the Federal hazardous materials transportation law (49 U.S.C. 5101
The Department of Transportation assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN number contained in the heading of this document may be used to cross-reference this action with the Unified Agenda.
Anyone is able to search the electronic form for all comments received into any of our dockets by the name of the individual submitting the comments (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
Agricultural Marketing Service, the Department of Agriculture (USDA).
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), this notice announces the Agricultural Marketing Service's (AMS) intention to request an extension for and revision to a currently approved information collection for the Regulations Governing the Inspection and Grading of Manufactured or Processed Dairy Products—Recordkeeping (Subpart B).
Comments received by September 2, 2008, will be considered.
The information collection requirements in this request are essential to carry out the intent of the AMA to ensure that dairy products are produced under sanitary conditions and that buyers are purchasing a quality product. In order for the Regulations governing the Inspection and Grading of Manufactured or Processed Dairy Products to serve the government, industry, and the consumer, laboratory test results must be recorded.
Respondents are not required to submit information to the agency. The records are to be evaluated by a USDA inspector at the time of an inspection. These records include quality tests of each producer, plant records of required tests and analysis, and starter and cheese make records. As an offsetting benefit, the records required by USDA are also records that are routinely used by the inspected facility for their own supervisory and quality control purposes.
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 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. Comments may be sent to Reginald Pasteur, 1400 Independence Avenue, SW., Room 2746—South, Washington, DC 20250-0230. All comments received will be available for public inspection at the above location, or on the Internet at
All responses to this notice will be summarized and included in the request for OMB approval. All comments will become a matter of public record.
United States Commission on Civil Rights
Notice of briefing and meeting.
Friday, July 11, 2008; 9:30 a.m.
U.S. Commission on Civil Rights, 624 Ninth Street, NW., Rm. 540, Washington, DC 20425.
Lenore Ostrowsky, Acting Chief, Public Affairs Unit (202) 376-8582.
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) is rescinding in part the administrative review of the antidumping duty order on refined brown aluminum oxide (RBAO) from the People's Republic of China (PRC) for the period November 1, 2006, to October 31, 2007, with respect to Henan Yilong High and New Materials Co. Ltd. (Henan Yilong). This partial rescission is based on the withdrawal of the request for review by the interested party that requested the review. Additionally, the Department is extending the preliminary results of this administrative review to no later than December 1, 2008.
July 3, 2008.
David Goldberger or Kate Johnson, AD/CVD Operations, Office 2, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, N.W., Washington, D.C. 20230; telephone (202) 482-4136 or (202) 482-4929, respectively.
On November 1, 2007, the Department published a notice of opportunity to request an administrative review of the antidumping duty order on,
On December 27, 2007, the Department initiated a review on Henan Yilong and Qingdao Shunxingli.
In a letter dated May 23, 2008, Fujimi withdrew its request for review of Henan Yilong and requested that the Department rescind the review with respect to this company. On June 2, 2008, domestic producers Washington Mills, C + E Minerals, and Treibacher Scheifmittel Corp. (collectively, “domestic producers”), submitted comments opposing Fujimi's request. Fujimi responded to the domestic producers' opposition on June 11, 2008.
The applicable regulation, 19 CFR 351.213(d)(1), states that if a party that requested an administrative review withdraws the request within 90 days of the publication of the notice of initiation of the requested review, the Secretary will rescind the review in whole or in part. Furthermore, the regulation states the Secretary may extend this time limit if the Secretary decides that it is reasonable to do so.
The domestic producers object to Fujimi's request, stating that it is untimely, and that both the Department and the domestic producers already have devoted extensive time and resources to this review. Further, the domestic producers contend that Fujimi waited until surrogate value data was placed on the record to determine whether the review results would be favorable before withdrawing its review request for Henan Yilong.
Although Fujimi withdrew the request for review of Henan Xilong after the 90-day deadline, the Department finds it reasonable to extend the withdrawal deadline. Contrary to the domestic producers' assertions, the Department has not yet devoted significant time or resources to analyzing Henan Yilong's information for this review, e.g., the Department has not yet completed its analysis of Henan Xilong's questionnaire responses, nor issued a supplemental questionnaire for portions of the Henan Xilong questionnaire response.
This notice serves as a reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this period of time. Failure to comply with this
Section 751(a)(3)(A) of the Tariff Act of 1930, as amended (the Act), requires the Department to complete the preliminary results of an administrative review within 245 days after the last day of the anniversary month of an order for which a review is requested. However, if it is not practicable to complete the review within this time period, section 751(a)(3)(A) of the Act allows the Department to extend that time period to a maximum of 365 days.
The Department has determined it is not practicable to complete this review for the remaining respondent, Qingdao Shunxingli, within the statutory time limit because we require additional time to analyze complex issues, such as the valuation of the principal raw material and the financial ratios, and the questionnaire responses submitted by Qingdao Shunxingli. The time needed to analyze this information and to develop fully the record in this administrative review makes it impracticable to complete the preliminary results within the originally specified time limit. Accordingly, the Department is extending the time limit for completion of the preliminary results of this administrative review until no later than December 1, 2008 (
This notice is issued and published in accordance with and sections 751(a)(1), 751(a)(3)(A), and 777(i)(1) of the Act, and 19 CFR 351.213(d)(4).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public hearings.
The Caribbean Fishery Management Council will hold public hearings to obtain input from fishers, the general public, and the local agencies representatives on the Draft Environmental Impact Statement (DEIS) amendment 4 to the Spiny Lobster Fishery Management Plan of Puerto Rico and the U.S. Virgin Islands.
The public hearings will be held from July 17, 2008 through July 22, 2008. See
Caribbean Fishery Management Council, 268 Munoz Rivera Avenue, Suite 1108, San Juan, Puerto Rico 00918-2577, telephone: (787) 766-5926.
The public hearings will be held on the following dates and locations:
• July 17, 2008, Mayaguez Resort and Casino, Rd. 104, Km. 0.3, Mayaguez, Puerto Rico
• July 18, 2008, Pierre Hotel at Gallery Plaza, De Diego Avenue, Santurce, Puerto Rico
• July 21, 2008, Frenchman's Reef and Morning Star Hotel, 5 Estate Bakkeroe, St. Thomas, USVI
• July 22, 2008, Caravelle Hotel, 44A Queen Cross St., Christiansted, St. Croix, USVI.
All meetings will be held from 7 p.m. to 10 p.m.
The Caribbean Fishery Management Council will hold Public Hearings to receive public input on a proposal Draft Environmental Impact Statement (DEIS) to establish a size limit for spiny lobster imports into the United States. This action would prohibit any person in the United States from importing spiny lobster:
-less than 5-ounces tail weight (5 ounces is defined as a tail that weighs 4.2-5.4 ounces) or compliance may be demonstrated by meeting the greater than 3-inch carapace length or 5.5-inch tail length.
-or if imported into Puerto Rico or the US Virgin Islands, less than 6.0-ounces tail weight (6 ounces is defined as a tail that weighs 5.9-6.4 ounces) or compliance may be demonstrated by meeting the 3.5-inch carapace length or 6.2-inch tail length.
-additionally, the importation of lobster tail meat without the exoskeleton (shell) attached, egg bearing female lobsters, or tails stripped of eggs would be prohibited.
Written comments must be received no later than August 11, 2008, in order to be considered by NOAA Fisheries. You may submit comments by any of the following methods:
-ELECTRONIC SUBMISSION E-MAIL:
-FAX: (727) 824-5308
-MAIL: Jason Rueter, Sustainable Fisheries Division, Southeast Regional Office, NOAA Fisheries Service, 263, 13th Avenue South, St. Petersburg, FL 33701-5505.
When submitting fax or e-mail comments, include the following document identifier in the comment subject line: 0648-AV61. Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.
Electronic copies of the DEIS may be obtained from the NOAA Fisheries Service Web site at
These hearings are physically accessible to people with disabilities. For more information or request for sign language interpretation and other auxiliary aids, please contact Mr. Miguel A. Rolon, Executive Director, Caribbean Fishery Management Council, 268 Munoz Rivera Avenue, Suite 1108, San Juan, Puerto Rico 00918-2577, telephone: (787) 766-5926, 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 Caribbean Fishery Management Council's (CFMC) Scientific and Statistical Committee (SSC) will hold a meeting.
The SSC meeting will be held on July 24, 2008.
The meeting will be held at the Pierre Hotel at Gallery Plaza, De Diego Avenue, Santurce, Puerto Rico.
Caribbean Fishery Management Council, 268 Munoz Rivera Avenue, Suite 1108, San Juan, Puerto Rico 00918-1920, telephone: (787) 766-5926.
The SSC will meet to discuss the items contained in the following agenda:
• Call to order
• Annual Catch Limits (ACLs) /Accountability Measures (AM) Guidelines
• Technical Monitoring and Compliance Team (TMCT) Report
• Annual Catch Limit Plan Development Group (ACLG) Report
• Discussion of TMCT and ACLG Reports
• Recommendations of the SSC to the CFMC
• Other Business
• Next Meeting
The SSC will convene on July 24, 2008, from 9:30 a.m. until 5 p.m.
The meeting is open to the public, and will be conducted in English. Fishers and other interested persons are invited to attend and participate with oral or written statements regarding agenda issues.
Although non-emergency issues not contained in this agenda may come before this group for discussion, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), those issues may not be the subject of formal action during this meeting. Actions will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305 ( c ) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. For more information or request for sign language interpretation and/other auxiliary aids, please contact Mr. Miguel A. Rolon, Executive Director, Caribbean Fishery Management Council, 268 Munoz Rivera Avenue, Suite 1108, San Juan, Puerto Rico 00918-1920, telephone: (787) 766-5926, 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 New England Fishery Management Council's (Council) Herring Oversight Committee will meet to consider actions affecting New England fisheries in the exclusive economic zone (EEZ).
The meeting will be held on Wednesday, July 30, 2008, at 9:30 a.m.
The meeting will be held at the Holiday Inn By the Bay, 88 Spring Street, Portland, ME 04101; telephone: (207) 775-2311.
Paul J. Howard, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
The items of discussion in the committee's agenda are as follows:
1. Review and discuss scoping comments received regarding Amendment 4 to the Herring Fishery Management Plan (FMP).
2. Review background information about observer coverage and monitoring/reporting issues (if available).
3. Work on the development of management alternatives for further consideration in Amendment 4 to the Herring FMP; the Committee and Advisory Panel may discuss measures to address monitoring and reporting requirements, observer coverage, shoreside monitoring and sampling, annual catch limits (ACLs) and accountability measures (AMs), measures to address herring bycatch concerns in the Atlantic mackerel fishery, and individual and group quota allocation programs (IFQs and sectors, for example), as well as other measures that were suggested for consideration during the scoping process
4. Develop Committee recommendations for Council consideration in October regarding the specific management measures to be considered further in Amendment 4.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified 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 Council'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 Paul J. Howard (see
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; proposed incidental harassment authorization; request for comments.
NMFS received a request from United Launch Alliance (ULA) for a one-year authorization to take small numbers of marine mammals by harassment incidental to
Comments and information must be received no later than August 4, 2008.
Comments on the application should be addressed to P. Michael Payne, Chief, Permits, Conservation and Education Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-3225. The mailbox address for providing email comments is
A copy of the application containing a list of the references used in this document may be obtained by writing to the address specified above, telephoning the contact listed below (see
Documents cited in this notice may be viewed, by appointment, during regular business hours, at the aforementioned address.
Jeannine Cody or Candace Nachman, Office of Protected Resources, NMFS, (301) 713-2289, or Monica DeAngelis, NMFS Southwest Region, (562) 980-3232.
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), and will not have an unmitigable adverse impact on the availability of the species or stock(s) for certain subsistence uses, and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring, and reporting of such taking are set forth.
NMFS has defined “negligible impact” in 50 CFR 216.103 as:
”...an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”
Section 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the United States can apply for an authorization to incidentally take small numbers of marine mammals by harassment. Except for certain categories of activities not pertinent here, the MMPA defines “harassment” as:
any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [“Level A harassment”]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [“Level B harassment”].
Section 101(a)(5)(D) establishes a 45-day time limit for NMFS' review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of small numbers of marine mammals. Within 45 days of the close of the comment period, NMFS must either issue or deny the authorization.
On February 18, 2008, NMFS received an application from ULA requesting an authorization for the harassment of small numbers of Pacific harbor seals (
To accommodate the
A more detailed description of the work proposed for 2008 is contained in the application which is available upon request (see
The marine mammal species likely to be harassed incidental to harbor activities at south VAFB are the Pacific harbor seal and the California sea lion. The most recent estimate of the Pacific harbor seal population in California is 31,600 seals. Since 1990 there has been no net population growth along the mainland or the Channel Islands. The decrease in population growth rate has occurred at the same time as a decrease in human-caused mortality and may indicate that the population has reached its environmental carrying capacity (Carretta
The daily haul-out behavior of harbor seals along the south VAFB coastline is primarily dependent on time of day. The highest number of seals haul-out at south VAFB between 1100 through 1600 hours. In addition, haul-out behavior at all sites seems to be influenced by environmental factors such as high swell, tide height, and wind. The combination of all three may prevent seals from hauling out at most sites. The number of seals hauled out at a site can vary greatly from day to day based on environmental conditions. Harbor seals occasionally haul out at a beach 250 ft (76.2 m) west of the south VAFB harbor and on rocks outside the harbor breakwater where ULA will be conducting
Several factors affect the seasonal haul-out behavior of harbor seals including environmental conditions, reproduction, and molting. Harbor seal numbers at VAFB begin to increase in March during the pupping season (March to June) as females spend more time on shore nursing pups. The number of hauled-out seals is at its highest during the molt, which occurs from May through July. During the molting season, tagged harbor seals at VAFB increased their time spent on shore by 22.4 percent; however, all seals continued to make daily trips to sea to forage. Molting harbor seals entering the water because of a disturbance are not adversely affected in their ability to molt and do not endure thermoregulatory stress. During pupping and molting season, harbor seals at the south VAFB sites expand into haul-out areas that are not used the rest of the year. The number of seals hauled out begins to decrease in August after the molt is complete and reaches the lowest number in late fall and early winter.
During the wharf modification activity in June-July 2002, California sea lions were observed hauling out on the breakwater in small numbers (up to 6 individuals). Although this is considered to be an unusual occurrence and is possibly related to fish schooling in the area, ULA included sea lions in the request.
California sea lions range from British Columbia to Mexico. The most recent population estimates for the California sea lions range from 237,000 to 244,000 individuals (Caretta
Each year, small groups of sea lions have been observed heading south along the VAFB coastline in April and May (Tetra Tech, 1997). Starting in August, large groups of sea lions can be seen moving north, in groups varying in size from 25 to more than 300 (Roest, 1995). This concurs with established migration patterns (Reeves
During the breeding season, most California sea lions inhabit southern California and Mexico. Rookery sites in southern California are limited to SMI and the southerly Channel Islands of San Nicolas, Santa Barbara, and San Clemente. Breeding season begins in mid-May, occurring within 10 days of arrival at the rookeries. Molting occurs gradually over several months in the late summer and fall. Because the molt is not catastrophic, the sea lions can enter the water to feed.
Male California sea lions migrate annually. In the spring they migrate southward to breeding rookeries in the Channel Islands and Mexico, then migrate northward in the late summer following breeding season. Females appear to remain near the breeding rookeries. The greatest population on land occurs in September and October during the post-breeding dispersal, although many of the sea lions,
Other marine mammal species are rare to infrequent along the south VAFB coast during certain times of the year and are unlikely to be harassed by ULA's activities. These four species are: the northern elephant seal, the northern fur seal (
Acoustic and visual stimuli generated by the use of heavy equipment during the
Based on the measured sounds of construction equipment, such as might be used during ULA's activities, sound level intensity decreases proportional to the square root of the distance from the source. A dredging crane at the end of the dock producing 88 dBA of noise would be approximately 72 dBA at the nearest beach or the end of the breakwater, roughly 250 ft (76.2 m) away. The EPT produces approximately 85 dBA, measured less than 20 ft (6 m) from the engine exhaust, when the engine is running at mid speed. The EPT operation procedure requires two short beeps of the horn (approximately 1/3 of a second each) prior to starting the ignition. Sound level measurements for the horn ranged from 84-112 dBA at 25 ft (7.6 m) away and 62-70 dBA at 200 ft (61 m) away. The highest measurement was taken from the side of the vehicle where the horn is mounted. Ambient background noise measured approximately 250 ft (76.2 m) from the beach was estimated to be 35-48 dBA (Acentech, 1998; EPA, 1971).
Pinnipeds sometimes show startle reactions when exposed to sudden brief sounds. An acoustic stimulus with sudden onset (such as a sonic boom) may be analogous to a “looming” visual stimulus (Hayes and Saif, 1967), which may elicit flight away from the source (Berrens
According to the MMPA and NMFS implementing regulations, if harbor activities disrupt the behavioral patterns of harbor seals or sea lions, these activities would take marine mammals by Level B harassment. In general, if the received level of the noise stimulus exceeds both the background (ambient) noise level and the auditory threshold of the animals, and especially if the stimulus is novel to them, there may be a behavioral response. The probability and degree of response will also depend on the season, the group composition of the pinnipeds, and the type of activity in which they are engaged. Minor and brief responses, such as short-duration startle or alert reactions, are not likely to constitute disruption of behavioral patterns, such as migration, nursing, breeding, feeding, or sheltering (i.e., Level B harassment) and would not cause injury or mortality to marine mammals.
On the other hand, startle and alert reactions accompanied by large-scale movements, such as stampedes into the water of hundreds of animals, may rise to the degree of Level A harassment and could result in injury of individuals. In addition, such large-scale movements by dense aggregations of marine mammals or at pupping sites could potentially lead to takes by injury or death. However, there is no potential for large-scale movements leading to serious injury or mortality near the south VAFB harbor because on average the number of harbor seals hauled out near the site is less than 30 individuals, and there is no pupping at nearby sites. The effects of the harbor activities are expected to be limited to short-term startle responses and localized behavioral changes.
According to the June 2002 dock modification construction report (ENSRI, 2002), the maximum number of harbor seals hauled out each day ranged from 23 to 25 animals. There were 15 occasions in which construction noise, vehicle noise, or noise from a fishing boat caused the seals to lift their heads. Flushing only occurred due to fishing activities, which were unrelated to the construction activities. The sea lions were less reactive to the construction noise than the harbor seals. None of the construction activities caused any of the sea lions to leave the jetty rocks, and there was only one incident of a head alert reaction.
The report from the December 2002 dredging activities show that the number of Pacific harbor seals ranged from 0 to 19, and that California sea lions did not haul out during the monitoring period. On 10 occasions, harbor seals showed head alerts, although two of the alerts were for disturbances that were not related to the project. No harbor seals flushed during the activities on the dock.
For a further discussion of the anticipated effects of the planned activities on harbor seals in the area, please refer to the application, NMFS 2005 Environmental Assessment (EA), and ENSR International's 2001 Final EA.
ULA estimates that a maximum of 43 harbor seals per day may be hauled out near the south VAFB harbor, with a daily average of 21 seals sighted when tidal conditions were favorable during previous dredging operations in the harbor. Considering the maximum and average number of seals hauled out per day, assuming that the seals may be seen twice a day, and using a maximum total of 73 operating days in 2008-2009, NMFS estimates that a maximum of 767 to 1,570 Pacific harbor seals may be subject to Level B harassment out of a total estimated population of 31,600. These numbers are small relative to this population size (2.4-5 percent).
During wharf modification activities, a maximum of six California sea lions were seen hauling out in a single day. Based on the above-mentioned calculation, NMFS believes that a maximum of 219 California sea lions may be subject to Level B harassment out of a total estimated population of 240,000. These numbers are small relative to this population size (less than 0.1 percent). Up to 10 northern elephant seals (because they may be in nearby waters) may be subject to Level B harassment out of a total estimated
ULA does not anticipate any loss or modification to the habitat used by Pacific harbor seals or California sea lions that haul out near the south VAFB harbor. The harbor seal and sea lion haul-out sites near south VAFB harbor are not used as breeding, molting, or mating sites; therefore, it is not expected that the activities in the harbor will have any impact on the ability of Pacific harbor seals or California sea lions in the area to reproduce.
ULA anticipates unavoidable kelp removal during dredging. This habitat modification will not affect the marine mammal habitat. However, ULA will mitigate for the removal of kelp habitat by placing 150 tons of rocky substrate in a sandy area between the breakwater and the mooring dolphins to enhance an existing artificial reef. This type of mitigation was implemented by the Army Corps of Engineers following the 1984 and 1989 dredging. A lush kelp bed adjacent to the sandy area has developed from the efforts. The substrate will consist of approximately 150 sharp-faced boulders, each with a diameter of about 2 ft (0.61 m) and each weighing about 1 ton (907 kg). The boulders will be brought in by truck from an off-site quarry and loaded by crane onto a small barge at the wharf. The barge is towed by a tugboat to a location along the mooring dolphins from which a small barge-mounted crane can place them into the sandy area. ULA plans to perform the reef enhancement in conjunction with the next maintenance dredging event in order to minimize cost and disturbances to animals. Noise will be generated by the trucks delivering the boulders to the harbor and during the operation of unloading the boulders onto the barges and into the water.
To reduce the potential for disturbance from visual and acoustic stimuli associated with the activities, ULA proposes to undertake the following marine mammal mitigating measures:
(1) If activities occur during nighttime hours, lighting will be turned on before dusk and left on the entire night to avoid startling pinnipeds at night.
(2) Activities will be initiated before dusk.
(3) Construction noises must be kept constant (i.e., not interrupted by periods of quiet in excess of 30 minutes) while pinnipeds are present.
(4) If activities cease for longer than 30 minutes and pinnipeds are in the area, start-up of activities will include a gradual increase in noise levels.
(5) A NMFS-approved marine mammal observer will visually monitor the harbor seals on the beach adjacent to the harbor and on rocks for any flushing or other behaviors as a result of ULA's activities (see Monitoring).
(6) The
(7) As alternate dredge methods are explored, the dredge contractor may introduce quieter techniques and equipment.
As part of its 2002 application, Boeing, now ULA, provided a proposed monitoring plan for assessing impacts to harbor seals from the activities at south VAFB harbor and for determining when mitigation measures should be employed. NMFS proposes the same plan for this IHA.
A NMFS-approved and VAFB-designated biologically trained observer will monitor the area for pinnipeds during all harbor activities. During nighttime activities, the harbor area will be illuminated, and the monitor will use a night vision scope. Monitoring activities will consist of:
(1) Conducting baseline observation of pinnipeds in the project area prior to initiating project activities.
(2) Conducting and recording observations on pinnipeds in the vicinity of the harbor for the duration of the activity occurring when tides are low enough for pinnipeds to haul out
(2 ft, 0.61 m, or less).
(3) Conducting post-construction observations of pinniped haul-outs in the project area to determine whether animals disturbed by the project activities return to the haul-out.
Monitoring results from previous years of these activities have been reviewed and incorporated into the analysis of potential effects in this document, as well as the take estimates.
ULA will notify NMFS 2 weeks prior to initiation of each activity. After each activity is completed, ULA will provide a report to NMFS within 90 days. This report will provide dates, times, durations, and locations of specific activities, details of pinniped behavioral observations, and estimates of numbers of affected pinnipeds and impacts (behavioral or other). In addition, the report will include information on the weather, tidal state, horizontal visibility, and composition (species, gender, and age class) and locations of haul-out group(s). In the unanticipated event that any cases of pinniped injury or mortality are judged to result from these activities, this will be reported to NMFS immediately.
This action will not affect species listed under the ESA that are under NMFS' jurisdiction. VAFB formally consulted with the U.S. Fish and Wildlife Service in 1998 on the possible take of southern sea otters during Boeing's, now ULA, harbor activities at south VAFB. A Biological Opinion was issued in August 2001, which concluded that the EELV Program is not likely to jeopardize the continued existence of the southern sea otter, and no injury or mortality is expected. The activities covered by this IHA are analyzed in that Biological Opinion, and this IHA does not modify the action in a manner that was not previously analyzed.
In 2001, the United States Air Force (USAF) prepared an EA for Harbor Activities Associated with the Delta IV Program at VAFB. In 2005, NMFS prepared an EA supplementing the information contained in the USAF EA and issued a Finding of No Significant Impact on the issuance of an IHA for Boeing's, now ULA, harbor activities in accordance with section 6.01 of the NOAA Administrative Order 216-6 (Environmental Review Procedures for Implementing the National Environmental Policy Act, May 20, 1999). ULA's proposed activities and impacts for 2007-2008 are expected to be within the scope of NMFS' 2005 EA and FONSI.
NMFS proposes to issue an IHA to ULA for harbor activities related to the Delta IV/EELV to take place at south VAFB over a 1-year period. Issuance of this IHA would be contingent upon adherence to the proposed mitigation, monitoring, and reporting requirements described in this FR notice. NMFS has preliminarily determined that the impact of harbor activities related to the Delta IV/EELV at VAFB, including:
As a result of these preliminary determinations, NMFS proposes to issue an IHA to ULA for the Delta IV EELV Program, provided that the previously mentioned mitigation, monitoring, and reporting requirements are incorporated.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; proposed incidental take authorization; request for comments.
NMFS has received a request from the California Department of Transportation (CALTRANS) for renewal of an authorization to take small numbers of California sea lions, Pacific harbor seals, harbor porpoises, and gray whales, by harassment, incidental to construction of a replacement bridge for the East Span of the San Francisco-Oakland Bay Bridge (SF-OBB) in California. Under the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue an authorization to CALTRANS to incidentally take, by harassment, small numbers of these species of pinnipeds and cetaceans during the next 12 months.
Comments and information must be received no later than August 4, 2008.
Comments on the application should be addressed to P. Michael Payne, Chief, Permits, Conservation and Education Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-3225, or by telephoning the contact listed here. The mailbox address for providing email comments is
Shane Guan, NMFS, (301) 713-2289, ext 137, or Monica DeAngelis, NMFS, (562) 980-3232.
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
Permission shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for certain subsistence uses and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring, and reporting of such taking are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as ”...an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”
Section 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the United States can apply for an authorization to incidentally take small numbers of marine mammals by harassment. Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as:
any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].
Section 101(a)(5)(D) establishes a 45-day time limit for NMFS review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of small numbers of marine mammals. Within 45 days of the close of the comment period, NMFS must either issue or deny issuance of the authorization.
On March 3, 2008, CALTRANS submitted a request to NOAA requesting renewal of an IHA for the possible harassment of small numbers of California sea lions (
On June 2, 2008, CALTRANS provided an update on the proposed pile driving activities planned for the 2008 season. In its update, CALTRANS states that pile driving for the 2008 construction would be driving the 42 - 48 in (0.17 - 0.19 m) diameter temporary piles, as opposed to the 5.9 - 8.2 ft (1.8 - 2.5 m) diameter permanent piles. Therefore, the noise from pile driving of these temporary piles would be far less than from previous pile driving
General information on the marine mammal species found in California waters can be found in Caretta
The marine mammals most likely to be found in the SF-OBB area are the California sea lion, Pacific harbor seal, and harbor porpoise. From December through May gray whales may also be present in the SF-OBB area. Information on California sea lion, harbor seal, and gray whale was provided in the November 14, 2003 (68 FR 64595),
CALTRANS and NMFS have determined that open-water pile driving, as outlined in the project description, has the potential to result in behavioral harassment of California sea lions, Pacific harbor seals, harbor porpoises, and gray whales that may be swimming, foraging, or resting in the project vicinity while pile driving is being conducted. Pile driving could potentially harass those few pinnipeds that are in the water close to the project site, whether their heads are above or below the surface.
Based on airborne noise levels measured and on-site monitoring conducted during 2004 under the previous IHA, noise levels from the East Span project did not result in the harassment of harbor seals hauled out on Yerba Buena Island (YBI). Also, noise levels from the East Span project are not expected to result in harassment of the sea lions hauled out at Pier 39 as airborne and waterborne sound pressure levels (SPLs) would attenuate to levels below where harassment would be expected by the time they reach that haul-out site, 5.7 km (3.5 miles) from the project site. Therefore, no pinniped hauled out would be affected as a result of the proposed pile-driving. A detailed description of the acoustic measurements is provided in the 2004 CALTRANS' marine mammal and acoustic monitoring report for the same activity (CALTRANS' 2005).
For reasons provided in greater detail in NMFS' November 14, 2003 (68 FR 64595)
Short-term impacts to habitat may include minimal disturbance of the sediment where the channels are dredged for barge access and where individual bridge piers are constructed. Long-term impacts to marine mammal habitat will be limited to the footprint of the piles and the obstruction they will create following installation. However, this impact is not considered significant as the marine mammals can easily swim around the piles of the new bridge, as they currently swim around the existing bridge piers.
NMFS proposes the following mitigation measures for the planned 2008 SF-OBB planned construction activities to reduce adverse impacts to marine mammals to the lowest extent practicable.
CALTRANS indicated that for the planned 2008 SF-OBB construction pile driving activities, an air bubble curtain cannot be deployed due to the complexity of the driving frame. Therefore, proposed shutdown safety zones corresponding to where a marine mammal could be injured would be established based on empirical field measurements of pile driving sound levels.
These safety zones shall include all areas where the underwater SPLs are anticipated to equal or exceed 190 dB re 1 microPa rms (impulse) for pinnipeds and 180 dB re 1 microPa rms (impulse) for gray whales and harbor porpoises, and be monitored at all times when pile driving is underway.
Observers on boats will survey the safety zone to ensure that no marine mammals are seen within the zone before pile driving of a pile segment begins. If marine mammals are found within the safety zone, pile driving of the segment will be delayed until they move out of the area. If a marine mammal is seen above water and then dives below, the contractor will wait 15 minutes and if no marine mammals are seen by the observer in that time it will be assumed that the animal has moved beyond the safety zone. This 15-minute criterion is based on scientific evidence that harbor seals in San Francisco Bay dive for a mean time of 0.50 minutes to 3.33 minutes (Harvey and Torok, 1994), and the mean diving duration for harbor porpoises ranges from 44 to 103 seconds (Westgate
Once the pile driving of a segment begins it cannot be stopped until that segment has reached its predetermined depth due to the nature of the sediments underlying the Bay. If pile driving stops and then resumes, it would potentially have to occur for a longer time and at increased energy levels. In sum, this would simply amplify impacts to marine mammals, as they would endure potentially higher SPLs for longer periods of time. Pile segment lengths and wall thickness have been specially designed so that when work is stopped between segments (but not during a single segment), the pile tip is never resting in highly resistant sediment layers. Therefore, because of this operational situation, if seals, sea lions, or harbor porpoises enter the safety zone after pile driving of a segment has begun, pile driving will continue and marine mammal observers will monitor and record marine mammal numbers and behavior. However, if pile driving of a segment ceases for 30 minutes or more and a marine mammal is sighted within the designated safety zone prior to commencement of pile driving, the observer(s) must notify the Resident Engineer (or other authorized individual) immediately and follow the mitigation requirements as outlined previously in this document.
It should be recognized that although marine mammals will be protected from Level A harassment (i.e., injury) through marine mammal observers monitoring a 190-dB safety zone for pinnipeds and 180-dB safety zone for cetaceans, mitigation may not be 100 percent effective at all times in locating marine mammals. Therefore, in order to provide additional protection to marine mammals near the project area by allowing marine mammals to vacate the area prior to receiving a potential injury, CALTRANS will also “soft start” the hammer prior to operating at full capacity. CALTRANS typically implements a “soft start” with several initial hammer strikes at less than full capacity (i.e., approximately 40-60 percent energy levels) with no less than a 1 minute interval between each strike. Similar levels of noise reduction are expected underwater. Therefore, the contractor will initiate pile driving hammers with this procedure in order to allow pinnipeds or cetaceans in the area to voluntarily move from the area. This should expose fewer animals to loud sounds both underwater and above water noise. This would also ensure that, although not expected, any pinnipeds and cetaceans that are missed during safety zone monitoring will not be injured.
To mitigate noise levels and, therefore, impacts to California sea lions, Pacific harbor seals, harbor porpoises, and gray whales, all construction equipment will comply as much as possible with applicable equipment noise standards of the U.S. Environmental Protection Agency, and all construction equipment will have noise control devices no less effective than those provided on the original equipment.
The following monitoring measures were required under the 2007 - 2008 IHA. Unless, as noted, the work has been completed, NMFS proposes to continue those monitoring measures under a new IHA (if issued).
The area-wide baseline monitoring and the aerial photo survey to estimate the fraction of pinnipeds that might be missed by visual monitoring have been completed under the current IHA and do not need to be continued.
Safety zone monitoring will be conducted during driving of all open-water, permanent piles without cofferdams and with cofferdams when underwater SPLs reach 190 dB RMS or greater. Monitoring of the pinniped and cetacean safety zones will be conducted by a minimum of three qualified NMFS-approved observers for each safety zone. One three-observer team will be required for the safety zones around each pile driving site, so that multiple teams will be required if pile driving is occurring at multiple locations at the same time. The observers will begin monitoring at least 30 minutes prior to startup of the pile driving. Most likely observers will conduct the monitoring from small boats, as observations from a higher vantage point (such as the SF-OBB) are not practical. Pile driving will not begin until the safety zones are clear of marine mammals. However, as described in the Mitigation section, once pile driving of a segment begins, operations will continue uninterrupted until the segment has reached its predetermined depth. However, if pile driving of a segment ceases for 30 minutes or more and a marine mammal is sighted within the designated safety zone prior to commencement of pile driving, the observer(s) must notify the Resident Engineer (or other authorized individual) immediately and follow the mitigation requirements as outlined previously (see Mitigation). Monitoring will continue through the pile driving period and will end approximately 30 minutes after pile driving has been completed. Biological observations will be made using binoculars during daylight hours.
In addition to monitoring from boats, during open-water pile driving, monitoring at one control site (harbor seal haul-out sites and the waters surrounding such sites not impacted by the East Span Project's pile driving activities, i.e. Mowry Slough) will be designated and monitored for comparison. Monitoring will be conducted twice a week at the control site whenever open-water pile driving is being conducted. Data on all observations will be recorded and will include items such as species, numbers, behavior, details of any observed disturbances, time of observation, location, and weather. The reactions of marine mammals will be recorded based on the following classifications that are consistent with the Richmond Bridge Harbor Seal survey methodology (for information on the Richmond Bridge authorization, see 68 FR 66076, November 25, 2003): (1) No response, (2) head alert (looks toward the source of disturbance), (3) approach water (but not leave), and (4) flush (leaves haul-out site). The number of marine mammals under each disturbance reaction will be recorded, as well as the time when seals re-haul after a flush.
Airborne noise level measurements have been completed and underwater environmental noise levels will continue to be measured as part of the East Span Project. The purpose of the underwater sound monitoring is to establish the safety zone of 190 dB re 1 micro-Pa RMS (impulse) for pinnipeds and the safety zone of 180 dB re 1 micro-Pa RMS (impulse) for cetaceans. Monitoring will be conducted during the driving of the last half (deepest pile segment) for any given open-water pile. One pile in every other pair of pier groups will be monitored. One reference location will be established at a distance of 100 m (328 ft) from the pile driving. Sound measurements will be taken at the reference location at two depths (a depth near the mid-water column and a depth near the bottom of the water column but at least 1 m (3 ft) above the bottom) during the driving of the last half (deepest pile segment) for any given pile. Two additional in-water spot measurements will be conducted at appropriate depths (near mid water column), generally 500 m (1,640 ft) in two directions either west, east, south or north of the pile driving site will be conducted at the same two depths as the reference location measurements. In cases where such measurements cannot be obtained due to obstruction by land mass, structures or navigational hazards, measurements will be conducted at alternate spot measurement locations. Measurements will be made at other locations either nearer or farther as necessary to establish the approximate distance for the safety zones. Each measuring system shall consist of a hydrophone with an appropriate signal conditioning connected to a sound level meter and an instrument grade digital audiotape recorder (DAT). Overall SPLs shall be measured and reported in the field in dB re 1 micro-Pa rms (impulse). An infrared range finder will be used to determine distance from the monitoring location to the pile. The recorded data will be analyzed to determine the amplitude, time history and frequency content of the impulse.
Under previous IHAs, CALTRANS submitted weekly marine mammal monitoring reports for the time when pile driving was commenced. In August 2006, CALTRANS submitted its Hydroacoustic Measurement at Piers T1 and E2 report. This report is available
Under the proposed IHA, coordination with NMFS will occur on a weekly basis. During periods with open-water pile driving activity, weekly monitoring reports will be made available to NMFS and the public at
In addition, CALTRANS proposes to provide NMFS' Southwest Regional Administrator with a draft final report within 90 days after completion of the westbound Skyway contract and 90 days after completion of the Suspension Span foundations contract. This report should detail the monitoring protocol, summarize the data recorded during monitoring, and estimate the number of marine mammals that may have been harassed due to pile driving. If no comments are received from NMFS Southwest Regional Administrator within 30 days, the draft final report will be considered the final report. If comments are received, a final report must be submitted within 30 days after receipt of comments.
NMFS prepared an Environmental Assessment (EA) for the take of marine mammals incidental to construction of the East Span of the SF-OBB and made a Finding of No Significant Impact (FONSI) on November 4, 2003. Due to the modification of part of the construction project and the mitigation measures, NMFS is reviewing additional information from CALTRANS regarding empirical measurements of pile driving noises for the smaller temporary piles, and will make a final NEPA determination before issuing a final IHA. A copy of the EA and FONSI is available upon request (see
On October 30, 2001, NMFS completed consultation under section 7 of the ESA with the Federal Highway Administration (FHWA) on the CALTRANS' construction of a replacement bridge for the East Span of the SF-OBB in California. Anadromous salmonids are the only listed species which may be affected by the project. The finding contained in the Biological Opinion was that the proposed action at the East Span of the SF-OBB is not likely to jeopardize the continued existence of listed anadromous salmonids, or result in the destruction or adverse modification of designated critical habitat for these species. Listed marine mammals are not expected to be in the area of the action and thus would not be affected.
NMFS proposed issuance of an IHA to CALTRANS constitutes an agency action that authorizes an activity that may affect ESA-listed species and, therefore, is subject to section 7 of the ESA. The effects of the activities on listed salmonids were analyzed during consultation between the FHWA and NMFS, and the underlying action has not changed from that considered in the consultation. Therefore, the effects discussion contained in the Biological Opinion issued to the FHWA on October 30, 2001, pertains also to this action. NMFS has determined that issuance of an IHA for this activity does not lead to any effects on listed species apart from those that were considered in the consultation on FHWA's action.
For the reasons discussed in this document and in previously identified supporting documents, NMFS has preliminarily determined that the impact of pile driving and other activities associated with construction of the East Span Project should result, at worst, in the Level B harassment of small numbers of California sea lions, Pacific harbor seals, harbor porpoises, and potentially gray whales that inhabit or visit SFB in general and the vicinity of the SF-OBB in particular. While behavioral modifications, including temporarily vacating the area around the construction site, may be made by these species to avoid the resultant visual and acoustic disturbance, the availability of alternate areas within SFB and haul-out sites (including pupping sites) and feeding areas within the Bay has led NMFS to preliminarily determine that this action will have a negligible impact on California sea lion, Pacific harbor seal, harbor porpoises, and gray whale populations along the California coast.
In addition, no take by Level A harassment (injury) or death is anticipated and harassment takes should be at the lowest level practicable due to incorporation of the mitigation measures mentioned previously in this document. The activity will not have an unmitigable adverse impact on subsistence uses of marine mammals described in MMPA section 101(a)(5)(D)(i)(II)
NMFS proposes to issue an IHA to CALTRANS for the potential harassment of small numbers of harbor seals, California sea lions, harbor porpoises, and gray whales incidental to construction of a replacement bridge for the East Span of the San Franciso-Oakland Bay Bridge in California, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. NMFS has preliminarily determined that the proposed activity would result in the harassment of only small numbers of harbor seals, California sea lions, harbor porpoises, and possibly gray whales and will have no more than a negligible impact on these marine mammal stocks.
NMFS requests interested persons to submit comments, information, and suggestions concerning this request (see
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; receipt of applications for letters of authorization; request for comments and information.
NMFS has received requests from the U.S. Navy (Navy) for authorizations for the take of marine mammals incidental to Navy research, development, test, and evaluation (RDT&E) activities within the Naval Sea Systems Command (NAVSEA) Naval Undersea Warfare Center (NUWC)
Comments and information must be received no later than August 4, 2008.
Comments on the applications should be addressed to P. Michael Payne, Chief, Permits, Conservation and Education Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-3225. The mailbox address for providing email comments is
Shane Guan, Office of Protected Resources, NMFS, (301) 713-2289, ext. 137.
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
Authorization for incidental takings may be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses, and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such taking are set forth.
NMFS has defined “negligible impact” in 50 CFR 216.103 as:
an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.
With respect to military readiness activities, the MMPA defines “harassment” as:
(i) any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild [Level A Harassment]; or (ii) any act that disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption of natural behavioral patterns, including, but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering, to a point where such behavioral patterns are abandoned or significantly altered [Level B Harassment].
On May 15, 2008, NMFS received an application from the Navy requesting an authorization for the take of marine mammal species/stocks incidental to the proposed RDT&E activities within the NAVSEA NUWC Keyport Range Complex Extension over the course of 5 years. The Navy proposes to extend the Keyport Range Complex operating areas, which is composed of Keyport Range Site, Dabob Bay Range Complex (DBRC) Site, and Quinault Underwater Tracking Range (QUTR) Site, outside existing range boundaries. This proposed extension would allow the Navy to support existing and future range activities including evolving manned and unmanned vehicle program needs in multiple marine environments. With the proposed extension of the Keyport and QUTR range sites, the range sites could support more activities, which include increases in the numbers of tests and days of testing. No additional operational tempo is proposed for the DBRC Site. Existing and proposed additional range activities include testing, training, and evaluation of system capabilities such as guidance, control, and sensor accuracy of manned and unmanned vehicles in multiple marine environments (e.g., differing depths, salinity levels, temperatures, sea states, etc.).
Current activities within the Keyport Range Complex Extension are listed below:
General range tracking on the instrumented ranges and portable range sites have active output in narrow frequency bands. Operating frequencies are 10 to 100 kHz. At the Keyport Range Site, the sound pressure level (SPL) at the source (source level) is less than 195 dB re 1 microPa-m. At the DBRC and QUTR sites, the source level for general range tracking is less than 203 dB re 1 microPa-m. Range pingers are active acoustic devices that allow each of the in-water platforms on the range (e.g., ships, submarines, target simulators, and exercise torpedoes) to be tracked by the Keyport Range Complex Extension hydrophones. In addition to passively tracking the pinger signal from each range participant, the range transducer nodes also are capable of transmitting acoustic signals for a limited set of functions. These functions include submarine warning signals, acoustic commands to submarine target simulators (acoustic command link), and occasional voice or data communications (received by participating ships and submarines on range).
UUV tracking systems operate at frequencies of 10 to 100 kHz with source levels less than 195 dB re 1 microPa-m at all range sites.
Toped sonars are used for several purposes including detection, classification, and location and vary in frequency from 10 to 100 kHz. The source level of a torpedo sonar is generally less than 233 dB re 1 microPa-m. Torpedoes are the primary weapon used by surface ships, aircraft, and submarines. The guidance systems of these weapons can be autonomous or electronically controlled from the launching platform through an attached wire. The autonomous guidance systems are acoustically based. They operate either passively, exploiting the emitted sound energy by the target, or actively, ensonifying the target and using the received echoes for guidance.
Range targets and special test systems are within the 5 to 100 kHz frequency range at the Keyport Range Site with a source level of less than 195 dB re 1 microPa-m. At the DBRC and QUTR sites, the source level is less than 238 dB re microPa-m.
Special sonars can be carried as a payload on a UUV, suspended from a range craft, or set on or above the sea floor. These can vary widely from 100 kHz to a very high frequency of 2,500 kHz for very short range detection and
Aircraft sonar systems that would operate in the Keyport Range Complex Extension include sonobuoys and dipping sonar. Sonobuoys and helicopter dipping sonars are deployed from Fleet aircraft and operate at frequencies of 2 to 20 kHz with source levels of less than 225 dB re 1 microPa-m. Dipping sonars are active or passive devices that are lowered on cable by helicopters or surface vessels to detect or maintain contact with underwater targets. Sonobuoys may be deployed by maritime patrol aircraft or helicopters; dipping sonars are used by carrier-based helicopters. A sonobuoy is an expendable device used by aircraft for the detection of underwater acoustic energy and for conducting vertical water column temperature measurements. Most sonobuoys are passive, but some can generate active acoustic signals, as well as listen passively. During RDT&E, these systems active modes are only used briefly for localization of contacts and are not used in primary search capacity.
Side scan sonar is used for mapping, detection, classification, and localization of items on the sea floor such as cabling, shipwrecks, and inert mine shapes. It is high frequency, typically 100 to 700 kHz, using multiple frequencies at one time with a very directional focus. Source levels are less than 235 dB re 1 microPa-m. Side-scan and multibeam sonar systems are towed or mounted on a test vehicle or ship.
Other acoustic sources include acoustic modems, targets, aids to navigation, subbottom profilers, engine noise, countermeasures, etc. which uses few pulses from 10 to 300 kHz at source levels less than 220 dB re 1 microPa-m. An acoustic modem is a communication device that transmits an acoustically encoded signal from a source to a receiver. Acoustic modems emit a few pulses from 10 to 300 kHz at source levels less than 210 dB re 1 microPa-m. Target simulators operate at frequencies of 100 Hz to 10 kHz at source levels of less than 170 dB re 1 microPa-m. Aids to navigation transmit location data from ship to shore and back to ship so the crew can have real-time detailed location information. This is typical of the range equipment used in support of testing. New aids to navigation can also be deployed and tested using 70-80 kHz at source levels less than 210 dB re 1 microPa-m. Subbottom profilers are often commercial off-the-shelf sonars used to determine characteristics of the sea bottom and subbottom such as mud above bedrock or other rocky substrate. These operate at 2 7 kHz at source levels less than 210 dB re 1 microPa-m, and 35 45 kHz at less than 220 dB re 1 microPa-m. There are many sources of engine noise including but not limited to surface vessels, submarines, torpedoes, and other UUVs. The acoustic energy is usually from 50 Hz to 10 kHz at source levels less than 150-170 dB re 1 microPa-m. Targets, both mobile and stationery, may simulate engine noise at these same frequencies.
A magnetic sensor may be used to sense the magnetic field of an object such as a surface vessel, a submarine, or a buried target. Magnetic sensors may be part of a UUV payload or they may be stationary on the sea floor.
Biologic sensors have been used historically to determine marine characteristics such as conductivity, temperature, and pressure of water to determine sound velocity in water. This provides information about how sound will travel through the water. These sensors can be deployed over the side from a surface craft, suspended in water, or carried on a UUV.
Laser imaging detection and ranging (LIDAR) is used to measure distance, speed, rotation, and chemical composition and concentration of remote solid objects such as a ship, or diffuse objects such as a smoke plume or cloud. LIDAR uses the same principle as radar.
Associated with testing, a series of inert mine shapes are set out in a uniform or random pattern to test the detection, classification and localization capability of the system under test. They are made from plastic, metal, and concrete and vary in shape. An inert mine shape can measure about 10 by 1.75 ft (3 by 0.5 m) and weigh about 800 lbs (362 kg). Inert mine shapes either sit on the bottom or are tethered by an anchor to the bottom at various depths. Inert mine shapes can be placed approximately 200-300 yards (183-274 m) apart using a support craft and remain on the bottom until they need to be removed. All major components of all inert mine systems used as “targets” for inert mine hunting systems are removed within 2 years.
The proposed range expansion would expend the existing activities for each of the following range sites. For detailed information regarding the platform/system use and projected annual days of use at each range site, please refer to Tables 1-4 and 2-1 of the LOA application.
Range boundaries of the Keyport Range Site would be extend to the north, east and south, increasing the size of the range from 1.5 nm
The southern boundary of DBRC Site would be extended to the Hamma Hamma River and its northern boundary would be extended to 1 nm (2 km) south of the Hood Canal Bridge (Highway 104). This expansion would increase the size of the current operating area from approximately 32.7 nm
Range boundaries of QUTR Site would be extended to coincide with the overlying special use airspace of W-237A plus locate a 7.8 nm
The Navy states that these range activities may cause various impacts to marine mammal species in the NAVSEA NUWC Keyport Range Complex Extension operation areas. Taking into account implementation of monitoring and mitigation measures described in the Navy's
The NUWC Keyport Range Complex Extension proposed a list of monitoring and mitigation measures to reduce potential adverse impacts to marine mammals.
The Navy states that mitigating potential impacts to the environment during RDT&E activities in the Keyport Range Complex Extension would be accomplished through strict adherence to the ROP, which would be followed for all Keyport range activities. The ROP is designed to protect the health and safety of the public and Navy personnel and equipment as well as to protect the marine environment. The policies and procedures address issues such as safety, development of approved run plans, range operation personnel responsibility, deficiency reporting, all facets of range activities, and the establishment of “exclusion zones” to ensure that there are no marine mammals within a prescribed area prior to the commencement of each in-water exercise within the Keyport Range Complex Extension. All range operators are trained by NOAA in marine mammal identification, and active acoustic activities are suspended or delayed if whales, dolphins, or porpoises (cetaceans) are observed within range areas. Table 11-1 of the application provides a summary of selected ROP sections and other range procedures which apply to current Keyport Range Complex activities at the Keyport Range Site, DBRC Site, and QUTR Site, and also apply to proposed activities within the current and proposed range site boundaries. The policies and procedures outlined in the ROP are continually being updated as new environmental and health and safety information becomes available.
In particular, the following marine mammal protection measures are implemented per ROP for current activities, and these would also apply for the proposed activities within the Keyport Range Complex Extension:
(1) Range activities shall be conducted in such a way as to ensure marine mammals are not harassed or harmed by human-caused events.
(2) Marine mammal observers are on board ship during range activities. All range personnel shall be trained in marine mammal recognition. Marine mammal observer training is normally conducted by qualified organizations such as NOAA/National Marine Mammal Lab (NMML) on an as needed basis.
(3) Vessels on a range use safety lookouts during all hours of range activities. Lookout duties include looking for any and all objects in the water, including marine mammals. These lookouts are not necessarily looking only for marine mammals. They have other duties while aboard. All sightings are reported to the Range Officer in charge of overseeing the activity.
(4) Visual surveillance shall be accomplished just prior to all in-water exercises. This surveillance shall ensure that no marine mammals are visible within the boundaries of the area within which the test unit is expected to be operating. Surveillance shall include, as a minimum, monitoring from all participating surface craft and, where available, adjacent shore sites.
(5) The Navy shall postpone activities until cetaceans leave the project area. When cetaceans have been sighted in an area, all range participants increase vigilance and take reasonable and practicable actions to avoid collisions and activities that may result in close interaction of naval assets and marine mammals. Actions may include changing speed and/or direction and are dictated by environmental and other conditions (e.g., safety, weather).
(6) An “exclusion zone” shall be established and surveillance will be conducted to ensure that there are no marine mammals within this exclusion zone prior to the commencement of each in-water exercise. For cetaceans, the exclusion zone must be at least as large as the entire area within which the test unit may operate, and must extend at least 1,000 yards (914.4 m) from the intended track of the test unit. For pinnipeds, the exclusion zone extends out 100 yards (91 m) from the intended track of the test unit.
(7) Vessels approach within 100 yards (91 m) of marine mammals shall be followed to the extent practicable considering human and vessel safety priorities. All Navy vessels and aircraft, including helicopters, are expected to comply with this directive. This includes marine mammals hauled-out on islands, rocks, and other areas such as buoys.
(8) In the event of a collision between a Navy vessel and a marine mammal, NUWC Keyport activities will notify the Navy chain of Command, which would result in notification to NMFS.
(9) Passive acoustic monitoring shall be utilized to detect marine mammals in the area before and during activities, especially when visibility is reduced.
(10) Procedures for reporting marine mammal sightings on the Keyport Range Complex shall be promulgated, and sightings shall be entered into the Range Operating System and forwarded to NOAA/NMML Platforms of Opportunity Program.
Interested persons may submit information, suggestions, and comments concerning the Navy's request (see
Consumer Product Safety Commission.
Notice.
The information collection requirements in a Commission Product Safety Commission (CPSC or Commission) toy cap rule have been approved by the Office of Management and Budget (OMB) under OMB control number 3041-0080. As required by the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Commission now requests comments on a proposed extension of approval of those information collection requirements for a period of three years from the date of approval by the OMB.
A regulation codified at 16 CFR 1500.18(a)(5) bans toy caps producing peak sound levels at or above 138 decibels (dB). Another regulation codified at 16 CFR 1500.86(a)(6) exempts toy caps producing sound levels between 138 and 158 dB from the banning rule if they bear a specified warning label and if firms intending to distribute such caps: (1) Notify the
The Commission will consider all comments received in response to this notice before requesting approval of this collection of information from the Office of Management and Budget.
Written comments must be received by the Office of the Secretary not later than September 2, 2008.
Written comments should be captioned “Information Collection Requirements for Sound Levels of Toy Caps” and e-mailed to the Office of the Secretary at
For information about the proposed collection of information call or write Linda Glatz, Division of Policy and Planning, Office of Information Technology and Technology Services, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814; telephone: (301) 504-7671 or by e-mail to
The Commission staff estimates that there are ten firms required to annually submit the required information. The staff further estimates that the average number of hours per respondent is four per year, for a total of 40 hours of annual burden. The estimated total annual cost to respondents is approximately $1,002 based on a mean hourly wage of $25.04 for a first line office manager (based on NAICS 339000 Miscellaneous Manufacturing, Bureau of Labor Statistics, May 2007) ($25.04 × 40 hours).
The Commission solicits written comments from all interested persons about the proposed collection of information. The Commission specifically solicits information relevant to the following topics:
Consumer Product Safety Commission.
Notice.
The information collection requirements in a Consumer Product Safety Commission (CPSC or Commission) coal and woodburning appliance rule have been approved by the Office of Management and Budget (OMB) under OMB control number 3041-0040. As required by the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Commission now requests comments on a proposed extension of approval of those information collection requirements for a period of three years from the date of approval by the OMB.
The rule, codified at 16 CFR Part 1406, requires manufacturers and importers of certain coal and woodburning appliances to provide safety information to consumers on labels and instructions and an explanation of how certain clearance distances in those labels and instructions were determined. The requirements to provide copies of labels and instructions to the Commission have been in effect for stoves manufactured or imported since October 17, 1983, or May 16, 1984, for stoves introduced into United States commerce after May 16, 1984, regardless of the date of manufacture. For this reason, the information burden imposed by this rule is limited to manufacturers and importers introducing new products or models, or making changes to labels, instructions, or information previously provided to the Commission. The purposes of the reporting requirements in Part 1406 are to reduce risks of injuries from fires associated with the installation, operation, and maintenance of the appliances that are subject to the rule, and to assist the Commission in determining the extent to which manufacturers and importers comply with the requirements in Part 1406. The Commission will consider all comments received in response to this notice before requesting approval of this collection of information from the Office of Management and Budget.
Written comments must be received by the Office of the Secretary not later than September 2, 2008.
Written comments should be captioned “Notification Requirements for Coal and Wood Burning Stoves” and e-mailed to the Office of the Secretary at
For information about the proposed collection of information call or write Linda Glatz, Division of Policy and Planning, Office of Information Technology and Technology Services, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814; telephone: (301) 504-7671 or by e-mail to
The CPSC staff estimates that existing manufacturers who are subject to the information collection requirements may introduce up to 15 new models between August 2005 and August 2008, or approximately 5 new models per year. No new manufacturers are expected to begin marketing in the United States. The staff further estimates that the average number of hours per respondent is three hours per year, for a total of about 15 hours of annual burden for all respondents (5 × 3 = 15). The estimated annual cost to respondents is approximately $77.34 for each new model introduced based on a mean hourly wage of $25.78 for a first
The Commission solicits written comments from all interested persons about the proposed collection of information. The Commission specifically solicits information relevant to the following topics:
United States Election Assistance Commission.
Notice of public meeting.
Monday, July 21, 2008, 10 a.m.-3 p.m. (MST).
J. W. Marriott Desert Ridge, 5350 E Marriott Drive, Phoenix, Arizona 85054, (480) 293-5000.
The Commissioners will consider the following items: Commissioners will consider and vote on whether to modify Advisory Opinion 07-003-A regarding Maintenance of Effort (MOE) funding, pursuant to HAVA Section 254(a)(7). Commissioners will consider and vote on a Proposed Replacement Advisory Opinion 07-003-B Regarding Maintenance of Effort. Commissioners will consider the of Adoption of EAC Laboratory Accreditation Program Manual; Commissioners will consider a Draft Policy for Joint Partnership Task Force of EAC and State Election Officials Regarding Spending of HAVA Funds; Commissioners will consider a Draft Policy for Notice and Public Comment; Commissioners will consider Draft Changes to the Charter of the EAC Technical Guidelines Development Committee. Commissioners will consider whether to update the Louisiana state instructions, the Michigan state instructions and the Vermont state instructions on the national voter registration form. Commissioners will receive a briefing regarding a HAVA State Spending Report to Congress; Commissioners will receive a Briefing on Comments Received on the Draft EAC Guidance to States Regarding Updates to the State Plans; Commissioners will receive a briefing regarding Board of Advisors Resolution 2008-3 Concerning EAC Certification of Voting Systems; Commissioners will receive a Presentation on the EAC Laboratory Accreditation Program Manual. The Commission will consider other administrative matters. Commissioners will hold a workshop discussion on Preparing for Election Day 2008 and Contingency Planning.
This meeting will be open to the public.
Bryan Whitener, Telephone: (202) 566-3100.
U.S. Department of Energy.
Notice and request for comments.
The Department of Energy (DOE), pursuant to the Paperwork Reduction Act of 1995, intends to extend for three years, an information collection package with the Office of Management and Budget (OMB) concerning information “Technology Partnerships Ombudsmen Reporting Requirements.” The Technology Transfer Ombudsman appointed at each DOE National Laboratory must submit reports to DOE on the number and nature of complaints and disputes raised by outside organizations regarding the policies and actions of each laboratory with respect to technology transfer partnerships, including Cooperative Research and Development Agreements, patents, and technology licensing. The reports must also include an assessment of the ombudsman's resolution to the disputes. Comments are invited on: (a) Whether the extended 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, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
Comments regarding this proposed information collection must be received on or before September 2, 2008. If you anticipate difficulty in submitting comments within that period, contact the person listed below as soon as possible.
Written comments may be sent to: Kathleen M. Binder, GC-12, Director, Office of Dispute Resolution, U.S. Department of Energy, 1000 Independence Avenue, SW., Washington, DC 20585; or by fax at 202-586-7400 or by e-mail at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Kathleen M. Binder at the address listed in
This package contains: (1)
Public Law 106-404, Technology Transfer Commercialization Act of 2000.
Federal Energy Regulatory Commission.
Notice.
In compliance with the requirements of section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 3507, the Federal Energy Regulatory Commission (Commission) has submitted the information collection described below to the Office of Management and Budget (OMB) for review and reinstatement of this information collection requirement. Any interested person may file comments directly with OMB and should address a copy of those comments to the Commission as explained below. The Commission received a comment in response to an earlier
Comments on the collection of information are due by July 31, 2008.
Address comments on the collection of information to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention: Federal Energy Regulatory Commission Desk Officer. Comments to OMB should be filed electronically, c/o
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 collection submitted for OMB review contains the following:
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The Commission is now requesting that OMB approve with a three-year extension of the expiration date, with no changes to the existing collection. The information filed with the Commission is mandatory.
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A temporary operation, or emergency, is defined as any situation in which an actual or expected shortage of gas supply would require an interstate pipeline company, intrastate pipeline or local distribution company, or Hinshaw pipeline to curtail deliveries of gas or provide less than the projected level of service to the customer. The natural gas companies file the necessary information with the Commission so that it may determine if the transaction/operation qualifies for exemption. A report within forty-eight hours of the commencement of the transportation, sale or exchange, a request to extend the sixty-day term of the emergency transportation, if needed, and a termination report are required. The data required to be filed for the forty-eight hour report is specified by 18 CFR 284.270 of the Commission's regulations.
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Sections 7(c) of the Natural Gas Act (NGA), Pub. L. 75-688 (15 U.S.C. 717-717w) and the Natural Gas Policy Act of 1978 (NGPA) (15 U.S.C. 3301-3432).
Take notice that the following hydroelectric application has been filed with the Commission and is 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. Please include the project number (P-459-226) 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.
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o. Any filings must bear in all capital letters the title “COMMENTS”, “PROTEST”, or “MOTION TO INTERVENE”, as applicable, and the Project Number of the particular application to which the filing refers.
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q. 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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j. Douglas County, Oregon filed its request to use the Traditional Licensing Process on May 23, 2008. Douglas County, Oregon provided public notice of its request on May 28, 2008. In a letter dated June 24, 2008, the Director of the Office of Energy Projects approved Douglas County, Oregon's request to use the Traditional Licensing Process.
k. With this notice, we are initiating informal consultation with: (a) The U.S. Fish and Wildlife Service under section 7 of the Endangered Species Act and the joint agency regulations thereunder at 50 CFR, Part 402; (b) NOAA Fisheries under section 305(b) of the Magnuson-Stevens Fishery Conservation and Management Act and implementing regulations at 50 CFR 600.920; and (c) the Washington State Historic Preservation Officer, as required by Section 106, National Historical
l. Douglas County, Oregon filed a Pre-Application Document (PAD; including a proposed process plan and schedule) with the Commission, pursuant to 18 CFR 5.6 of the Commission's regulations.
m. A copy of the PAD is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site (
n. Register online at
Take notice that the following application has been filed with the Commission and is available for public inspection:
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All documents (original and eight copies) should be filed with: 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. Any questions, please contact the Secretary's Office. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site at
Please include the docket number (DI08-8-000) 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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Take notice that the following application has been filed with the Commission and is available for public inspection:
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All documents (original and eight copies) should be filed with: 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. Any questions, please contact the Secretary's Office. See, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site at
Please include the docket number (DI08-7-000) 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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This is a supplemental notice in the above-referenced proceeding of DC Energy Southwest, LLC's application for market-based rate authority, with an accompanying rate schedule, noting that such application includes a request for blanket authorization, under 18 CFR Part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing interventions and protests with regard to the applicant's request for blanket authorization, under 18 CFR Part 34, of future issuances of securities and assumptions of liability, is July 15, 2008.
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-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed
Take notice that on June 18, 2008, Florida Gas Transmission Company, LLC (FGT), 5444 Westheimer Road, Houston, Texas 77056, filed in Docket No. CP08-427-000, a prior notice request pursuant to sections 157.205 and 157.212 of the Federal Energy Regulatory Commission's regulations under the Natural Gas Act for authorization to construct, own, and operate an interconnect with Golden Pass Pipeline LP (GPPL), located in Orange County, Texas, to receive revaporized liquefied natural gas (LNG), 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
Specifically, FGT proposes the installation of a 12-inch tap and valve, approximately 40 feet of 16-inch diameter connecting pipe, electronic flow measurement equipment, a gas chromatograph, and an instrument and electrical building (GPPL Interconnect). FGT estimates the cost of construction to be $484,065. FGT states that the proposed GPPL Meter Station will be designed and constructed for flow capability of up to 250 MMcf/d. FGT asserts that the new GPPL Interconnect will provide FGT with the ability to receive revaporized LNG from the Golden Pass LNG terminal, through the GPPL pipeline.
Any questions regarding the application should be directed to Stephen Veatch, Senior Director of Certificates & Tariffs, Florida Gas Transmission Company, LLC, 5444 Westheimer Road, Houston, Texas 77056, at (713) 989-2024, fax (713) 989-1158, or by e-mail
Any person 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. Any person filing to intervene or the Commission's staff may, pursuant to section 157.205 of the Commission's Regulations under the Natural Gas Act (NGA) (18 CFR 157.205) file 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 (
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
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St., NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please e-mail
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St., NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed dockets(s). For assistance with any FERC Online service, please e-mail
Take notice that during the month of May 2008, the status of the above-captioned entities as Exempt Wholesale Generators became effective by operation of the Commission's regulations. 18 CFR 366.7(a).
Pursuant to the provisions of Commission Order No. 703, issued November 15, 2007,
Transmission providers submitting Index of Customer reports due July 1, 2008, and thereafter via efiling must make selections from the efiling menu in the following order:
Column 1 (How is filing to be directed?): Gas.
Column 2 (Kind of filing): Report/Form—No Docket Number.
Column 3 (Filing type): Index of Customer.
Due to certain processing actions of these submissions, there may be a slight delay in posting them on the Commission's eLibrary system. Filers will receive a Confirmation of Receipt e-mail as notification that their Index of Customer report was filed. Index of Customer report filings submitted under any menu option other than those described above will be rejected for resubmission under the correct menu choice.
The instructions for preparing the Index of Customers tab-delimited file in electronic format are on the Commission's Web site at:
This is a supplemental notice in the above-referenced proceeding of Georgia-Pacific Brewton LLC,
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicants.
Notice is hereby given that the deadline for filing interventions and protests with regard to the applicants' request for blanket authorization, under 18 CFR Part 34, of future issuances of securities and assumptions of liability, is July 15, 2008.
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-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed dockets(s). For assistance with any FERC Online service, please e-mail
Great Bay Power Marketing, Inc. (GBPM) filed an application for market-based rate authority, with an accompanying tariff. The proposed market-based rate tariff provides for the sale of capacity and energy at market-based rates. GBPM also requested waivers of various Commission regulations. In particular, GBPM requested that the Commission grant blanket approval under 18 CFR Part 34 of all future issuances of securities and assumptions of liability by GBPM.
On December 3, 2002, pursuant to delegated authority, the Director, Division of Tariffs and Market Development-South, 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 July 8, 2008.
Absent a request to be heard in opposition to such blanket approvals by the deadline above, GBPM 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 GBPM, 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 GBPM'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
As noticed in the “First Notice of Workshop on Regulatory Compliance,” the staff of the Federal Energy Regulatory Commission (Commission) will hold a workshop on July 8, 2008, in the Commission Meeting Room at the Commission's Washington, DC headquarters, 888 First Street, NE. Please note that the starting and ending times of the conference have been changed to provide further opportunity for discussion. The workshop will now begin at 9 a.m. and end at 1 p.m. Eastern Daylight time. This workshop will provide a forum for interested participants to share perspectives and information on federal energy regulatory compliance. The workshop will focus, in particular, on the elements of a sound compliance program. One or more of the Commissioners may attend the workshop.
As indicated in the previous notice, issued May 21, 2008, this notice provides more information on the format of the workshop and the topics to be explored. For this information, please see the attached Agenda and the detailed panel descriptions below.
The workshop will consist of two panels, which will be introduced and moderated by Commission staff. The first panel, entitled “Designing and Developing a Compliance Program,” will include executives from three companies, two that are currently in the process of designing FERC-related compliance programs for their respective companies and one who is from a consulting firm that specializes in assisting energy firms to develop effective compliance programs. These panelists' presentations may address the following topics:
• Identifying and prioritizing risks;
• Integrating FERC compliance with other regulatory requirements (e.g., Securities and Exchange Commission, Commodity Futures Trading Commission, Department of Justice, and Federal Trade Commission);
• Developing an appropriate organizational structure that ensures the independence of compliance personnel;
• Tying management and employee incentives/compensation to achieving certain compliance targets;
• Developing a training program and manuals that address the applicable Commission requirements;
• Designing recordkeeping and retention policies;
• Establishing accountability/reporting systems;
• Committing adequate resources to compliance (i.e. funding and personnel); and,
• Other topics as identified by the panelists or the audience.
The second panel, entitled “Implementing and Maintaining a Compliance Program,” will include compliance officers from three companies that represent the gas, electric, and financial industries. These compliance officers have been involved in the implementation and maintenance of FERC-related compliance programs at
• Internal reporting of possible non-compliance (
• Leadership and commitment by senior management;
• Periodic internal audits, compliance monitoring, and reporting to the Board;
• Ongoing employee training;
• Ongoing monitoring and communication of regulatory changes to line personnel;
• Ensuring that all contracts are subject to an organization's internal legal review and approval process;
• Periodic assessment of the organization's compliance policies and training materials;
• Promoting effective communication between operations and compliance personnel;
• Self-reporting potential violations; and,
• Other topics as identified by the panelists or the audience.
Each panel will be immediately followed by an open mike discussion, during which those in attendance may pose questions directly to the panelists or comment on the presentations via a microphone in the Commission Meeting Room. Audience members are also encouraged to provide additional information to augment the panelists' presentations.
As stated previously, this workshop will neither be web-cast nor transcribed. All interested parties are invited, and registration is not required to attend.
Commission conferences are accessible under section 508 of the Rehabilitation Act of 1973. For accessibility accommodations please send an e-mail to
Take notice that on June 12, 2008, Bay Gas Storage Company, Ltd. (Bay Gas) filed its Refund Report pursuant to Article VI of Bay Gas' Stipulation and Agreement of Settlement, dated April 21, 2008. Bay Gas states that the required refunds were disbursed to the affected customers on May 29, 2008.
Any person desiring to participate in this rate proceeding must file a motion to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the date as indicated below. Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
On July 9, 2008, staff of the Federal Energy Regulatory Commission will conduct a site visit of the Transcontinental Gas Pipe Line Corporation's proposed Sentinel Expansion Project—Downingtown Mainline “A” Replacement. The purpose of this site visit is to review the residential areas potentially affected by the proposed replacement of mainline “A” and to look at potential alternatives.
Interested parties may accompany staff during its visit and should meet at 10 a.m. (EDT) at: Target, Western Parking Lot closest to North Pottstown Pike, 201 Sunrise Boulevard, Exton, PA 19341, FERC Contact Phone Number (day of the site visit): (202) 502-6352.
Those planning to accompany staff during its visit must provide their own transportation.
For additional information, please contact the Commission's Office of External Affairs at 1-866-208-FERC.
Southwestern Power Administration, DOE.
Notice of public review and comment.
Section 132 of Public Law 109-103 (2005) authorized and directed the Secretary of the Army to implement alternatives BS-3 and NF-7, as described in the White River Minimum Flows Reallocation Study Report, Arkansas and Missouri, dated July 2004.
The law states that the Administrator, Southwestern Power Administration (Southwestern), shall determine any impacts on electric energy and capacity generated at Federal Energy Regulatory Commission (FERC) Project No. 2221 caused by the storage reallocation at Bull Shoals Lake. Further, the licensee of Project No. 2221 shall be fully compensated by the Corps of Engineers for those impacts on the basis of the present value of the estimated future lifetime replacement costs of the electrical energy and capacity at the time of implementation of the White River Minimum Flows project.
The law also states that losses to the Federal hydropower purpose of the Bull Shoals and Norfork Projects shall be offset by a reduction in the costs allocated to the Federal hydropower purpose. Further, such reduction shall be determined by the Administrator of Southwestern on the basis of the present value of the estimated future lifetime replacement cost of the electrical energy and capacity at the time of implementation of the White River Minimum Flows project.
Southwestern's draft determination was published by
Assuming a January 1, 2011, date of implementation for the White River Minimum Flows project, Southwestern's proposed determination results in a present value for the estimated future lifetime replacement costs of the electrical energy and capacity at FERC Project No. 2221 of $33,935,100. Southwestern's proposed determination results in a present value for the estimated future lifetime replacement costs of the electrical energy and capacity for Federal hydropower of $86,712,100.
The consultation and comment period will begin on the date of publication of this
Written comments on Southwestern's proposed determination are due on or before August 4, 2008. Comments should be submitted to George Robbins, Director, Division of Resources and Rates, Southwestern Power Administration, U.S. Department of Energy, One West Third Street, Tulsa, Oklahoma 74103.
Mr. George Robbins, Director, Division of Resources and Rates, (918) 595-6680,
Originally established by Secretarial Order No. 1865 dated August 31, 1943, Southwestern is an agency within the U.S. Department of Energy which was created by an Act of the U.S. Congress, entitled the Department of Energy Organization Act, Public Law 95-91 (1977). Southwestern markets power from 24 multi-purpose reservoir projects with hydroelectric power facilities constructed and operated by the U.S. Army Corps of Engineers. These projects are located in the states of Arkansas, Missouri, Oklahoma, and Texas. Southwestern's marketing area includes these states plus Kansas and Louisiana.
Southwestern developed projected energy and capacity losses for FERC Project No. 2221 and the Bull Shoals and Norfork projects, including additional losses related to the reallocation for minimum flows as appropriate. Currently, the calculated compensation due to the licensee of FERC Project No. 2221 is $33,935,100, and the calculated credit due to Federal hydropower is $86,712,100. The values were calculated on the basis of the present value of the estimated future lifetime replacement cost of the electrical energy and capacity assuming an implementation date of January 1, 2011, for the White River Minimum Flows project. The final calculation will depend on the official date of implementation as specified by the Corps of Engineers and the value of the specified parameters in effect at that time.
FERC Project No. 2221, the non-Federal Ozark Beach hydroelectric project, will be directly affected by the minimum flow plan. The implementation of the authorized plan will result in a reduction of the amount of gross head (headwater elevation minus the tailwater elevation) available for generation at the non-Federal project at Ozark Beach. The reduction in gross head will result in an annual energy loss of 6,029 megawatt-hours (MWh) of on-peak energy and 2,969 MWh of off-peak energy, or an annual total energy loss of 8,998 MWh. Also associated with the loss of gross head, there will be a capacity loss of 3.00 MW at the project.
Section 132 of Public Law 109-103 (2005) authorized alternative BS-3 at Bull Shoals, as described in the White River Minimum Flows Reallocation Study Report, Arkansas and Missouri, dated July 2004. Under the authorized plan for the Bull Shoals project, five feet of storage for minimum flows will be reallocated from the flood control pool with provisions to provide a portion of the reallocated storage for hydropower's use to maintain the yield of the current hydropower storage. The current seasonal pool plan will be superimposed on the new top of conservation pool. As a result, both the conservation and seasonal pool levels at Bull Shoals will be raised five feet. The additional downstream releases for minimum flows will be accomplished by generating with one of the main units at a low, inefficient rate. Since the current hydropower yield will be maintained, there will be no loss of marketable capacity or peaking energy at Bull Shoals. The energy loss, 23,855 MWh per year of off-peak energy, will be the result of making the required minimum downstream releases by generating energy at a much lower plant efficiency than normal generation. Since the energy that is produced from the minimum flow releases will be generated at a time when the energy is not needed to fulfill Federal peaking energy contracts, it is similar in value to the off-peak energy normally generated during flood control operations. Operating a main unit at the lower efficiency will also increase the average maintenance costs at the project by an estimated $68,000 per year.
Section 132 of Public Law 109-103 (2005) authorized alternative NF-7 at Norfork, as described in the White River Minimum Flows Reallocation Study Report, Arkansas and Missouri, dated July 2004. Under the authorized plan for the Norfork project, 3.5 feet of storage will be reallocated for minimum flows.
Opportunity is presented for interested parties to receive copies of the Proposed Determination Report detailing Southwestern's determination of the Federal and non-Federal hydropower impacts. If you desire a copy of the report, submit your request to Mr. George Robbins, Director, Division of Resources and Rates, Southwestern Power Administration, One West Third Street, Tulsa, OK 74103, (918) 595-6680,
Written comments on Southwestern's proposed determination are due on or before August 4, 2008. Comments should be submitted to George Robbins, Director, Division of Resources and Rates, Southwestern, at the above-mentioned address for Southwestern's offices.
Southwestern will review and address the written comments, making any necessary changes to the proposed determination. The Administrator will publish the results of Southwestern's final determination in the
Southwestern received comments from four entities during the public comment period. All of the comments received were considered. The major comments, by categories, and Southwestern's responses thereto, included the following:
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Southwestern performed the daily generation calculation for the SUPER Base Run with the performance data for the old wheels to verify the model with existing historical data. With the assumed generating efficiency for the old wheels of 75% and the assumed friction loss of one-half foot, there was a very strong correlation with historical generation at the project. The calculated average annual generation with the new wheels is about 17% higher than the calculated average annual generation with the old wheels. The historical data was used only to verify that Southwestern's spreadsheet model could reasonably predict the generation at Ozark Beach with the Table Rock outflows and Bull Shoals pool elevations as inputs.
The new wheels were used in both the base and alternative computations in order to determine the difference caused by the operation of Bull Shoals to meet the minimum flow requirements, not the increase from the installation of the
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The analysis has been updated using a drainage area ratio analysis of the intervening area inflow originating between Table Rock Dam and Bull Shoals Dam (as developed for the SUPER model) to add to the Table Rock outflows in estimating the Ozark Beach inflows. Using that technique, the average daily inflows into Ozark Beach are about 9 percent larger than the average daily outflows from Table Rock. The updated daily inflows were used in the computations for both the base and alternative cases. After the change, the calculated average annual energy loss at Ozark Beach increased from 8,645 MWh to 8,998 MWh.
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Southwestern initially used energy values developed by the Corps using Federal Energy Regulatory Commission (FERC) methodology for both the Federal and non-Federal impacts in order to be consistent with its evaluation of previous Corps reallocation studies, including its previous evaluation of White River Minimum Flows. While Southwestern was aware that the values produced by the Corps under older FERC criteria undervalue the energy benefits foregone in storage reallocations, we believed it was important to be consistent with our previous evaluations. The FERC values that Southwestern used for on-peak energy compare favorably with the Platts on-peak values. However, the FERC values that Southwestern used for off-peak energy are significantly lower than the Platts off-peak values.
After receiving public comments on our Draft Determination Report, Southwestern requested and received a copy of the spreadsheet “program” developed at FERC and used by the Corps in the development of replacement energy costs. The Corps' Hydropower Analysis Center (HAC) modified the program several years ago (pre-2000), but FERC has terminated support of the program. HAC continues to update the indices in the spreadsheet, but there is no active support for the program.
Southwestern revised its analysis for its Proposed Determination to use the Platts High Fuel Value energy cost forecast instead of the FERC energy values. The change was made for three primary reasons: (1) The Corps and Empire had previously agreed that the Platts High Fuel Value energy cost forecast numbers most accurately represented the replacement cost of energy; (2) comments from electric industry participants strongly supported the use of an industry source such as Platts; and (3) Southwestern's additional research revealed that the Platts values
As a result of the revision, the annual energy losses (in 2008 dollars) are different than those reflected in Southwestern's initial analysis. The Federal on-peak energy value decreased from $91.44/MWh to $85.05/MWh, and the off-peak energy value increased from $17.50/MWh to $50.49/MWh. The non-Federal on-peak energy value increased from $56.45/MWh to $86.06/MWh, and the off-peak energy value increased from $13.75/MWh to $50.75/MWh.
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Also, since there is no way to reliably estimate if, when, or how a renewable portfolio standard would be implemented, the impacts would be difficult to quantify. The State of Missouri currently has voluntary goals for adopting renewable energy, but there are no mandatory targets. Southwestern's position on a renewable risk premium is the same as on a possible carbon dioxide tax: If a state or Federal mandatory renewable portfolio standard that qualifies any of the three projects studied is implemented before the final payment or offset is completed, the impacts to both Federal and non-Federal hydropower should be quantified and included in the compensation calculation.
The authorizing legislation for the White River Minimum Flows project states that the non-Federal licensee will be compensated with a one-time payment “on the basis of the present value of the estimated future lifetime replacement costs of the electrical energy and capacity at the time of implementation of the White River Minimum Flows project.” If the compensation to the non-Federal licensee were changed from a one-time payment to payments over a number of years, compensation for the impacts of a carbon dioxide tax or a renewable portfolio standard for the remainder of the payments should be computed and applied if either were implemented during that series of payments.
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Availability of EPA comments prepared pursuant to the Environmental Review Process (ERP), under section 309 of the Clean Air Act and Section 102(2)(c) of the National Environmental Policy Act as amended. Requests for copies of EPA comments can be directed to the Office of Federal Activities at 202-564-7167. An explanation of the ratings assigned to draft environmental impact statements (EISs) was published in FR dated April 11, 2008 (73 FR 19833).
This document is available on the Internet at:
Revision of FR Notice Published 06/27/2008: Correction to project's state location from VA to WV.
Environmental Protection Agency (EPA).
Notice.
This notice announces receipt of a revised application 264-EUP-RUG from Bayer CropScience requesting an experimental use permit (EUP) for
Comments must be received on or before August 4, 2008.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2007-0884 by one of the following methods:
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Shanaz Bacchus, Biopesticides and Pollution Prevention Division (7511P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 308-8097; 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 to revise the application request for EUP 264-EUP-RUG. 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 revised EUP request for this EUP program, and if issued, the conditions under which it is to be conducted. Any issuance of an 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 Proposed Settlement Agreement; Request for Public Comment.
In accordance with section 113(g) of the Clean Air Act, as amended (“Act”), 42 U.S.C. 7413(g), notice is hereby given of a proposed settlement agreement to address a lawsuit filed by the National Environmental Development Association's Clean Air Project in the United States Court of Appeals for the District of Columbia:
Written comments on the proposed settlement agreement must be received by
Submit your comments, identified by Docket ID number EPA-HQ-OGC-2008-0471, online at
Diane McConkey, Air and Radiation Law Office (2344A), Office of General Counsel, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone: (202) 564-5588; fax number (202) 564-5603; e-mail address:
Petitioner raised issues concerning the December 4, 2006,
The settlement agreement provides that in the first ADI Posting Notice signed after this settlement agreement is final and effective, EPA will not use the expressions “broadly termed applicability determinations,” “broadly termed alternative monitoring decisions,” or “broadly termed regulatory interpretations,” but will instead use the following expressions, as needed: “commonly referred to as applicability determinations,” “commonly referred to as alternative monitoring decisions,” and “commonly referred to as regulatory interpretations.” In addition, EPA will include the following language: “This notice does not change the status of any document with respect to whether it is ‘of nationwide scope and effect' for purposes of section 307(b)(1) of the Clean Air Act. For example, this notice does not make an applicability determination for a particular source into a nationwide rule. Neither does it purport to make any document that was previously non-binding into a binding document.” The settlement agreement further states that no later than 30 days after the date the agreement becomes final, EPA will provide a new search capability for users of the ADI, such that users have the option of performing a search limited to the documents contained in a single ADI Posting Notice. If EPA complies with the terms of the settlement agreement, Petitioner shall file for dismissal of the petition for review with prejudice in accordance with Rule 42(b) of the Federal Rules of Appellate Procedures.
For a period of thirty (30) days following the date of publication of this notice, the Agency will receive written comments relating to the proposed settlement agreement from persons who were not named as parties or intervenors to the litigation in question. EPA or the Department of Justice may withdraw or withhold consent to the proposed settlement agreement if the comments disclose facts or considerations that indicate that such consent is inappropriate, improper, inadequate, or inconsistent with the requirements of the Act. Unless EPA or the Department of Justice determines, based on any comment which may be submitted, that consent to the settlement agreement should be withdrawn, the terms of the agreement will be affirmed.
Direct your comments to the official public docket for this action under Docket ID No. EPA-HQ-OGC-2008-0471 which contains a copy of the settlement agreement. The official public docket is available for public viewing at the Office of Environmental Information (OEI) Docket in the EPA Docket Center, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OEI Docket is (202) 566-1752.
An electronic version of the public docket is available through
It is important to note that EPA's policy is that public comments, whether submitted electronically or on paper, will be made available for public viewing online at
You may submit comments as provided in the
If you submit an electronic comment, EPA recommends that you include your name, mailing address, and an e-mail address or other contact information in the body of your comment and with any disk or CD-ROM you submit. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. Any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket,
Use of the
Environmental Protection Agency (EPA).
Notice of results review.
The Environmental Protection Agency, Region 8 has completed its statutory review of variances and exemptions issued by the State of Montana under the Safe Drinking Water Act (SDWA) Public Water System Supervision (PWSS) program. This review was announced in the
The Environmental Protection Agency, Region 8 determined as a result of this review that the State of Montana did not abuse its discretion on any variance or exemption granted or proposed as of the date of its on-site review on April 28, 2008.
Eric Finke at 406-457-5026 or e-mail at
Montana has an EPA approved program for assuming primary enforcement authority for the PWSS program, pursuant to section 1413 of SDWA, 42 U.S.C. 300g-2 and 40 CFR Part 142.
States with primary PWSS enforcement authority are authorized to grant variances and exemptions from National Primary Drinking Water Regulations due to particular situations with specific public water systems, providing these variances and exemptions meet the requirements of SDWA sections 1415 and 1416 and are protective of public health.
Montana is authorized to grant variances and exemptions to drinking water systems in accordance with SDWA. The SDWA requires that EPA periodically conduct reviews on State-issued variances and exemptions to determine whether the State has abused its discretion or failed to prescribe schedules in accordance with the statute in a substantial number of cases, and publish the results of that review in the
Equal Employment Opportunity Commission.
Final notice of submission for OMB review—no change: Local Union Report EEO-3.
In accordance with the Paperwork Reduction Act of 1995, the Equal Employment Opportunity Commission (EEOC) hereby gives notice that it has submitted to the Office of Management and Budget (OMB) a request for a three-year extension of the existing collection as described below.
Written comments on this final notice must be submitted on or before August 4, 2008.
The Request for Clearance (SF 83-I), supporting statement, and other documents submitted to OMB for review may be obtained from: Ronald Edwards, Director, Program Research and Surveys Division, 1801 L Street, NW., Washington, DC 20507. Comments on this final notice must be submitted to Chandana Achanta, Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW., Room 10235, New Executive Office Building, Washington, DC 20503 or electronically mailed to
Ronald Edwards, Director, Program Research and Surveys Division, 1801 L Street, NW., Washington, DC 20507, at (202) 663-4958 or TDD (202) 663-7063. This notice is also available in the following formats: Large print, braille, audio tape and electronic file on computer disk. Requests for this notice in an alternative format should be made to the Publications Center at 1-800-669-3362.
A notice that EEOC would be submitting this request was published in the
For the Commission.
Equal Employment Opportunity Commission.
Final notice of submission for OMB review—no change: State and Local Government Information (EEO-4).
In accordance with the Paperwork Reduction Act of 1995, the Equal Employment Opportunity Commission (EEOC) hereby gives notice that it has submitted to the Office of Management and Budget (OMB) a request for a three year extension of the existing collection as described below.
Written comments on this final notice must be submitted on or before August 4, 2008.
The Request for Clearance (SF 83-I), supporting statement, and other documents submitted to OMB for review may be obtained from: Ronald Edwards, Director, Program Research and Surveys Division, 1801 L Street, NW., Washington, DC 20507. Comments on this final notice must be submitted to Chandana Achanta, Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW., Room 10235, New Executive Office Building, Washington, DC 20503 or electronically mailed to
Ronald Edwards, Director, Program Research and Surveys Division, 1801 L Street, NW., Washington, DC 20507, at (202) 663-4958 or TDD (202) 663-7063. This notice is also available in the following formats: large print, braille, audio tape and electronic file on computer disk. Requests for this notice in an alternative format should be made to the Publications Center at 1-800-669-3362.
A notice that EEOC would be submitting this request was published in the
EEO-4 data are used by the EEOC to investigate charges of discrimination against state and local governments and to provide information on the employment status of minorities and women. The data are shared with several other Federal government agencies. Pursuant to section 709(d) of Title VII of the Civil Rights Act of 1964, as amended, EEO-4 data are also shared with eight-six State and Local Fair Employment Practices Agencies (FEPAs). Aggregated data are also used by researchers and the general public.
For the Commission.
Equal Employment Opportunity Commission.
Final notice of submission for OMB review—no change: Elementary-Secondary Staff Information Report (EEO-5).
In accordance with the Paperwork Reduction Act of 1995, the Equal Employment Opportunity Commission (EEOC) hereby gives notice that it has submitted to the Office of Management and Budget (OMB) a request for a three year extension of the existing collection as described below.
Written comments on this final notice must be submitted on or before August 4, 2008.
The Request for Clearance (SF 83-I), supporting statement, and other documents submitted to OMB for review may be obtained from: Ronald Edwards, Director, Program Research and Surveys Division, 1801 L Street, NW., Washington, DC 20507. Comments on this final notice must be submitted to Chandana Achanta, Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW., Room 10235, New Executive Office Building, Washington, DC 20503 or electronically mailed to
Ronald Edwards, Director, Program Research and Surveys Division, 1801 L Street, NW., Washington, DC 20507, at (202) 663-4958 or TDD (202) 663-7063. This notice is also available in the following formats: large print, braille, audio tape and electronic file on computer disk. Requests for this notice in an alternative format should be made to the Publications Center at 1-800-669-3362.
A notice that the Equal Employment Opportunity Commission would be submitting this request to the Office of Management and Budget (OMB), pursuant to the Paperwork Reduction Act of 1995 (PRA) was published in the
EEO-5 data are used by the EEOC to investigate charges of discrimination against elementary and secondary public school systems and to provide information on the employment status in this sector of the work place by race, ethnicity and gender.
For the Commission.
As part of its continuing effort to reduce paperwork burden and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission invites the general public and other Federal agencies to comment on the following information collection(s). Comments are requested concerning (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 burden estimate; (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 the respondents, including the use of automated collection techniques or other forms of information technology. An agency may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a valid OMB control number.
Written PRA comments should be submitted on or before September 2, 2008. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Submit your comments by e-mail to
For additional information about the information collection(s) or to obtain a copy of the collection send an e-mail to
The Federal Communications Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and other Federal agencies to take this opportunity to comment on the following information collection, as required by the Paperwork Reduction Act (PRA) of 1995, Public Law 104-13. An agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. Pursuant to the PRA, no person shall be subject to any penalty for failing to comply with a collection of information that does not display a valid control number. Comments are requested concerning (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 burden estimate; (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 the respondents, including the use of automated collection techniques or other forms of information technology.
Written PRA comments should be submitted on or before September 2, 2008. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Interested parties may submit all PRA comments by e-mail or U.S. mail. To submit your comments by e-mail, send them to
For additional information about the information collection, send an e-mail to
The Federal Communications Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and other Federal agencies to take this opportunity to (PRA) of 1995 (PRA), Public Law 104-13. An agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. Subject to the PRA, no person shall be subject to any penalty for failing to comply with a collection of information that does not display a valid control number. Comments are requested concerning (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 burden estimate; (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 the respondents, including the use of automated collection techniques or other forms of information technology.
Written PRA comments should be submitted on or before September 2, 2008. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
You may submit all PRA comments by e-mail or U.S. post mail. To submit your comments by e-mail, send them to
For additional information about the information collection(s), contact Cathy Williams at (202) 418-2918 or send an e-mail to
Section 74.1251(c) requires FM translator licensee to notify the FCC, in writing, of changes in the primary FM station being retransmitted.
The Federal Communications Commission, as part of its continuing
Written Paperwork Reduction Act (PRA) comments should be submitted on or before August 4, 2008. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contacts listed below as soon as possible.
Direct all PRA comments to Nicholas A. Fraser, Office of Management and Budget, via Internet at
To view a copy of this information collection request (ICR) submitted to OMB: (1) Go to the web page
For additional information or copies of the information collection(s), contact Cathy Williams at (202) 418-2918.
47 CFR 73.1201(a) requires television broadcast licensees to make broadcast station identification announcements at the beginning and ending of each time of operation, and hourly, as close to the hour as feasible, at a natural break in program offerings. Television and Class A television broadcast stations may make these announcements visually or aurally.
47 CFR 73.1201(b)(1) requires that the official station identification consist of the station's call letters immediately followed by the community or communities specified in its license as the station's location; provided that the name of the licensee, the station's frequency, the station's channel number, as stated on the station's license, and/or the station's network affiliation may be inserted between the call letters and station location. DTV stations, or DAB Stations, choosing to include the station's channel number in the station identification must use the station's major channel number and may distinguish multicast program streams. For example, a DTV station with major channel number 26 may use 26.1 to identify an HDTV program service and 26.2 to identify an SDTV program service. A radio station operating in DAB hybrid mode or extended hybrid mode shall identify its digital signal, including any free multicast audio programming streams, in a manner that appropriately alerts its audience to the fact that it is listening to a digital audio broadcast. No other insertion between the station's call letters and the community or communities specified in its license is permissible.
47 CFR 73.1201(b)(3) requires that twice daily, the station identification for television stations must include a notice of the existence, location and accessibility of the station's public file. The notice must state that the station's public file is available for inspection and that consumers can view it at the station's main studio and on its Web site. At least one of the announcements must occur between the hours of 6 p.m. and midnight.
47 CFR 74.783(e) permits any low-power television (LPTV) station to request a four-letter call sign after receiving its construction permit. All initial LPTV construction permits will continue to be issued with a five-character LPTV call sign. LPTV respondents are required to use the online electronic system. To enable these respondents to use this online system, the Commission eliminated the requirement that holders of LPTV construction permits submit with their call sign requests a certification that the station has been constructed, that physical construction is underway at the transmitter site, or that a firm equipment order has been placed.
47 CFR 74.783(b) requires licensees of television translators whose station identification is made by the television station whose signals are being rebroadcast by the translator, must secure agreement with this television licensee to keep in its file, and available to FCC personnel, the translator's call
47 CFR 74.1283(c)(1) requires FM translator stations whose station identification is made by the primary station to furnish current information on the translator's call letters and location. This information is kept in the primary station's files. This information is used to contact the translator licensee in the event of malfunction of the translator.
As part of its continuing effort to reduce paperwork burden and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission invites the general public and other Federal agencies to comment on the following information collection(s). Comments are requested concerning (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 burden estimate; (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 the respondents, including the use of automated collection techniques or other forms of information technology. An agency may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a valid OMB control number.
Written PRA comments should be submitted on or before August 4, 2008. If you anticipate that you will be submitting PRA comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the FCC contact listed below as soon as possible.
Submit your comments to Nicholas A. Fraser, Office of Management and Budget (e-mail address:
For additional information contact Jerry Cowden via e-mail at
OMB Control Number: 3060-0207.
Federal Maritime Commission.
July 9, 2008—10 a.m.
800 North Capitol Street, NW., First Floor Hearing Room, Washington, DC.
Closed Session.
(1) Export Cargo Issues Status Report.
(2) Internal Administrative Practices and Personnel Matters.
Karen V. Gregory, Assistant Secretary, (202) 523-5725.
Office of the Secretary, Office of the Assistant Secretary for Preparedness and Response.
Notice.
To receive consideration, applications must be received by the Office of Grants Management within the Office of Public Health and Science (OPHS) of the Department of Health and Human Services (HHS) no later than August 4, 2008. HHS will consider applications as meeting the deadline if the HHS/OPHS Office of Grants Management (c/o Grant Application Center, 1515 Wilson Boulevard, Suite 100, Arlington, VA 22209), receives them no later than 5 p.m., Eastern Time, on the application due date. HHS will accept applications electronically submitted through GrantSolutions.gov or Grants.Gov until 11 p.m., Eastern Time, on this date. HHS will not accept applications by fax, nor will HHS extend the submission deadline. The application due date requirement specified in this announcement supersedes the instructions in the OPHS-1. HHS will return to the applicant, unread, applications that do not meet the deadline. See heading “Application and Submission Information” for information on mechanisms to submit applications.
This project will support the Gorgas Memorial Institute (GMI) to: (a) Develop a regional training center in Panama and (b) train community health workers, clinicians (physicians, nurses, and auxiliary medical workers) and select public-health professionals from Central and South America (i.e., Latin America), (c) facilitate partnerships between U.S. universities and their Latin American counterparts to develop human resources for health in Latin America, and (d) harness the energies of U.S. and other non-governmental organizations by partnering with them to advance community health-training and program efforts in Latin America.
These efforts will help engage significantly more areas of these countries to prepare for and respond to public-health emergencies, such as pandemic influenza, and they will contribute to the improved and expanded provision of prevention and primary health care. This training of nurses, community health workers and physicians will focus on improving and expanding coverage and access to both public-health emergency care and preventive and primary health care in underserved parts of Latin America (i.e., both underserved rural and poor urban communities). A result of this project, the health-care work force in Central America should be better prepared to respond to public-health emergencies, including pandemic influenza. Key to the selection of recipients for this training will be their availability and willingness to provide their health and medical care skills in underserved areas within the region, especially rural and indigenous communities and those visited by U.S. Government humanitarian missions in the past year. In addition to all appropriate subjects in the fields of medical care and health education or communication, training supported by this project will emphasize infectious diseases, epidemiology, disease surveillance and outbreak response, so graduates of training programs will be prepared to play contributing roles in any pandemic preparation and response.
While a number of Central and South American and Caribbean countries have made significant strides towards improving the quality of health care for their citizens, and extending that care into underserved areas, a number of countries and regions still suffer from a shortage of appropriately trained health-care workers and clinicians. Though all levels of medical care (primary, secondary and tertiary) warrant further investment and effort to meet the present and growing need in Latin America and the Caribbean for medical care, this need is perhaps most acute among rural, indigenous and disadvantaged urban communities, where essential public health, prevention and primary care are absent or sparse. From a public-health perspective, focusing public investment on basic and essential primary care results in a maximization of benefits for the greatest number of people.
Compounding the pre-existing and wide ranging needs for basic community, preventive and primary health care in this region are new threats from emerging infectious diseases that are looming on the horizon. The H5N1 strain of avian flu has become the most threatening influenza virus in the world that could cause a pandemic, and any large-scale outbreak of this disease among humans would have grave consequences for global public health, including in Latin America. Influenza experts have warned that the re-assortment of different influenza viruses could greatly increase the potential for the viruses to transmit more easily from person to person. Medical practitioners have also discovered several other, new avian viruses transmissible to humans. In the fight against avian and pandemic influenza, early detection and response is the first line of defense, and greater numbers of appropriately trained community and clinical health-care workers would play a vital role in helping respond to such public-health emergencies.
No funds provided under this cooperative agreement may support any activity that duplicates another activity supported by any component of HHS. Funds provided under this cooperative agreement may not supplant funding provided by other sources. Grantees must coordinate all funded activities with the HHS Office of the Assistant Secretary for Preparedness and Response (ASPR) and the Office of Global Health Affairs.
Section 307(a) and (b) of the PHS Act (42 U.S.C. 242l);
Section 1702(a)(2), (3) and (4)(A) and (C) (42 U.S.C. 300u-1(a)(2), (3), and 4(A) and (C));
Section 1703(a)(1), (2), (3), and (4) (42 U.S.C. 300u-2(a)(1), (2), (3) and (4));
Section 1703(c) (42 U.S.C. 300u-2(c)); and
Section 1704(1), (2), and (3) (42 U.S.C. 300u-3(1), (2), and (3)).
(a) Continue to develop and establish a regional training center in Panama for health workers, medical clinicians (auxiliary health-care workers, community health aides, nurses, physician assistants, nurse practitioners, and physicians) and select public-health professionals from Central and South America. Development of such a center is understood to include the recruitment and retention of faculty and administrative staff, the development of curricula, and all appropriate inter-face with Panamanian, regional and international educational systems and peer groups.
(b) Train significant numbers of community health workers and clinicians (physicians, nurses, and auxiliary medical workers) and select public-health professionals from Central and South American and Caribbean countries.
(c) Through this cooperative agreement with HHS, explore and lead, where possible, the creation of partnerships between U.S. universities and Latin American counterpart institutions to further develop and train community-level health-care workers, and identify policy and program options that can contribute to the greater expansion and sustainability of community-level health-care workers in currently underserved areas. Additional funds from HHS could be available in the future to further expand the number of these partnerships.
(d) With HHS, investigate and develop approaches for collaborating with Latin American, Caribbean, U.S. and/or international non-governmental organizations (NGOs) to help advance the training of the community and field health and medical personnel of these NGOs.
(e) With HHS, investigate and develop approaches for collaborating with Latin American, Caribbean and U.S. NGOs to link, bridge and supplement these NGOs' community health initiatives, where possible, through GMI's provision of logistical support and a base of operations for the NGOs', working in agreement with GMI.
(f) Identify organizations of U.S.-based emigrants and their places of origin throughout the countries of Central and South America and the Caribbean, and pursue efforts to build or expand community health complements to any community-assistance initiatives these organizations are or could be providing.
(g) With HHS, international health organizations and NGOs, pursue coordinated efforts on health campaigns of public-health priority for which a campaign strategy approach offers merit (e.g., immunization promotion, including seasonal influenza immunization, polio eradication, oral rehydration therapy, etc.). Any campaigns should utilize the best available approaches to research, development, implementation and evaluation. GMI will design and implement new teaching methods directed to the community, to adopt healthy lifestyles and attitudes towards prevention.
(h) With HHS and the U.S. Department of Defense, coordinate training and surveillance activities of all three institutions with humanitarian missions in the Region.
Measurable outcomes of the program will be the following:
(a) Continue work begun in the first and second years of this effort to develop appropriate teaching curricula, engage with appropriate Panamanian and international teaching/educational networks to ensure high educational standards; hire appropriately-trained teaching, administrative and management staff; and maintain all appropriate management, fiscal, and business operations to support and sustain such a training institute.
(b) Provide periodic reports of the number of people who have completed training; such reports should include details on the numbers of those who have dropped out midway, and those who have completed the training; pre- and post-test scores on key competency subject areas; numbers trained by type of health-care or clinical worker; town and country of origin of incoming students, as well as where those same students work and reside at six- and twelve-month intervals following the completion of their training; and the results of follow-up questionnaires sent to graduates that solicit feedback on their training and its appropriateness, and suggestions for how the school might improve its training. Any information Gorgas provides to HHS on training participants should remove individuals' personal data from the reports, to maintain the privacy of participants. (See “Reporting Requirements #2” Section later in this document for complementary reporting obligations pertinent to this outcome).
(c) Quantify and detail the number of partnerships with U.S. institutions explored, as well as the number for which formal partnerships have been created, where substantive exchange of training expertise, faculty, and/or students is documented and described.
(d) Quantify and detail the number of studies and recommendations of program and policy options available to Latin American and Caribbean countries that would contribute to expanded, sustained community-level health-care personnel.
(e) Quantify and detail the number of partnerships with Latin American, Caribbean, U.S. and/or international NGOs explored, and the number of such partnerships developed and formally established.
(f) Provide detailed descriptions of the base-of-operations and logistics resources that GMI has developed and is maintaining, along with details of how it has communicated the availability of these resources to NGOs.
(g) Quantify and detail the number of Latin American, Caribbean, U.S. and/or international NGOs that have opted to use GMI's provision of base-of-operations and logistics support in a given time period, and details on the nature and extent of such use.
(h) Quantify and detail the number of health campaigns in which GMI participates, with detailed description(s) of the role(s) played by GMI, along with the level of effort it contributed to each of these efforts.
(i) Quantify and detail the number of organizations of U.S.-based Latin American and Caribbean emigrants with which GMI has identified and partnered with, to enhance their community-health activities, and provide details of those community-health activities.
(j) Quantify and detail the number of scholarships awarded to low-income students who will be participating in these trainings. Any information Gorgas provides to HHS on training participants should remove individuals' personal data from the reports, to maintain the privacy of participants.
Activities HHS Anticipates the Grantee will Perform:
HHS anticipates the grantee will undertake a variety of activities to realize the aforementioned purposes and outcomes. A list of what some of these activities might include follows.
1. Continue to establish/develop appropriate teaching curricula for specific training modules and assemblages of trainees;
2. In partnership with HHS, Panamanian Ministry of Health and NGOs, acquire didactic teaching
3. Continue to engage in appropriate Panamanian and international teaching or educational networks to ensure high educational standards;
4. Continue to recruit and hire appropriately trained teaching and administrative staff;
5. Continue to establish all appropriate management, fiscal, and business operations to support and sustain an efficient and effective training institute;
6. Establish an efficient performance-monitoring and reporting system, and submit periodic reports to HHS;
7. Continue to pursue and develop partnerships with U.S. educational institutions in expanding GMI's knowledge, contacts and resources for improving and expanding community training and sustainability of health workers;
8. Pursue and develop partnerships with Latin American, Caribbean, U.S. and/or international NGOs to provide these NGOs' health-care staff with appropriate training;
9. Identify an appropriate level of facilities that can function as a base of operation for NGOs, with appropriate contingency plans for expanding this level of facilities as interest and demand for it could grow;
10. Identify, provide and assemble logistics resources for NGOs to enhance their community-health and outreach activities;
11. In partnership with HHS, and NGOs, identify appropriate topics for health campaigns, and participate in the implementation and assessment of those campaigns;
12. Identify and approach fraternal organizations of U.S.-based emigrants that provide assistance to communities in Latin America and Caribbean, and partner with these groups to enhance their community-health activities;
13. In partnership with HHS, Panamanian Ministry of Health and NGOs, identify scholarships or fellowships to participating health-care personnel who are attending these courses;
14. In partnership with HHS and the U.S. Department of Defense, coordinate training and surveillance activities of the three institutions with humanitarian missions in the Region.
This cooperative agreement will provide total funding of $600,000 for all aspects of the described project.
HHS will be substantially involved with the design and implementation of the grantee's described activities. The HHS Office of the Assistant Secretary for Preparedness and Response (ASPR) is issuing and will manage this grant, with substantive involvement from the Office of Global Health Affairs (OGHA). In HHS international public health efforts, the Offices/Centers of HHS/OGHA and HHS/ASPR often collaborate on programs, issues and initiatives (e.g., influenza, the implementation of the International Health Regulations, etc.).
HHS staff members' activities for this program are as follows:
1. Provide assistance in the design and implementation with any of the aforementioned objectives and activities, including the identification of U.S. universities, and NGOs.
2. Provide liaison through HHS employees at U.S. Embassy(ies) in any participating or collaborating countries, as appropriate, and as relevant to the achievement of the purposes of this cooperative agreement.
3. Organize an orientation meeting with the grantee to discuss applicable U.S. Government, HHS, and
4. Review and approve the process used by the grantee to select key personnel and/or post-award subcontractors and/or subgrantees to involve in the activities performed under this agreement.
5. Review and approve the grantee's work plan and detailed budget.
6. Review and approve the grantee's monitoring-and-evaluation plan, including for compliance with the strategic-information guidance established by the Office of Management and Budget (OMB) and HHS;
7. Review, on a monthly basis, with the grantee to assess monthly disbursement requests and expenditures in relation to approved work plan and modify plans, as necessary.
8. Meet via conference call on a quarterly basis with the grantee to assess quarterly technical and financial progress reports and modify plans, as necessary.
9. Meet via conference call or in person with the grantee to review the final progress report.
10. Provide technical assistance, as mutually agreed upon. This could include expert technical assistance and targeted training activities in specialized areas, such as strategic information and project management.
11. Provide in-country administrative support to help the grantee meet U.S. Government financial and reporting requirements approved by OMB under 0920-0428 (Public Health Service Form 5161).
12. Assist in assessing program operations and in implementing approaches to accurately monitor the progress and evaluate the overall effectiveness of the program.
This project will be supported through the cooperative agreement mechanism. HHS/ASPR anticipates making only one award for this proposed work. The anticipated start date is September 1, 2008, and end date is August 31, 2009. HHS/ASPR anticipates providing $600,000 for the 12-month budget period. The total amount that the Gorgas Memorial Institute for Health Studies may request is $600,000. The funds in this cooperative agreement may not support indirect costs.
The only eligible applicant that can apply for this funding opportunity is the Gorgas Memorial Institute for Health Studies of Panama. Gorgas Memorial Institute is uniquely qualified to assist the Department in its efforts to train health care workers from this region to increase access to quality medical care, including efforts to detect, prevent, and contain pandemic influenza outbreaks for the following reasons:
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As a public-health, training, and research institution, GMI offers strengths in several areas that are essential to the effective realization of this proposal's objectives and activities.
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GMI has a long and solid reputation in virology, easily confirmed by many distinguished virologists in the United States. The Gorgas Department of Virology has been extremely productive through its collaborations with the Yale University Arbovirus Research Unit, the University of Texas at Galveston and the HHS Centers for Disease Control and Prevention (CDC). GMI began working with influenza in 1976, and has contributed influenza isolates to the World Health Organization (WHO), one of which the WHO has determined should be part of the current influenza vaccine. All these are health concerns of pressing significance for rural and underserved areas.
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GMI is the only institution positioned and capable to carry out the activities specified in the cooperative agreement. For these reason, the Department desires to award the cooperative agreement based on single eligibility to GMI.
Cost participation is encouraged. HHS will pay $600,000, while GMI should provide an amount specified in their proposal. GMI's contribution may include indirect expenses and in-kind contributions. The types of resources GMI could contribute could include, but are not limited to, the following: Personnel time and costs, provision of existing and physical space and structures, and the remodeling (and associated costs) of those physical facilities that are to be converted to teaching facilities, vehicles for transportation, and the development of a staging area for NGOs. If applicant receives funding from other sources to underwrite the same or similar activities, or anticipate receiving such funding in the next 12 months, they must detail how the disparate streams of financing complement each other.
If an applicant requests a funding amount greater than the ceiling of the award range, HHS will consider the application non-responsive, and the application will not enter into the review process. HHS will notify the applicant that the application did not meet the submission requirements.
If the application is incomplete or non-responsive to the special requirements listed in this Section, the application will not enter into the review process. HHS will notify the applicant that the application did not meet submission requirements. HHS will consider late applications non-responsive.
Please see Division G, Title V, “General Provisions,” Section 503(b) of the 2008 Consolidated Appropriations Act, which provides that “* * * no part of any appropriation contained in this Act shall be used to pay the salary or expenses of any grant or contract recipient, or agent acting for such recipient, related to any activity designed to influence legislation or appropriations pending before the Congress or any State legislature.”
Applicants may obtain kits electronically by accessing Grants.gov at
• The length of the proposal should not exceed 50 pages;
• Font size should be no smaller than 12-point, and it should be single-spaced;
• Paper size: 8.5 by 11 inches;
• Page-margin size: one inch;
• Number all pages of the application sequentially from page one (Application Face Page) to the end of the application, including charts, figures, tables, and appendices;
• Print only on one side of page; and
• Hold application together only by rubber bands or metal clips, and do not bind it in any way.
The narrative should address activities to conduct over the entire project period, and must include the following items in the order listed:
○ Objectives;
○ Methods to accomplish the purposes of the cooperative agreement and the “Grantee Activities;”
○ Detailed time line for accomplishment of each activity;
○ Ability to respond to emergencies;
○ Ability to respond to situations on weekends and after hours; and
○ Coordination with HHS, U.S. educational institutions, and NGOs.
○ The applicant must provide résumés that identify the educational and experience level of any individual(s) who will perform in a key position, and other qualifications to show the key individuals' ability to comply with the minimum requirements of this announcement;
○ The applicant must provide a summary of the qualifications of non-key personnel. Résumés must be no longer than three pages per person; and
○ The proposed staffing plan must demonstrate the applicant's ability to recruit, retain, or replace personnel who have the knowledge, experience, local-language skills, training and technical expertise commensurate with the requirements of this announcement. The plan must demonstrate the applicant's ability to provide bilingual personnel to train and mentor host-country participants for Latin America and the Caribbean.
Additional requirements that could require submission of additional documentation with the application appear in Section VI.2.—
To receive consideration, the Office of Grants Management within the HHS Office of Public Health and Science (OPHS), must receive applications no later than August 4, 2008. HHS will consider applications as meeting the deadline if the HHS/OPHS Office of Grants Management, c/o Grant Application Center, 1515 Wilson Blvd., Suite 100, Arlington, VA 22209 receives them no later than 5 p.m., Eastern Time, on the application due date. HHS will accept applications electronically submitted through GrantSolutions.gov or Grants.Gov until 11 p.m., Eastern Time, on this date. HHS will not accept applications by fax, nor will HHS extend the submission deadline. The application due date requirement specified in this announcement supersedes the instructions in the OPHS-1. HHS will return to the applicant, unread, applications that do not meet the deadline.
HHS/OPHS provides multiple mechanisms for the submission of applications, as described in the following Sections. Applicants will receive notification via mail from the HHS/OPHS Office of Grants Management to confirm the receipt of applications submitted by using any of these mechanisms. HHS will not accept for review applications submitted to the HHS/OPHS Office of Grants Management after the deadlines described below. HHS will not accept for review applications that do not conform to the requirements of this grant announcement, and will return hard-copy applications to the applicant.
While HHS will accept applications in hard copy, the Department encourages the use of the electronic application-submission capabilities provided by the Grants.gov and GrantSolutions.gov systems. Applicants may only submit applications electronically via the electronic-submission mechanisms specified below. HHS will not accept for review any applications submitted via any other means of electronic communication, including facsimile or electronic mail.
All HHS funding opportunities and application kits are available on Grants.gov. If your organization has/had a grantee business relationship with a grant program serviced by the HHS/OPHS Office of Grants Management, and you are applying as part of ongoing, grantee-related activities, please use GrantSolutions.gov.
Applicants must submit electronic grant applications no later than 11 p.m., Eastern Time, on the deadline date specified in the
HHS/OPHS must receive hard-copy applications no later than 5 p.m., Eastern Time, on the deadline date specified in the
HHS will not consider applications as valid until the HHS/OPHS Office of Grants Management has received all components of the electronic application; hard-copy with original signatures, and mail-in items, according to the deadlines specified above. HHS will consider as late any application submissions that does not adhere to the due-date requirements, will deem them ineligible. Applicants should initiate electronic applications as early as possible, and should submit early on the due date or before. This will aid in addressing any problems with submissions prior to the application deadline.
The Grants.gov Web site Portal provides organizations with the ability to submit applications for HHS grant opportunities. Organizations must successfully complete the necessary registration processes to submit an application. Information about this system is available on the Grants.gov Web site,
In addition to electronically submitted materials, applicants might have to submit hard-copy signatures for certain program-related forms, or original materials, as required by this announcement. Applicants must review both the grant announcement, as well as the application guidance provided within the Grants.gov application package, to determine such requirements. Applicants must submit separately any required, hard-copy materials, or documents that require a signature, via mail to the HHS/OPHS Office of Grants Management, at the address and time specified above; if required, these materials must contain the original signature of an individual authorized to act for the applicant and assume the obligations imposed by the terms and conditions of the grant award. When submitting the required forms, do not send the entire application. HHS will not consider for review complete, hard-copy applications submitted after the electronic submission.
Electronic applications submitted via the Grants.gov Web site Portal must contain all completed online forms required by the application kit, the Program Narrative, Budget Narrative, and any appendices or exhibits. Any files uploaded or attached to the Grants.gov application must be of the following file formats—Microsoft Word, Excel or PowerPoint, Corel WordPerfect, ASCII Text, Adobe PDF, or image formats (JPG, GIF, TIFF, or BMP only). Even though Grants.gov allows applicants to attach any file format as part of their application, HHS/OPHS restricts this practice, and only accepts the file formats identified above. HHS/OPHS will not accept for processing any file submitted as part of the Grants.gov application that is not in a file format identified above, and will exclude it from the application during the review process.
HHS/OPHS must receive all required, mail-in items by the due date specified above. Mail-in items only include publications, resumes, or organizational documentation. When submitting the required forms, do not send the entire application. HHS will not accept for review complete, hard-copy applications submitted after the electronic submission.
Upon completion of a successful electronic application submission via the Grants.gov Web site Portal, applicants will receive a confirmation page from Grants.gov that indicates the date and time (Eastern Time) of the submission, as well as a Grants.gov Receipt Number. Applicants must print and retain this confirmation for their records, as well as a copy of the entire application package.
Grants.gov will validate all applications submitted via the Grants.gov Web site Portal. Any applications deemed “invalid” by the Grants.gov Web site Portal will not transfer to the Grant Solutions system, and HHS/OPHS has no responsibility for any application not validated and transferred to HHS/OPHS from the Grants.gov Web site Portal. Grants.gov will notify applicants regarding the validation status of applications. Once the Grants.gov Web site Portal has successfully validated an application, applicants should immediately mail all required, hard-copy materials to the HHS/OPHS Office of Grants Management, c/o Grant Application Center, 1515 Wilson Blvd., Suite 100, Arlington, VA 22209, by the deadlines specified above. Applicants must clearly identify their organization's name and Grants.gov Application Receipt Number on all hard-copy materials.
Once Grants.gov has validated an application, it will electronically transfer it to the Grant Solutions system for processing. Upon receipt of both the electronic application from the Grants.gov Web site Portal, and the required, hard-copy mail-in items, applicants will receive notification via mail from the HHS/OPHS Office of Grants Management to confirm the receipt of the application submitted through the Grants.gov Web site Portal. Applicants should contact Grants.gov regarding any questions or concerns regarding the electronic-application process conducted through the Grants.gov Web site Portal.
HHS/OPHS is a managing partner of the GrantSolutions.gov system. Grant Solutions is a full life-cycle grants-management system operated by the HHS Administration for Children and Families, designated by OMB as one of the three, Government-wide grants management systems under the Grants-Management Line-of-Business Initiative (GMLoB). HHS/OPHS uses Grant Solutions for the electronic processing of all grant applications, as well as the electronic management of its entire grant portfolio.
When submitting applications via the Grant Solutions system, applicants must still submit a hard copy of the face page of the application (Standard Form 424), with the original signature of an individual authorized to act for the applicant and assume the obligations imposed by the terms and conditions of the grant award. If required, applicants will also need to submit a hard copy of the Standard Form LLL and/or certain Program related forms (e.g., Program Certifications) with the original signature of an individual authorized to act for the applicant. When submitting the required hard-copy forms, do not send the entire application. HHS will not consider for review complete, hard-copy applications submitted after the electronic submission. Applicants should submit hard-copy materials to the HHS/OPHS Office of Grants Management at the address specified above.
Electronic applications submitted via the Grant Solutions system must contain all completed, on-line forms required by the application kit, the Program
Upon completion of a successful, electronic submission, the Grant Solutions system will provide applicants with a confirmation page to indicate the date and time (Eastern Time) of the submission. This confirmation page will also provide a listing of all items that constitute the final application submission, including all components of the electronic application, required, hard-copy original signatures; and mail-in items.
As the HHS/OPHS Office of Grants Management receives items, it will update the electronic application status to reflect the receipt of mail-in items. HHS recommends that applicants monitor the status of their applications in the Grant Solutions system to ensure the receipt of all signatures and mail-in items.
Applicants who submit applications in hard copy (via mail or hand-delivered) must submit an original, and two copies of the application. An individual authorized to act for the applicant, and to assume for the organization the obligations imposed by the terms and conditions of the grant award, must sign the original application.
HHS will consider mailed or hand-delivered applications having met the deadline if the HHS/OPHS Office of Grants Management receives them c/o Grant Application Center, 1515 Wilson Blvd., Suite 100, Arlington, VA 22209, on or before 5 p.m., Eastern Time, on the deadline date specified in the
Executive Order 12372 does not apply to this program.
The following cost principles of allowability, allocability, accountability reasonableness, and necessity of direct and indirect costs awardees may charge appear in the following documents, based on entity type: OMB Circular A-21 (Institutes of Higher Education); OMB Circular A-122 (Nonprofit Organizations) and 45 CFR part 74, Appendix E (Hospitals). Copies of these circulars are available on the Internet, at the following address:
Restrictions, which applicants must take into account while preparing the budget, are as follows:
○ Alterations and renovations (A&R) are prohibited under grants/cooperative agreements to foreign recipients. This is an HHS Policy. “Alterations and renovations” are defined as work that changes the interior arrangements or other physical characteristics of an existing facility or of installed equipment so that it can be used more effectively for its currently designated purpose or adapted to an alternative use to meet a programmatic requirement. Recipients may not use funds for A&R (including modernization, remodeling, or improvement) of an existing building.
○ Reimbursement of pre-award costs is not allowed.
○ Recipients may not use funds awarded under this cooperative agreement to support any activity that duplicates another activity supported by any component of HHS.
Recipients may spend funds for reasonable program purposes, including personnel, travel, supplies, and services. Recipients may purchase equipment if deemed necessary to accomplish program objectives; however, they must request prior approval in an e-mail that explicitly notes the costs, and notes HHS/ASPR's approval of the explicit items for any equipment whose purchase price exceeds $10,000 USD.
The costs generally allowable in grants/cooperative agreements to domestic organizations are allowable to foreign institutions and international organizations, with the following exception: With the exception of the American University in Beirut and the WHO Secretariat, HHS will not pay indirect costs (either directly or through sub-award) to organizations located outside the territorial limits of the United States, or to international organizations, regardless of their location.
Recipients may contract with other organizations under this program; however, the applicant must perform a substantial portion of the project activities (including program management and operations) for which it is requesting funds. Contracts will require prior approval in writing from HHS/ASPR.
Applicants shall state all requests for funds in the budget in U.S. dollars. Once HHS makes an award, HHS will not compensate foreign recipients for currency-exchange fluctuations through the issuance of supplemental awards.
The funding recipient must obtain an audit of these funds (program-specific audit) by a U.S.-based audit firm with international branches and current licensure/authority in-country, and in accordance with International Accounting Standards or equivalent standard(s) approved in writing by HHS/ASPR.
A fiscal Recipient Capability Assessment may be required, prior to or post award, to review the applicant's business-management and fiscal capabilities regarding the handling of U.S. Federal funds.
None.
HHS/ASPR will evaluate applications against the following factors:
HHS/ASPR will evaluate the extent to which the proposal demonstrates that the organization has the technical and institutional expertise to carry out the work/task requirements described in this announcement.
HHS/ASPR will evaluate the applicant's project plan to determine the extent to which it provides a clear, logical and feasible technical approach to meeting the goals of this announcement in terms of workflow, resources, communications and reporting requirements for accomplishing work in each of the operational task areas.
(a) Personnel. HHS/ASPR will evaluate the relevant educational, work experience and local-language qualifications of key personnel, senior project staff, and subject-matter specialists to determine the extent to which they meet the requirements listed in this announcement.
(b) Staffing Plan. HHS/ASPR will evaluate the staffing plan to determine the extent to which the applicant's proposed organizational chart reflects
(c) Management Plan. HHS/ASPR will evaluate the proposed plans for managing the continued development and institutionalization of the Regional Training Center, and all its associated functions, and also the plans for accomplishing each of the other “measurable outcomes” specified in this RFA.
HHS/ASPR will evaluate the applicant's description of performance measures, including measures of effectiveness, to determine the extent to which the applicant proposes objective and quantitative measures that relate to the performance goals stated in the “Purpose” Section of this announcement, and whether the proposed measures will accurately measure the intended outcomes.
HHS/ASPR will evaluate the extent of the applicant's understanding of the operational tasks identified in this announcement to ensure successful performance of the work in this project. Because the focus of the work will include interaction with other countries in Central and South America and the Caribbean, the applicant must demonstrate an understanding of the cultural, ethnic, political, and economic factors that could affect successful implementation of this cooperative agreement.
The applicant's proposal must also demonstrate understanding of the functions, capabilities and operating procedures of U.S. educational institutions, as well as U.S., Latin American, Caribbean and International NGOs, and describe the applicant's ability to work with and within those organizations.
HHS/ASPR will review applications for completeness. An incomplete application or an application that is non-responsive to the eligibility criteria will not advance through the review process. HHS/ASPR will notify applicants if their applications did not meet submission requirements.
An objective review panel will evaluate complete and responsive applications according to the criteria listed in the AV.1. “Criteria” section above; the panel could include both federal and non-federal personnel.
The successful applicant will receive a Notice of Award (NoA). The NoA shall be the only binding, authorizing document between the recipient and HHS. An authorized Grants Management Officer will sign the NoA, and mail it to the recipient fiscal officer identified in the application.
Unsuccessful applicants will receive notification of the results of the application review by mail.
A successful applicant must comply with the administrative requirements outlined in 45 CFR Part 74 and Part 92, as appropriate. Consolidated Appropriations Act for 2008, Public Law 110-161, Division G, Title V, “General Provisions,” Section 506, requires that when issuing statements, press releases, requests for proposals, bid solicitations, and other documents describing projects or programs funded in whole or in part with Federal money, the issuance shall clearly state the percentage and dollar amount of the total costs of the program or project to be financed with Federal money and the percentage and dollar amount of the total costs of the project or program to be financed by non-governmental sources.
The applicant must provide HHS/ASPR with a hard copy, as well as an electronic copy of the following reports in English:
1. A quarterly progress report, due no later than 10 calendar days after the end of each quarter of the budget period. The quarterly progress report must contain the following elements:
a. A listing of all of the “Activities” and “Measurable Outcomes” of the Cooperative Agreement, and a summary of the actual activities and progress made with each and everyone of these activities and measurable outcomes during the quarter;
b. Disbursements requested during the quarter, and actual spending during the quarter:
c. Proposed objectives and activities for the next quarterly reporting period;
d. An update on the grant's budget, noting allocations by line item, draw down to date on each of the line items through the end of the quarter being reported upon, and the funds that remain in each line item, and overall;
e. Any additional information that may be requested by HHS/ASPR.
2. For every training course or module that is conducted, the awardee must provide the HHS/ASPR Project Officer with copies of the pre- and post-test results administered to every participant of every training class/module. The awardee should provide these pre- and post-training test results in both an aggregated (i.e., summarized) format, and in a disaggregated (i.e., individual) format. The awardee should remove participants' personal information from these reports before sharing them with HHS, to protect the privacy and anonymity of the participants. The awardee should provide these results to HHS no later than 21 calendar days after the final day of the course for which they apply.
3. An annual progress report, due no later than 15 calendar days after the end of the budget period, which must contain a detailed summary of all the elements required in the quarterly progress report described above;
4. A final performance report, due no later than 30 days after the end of the project period; and
5. A Financial Status Report (FSR) SF-269 is due 90 days after the close of the 12-month budget period.
Recipients must mail/e-mail the reports to the ASPR Project Officer listed in the “Agency Contacts” Section of this announcement.
For program technical assistance, contact Craig Carlson, Office of Assistant Secretary for Preparedness and Response (ASPR), U.S. Department of Health and Human Services; telephone: 1-202-205-5228, e-mail:
For financial, grants-management, or budget assistance, contact Ms. Karen Campbell, Grants Management Officer, Office of Grants Management, Office of Public Health and Science, U.S. Department of Health and Human Services, 1101 Wootten Parkway, Suite 550, Rockville, MD 20852; telephone: 1-240-453-8822, e-mail Address:
The Centers for Disease Control and Prevention (CDC) publishes a list of information collection requests under review by the Office of Management and Budget (OMB) in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these requests, call the CDC Reports Clearance Officer at (404) 639-5960 or send an e-mail to
Health Hazard Evaluation and Technical Assistance—Requests and Emerging Problems—Reinstatement (OMB No. 0920-0260)—National Institute for Occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention (CDC).
In accordance with its mandates under the Occupational Safety and Health Act of 1970 and the Federal Mine Safety and Health Act of 1977, the National Institute for Occupational Safety and Health (NIOSH) responds to requests for health hazard evaluations (HHE) to identify chemical, biological or physical hazards in workplaces throughout the United States. Each year, NIOSH receives approximately 400 such requests. Most HHE requests come from the following types of companies: Service, manufacturing companies, health and social services, transportation, construction, agriculture/mining, skilled trade and construction.
A printed Health Hazard Evaluation request form is available in English and in Spanish. The form is also available on the Internet and differs from the printed version only in format and in the fact that it uses an Internet address to submit the form to NIOSH. Both the printed and Internet versions of the form provide the mechanism for employees, employers, and other authorized representatives to supply the information required by the regulations governing the NIOSH Health Hazard Evaluation program (42 CFR 85.3-1). In general, if employees are submitting the form it must contain the signatures of three or more current employees. However, regulations allow a single signature if the requester: is one of three (3) or fewer employees in the process, operation, or job of concern; or is any officer of a labor union representing the employees for collective bargaining purposes. An individual management official may request an evaluation on behalf of the employer. The information provided is used by NIOSH to determine whether there is reasonable cause to justify conducting an investigation and provides a mechanism to respond to the requester. In the case of 25% to 50% of the health hazard evaluation requests received, NIOSH determines an on-site evaluation is needed. The primary purpose of an on-site evaluation is to help employers and employees identify and eliminate occupational health hazards. In most on-site evaluations employees are interviewed to help further define concerns, and in approximately 50% these evaluations (presently estimated to be about 100 facilities), questionnaires are distributed to the employees (averaging about 40 employees per site for this last subgroup). The interview and survey questions are specific to each workplace and its suspected diseases and hazards, however, items are derived from standard medical and epidemiologic techniques.
NIOSH distributes interim and final reports of health hazard evaluations, excluding personal identifiers, to: Requesters, employers, employee representatives; the Department of Labor (Occupational Safety and Health Administration or Mine Safety and Health Administration, as appropriate); and, as needed, other state and federal agencies.
NIOSH administers a follow-back program to assess the effectiveness of its health hazard evaluation program in reducing workplace hazards. This program entails the mailing of follow-back questionnaires to employer and employee representatives at all the workplaces where NIOSH conducted site visits. In a small number of instances, a follow-back on-site evaluation may be conducted. The initial follow-back questionnaire is administrated immediately following the site visits. Another follow-back questionnaire is sent a year later. A final follow-back questionnaire regarding the completed evaluation is sent.
For requests where NIOSH does not conduct an onsite evaluation, the requester is sent a follow-back questionnaire 12 months after NIOSH's response and a second one at 24 months. Because of the large number of investigations conducted each year, the need to respond quickly to requests for assistance, the diverse and unpredictable nature of these investigations, and its follow-back program to assess evaluation effectiveness; NIOSH requests an umbrella clearance for data collections performed within the domain of its health hazard evaluation program. There are no costs to respondents other than their time. The total estimated annualized burden hours are 4007.
The Centers for Disease Control and Prevention (CDC) publishes a list of information collection requests under review by the Office of Management and Budget (OMB) in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these requests, call the CDC Reports Clearance Officer at (404) 639-5960 or send an e-mail to
Work Organization Predictors of Depression in Women—Reinstatement—The National Institute for Occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention (CDC).
Depression is a costly and debilitating occupational health problem. Research has indicated that the costs to an organization of treatment for depression can rival those for heart disease, and both major depressive disorder and forms of minor depression have been found to be associated with more disability days than other types of health diagnoses. This may be of particular relevance for working women. Various national and international studies indicate that women in developed countries experience depression at up to twice the rate of men. Studies that have examined this gender difference have focused on social, personality, and genetic explanations while few have explored factors in the workplace that may contribute to the gender differential. Examples of workplace factors that may contribute to depression among women include: additive workplace and home responsibilities, lack of control and authority, and low paying and low status jobs. Additionally, women are much more likely to face various types of discrimination in the workplace than men, ranging from harassment to inequalities in hiring and promotional opportunities, and these types of stressors have been strongly linked with psychological distress and other negative health outcomes. On the positive side, organizations that are judged by their employees to value diversity and employee development engender lower levels of employee stress, and those that enforce policies against discrimination have more committed employees. Such organizational practices and policies may be beneficial for employee mental health, particularly the mental health of women.
This research focuses on the following questions: (1) Which work organization factors are most predictive of depression in women, and (2) are there measurable work organization factors that confer protection against depression in women employees?
The research uses a repeated measures, prospective design with data collection at three points (baseline and eighteen months follow-ups). A 45-minute survey is being administered by telephone to 314 women and men at 16 different organizations. The survey contains questions about traditional job stressors (e.g., changes in workload, social support, work roles), stressors not traditionally examined, but which may be linked with depressive symptoms among women (e.g., roles and responsibilities outside of the workplace, discrimination, career issues) depression symptoms, and company policies, programs and practices. Analyses will determine which work organization factors are linked with depressive symptoms and what effect the organizational practices/policies of interest have on depression. Findings from this prospective study will also help target future intervention efforts to reduce occupationally-related depression in women workers. There will be no cost to respondents. The estimated annualized burden for this data collection is 236 hours.
In compliance with the requirement of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 for opportunity for public comment on proposed data collection projects, the Centers for Disease Control and Prevention (CDC) will publish periodic summaries of proposed projects. To request more information on the proposed project or to obtain a copy of data collection plans and instruments, call the CDC Reports Clearance Officer on 404-639-5960 or send comments to CDC Assistant Reports Clearance Officer, 1600 Clifton Road, MS D-74, Atlanta, GA 30333 or send an e-mail to
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including the use of automated collection techniques or other forms of information technology. Written comments should be received within 60 days of this notice.
The National Health and Nutrition Examination Survey (NHANES)—(0920-0237)—Revision—National Center for Health Statistics (NCHS), Centers for Disease Control and Prevention (CDC).
Section 306 of the Public Health Service (PHS) Act (42 U.S.C. 242k), as amended, authorizes that the Secretary of Health and Human Services (DHHS), acting through NCHS, shall collect statistics on the extent and nature of illness and disability; environmental, social and other health hazards; and determinants of health of the population of the United States. This three-year clearance request includes the data collection in 2009 and 2010 and data planning and testing activities for 2011-2012 data collection.
The National Health and Nutrition Examination Survey (NHANES) was conducted periodically between 1970 and 1994, and continuously since 1999 by the National Center for Health Statistics, CDC. Almost 19,000 persons are screened, with about 5,000 participants interviewed and examined annually. Participation in NHANES is completely voluntary and confidential.
NHANES programs produce descriptive statistics which measure the health and nutrition status of the general population. Through the use of questionnaires, physical examinations, and laboratory tests, NHANES studies the relationship between diet, nutrition and health in a representative sample of the United States. NHANES monitors the prevalence of chronic conditions and risk factors related to health such as arthritis, asthma, osteoporosis, infectious diseases, diabetes, high blood pressure, high cholesterol, obesity, smoking, drug and alcohol use, physical activity, environmental exposures, and diet. NHANES data are used to produce national reference data on height, weight, and nutrient levels in the blood. Results from more recent NHANES can be compared to findings reported from previous surveys to monitor changes in the health of the U.S. population over time. NHANES continues to collect genetic material on a national probability sample for future genetic research aimed at understanding disease susceptibility in the U.S. population.
NHANES data users include the U.S. Congress; the World Health Organization; numerous Federal agencies such as the National Institutes of Health, the Environmental Protection Agency, and the United States Department of Agriculture; private groups such as the American Heart Association; schools of public health; private businesses; individual practitioners; and administrators. NHANES data are used to establish, monitor, and/or evaluate recommended dietary allowances, food fortification policies, environmental exposures, immunization guidelines and health education and disease prevention programs. This submission requests approval for three years.
There is no cost to respondents other than their time.
The Centers for Disease Control and Prevention (CDC) and the Agency for Toxic Substances and Disease Registry (ATSDR) announces the following meeting.
In addition, a memo was signed in October 1990 and renewed in November 1992, 1996, and in 2000, between the Agency for Toxic Substances and Disease Registry (ATSDR) and DOE. The MOU delineates the responsibilities and procedures for ATSDR's public health activities at DOE sites required under sections 104, 105, 107, and 120 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or a Superfund). These activities include health consultations and public health assessments at DOE sites listed on, or proposed for, the Superfund National Priorities List and at sites that are the subject of petitions from the public; and other health-related activities such as epidemiologic studies, health surveillance, exposure and disease registries, health education, substance-specific applied research, emergency response, and preparation of toxicological profiles.
The National Institute for Occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice of public meeting.
The National Institute for Occupational Safety and Health (NIOSH) of the Centers for Disease Control and Prevention (CDC) announces the availability of the following public meeting to discuss current respirator standards development projects for Closed-Circuit Self-Contained Breathing Apparatus; Supplied Air Respirators; Reevaluation of NIOSH Limitations on and Precaution for Safe Use of Positive-Pressure Closed-Circuit Self-Contained Breathing Apparatus; and the Mechanical Connector Design Used in the Chemical Biological Radiological and Nuclear (CBRN) Air-Purifying Respirator (APR).
Occupational Safety and Health Act, 29 U.S.C. 651
Requests to make presentations at the public meeting should be mailed to the NIOSH Docket Office, Robert A. Taft Laboratories, 4676 Columbia Parkway, M/S C34, Cincinnati, Ohio 45226, telephone (513) 533-8303, facsimile (513) 533-8285, or e-mailed to
After reviewing the requests for presentations, NIOSH will notify each presenter of the approximate time that their presentation is scheduled to begin. If a participant is not present when their presentation is scheduled to begin, the remaining participants will be heard in order. At the conclusion of the meeting, an attempt will be made to allow presentations by any scheduled participants who missed their assigned times. Attendees who wish to speak but did not submit a request for the opportunity to make a presentation may be given this opportunity at the conclusion of the meeting, at the discretion of the presiding officer.
Centers for Medicare & Medicaid Services, Department of Health and Human Services.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Centers for Medicare & Medicaid Services (CMS), Department of Health and Human Services, is publishing the following summary of proposed collections for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the Agency's function; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
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To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, access CMS Web site address at
To be assured consideration, comments and recommendations for the proposed information collections must be received by the OMB desk officer at the address below, no later than 5 p.m. on
OMB Human Resources and Housing Branch, Attention: OMB Desk Officer, New Executive Office Building, Room 10235, Washington, DC 20503, Fax Number: (202) 395-6974.
Centers for Medicare & Medicaid Services, Department of Health and Human Services.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Centers for Medicare & Medicaid Services (CMS) is publishing the following summary of proposed collections for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
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To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, access CMS's Web Site address at
In commenting on the proposed information collections please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be submitted in one of the following ways by September 2, 2008:
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2.
Under the provisions of Section 3507(a)(1)(D) of the Paperwork Reduction Act of 1995, the National Cancer Institute (NCI), the National Institutes of Health (NIH), has submitted to the Office of Management and Budget (OMB) a request to review and approve the information collection listed below. This proposed information collection was previously published in the
The annualized cost to respondents is estimated at $109,652, which amount to a total cost of $1,348,000 over three years. There are no capital costs, operating costs, and/or maintenance costs to report.
National Institutes of Health, Public Health Service, HHS.
Notice.
The inventions listed below are owned by an agency of the U.S. Government and are available for licensing in the U.S. in accordance with 35 U.S.C. 207 to achieve expeditious commercialization of results of federally-funded research and development. Foreign patent applications are filed on selected inventions to extend market coverage for companies and may also be available for licensing.
Licensing information and copies of the U.S. patent applications listed below may be obtained by writing to the indicated licensing contact at the Office of Technology Transfer, National Institutes of Health, 6011 Executive Boulevard, Suite 325, Rockville, Maryland 20852-3804; telephone: 301/496-7057; fax: 301/402-0220. A signed Confidential Disclosure Agreement will be required to receive copies of the patent applications.
This invention relates to a cell based therapy. Specifically, it relates to the isolation and enrichment of stem cells from adult tendons, known as tendon stem progenitor cells, that can form tendon structures and are capable of integrating into bones to form enthesis-like structures. Two extra-cellular matrix proteoglycans, biglycan and fibromodulin, further assist in the maintenance and multiplication of these tendon stem cells.
Treatment of damaged tendons that are slow to repair after injury.
May remedy other pathological conditions that are caused by ectopic calcification such as ectopic calcification that occurs around artificial heart valves or that develops in the rare inherited disease, Fibrodysplasia Ossificans Progressiva (FOP).
Recognizing that an unmet medical need exists, the inventors synthesized an assortment of adenosine derivatives with the goal of preparing highly potent and selective A
Available for licensing and commercial development are compositions and methods of use of A
Potential treatment for heart attacks.
Potential treatment of septic shock, cystic fibrosis and erectile dysfunction.
Potential treatment for medical conditions that would benefit from changes in vascular tone.
U.S. Provisional Application No. 60/947,066 filed 29 Jun 2007 (HHS Reference No. E-218-2007/0-US-01).
U.S. Provisional Application No. 60/950,250 filed 17 Jul 2007 (HHS Reference No. E-218-2007/1-US-01).
Treat hypertension and accompanying cardiac hypertrophy.
Treatment of anxiety.
Treatment of glaucoma.
As a pain reliever or sleep aid.
It is estimated that nearly a third of U.S. adults have high blood pressure. Despite the lack of symptoms, treatment is imperative. People with untreated high blood pressure have an increased chance of developing stroke, heart attack, heart failure or kidney failure.
The forecast of the world hypertension market is that it will grow to nearly $30 billion per year by 2010.
National Institutes of Health, Public Health Service, HHS.
Notice.
The inventions listed below are owned by an agency of the U.S. Government and are available for licensing in the U.S. in accordance with 35 U.S.C. 207 to achieve expeditious commercialization of results of federally-funded research and development. Foreign patent applications are filed on selected inventions to extend market coverage for companies and may also be available for licensing.
Licensing information and copies of the U.S. patent applications listed below may be obtained by writing to the indicated licensing contact at the Office of Technology Transfer, National Institutes of Health, 6011 Executive Boulevard, Suite 325, Rockville, Maryland 20852-3804; telephone: 301/496-7057; fax: 301/402-0220. A signed Confidential Disclosure Agreement will be required to receive copies of the patent applications.
Prophylactic and therapeutic for Tularemia.
Biodefense agent.
Method is applicable to other infectious diseases, particularly for pathogens that are enveloped or encapsulated (i.e.
Rapid induction of protective immunity against
Avoids antibiotic resistance associated with current therapies.
Prophylactic and treatment for tularemia and other infectious diseases.
Biodefense.
Scientists at NCI have discovered a new technology that will help screen multiple anti-tumor and anti-neurofibromatosis agents in a high throughput assay by using an astrocytoma cell line (KR158) that expresses the luciferase gene under the influence of dual promoters, E2F and CMV.
This new technology distinguishes between cytostatic and cytotoxic compounds, thereby significantly reducing the time and cost required to screen anti-tumor agents.
Quantifiable.
Can be used in high throughput assays.
Distinguishes between cytostatic and cytotoxic activity of compounds.
Cancer therapeutics.
Gene therapy.
Screening of anti-tumor agents.
Screening of anti-neurofibromatosis agents.
Pharmacology of drugs.
SOX9 (or its bioactive derivative) might be useful in increasing skin pigmentation in acquired hypopigmentary disorders such as vitiligo (1-2% of world population) or post-inflammatory hypopigmentation.
A novel gene therapy based treatment for Melanoma: Experimental results show that cells over-expressing SOX9 do not form tumors in human skin reconstructs or in mice as do wild type or GFP-transduced melanoma cells.
SOX-9 therapy in combination with retinoic acid can be an effective therapeutic strategy for treating melanoma.
Available for licensing are carboxypeptidase E (CPE) inhibitor compositions and methods to prognose and treat cancer as well as methods to determine the stage of cancer. The inventors discovered that CPE expression levels increase according to the presence of cancer and metastasis wherein CPE is upregulated in tumors and CPE levels are further increased in metastatic cancer. This data has been demonstrated both in vitro and in vivo experiments and in liver, breast, prostate, colon, and head and neck cancers. Metastatic liver cells treated with CPE siRNA reversed the cells from being metastatic and arrested cells from further metastasis. Thus, CPE as a biomarker for predicting metastasis and its inhibitors have an enormous potential to increase patient survival.
Method to prognose multiple types of cancer and determine likelihood of metastasis.
Compositions that inhibit CPE such as siRNA.
Method to prevent and treat cancer with CPE inhibitors.
An estimated 1,437,180 new cases and 565,650 deaths from cancer are projected to occur in the U.S. in 2008;
Global cancer market is worth more than eight percent of total global pharmaceutical sales;
Cancer industry is predicted to expand to $85.3 billion by 2010.
A fluorescent derivative of the modified PUGNAc has also been developed. Modified PUGNAc, conjugated to a fluorescent moiety such as 4-methylumbelliferone, can serve as a substrate for O-GlcNAcase without inhibiting HEX A. This allows the fluorescently labeled compound to be used for measuring O-GlcNAcase enzyme activity, and thus provide a means of diagnosing Type 2 diabetes in human blood or tissue samples. Previous reagents have monitored other Type 2 diabetes related enzymes, but with much less specificity. Recent studies that link mutations of the MGEA5 gene (which codes for O-GlcNAcase) to Type 2 diabetes provide further support for the use of the fluorescent derivative as a potent tool for diagnosing the disease. The fluorogenic derivative may also be used as a novel imaging agent for assessing O-GlcNAcase function
Diagnosis of type 2 diabetes.
In vivo imaging of O-GlcNAcase enzyme function.
Experimental results suggest that gene position effects can be partially overcome by flanking the transgene with regulatory elements called chromatin insulators which work by establishing defined domains of transcriptional activity within the eukaryotic genome. These insulators can partially overcome position effects by shielding the promoters from the influence of neighboring regulatory elements, or by preventing the spread of heterochromatin which can lead to subsequent gene silencing.
This invention discloses the use of gamma satellite DNA, residing in the pericentromeric region of human chromosomes, as highly efficient chromatin insulators. These insulators have a remarkable ability to overcome position effects and prevent the silencing of transgenes. When human chromosome 8 gamma satellite sequences were used as flanking DNA for eGFP (enhanced green fluorescent protein) gene expression in mouse erythroleukemia (MEL) cells, stable transgene expression was recorded for well over eight months. Until recently, no chromatin insulator sequences were known to completely prevent gene silencing on a long term basis in transfected cells. The human gamma-satellite sequences demonstrate a higher efficiency than any known chromatin insulator identified so far in intergenic regions, and may have invaluable applications in the fields of gene therapy, protein expression, and cellular reprogramming where adequate expression of the transgene is essential for long term therapeutic or developmental success.
Gene therapy.
Protein expression.
Cellular reprogramming.
1. G Felsenfeld, B Burgess-Beusse, C Farrell, M Gaszner, R Ghirlando, S Huang, C Jin, M Litt, F Magdinier, V Mutskov, Y Nakatani, H Tagami, A West, T Yusufzai. Chromatin boundaries and chromatin domains. Cold Spring Harb Symp Quant Biol. 2004;69:245-250.
2. T Ebersole, Y Okamoto, VN Noskov, N Kouprina, JH Kim, SH Leem, JC Barrett, H Masumoto, V Larionov. Rapid generation of long synthetic tandem repeats and its application for analysis in human artificial chromosome formation. Nucleic Acids Res. 2005 Sep 1;33(15):e130, doi:10.1093/nar/gni129.
U.S. Provisional Application No. 60/890,176 filed 15 Feb 2007 (HHS Reference No. E-154-2006/0-US-01).
PCT Application No. PCT/US2008/054170 filed 15 Feb 2008 (HHS Reference No. E-154-2006/0-PCT-02).
The patent discloses methods for accurately detecting nucleotide sequence variations, such as polymorphisms, deletions, insertions or inversions, by comparison of DNA melting profiles. Methods of detecting single nucleotide sequence variations within arrays are also disclosed, as are methods of detecting mutations correlated with genetic disease.
Detection of SNPs and small insertions, deletions, and inversions in a DNA sequence.
Prediction of the etiology or prognosis of certain diseases, or determination of disease traits among individuals.
Useful for detecting rarely-occurring SNPs.
High throughput, simple method that measures DNA melting efficiently, without using intervening steps such as gels, columns etc.
National Institutes of Health, Public Health Service, HHS.
Notice.
This technology relates to a method of detecting DPD Splicing Mutations.
Scientists at the National Cancer Institute have discovered a method detecting DPD Splicing Mutations. This method can identify patients with such mutations, and thereby alert the health care provider that the patient will have an adverse reaction to the chemotherapeutic agent, 5-Fluorouracil.
The invention relates to methods and compositions that are useful for detecting deficiencies in DPD levels in mammals including humans. Cancer patients having a DPD deficiency are at risk of a severe toxic reaction to the commonly used anticancer agent 5-fluorouracil (5-FU). The technology encompasses DPD genes from human and pig, methods for detecting the level of nucleic acids that encode DPD in a patient, and nucleic acids that are useful as probes for this purpose.
Novel applications of the methods include:
• Screening of patients prior to the administration of the chemotherapeutic agent, 5-Fluorouracil.
• Diminishing and potentially eliminating the severe side effects of 5-Fluorauracil in patients.
5-Fluorouracil (5-FU) is a therapeutic for the treatment of multiple cancers, including breast and colon cancers. In the United States, approximately 275,000 cancer patients receive 5-FU annually. It is estimated that three percent (3%) of those patients develop some degree of toxic reaction. Patients suffering toxic reactions are difficult and expensive to treat further. Approximately, 15% of those developing toxic reaction, will die as a result of exposure to 5-FU. Death is typically caused by cardiotoxicity. More than 1,300 patients in the United States die each year as a result of 5-FU toxicity. These deaths are all potentially avoidable if patients that are likely to get adverse reaction with 5-FU treatment are detected prior to treatment.
This technology consists of the following patents and patent applications:
I. United States Patent Number 5,856,454 entitled “cDNA for Human and Pig Dihydropyrimidine Dehydrogenase,” issued January 5, 1999 (HHS Ref. No. E-157-1994/0-US-01);
II. United States Patent Number 6,015,673 entitled “Cloning and Expression of cDNA for Human Dihydropyrimidine Dehydrogenase,” issued January 18, 2000 (HHS Ref. No. E-157-1994/0-US-03);
III. United States Patent Number 6,787,306 entitled “Methods and Compositions for Detecting Dihydropyrimidine Dehydrogenase Splicing Mutations,” issued September 7, 2004 (HHS Ref. No. E-157-1994/1-US-01);
IV. United States Pre-Grant Publication number 2005/0136433A1 corresponding to application serial number 10/911237 entitled “Methods and Compositions for Detecting Dihydropyrimidine Dehydrogenase Splicing Mutations,” published June 23, 2005 (HHS Ref. No. E-157-1994/1-US-19) and all issued and pending counterparts in Europe, Canada, and Australia.
There will be a teleconference where the principal investigator will explain this technology. Licensing and collaborative research opportunities will also be discussed. If you are interested in participating in this teleconference please call or e-mail Mojdeh Bahar; (301) 435-2950;
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
The applications being reviewed in EEO2 were initially assigned to panel AA3. The appropriate expertise was not available in AA3; thus, these applications were removed and are being reviewed in a SEP meeting.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and552b(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.
There will be a working group meeting of the NIH Blue Ribbon Panel to advise on the Risk Assessment of the National Emerging Infectious Diseases Laboratories (NEIDL) at Boston University Medical Center.
The meeting will be held on Wednesday, July 16, 2008, at the National Institutes of Health, Building 31, 31 Center Drive, Floor 6C, Room 6, Bethesda, MD 20892 from approximately 8 a.m. to 1 p.m.
Discussions will focus on risk communications and the general principles and strategies for effective community outreach and engagement.
For further information concerning this meeting contact Ms. Laurie Lewallen, Advisory Committee Coordinator, Office of Biotechnology Activities, Office of the Director, National Institutes of Health, Mail Stop Code 7985, Bethesda, MD 20892-7985, telephone 301-496-9838, e-mail
Background information may be obtained by contacting NIH OBA by email
Substance Abuse and Mental Health Services Administration, HHS.
Notice.
The Department of Health and Human Services (HHS) notifies Federal agencies of the laboratories currently certified to meet the standards of Subpart C of the Mandatory Guidelines for Federal Workplace Drug Testing Programs (Mandatory Guidelines). The Mandatory Guidelines were first published in the
A notice listing all currently certified laboratories is published in the
If any laboratory has withdrawn from the HHS National Laboratory Certification Program (NLCP) during the past month, it will be listed at the end, and will be omitted from the monthly listing thereafter.
This notice is also available on the Internet at
Mrs. Giselle Hersh, Division of Workplace Programs, SAMHSA/CSAP, Room 2-1042, One Choke Cherry Road, Rockville, Maryland 20857; 240-276-2600 (voice), 240-276-2610 (fax).
The Mandatory Guidelines were developed in accordance with Executive Order 12564 and section 503 of Public Law 100-71. Subpart C of the Mandatory Guidelines, “Certification of Laboratories Engaged in Urine Drug Testing for Federal Agencies,” sets strict standards that laboratories must meet in order to conduct drug and specimen validity tests on urine specimens for Federal agencies. To become certified, an applicant laboratory must undergo three rounds of performance testing plus an on-site inspection. To maintain that certification, a laboratory must participate in a quarterly performance testing program plus undergo periodic, on-site inspections.
Laboratories which claim to be in the applicant stage of certification are not to be considered as meeting the minimum requirements described in the HHS Mandatory Guidelines. A laboratory must have its letter of certification from HHS/SAMHSA (formerly: HHS/NIDA) which attests that it has met minimum standards.
In accordance with Subpart C of the Mandatory Guidelines dated April 13, 2004 (69 FR 19644), the following laboratories meet the minimum standards to conduct drug and specimen validity tests on urine specimens:
*The Standards Council of Canada (SCC) voted to end its Laboratory Accreditation Program for Substance Abuse (LAPSA) effective May 12, 1998. Laboratories certified through that program were accredited to conduct forensic urine drug testing as required by U.S. Department of Transportation (DOT) regulations. As of that date, the certification of those accredited Canadian laboratories will continue under DOT authority. The responsibility for conducting quarterly performance testing plus periodic on-site inspections of those LAPSA-accredited laboratories was transferred to the U.S. HHS, with the HHS's NLCP contractor continuing to have an active role in the performance testing and laboratory inspection processes. Other Canadian laboratories wishing to be considered for the NLCP may apply directly to the NLCP contractor just as U.S. laboratories do.
Upon finding a Canadian laboratory to be qualified, HHS will recommend that DOT certify the laboratory (
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of Illinois (FEMA-1771-DR), dated June 24, 2008, and related determinations.
Peggy Miller, Disaster Assistance Directorate, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-3886.
Notice is hereby given that, in a letter dated June 24, 2008, the President declared a major disaster under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5206 (the Stafford Act), as follows:
I have determined that the damage in certain areas of the State of Illinois resulting from severe storms and flooding beginning on June 1, 2008, and continuing, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5206 (the Stafford Act). Therefore, I declare that such a major disaster exists in the State of Illinois.
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide assistance for emergency protective measures (Category B), limited to direct Federal assistance, under the Public Assistance program in the designated areas and any other forms of assistance under the Stafford Act that you deem appropriate subject to completion of Preliminary Damage Assessments (PDAs), unless you determine that the incident is of such unusual severity and magnitude that PDAs are not required to determine the need for supplemental Federal assistance pursuant to 44 CFR 206.33(d).
Consistent with the requirement that Federal assistance be supplemental, any Federal funds provided under the Stafford Act for Public Assistance will be limited to 75 percent of the total eligible costs, except for any particular projects that are eligible for a higher Federal cost-sharing percentage under the FEMA Public Assistance Pilot Program instituted pursuant to 6 U.S.C. 777. If Other Needs Assistance and Hazard Mitigation are later requested and warranted, Federal funding under these programs will also be limited to 75 percent of the total eligible costs.
Further, you are authorized to make changes to this declaration to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, Department of Homeland Security, under Executive Order 12148, as amended, Elizabeth Turner, of FEMA is appointed to act as the Federal Coordinating Officer for this declared disaster.
I do hereby determine the following areas of the State of Illinois to have been affected adversely by this declared major disaster:
Adams, Calhoun, Clark, Coles, Crawford, Cumberland, Hancock, Henderson, Jasper, Lawrence, Mercer, Pike, and Rock Island Counties for emergency protective measures (Category B), limited to direct Federal assistance, under the Public Assistance program.
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of Minnesota (FEMA-1772-DR), dated June 25, 2008, and related determinations.
Peggy Miller, Disaster Assistance Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
Notice is hereby given that, in a letter dated June 25, 2008, the President declared a major disaster under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5206 (the Stafford Act), as follows:
I have determined that the damage in certain areas of the State of Minnesota resulting from severe storms and flooding beginning on June 7, 2008, and continuing, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5206 (the Stafford Act). Therefore, I declare that such a major disaster exists in the State of Minnesota.
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide Public Assistance in the designated areas, Hazard Mitigation throughout the State, and any other forms of assistance under the Stafford Act that you deem appropriate. Consistent with the requirement that Federal assistance be supplemental, any Federal funds provided under the Stafford Act for Hazard Mitigation and Other Needs Assistance will be limited to 75 percent of the total eligible costs. Federal funds provided under the Stafford Act for Public Assistance also will be limited to 75 percent of the total eligible costs, except for any particular projects that are eligible for a higher Federal cost-sharing percentage under the FEMA Public Assistance Pilot Program instituted pursuant to 6 U.S.C. 777. If Other Needs Assistance under Section 408 of the Stafford Act is later requested and warranted, Federal funding under that program also will be limited to 75 percent of the total eligible costs.
Further, you are authorized to make changes to this declaration to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, Donald L. Keldsen, of FEMA is appointed to act as the Federal Coordinating Officer for this declared disaster.
The following areas of the State of Minnesota have been designated as adversely affected by this declared major disaster:
Fillmore, Freeborn, Houston, and Mower Counties for Public Assistance.
All counties within the State of Minnesota are eligible to apply for assistance under the Hazard Mitigation Grant Program.
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of Missouri (FEMA-1773-DR), dated June 25, 2008, and related determinations.
Peggy Miller, Disaster Assistance Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
Notice is hereby given that, in a letter dated June 25, 2008, the President declared a major disaster under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5206 (the Stafford Act), as follows:
I have determined that the damage in certain areas of the State of Missouri resulting from severe storms and flooding beginning on June 1, 2008, and continuing, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5206 (the Stafford Act). Therefore, I declare that such a major disaster exists in the State of Missouri.
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide assistance for emergency protective measures (Category B), limited to direct Federal assistance, under the Public Assistance program in the designated areas and any other forms of assistance under the Stafford Act that you deem appropriate subject to completion of Preliminary Damage Assessments (PDAs), unless you determine that the incident is of such unusual severity and magnitude that PDAs are not required to determine the need for supplemental Federal assistance pursuant to 44 CFR 206.33(d).
Consistent with the requirement that Federal assistance be supplemental, any Federal funds provided under the Stafford Act for Public Assistance will be limited to 75 percent of the total eligible costs, except for any particular projects that are eligible for a higher Federal cost-sharing percentage under the FEMA Public Assistance Pilot Program instituted pursuant to 6 U.S.C. 777. If Other Needs Assistance and Hazard Mitigation are later warranted, Federal funding under these programs will also be limited to 75 percent of the total eligible costs.
Further, you are authorized to make changes to this declaration to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, Department of Homeland Security, under Executive Order 12148, as amended, Michael L. Karl, of FEMA is appointed to act as the Federal Coordinating Officer for this declared disaster.
I do hereby determine the following areas of the State of Missouri to have been affected adversely by this declared major disaster:
Andrew, Atchison, Buchanan, Cape Girardeau, Clark, Holt, Jefferson, Lewis, Lincoln, Marion, Mississippi, New Madrid, Nodaway, Pemiscot, Perry, Pike, Platte, Ralls, St. Charles, St. Louis, Ste. Genevieve, and Scott and the Independent City of St. Louis for emergency protective measures (Category B), limited to direct Federal assistance, under the Public Assistance program.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Illinois (FEMA-1771-DR), dated June 24, 2008, and related determinations.
Peggy Miller, Disaster Assistance Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
The notice of a major disaster declaration for the State of Illinois is hereby amended to include Individual Assistance and the Hazard Mitigation Grant Program in the following areas among those areas determined to have been adversely affected by the catastrophe declared a major disaster by the President in his declaration of June 24, 2008.
Douglas, Edgar, Lake, and Winnebago Counties for Individual Assistance.
Adams, Clark, Coles, Crawford, Cumberland, Hancock, Henderson, Jasper, Lawrence, and Mercer Counties for Individual Assistance (already designated for emergency protective measures [Category B], limited to direct Federal assistance, under the Public Assistance program.)
All counties in the State of Illinois are eligible to apply for assistance under the Hazard Mitigation Grant Program.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Wisconsin (FEMA-1768-DR), dated June 14, 2008, and related determinations.
Peggy Miller, Disaster Assistance Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
The notice of a major disaster declaration for the State of Wisconsin is hereby amended to include the following areas among those areas determined to have been adversely affected by the catastrophe declared a major disaster by the President in his declaration of June 14, 2008.
Adams, Calumet, Green Lake, Jefferson, La Crosse, and Walworth Counties for Individual Assistance.
Transportation Security Administration; United States Coast Guard; DHS.
Notice.
The Department of Homeland Security (DHS) through the Transportation Security Administration (TSA) issues this notice of the dates for the beginning of the initial enrollment for the Transportation Worker Identification Credential (TWIC) for the Ports of Lafayette, LA; Eureka, CA; Riverhead, NY; Lindenhurst, NY; and Stockton, CA.
TWIC enrollment begins in Lafayette on July 10, 2008; Eureka on July 16, 2008; Riverhead on July 23, 2008; Lindenhurst on July 30, 2008; and Stockton on August 13, 2008.
You may view published documents and comments concerning the TWIC Final Rule, identified by the docket numbers of this notice, using any one of the following methods.
(1) Searching the Federal Docket Management System (FDMS) Web page at
(2) Accessing the Government Printing Office's Web page at
(3) Visiting TSA's Security Regulations Web page at
James Orgill, TSA-19, Transportation Security Administration, 601 South 12th Street, Arlington, VA 22202-4220. Transportation Threat Assessment and Credentialing (TTAC), TWIC Program, (571) 227-4545; e-mail:
The Department of Homeland Security (DHS), through the United States Coast Guard and the Transportation Security Administration (TSA), issued a joint final rule (72 FR 3492; January 25, 2007) pursuant to the Maritime Transportation Security Act (MTSA), Public Law 107-295, 116 Stat. 2064 (November 25, 2002), and the Security and Accountability for Every Port Act of 2006 (SAFE Port Act), Public Law 109-347 (October 13, 2006). This rule requires all credentialed merchant mariners and individuals with unescorted access to secure areas of a regulated facility or vessel to obtain a TWIC. In this final rule, on page 3510, TSA and Coast Guard stated that a phased enrollment approach based upon risk assessment and cost/benefit would be used to implement the program nationwide, and that TSA would publish a notice in the
This notice provides the start date for TWIC initial enrollment at the Port of Lafayette, LA on July 10, 2008; Eureka, CA on July 16, 2008; Riverhead, NY on July 23, 2008; Lindenhurst, NY on July 30, 2008; and Stockton, CA on August 13, 2008. The Coast Guard will publish a separate notice in the
To obtain information on the pre-enrollment and enrollment process, and enrollment locations, visit TSA's TWIC Web site at
U.S. Customs and Border Protection, Department of Homeland Security.
30-Day Notice and request for comments; Extension of an existing information collection: 1651-0075.
U.S. Customs and Border Protection (CBP) of the Department of Homeland Security has submitted the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995: Line Release Regulations. This is a proposed extension of an information collection that was previously approved. CBP is proposing that this information collection be extended with no change to the burden hours. This document is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
Written comments should be received on or before August 4, 2008.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the OMB Desk Officer for Customs and Border Protection, Department of Homeland Security, and sent via electronic mail to
CBP encourages the general public and affected Federal agencies to submit written comments and suggestions on proposed and/or continuing information collection requests pursuant to the Paperwork Reduction Act of 1995 (Pub. L. 104-13). Your comments should address one of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency/component, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies/components estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collections 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, e.g., permitting electronic submission of responses.
Current Actions: There are no changes to the information collection. This submission is being submitted to extend the expiration date.
If additional information is required contact: Tracey Denning, U.S. Customs and Border Protection, 1300 Pennsylvania Avenue, NW., Room 3.2.C, Washington, DC 20229, at 202-344-1429.
Customs and Border Protection, Department of Homeland Security.
General notice.
This notice advises the public of the quarterly Internal Revenue Service interest rates used to calculate interest on overdue accounts (underpayments) and refunds (overpayments) of customs duties. For the calendar quarter beginning July 1, 2008, the interest rates for overpayments will be 4 percent for corporations and 5 percent for non-corporations, and the interest rate for underpayments will be 5 percent. This notice is published for the convenience of the importing public and Customs and Border Protection personnel.
Ron Wyman, Revenue Division, Collection and Refunds Branch, 6650 Telecom Drive, Suite #100, Indianapolis, Indiana 46278; telephone (317) 614-4516.
Pursuant to 19 U.S.C. 1505 and Treasury Decision 85-93, published in the
The interest rates are based on the Federal short-term rate and determined by the Internal Revenue Service (IRS) on behalf of the Secretary of the Treasury on a quarterly basis. The rates effective for a quarter are determined during the first-month period of the previous quarter.
In Revenue Ruling 2008-27, the IRS determined the rates of interest for the calendar quarter beginning July 1, 2008, and ending on September 30, 2008. The interest rate paid to the Treasury for underpayments will be the Federal short-term rate (2%) plus three percentage points (3%) for a total of five percent (5%). For corporate overpayments, the rate is the Federal short-term rate (2%) plus two percentage points (2%) for a total of four percent (4%). For overpayments made by non-corporations, the rate is the Federal short-term rate (2%) plus three percentage points (3%) for a total of five percent (5%). These interest rates are subject to change for the calendar quarter beginning October 1, 2008, and ending December 31, 2008.
For the convenience of the importing public and Customs and Border
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice.
This Notice identifies unutilized, underutilized, excess, and surplus Federal property reviewed by HUD for suitability for possible use to assist the homeless.
Kathy Ezzell, Department of Housing and Urban Development, 451 Seventh Street, SW., Room 7262, Washington, DC 20410; telephone (202) 708-1234; TTY number for the hearing- and speech-impaired (202) 708-2565, (these telephone numbers are not toll-free), or call the toll-free Title V information line at 800-927-7588.
In accordance with the December 12, 1988 court order in
Bureau of Land Management, Interior.
Notice of Renewal of the Pinedale Anticline Working Group and Task Groups.
This notice is published in accordance with Section 9(a)(2) of the Federal Advisory Committee Act of 1972 (Public Law 92-463). Following consultation with the General Services Administration, notice is hereby given that the Secretary of the Interior has renewed the Pinedale Anticline Working Group and Task Groups (PAWG). The purpose of the Working Group and Task Groups will be to advise the Bureau of Land Management, Pinedale Field Office Manager, regarding recommendations on matters pertinent to the Bureau of Land Management's responsibilities related to the Pinedale Anticline Environmental Impact Statement and Record of Decision.
Ms. Lauren McKeever, Pinedale Anticline Working Group and Task Groups Coordinator, Bureau of Land Management, Pinedale Field Office, 1625 West Pine Street, Pinedale, Wyoming 82941, Phone: (307) 367-5352.
I hereby certify that the renewal of the Pinedale Anticline Working Group and Task Groups is necessary and in the public interest in connection with the Secretary of the Interior's responsibilities to manage the lands, resources, and facilities administered by the Bureau of Land Management.
Fish and Wildlife Service, Interior.
Notice of availability; draft comprehensive conservation plan and environmental assessment; request for comments.
We, the Fish and Wildlife Service (Service), announce the availability of a draft comprehensive conservation plan and environmental assessment (Draft CCP/EA) for Swanquarter National Wildlife Refuge for public review and comment. In this Draft CCP/EA, we describe the alternative we propose to use to manage this refuge for the 15 years following approval of the final CCP.
To ensure consideration, we must receive your written comments by August 4, 2008.
Request for copies of the Draft CCP/EA should be addressed to: Bruce Freske, Refuge Manager, Swanquarter National Wildlife Refuge, 38 Mattamuskeet Road, Swan Quarter, NC 27885. The Draft CCP/EA may also be accessed and downloaded from the Service's Internet Site:
Bruce Freske; Telephone: 252/926-4021; or Fax: 252/926-1743.
With this notice, we continue the CCP process for Swanquarter National Wildlife Refuge. We started the process through a notice in the
Swanquarter National Wildlife Refuge, on Pamlico Sound in Hyde County, NC, was established by Presidential Order on June 23, 1932. The Service has acquired all of the property within the refuge's acquisition boundary. The refuge consists of 16,411 acres of saltmarsh islands and forested wetlands interspersed with potholes, creeks, and drains. Marsh vegetation is dominated by black needlerush and sawgrass. The mainland is forested by loblolly pine, pond pine, and bald cypress. Approximately 8,800 acres of the refuge have been designated as wilderness. An additional 27,082 acres of adjacent, non-refuge open water are closed by presidential proclamation to the taking of migratory birds. The purposes of the refuge are: “for use as an inviolate sanctuary, or for any other management purpose, for migratory birds;” “for the development, advancement, management, conservation, and protection of fish and wildlife resources * * * for the benefit of the United States Fish and Wildlife Service, in performing its activities and services;” and for the supplemental purpose of protecting and providing a wilderness area.
Swanquarter National Wildlife Refuge is in the South Atlantic Coastal Plain Ecosystem and is part of the migration corridor for migratory birds that use the Atlantic Flyway. Wildlife species of management concern on the refuge include the American black duck, lesser scaup, canvasback, redhead, surf scoter, seaside sparrow, shard-tailed sparrow, brown-headed nuthatch, black-throated green warbler, black rail, yellow rail, clapper rail, Forster's tern, peregrine falcon, bald eagle, osprey, black bear, red wolf, Carolina pygmy rattlesnake, and American alligator. The white-tailed deer is also a resident game species.
The National Wildlife Refuge System Improvement Act of 1997 (16 U.S.C. 668dd-668ee), which amended the National Wildlife Refuge System Administration Act of 1966, requires us to develop a CCP for each national wildlife refuge. The purpose in developing a CCP is to provide refuge managers with a 15-year plan for achieving refuge purposes and contributing toward the mission of the National Wildlife Refuge System, consistent with sound principles of fish and wildlife management, conservation, legal mandates, and our policies. In addition to outlining broad management direction on conserving wildlife and their habitats, CCPs identify wildlife-dependent recreational opportunities available to the public, including opportunities for hunting, fishing, wildlife observation, wildlife photography, and environmental education and interpretation. We will review and update the CCP at least
Significant issues addressed in the Draft CCP/EA include: Management of waterfowl and neotropical migratory birds, the wilderness area, and invasive species; recovery and protection of threatened and endangered species (particularly the red-cockaded woodpecker, red wolf, and American alligator); regional habitat loss and fragmentation; turbidity in open waters; land acquisition to include a minor boundary expansion; and public uses of the refuge.
We developed three alternatives for managing the refuge and chose Alternative B as the proposed alternative.
A full description of each alternative is in the Draft CCP/EA. We summarize each alternative below.
Under Alternative A, the no action alternative, present management of the refuge would continue at the current level. The refuge would provide habitat for migratory birds and threatened and endangered species, particularly the red-cockaded woodpecker, the red wolf, and the American alligator. Current surveying and monitoring for waterfowl, wading and colonial nesting birds, and land birds would continue, and no active surveying or monitoring of other birds, mammals, reptiles, amphibians, or fish would be conducted by refuge staff. There would be few public use and environmental education and outreach programs. Fishing and hunting of waterfowl would continue as currently managed.
Under Alternative B, the proposed alternative, the refuge would continue to provide habitat for migratory birds, threatened and endangered species, and other waterfowl and fauna. Surveying and monitoring would be expanded to obtain baseline data on other species, and would include other birds, mammals, reptiles, amphibians, and fish. The refuge would monitor the effects of management activities on flora and fauna and adapt as needed. The public use and environmental education and outreach programs would be increased to include conducting two to ten programs for local school groups. Fishing and hunting opportunities would be expanded by increasing the number of use days and introducing deer hunting with archery equipment. An interpretive trail or boardwalk would be developed to provide greater access to the public.
Under Alternative C, the activities under Alternative B would be further expanded. More wildlife and habitat surveying and monitoring would be conducted; environmental education and outreach programs would be increased to include conducting ten to fifteen programs for local school groups; hunting and fishing use days would increase and deer hunting with both archery equipment and primitive firearms would be introduced; an interpretive trail or boardwalk would be developed, as well as a canoe trail; and a photo blind would be constructed. In addition, development and management of moist-soil units for migratory birds would be considered.
After the comment period ends, we will analyze the comments and address them in the form of a final CCP and Finding of No Significant Impact.
Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
This notice is published under the authority of the National Wildlife Refuge System Improvement Act of 1997, Public Law 105-57.
Fish and Wildlife Service, Interior.
Notice of availability: proposed low-effect habitat conservation plan; request for comment.
The Sonoma County Office of Education (SCOE or applicant) has applied to the Fish and Wildlife Service (Service) for a 5-year incidental take permit for two species pursuant to section 10(a)(1)(B) of the Endangered Species Act of 1973, as amended (Act). The application addresses the potential for “take” of one listed animals and one listed plant. The applicant would implement a conservation program to minimize and mitigate the project activities, as described in the SCOE Low-Effect Habitat Conservation Plan (plan). We request comments on the applicant's application and plan, and the preliminary determination that the plan qualifies as a “low-effect” habitat conservation plan, eligible for a Categorical Exclusion under the National Environmental Policy Act of 1969, as amended (NEPA). We discuss our basis for this determination in our Environmental Action Statement (EAS), which is also available for public review.
We must receive written comments on or before August 4, 2008.
Please address written comments to Mike Thomas, Conservation Planning Branch, Fish and Wildlife Service, Sacramento Fish and Wildlife Office, 2800 Cottage Way, W-2605, Sacramento, CA 95825. Alternatively, you may send comments by facsimile to (916) 414-6713.
Mike Thomas, or Eric Tattersall, Branch Chief, Conservation Planning Branch, at the address shown above or at 916-414-6600 (telephone).
Copies of the permit application, plan, and EAS can be obtained from the individuals named above (see
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.
Section 9 of the Act (16 U.S.C. 1531
Although take of listed plant species is not prohibited under the Act, and therefore cannot be authorized under an incidental take permit, plant species may be included on a permit in recognition of the conservation benefits provided to them under a habitat conservation plan. All species included on the incidental take permit would receive assurances under the Services' “No Surprises” regulations (50 CFR 17.22(b)(5) and 17.32(b)(5).
The applicant seeks an incident take permit for covered activities within 4.42 acres of grassland and associated wetlands owned by SCOE located in Sonoma County, California. SCOE is requesting permits for take of one federally listed animal species, listed as endangered: Sonoma County Distinct Population Segment of the California tiger salamander (
SCOE owns and manages lands in Sonoma County, California. Lands owned by SCOE include the proposed community school on 4.42 acres at 3255 and 3261 Dutton Avenue in the City of Santa Rosa.
Covered activities include the following: Grading and ground leveling, vegetation removal and planting, soil compaction, building construction and use of heavy equipment (including, but not limited to bulldozers, cement trucks, water trucks, and backhoes), erosion control structures (such as silt fencing and barriers), dust control (such as watering surface soils), construction of sidewalks and roads, trenching, and installation of utilities and irrigation systems.
The applicant proposes to avoid, minimize, and mitigate the effects to the covered species associated with the covered activities by fully implementing the plan. Minimization measures will include, but are not limited to, an employee education program; biological monitoring during construction and earthmoving; a storm water, erosion, and dust control plan; daily pre-activity surveys for listed species; tiger salamander salvage in the winter prior to construction, to exclude tiger salamanders from the site and work areas; and temporary removal of covered species if they are observed within work areas. General minimization measures will include: limiting staging and work areas to the project site only, regular removal of all foods and food-related trash, prohibiting pets from the project site during construction, a 15 mile-per-hour speed limit for vehicles, maintenance of all equipment to avoid fluid leaks, and storage of all hazardous materials in sealable containers at least 200 feet from aquatic habitats.
The Service's proposed action consists of approving the applicant's plan and issuance of an incidental take permit for the applicant's Covered Activities. As required by the Act, the applicant's plan considers alternatives to the take under the proposed action. The plan considers the environmental consequences of two alternatives to the proposed action, the No Action alternative and the Reduced Take alternative. Under the No Action Alternative, no permit would be issued, the proposed school project would not be built, and no take would occur.
Under the Reduced Take alternative, buildings and facilities would be clustered closer together to reduce the amount of tiger salamander and meadowfoam habitat that would be lost by construction of the school. Direct affects due to habitat loss and take of individuals would be reduced; however, indirect affects to tiger salamander migration corridors are unlikely to be minimized by clustering because existing pathways for migration are limited on all sides except to the north (there are two vacant grassland parcels to the north, which are in turn bordered by development) and any additional construction, regardless of location on the site would likely further restrict movement of tiger salamanders. In addition, grassland and wetland habitat avoided on-site would be unlikely to support a viable population of tiger salamanders or meadowfoam due to the small size of the site, lack of hydrologic connection to other water bodies, and blockage of movement corridors.
Under the proposed action alternative, the Service would issue an incidental take permit for the applicant's proposed project, which includes the activities described above. The proposed action alternative would result in permanent loss of 4.13 acres of upland tiger salamander habitat and 0.07 acres of seasonal wetland habitat. To mitigate for these affects, the applicant proposes to purchase 8.3 tiger salamander credits and 0.105 meadowfoam credits at a Service approved bank.
As described in our EAS, we have made the preliminary determination that approval of the proposed plan and issuance of the permit would qualify as a categorical exclusion under NEPA (42 U.S.C. 4321
We provide this notice pursuant to section 10(c) of the Act and the NEPA public-involvement regulations (40 CFR 1500.1(b), 1500.2(d), and 1506.6). We will evaluate the permit application, including the plan, and comments submitted thereon to determine whether the application meets the requirements of section 10(a) of the Act. If the requirements are met, we will issue a permit to the applicant for the incidental take of the Sonoma Distinct Population Segment of the California tiger salamander and the Sebastopol meadowfoam from the implementation of the covered activities described in the plan, or from mitigation conducted as part of this plan. We will make the final permit decision no sooner than 30 days after the date of this notice.
Bureau of Land Management, Department of the Interior.
Notice of Intent and Proposed Classification of Lands as Suitable for Disposal under Section 7 of the Taylor Grazing Act (48 Stat. 1272), as amended (43 U.S.C. 315f) and 43 CFR Part 2400.
This document provides notice that the BLM intends to prepare an amendment to the Upper Deschutes Resource Management Plan for the Prineville District, Deschutes Resource Area and an associated Environmental Assessment (EA). The proposed amendment would reclassify some lands designated for BLM retention and management (Z-1) in the existing Resource Management Plan (RMP) as suitable for disposal (Z-3). The BLM is also providing notice of the proposed classification of these same lands under Section 7 of the Taylor Grazing Act as suitable for disposal. These classifications are required to allow consideration of transfer of these lands to the State of Oregon (“the State”) under the State Indemnity Selection process. When Oregon was admitted into the Union in 1859, the Federal government granted sections 16 and 36 within every township to the State for support of public schools. However, if the Federal government had already disposed of these specific sections or reserved them for some other purpose, the State is allowed to select other public lands “in-lieu” of the unavailable sections. To date the State has received approximately 3,000 of the 5,202 acres owed. The State of Oregon Department of State Lands has selected parcels with potential to produce income for the Common School Fund through subsequent development of the lands.
The planning area is located in Deschutes County, Oregon and is described as follows:
These parcels are also commonly referred to as the Deschutes Market Road parcels and total 1577.42 acres of public land. Of these acres, approximately 85 acres are associated with the historic Huntington Road, a mid-19th century military route between The Dalles and Fort Klamath, and included within the larger (982 acres) Wagon Roads Area of Critical Environmental Concern. The public scoping process also serves as the protest period for the proposed classification as required by 32 CFR 2450.4.
This notice initiates the 30-day public scoping period. Comments on issues and the planning criteria can be submitted in writing to the address listed below and will be accepted throughout the creation of the EA to amend the RMP. All persons who wish to protest the proposed classification must submit comments, objections during this 30-day period and identify prior valid rights or other statutory constraints that would bar reclassification. All public meetings will be announced through the local news media, newsletters, and the BLM Web site
Written comments and classification protests should be sent to the BLM, Prineville District, 3050 N.E. 3rd Street, Prineville, OR 97754; Fax: 541-416-6798; E-mail:
Documents pertinent to this proposal may be examined at the Prineville District Office during regular business hours, 7:45 a.m. through 4:30 p.m., Monday through Friday, except holidays.
For further information and/or to have your name added to our mailing list, contact Ms. Teal Purrington, BLM Planning Lead, Telephone 541-416-6700; e-mail
On February 6, 2008, the BLM received from the State of Oregon, Department of State Lands, an application (Serial No. OR 61026) to select the above parcels as indemnity for lands lost to the State as provided for by the Oregon Admission Act of February 14, 1859 (11 Stat. 383, Title 43, U.S.C., Sections 851, 852). Upon the filing of the State's application, the land selected was segregated to the extent that it is not open to appropriation under the public land laws including the mining laws. This segregation shall terminate either upon the issuance of the document of conveyance for the land to the State, upon rejection of the application, or two years from the date of filing of the application, whichever comes first. Processing the State's application requires the BLM to consider an amendment to the Upper Deschutes RMP and classification of the lands under Section 7 of the Taylor Grazing Act. It is the BLM's intent to conduct all classification, EA and plan amendment activities and actions concurrently. The BLM will work collaboratively with interested parties to identify the management decisions that are best suited to local, regional, and national needs and concerns. Preliminary issues
You may submit comments on issues in writing to the BLM at the public scoping meeting, or you may submit them to the BLM using one of the methods listed in the
After gathering public comments on what issues the plan amendment should address, the suggested issues will be placed in one of three categories:
1. Issues to be resolved in the plan amendment;
2. Issues resolved through policy or administrative action; or
3. Issues beyond the scope of this RMPA/EA.
Rationale will be provided in the plan amendment for each issue placed in category two or three. An interdisciplinary approach will be used to develop the RMPA/EA in order to consider the variety of resource issues and concerns identified. Disciplines involved in the planning process will include specialists with expertise in rangeland management, minerals and geology, forestry, outdoor recreation, visual resources, archaeology, wildlife, lands and realty, and economics. A similar notice has been published in the local newspaper.
National Park Service, Department of the Interior.
Notice of August 2, 2008 Meeting.
This notice sets forth the date of the August 2, 2008 meeting of the Flight 93 Advisory Commission.
The public meeting of the Advisory Commission will be held on Saturday, August 2, 2008 from 10 a.m. to 1 p.m. (Eastern). The Commission will meet jointly with the Flight 93 Memorial Task Force.
The August 2, 2008 joint Commission and Task Force meeting will consist of
1. Opening of Meeting and Pledge of Allegiance.
2. Review and Approval of Commission Minutes from May 3, 2008.
3. Reports from the Flight 93 Memorial Task Force and National Park Service. Comments from the public will be received after each report and/or at the end of the meeting.
4. Old Business.
5. New Business.
6. Public Comments.
7. Closing Remarks.
Joanne M. Hanley, Superintendent, Flight 93 National Memorial, 109 West Main Street, Somerset, PA 15501, 814.443.4557.
The meeting will be open to the public. Any member of the public may file with the Commission a written statement concerning agenda items. Address all statements to: Flight 93 Advisory Commission, 109 West Main Street, Somerset, PA 15501.
30-day notice of information collection under review: extension of a currently approved information collection; claims under the Radiation Exposure Compensation Act.
The Department of Justice (DOJ), Civil Division, will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
The purpose of this notice is to allow for an additional 30 days for public comment until August 4, 2008. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the items contained in this notice, especially the estimated public burden and associated response time, should be directed to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention Department of Justice Desk Officer, Washington, DC 20503. Additionally, comments may be submitted to OMB via facsimile to (202) 395-5806. Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
(3)
(4)
(5)
(6)
If additional information is required contact: Lynn Bryant, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Patrick Henry Building, Suite 1600, 601 D Street NW., Washington, DC 20530.
30-Day Notice of Information Collection Under Review: Firearms Transaction Record, Part 1, Over-the-Counter.
The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
The purpose of this notice is to allow for an additional 30 days for public comment until August 4, 2008. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the items contained in this notice, especially the estimated public burden and associated response time, should be directed to The Office of Management and Budget, Office of Information and Regulatory Affairs, Attention Department of Justice Desk Officer, Washington, DC 20503. Additionally, comments may be submitted to OMB via facsimile to (202)-395-5806.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
(3)
(4)
(5)
(6)
If additional information is required contact: Lynn Bryant, Department Clearance Officer, United States Department of Justice, Policy and Planning Staff, Justice Management Division, Suite 1600, Patrick Henry Building, 601 D Street, NW., Washington, DC 20530.
National Institute of Corrections, Department of Justice.
Solicitation for a cooperative agreement.
The National Institute of Corrections (NIC) is soliciting proposals from organizations, groups or
Applications must be received by 2 p.m. EDT on Tuesday, July 29, 2008.
Mailed applications must be sent to: Director, National Institute of Corrections, 320 First Street, NW., Room 5007, Washington, DC 20534. Applicants are encouraged to use Federal Express, UPS, or similar service to ensure delivery by the due date.
A copy of this announcement and the required application forms can be downloaded from the NIC Web page at
All technical or programmatic questions concerning this announcement should be directed to Carla J. Smalls, Correctional Program Specialist, National Institute of Corrections at
Describe the role and function of parole within the criminal justice system;
Promote the use of Evidence Based Practices in parole and revocation decision making;
Describe parole's responsibility in the transition/reentry of offenders;
Clarify the collaborative role of parole with other stakeholders within the criminal justice system;
Illustrate the use of management information systems and technology in the processing of parole, early release and revocation cases;
Examine the core competencies that parole board members must possess to be effective.
Since eligibility for release on parole is a matter of state law, there is considerable variation in the location, administration and organization of paroling authorities in the United States. All states have parole boards and these boards may be independent agencies that have responsibility for release decisions or a branch of a department of corrections or a community corrections agency. In these organizational structures, boards may also have responsibility for staff that monitor the supervision of parolees in the community.
Regardless of the structure, governors/governments are usually ill-equipped to select, hire and train the caliber of individuals needed to do this important work that has a significant impact on public safety and the economy of a state. Thirteen governors of states or U.S. territories will be up for election this year. Election of a new governor usually results in the appointment of new parole board members and most of these appointments do not have a background in criminal justice or an understanding of the magnitude of the work.
As stated by Burke and Tonry, in the publication “Successful Transition and Reentry for Safer Communities: A Call to Action for Parole”, in the course of one year, roughly 200 individuals who make up the United States parole boards are responsible for determining the timing of release on parole and determining the conditions of release on parole for 128,708 offenders. During the same year they are responsible for setting conditions of release for an additional 288,679 individuals on mandatory parole and conditional release. They are also responsible for overseeing compliance with conditions and responding to revocations for 643,452 individuals on a given day during the year. Over the course of the year, they also send 227,690 individuals to prison as a result of parole revocations.
Along with handling the sheer volume of the work, without a background in criminal justice, being a parole board member is not considered a career or rarely leads to long term employment. Members rotate on and off the job as governors come in and leave office, resulting in limited consistent overview from the appointing authority and little incentive to examine the vision, mission and goals of the parole board with the intent of organizing the work to produce a more effective agency. Lack of training increases the likelihood that parole board members will rely on “popular but unproven criminal justice theories” to guide their decision making. For example, attitudes and opinions that lead to parole board members imposing numerous conditions of parole or revoking technical violators may reflect a get tough on crime mentality. Instead of these attitudes and opinions, paroling authorities must obtain the knowledge, skills, and resources to enable them to perform their work as a bridge between the correctional institution and the community.
The following represents a description of the products:
Delivery of a curriculum, to be conducted at a centrally located site.
Consult with the Correctional Program Specialist (CPS) assigned to
Submit a detailed work plan with time lines for accomplishing project activities (See Scope of Work) to CPS for approval prior to any work to be performed under this agreement;
Designate a point of contact, which would serve as the conduit of information and work experience between the CPS and the awardee;
Review pertinent NIC curriculum and/or documents in the development of the curriculum;
Consult with CPS concerning trainers for program delivery. NIC will have final approval of training program faculty. The program must be staffed with at least 3 trainers;
Consult with the CPS and the Research and Evaluation Division on evaluation methodology; and
Make recommendations to CPS for any needed revisions of the curriculum.
Knowledge of the role of parole and its function within the criminal justice system;
Ability to develop curriculum using the Instructional Theory Into Practice (ITIP) format;
Expertise in a variety of instructional delivery strategies to include but not be limited to instructor-led, synchronous/asynchronous, Web-based, e-learning, etc.;
Skilled in designing training curriculum linked to training objectives;
Knowledge of evidence-based practices and offender transition, and how these areas relate to the parole process;
Knowledge of training evaluation methods; and
Effective written and oral communication skills.
Applications may be submitted in hard copy, or electronically via
A telephone conference will be conducted for persons receiving this solicitation and having a serious intent to respond on July 18, 2008 at 2 p.m. EDT. In this conference NIC project managers will respond to questions regarding the solicitation and expectation of work to be performed. Please notify Carla Smalls electronically (
Public Law 93-415.
This project will be a collaborative venture with the NIC Community Corrections Division.
Review Considerations: Applications received under this announcement will be subjected to a 3 to 5 person NIC Peer Review Process.
Mine Safety and Health Administration, Labor.
Notice of petitions for modification of existing mandatory safety standards.
Section 101(c) of the Federal Mine Safety and Health Act of 1977 and 30 CFR Part 44 govern the application, processing, and disposition of petitions for modification. This notice is a summary of petitions for modification filed by the parties listed below to modify the application of existing mandatory safety standards published in Title 30 of the Code of Federal Regulations.
All comments on the petitions must be received by the Office of Standards, Regulations, and Variances on or before August 4, 2008.
You may submit your comments, identified by “docket number” on the subject line, by any of the following methods:
1.
2.
3.
4.
We will consider only comments postmarked by the U.S. Postal Service or proof of delivery from another delivery service such as UPS or Federal Express on or before the deadline for comments. Individuals who submit comments by hand-delivery are required to check in at the receptionist desk on the 21st floor.
Individuals may inspect copies of the petitions and comments during normal business hours at the address listed above.
Lawrence D. Reynolds, Office of Standards, Regulations, and Variances at 202-693-9449 (Voice),
Section 101(c) of the Federal Mine Safety and Health Act of 1977 (Mine Act) allows the mine operator or representative of miners to file a petition to modify the application of any mandatory safety standard to a coal or other mine if the Secretary determines that: (1) An alternative method of achieving the result of such standard exists which will at all times guarantee no less than the same measure of protection afforded the miners of such mine by such standard; or (2) that the application of such standard to such mine will result in a diminution of safety to the miners in such mine. In addition, the regulations at 30 CFR 44.10 and 44.11 establish the requirements and procedures for filing petitions for modifications.
Quarterly Meeting.
Renaissance Seattle Hotel, 515 Madison Street, Seattle, WA.
Public Comment Sessions; Emergency Preparedness Panel; Air Carrier Access Act Panel; Discussions on the Americans with Disabilities Act Amendments Act of 2008, and Employment; Reports from the Chairperson, Council Members, and the Executive Director; Unfinished Business; New Business; Announcements; Adjournment.
Mark S. Quigley, Director of External Affairs, NCD, 1331 F Street, NW., Suite 850, Washington, DC 20004; 202-272-2004 (voice), 202-272-2074 (TTY), 202-272-2022 (fax)
NCD is an independent federal agency and is composed of 15 members appointed by the President, by and with the advice and consent of the Senate. NCD provides advice to the President, Congress, and executive branch agencies promoting policies, programs, practices, and procedures that (A) guarantee equal opportunity for all individuals with disabilities, regardless of the nature or severity of the disability; and (B) to empower individuals with disabilities to achieve economic self-sufficiency, independent living, and inclusion and integration into all aspects of society.
Those needing reasonable accommodations should notify NCD immediately.
In accordance with E.O. 13166, Improving Access to Services for Persons with Limited English Proficiency, those people with disabilities who are limited English proficient and seek translation services for this meeting should notify NCD immediately.
9:30 a.m., Tuesday, July 8, 2008
NTSB Conference Center, 429 L'Enfant Plaza, SW., Washington, DC 20594.
The one item is open to the public.
8021
Telephone: (202) 314-6100.
Individuals requesting specific accommodations should contact Rochelle Hall at (202) 314-6305 by Thursday, July 3, 2008.
The public may view the meeting via a live or archived Webcast by accessing a link under “News & Events” on the NTSB home page at
Vicky D'Onofrio, (202) 314-6410.
Nuclear Regulatory Commission.
Issuance of Environmental Assessment and Finding of No Significant Impact for License Amendment.
Peter J. Lee, PhD, CHP, Health Physicist, Decommissioning Branch, Division of Nuclear Materials Safety, Region III, U.S. Nuclear Regulatory Commission, 2443 Warrenville Road, Lisle, Illinois 60532; telephone: (630) 829-9870; fax number: (630) 515-1259; or by e-mail at
The U.S. Nuclear Regulatory Commission (NRC) is proposing to amend Byproduct Materials License No. 13-26640-01. The license is held by the Covance Clinical Research Unit, Inc. (the Licensee), now located at 617 Oakley Street, Evansville, Indiana. Issuance of the amendment would authorize release of the Licensee's facility, located at 800 St. Mary's Drive, Evansville, Indiana (the Facility) for unrestricted use. The Licensee requested this action in NRC FORM 313 dated February 1, 2008. The NRC has prepared an Environmental Assessment (EA) in support of this proposed action in accordance with the requirements of Title 10, Code of Federal Regulations (CFR), Part 51 (10 CFR Part 51). Based on the EA, the NRC has concluded that a Finding of No Significant Impact (FONSI) is appropriate with respect to the proposed action. The amendment will be issued to the Licensee following the publication of this FONSI and EA in the
The proposed action would approve the Licensee's February 1, 2008 request, resulting in release of the Facility for unrestricted use. License No. 13-26640-01 was issued on August 16, 1995, pursuant to 10 CFR Part 35, and has been amended periodically since that time. The license authorizes the use of by-product materials (carbon-14 and hydrogen-3) in human research studies.
The Licensee has ceased conducting licensed activities at the Facility and seeks the unrestricted use of its Facility.
The historical review of licensed activities conducted at the Facility shows that such activities involved use of the following radionuclides with half-lives greater than 120 days: hydrogen-3 and carbon-14, and that use of these materials at the Facility ceased in early January 2008. Prior to performing the final status survey, the Licensee conducted decontamination activities, as necessary, in the areas of the Facility affected by these radionuclides.
The Licensee completed final status surveys at the Facility on January 22, 2008. The final status survey report was attached to the Licensee's amendment request dated February 1, 2008. The Licensee elected to demonstrate compliance with the radiological criteria for unrestricted release as specified in 10 CFR 20.1402 using release criteria for building surfaces based on NUREG-1556, Volume 7, “Program-Specific Guidance About Academic, Research and Development, and Other Licenses of Limited Scope Including Gas Chromatographs and X-Ray Fluorescence Analyzers—Final Report,” Appendix Q, “Radiation Safety Survey Topics.” These release criteria are the same as the radionuclide-specific dose-based release criteria, described in NUREG-1757, “Consolidated NMSS Decommissioning Guidance,” Volume 2. These values provide acceptable levels of surface contamination to demonstrate compliance with the NRC requirements in Subpart E of 10 CFR Part 20 for unrestricted release. The Licensee's final status survey results were below these values and are in compliance with the As Low As Reasonably Achievable (ALARA) requirement of 10 CFR 20.1402. The NRC thus finds that the Licensee's final status survey results are acceptable.
Based on its review, the staff has determined that the affected environment and any environmental impacts associated with the proposed action are bounded by the impacts evaluated by the “Generic
The NRC staff finds that issuance of the proposed amendment is in compliance with 10 CFR Part 20. Based on its review, the staff considered the impact of the residual radioactivity at the Facility and concluded that the proposed action will not have a significant effect on the quality of the human environment.
Due to the largely administrative nature of the proposed action, its environmental impacts are small. Therefore, the only alternative the staff considered is the no-action alternative, under which the staff would leave things as they are by simply denying the amendment request. This no-action alternative is not feasible because it conflicts with 10 CFR 30.36(d), requiring that decommissioning of byproduct material facilities be completed and approved by the NRC after licensed activities cease. The NRC's analysis of the Licensee's final status survey data confirmed that the Facility meets the requirements of 10 CFR 20.1402 for unrestricted release. Additionally, denying the amendment request would result in no change in current environmental impacts. The environmental impacts of the proposed action and the no-action alternative are, therefore, similar; and the no-action alternative is accordingly not further considered.
The NRC staff has concluded that the proposed action is consistent with the NRC's unrestricted release criteria specified in 10 CFR 20.1402. Because the proposed action will not significantly impact the quality of the human environment, the NRC staff concludes that the proposed action is the preferred alternative.
NRC provided a draft of this Environmental Assessment to the Indiana Emergency Response Program for review on March 24, 2008. By response dated May 12, 2008, the State agreed with the conclusions of the EA, and provided no comments.
The NRC staff has determined that the proposed action is of a procedural nature, and will not affect listed species or critical habitat. Therefore, no further consultation is required under section 7 of the Endangered Species Act. The NRC staff has also determined that the proposed action is not the type of activity that has the potential to cause effects on historic properties. Therefore, no further consultation is required under section 106 of the National Historic Preservation Act.
The NRC staff has prepared this EA in support of the proposed action. On the basis of this EA, the NRC finds that there are no significant environmental impacts from the proposed action, and that preparation of an environmental impact statement is not warranted. Accordingly, the NRC has determined that a Finding of No Significant Impact is appropriate.
Documents related to this action, including the application for license amendment and supporting documentation, are available electronically at the NRC's Electronic Reading Room at
1. Mary L. Westrick, Covance Clinical Research Unit Inc., NRC Form 313 dated February 1, 2008 (ADAMS Accession No. ML080810513);
2. Title 10 Code of Federal Regulations, Part 20, Subpart E, “Radiological Criteria for License Termination”;
3. Title 10 Code of Federal Regulations, Part 51, “Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions”;
4. NUREG-1496, “Generic Environmental Impact Statement in Support of Rulemaking on Radiological Criteria for License Termination of NRC-Licensed Nuclear Facilities”;
5. NUREG-1757, ``Consolidated NMSS Decommissioning Guidance.''
6. NUREG-1556, Volume 7, “Program-Specific Guidance About Academic, Research and Development, and Other Licenses of Limited Scope Including Gas Chromatographs and X-Ray Fluorescence Analyzers—Final Report,” Appendix Q, “Radiation Safety Survey Topics.”
If you do not have access to ADAMS, or if there are problems in accessing the documents located in ADAMS, contact the NRC Public Document Room (PDR) Reference staff at 1-800-397-4209, 301-415-4737, or by e-mail to
For the Nuclear Regulatory Commission.
Office of Personnel Management.
Notice of Medically Underserved Areas for 2009.
The Office of Personnel Management (OPM) has completed its annual determination of the States that qualify as Medically Underserved Areas under the Federal Employees Health Benefits (FEHB) Program for calendar year 2009. This is necessary to comply with a provision of the FEHB law that mandates special consideration for enrollees of certain FEHB plans who receive covered health services in States with critical shortages of primary care physicians. Accordingly, for calendar year 2009, the following states are Medically Underserved Areas under the FEHB Program: Alabama, Arizona, Idaho, Illinois, Kentucky, Louisiana, Mississippi, Missouri, Montana, New Mexico, North Dakota, South Carolina, South Dakota, and Wyoming. For the 2009 calendar year the State of Illinois is being added.
Ingrid Burford, 202-606-0004.
FEHB law (5 U.S.C. 8902(m)(2)) mandates special consideration for enrollees of certain FEHB plans who receive covered health services in States with critical shortages of primary care physicians. The FEHB law also requires that a State be designated as a Medically Underserved Area if 25 percent or more of the population lives in an area designated by the Department of Health and Human Services (HHS) as a primary medical care manpower shortage area. Such States are designated as Medically Underserved Areas for purposes of the FEHB Program, and the law requires non-HMO FEHB plans to reimburse beneficiaries, subject to their contract terms, for covered services obtained from any licensed provider in these States.
FEHB regulations (5 CFR 890.701) require OPM to make an annual determination of the States that qualify as Medically Underserved Areas for the next calendar year by comparing the latest HHS State-by-State population counts on primary medical care manpower shortage areas with U.S. Census figures on State resident populations.
Office of the United States Trade Representative.
Notice.
This notice announces: (1) The disposition of the product petitions accepted for review in the 2007 GSP Annual Product Review; (2) the results of the 2007
Regina Teeter at the GSP Subcommittee, Office of the United States Trade Representative (USTR), Room F-220, 1724 F Street, NW., Washington, DC 20508. The telephone number is (202) 395-6971 and the facsimile number is (202) 395-9481.
The results of the 2007 GSP Annual Review are available for review by appointment in the USTR public reading room, 1724 F Street, NW., Washington, DC. Appointments may be made from 9:30 a.m.. to noon and 1 p.m. to 4 p.m., Monday through Friday, by calling (202) 395-6186. The results of the 2007 GSP Annual Review are also available at:
The GSP program provides for the duty-free importation of designated articles when imported from beneficiary developing countries. The GSP program is authorized by Title V of the Trade Act of 1974 (19 U.S.C. 2461,
In the 2007 Annual Product Review, the Trade Policy Staff Committee reviewed petitions to change product coverage of the GSP. The disposition of the petitions considered in the 2007 GSP Annual Review is described in List I (Decisions on Petitions to Add Products to GSP Eligibility in the 2007 GSP Annual Review); List II (Decisions on Petitions to Remove Duty-Free Status from a Beneficiary Developing Country for a Product on the List of Eligible Articles for GSP); and List III (Decisions on CNL Waiver Petitions in the 2007 GSP Annual Review).
Certain articles for which a waiver of the application of section 503(c)(2)(A) of the 1974 Act was issued at least five years ago, but which are revoked pursuant to section 503(d)(5) are listed in List IV (Products for which a Waiver of the Application of section 503(c)(2)(A) of the 1974 Act is Revoked).
In the 2007 Product Review, the GSP Subcommittee evaluated the appraised import values of each GSP-eligible article in 2007 to determine whether an article from a GSP beneficiary developing country exceeded the GSP CNLs.
Articles that exceeded one of the GSP CNLs in 2007, and that are newly excluded from GSP eligibility for a specific country, are listed in List VI (Products Newly Subject to CNL Exclusions).
The disposition of petitions considered in the 2007 Country Practices Review is described in List VII (“Decisions on Country Practice Petitions in the 2007 GSP Annual Review”).
The following is a notice of applications for deregistration under section 8(f) of the Investment Company Act of 1940 for the month of June, 2008. A copy of each application may be obtained for a fee at the SEC's Public Reference Branch (tel. 202-551-5850). An order granting each application will be issued unless the SEC orders a hearing. Interested persons may request a hearing on any application by writing to the SEC's Secretary at the address below and serving the relevant applicant with a copy of the request, personally or by mail. Hearing requests should be received by the SEC by 5:30 p.m. on July 22, 2008, and should be accompanied by proof of service on the applicant, in the form of an affidavit or, for lawyers, a certificate of service. Hearing requests should state the nature of the writer's interest, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Secretary, U.S. Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
Diane L. Titus at (202) 551-6810, SEC, Division of Investment Management, Office of Investment Company Regulation, 100 F Street, NE., Washington, DC 20549-4041.
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
The Securities and Exchange Commission (“Commission”).
Notice of application for an order pursuant to Section 6(c) of the Investment Company Act of 1940, as amended (the “1940 Act”), granting exemptions from the provisions of Sections 2(a)(32) and 27(i)(2)(A) of the 1940 Act and Rule 22c-1 thereunder.
Minnesota Life Insurance Company (“Minnesota Life”), Variable Annuity Account (“Separate Account”), and Securian Financial Services, Inc. (“SFS”) (collectively, “Applicants”).
Applicants seek an order pursuant to Section 6(c) of the 1940 Act, exempting them from the provisions of Sections 2(a)(32) and 27(i)(2)(A) of the 1940 Act and Rule 22c-1 thereunder to the extent necessary to permit recapture of certain bonuses (“Credit Enhancements”) applied to cumulative net purchase payments that reach certain aggregate amounts in accordance with the formula described in the application, made under (i) new deferred variable annuity contracts and certificates, including data pages, riders and endorsements, described in the application (the “New Contracts”) and under (ii) any deferred variable annuity contracts and certificates, including data pages, riders and endorsements, that Minnesota Life may issue in the future (the “Future Contracts”) through the Separate Account and any other separate accounts of Minnesota Life and its successors in interest (the “Future Accounts”), provided that any such Future Contracts are substantially similar in all material respects to the New Contracts (New Contracts and Future Contracts referred to collectively as the “Contracts”). Applicants also request that the exemptive relief extend to any Financial Industry Regulatory Authority (“FINRA”) member broker-dealers controlling, controlled by, or under common control with any Applicant, whether existing or created in the future, that in the future, may act as principal underwriter for the Contracts (“Future Underwriters”). Applicants would recapture Credit Enhancements previously applied to purchase payments under the New Contracts in the following circumstances: (1) In the event a contract owner exercises his or her right to cancellation/“free look” under the New Contract; (2) if the Credit Enhancements were added to the contract within 12 months prior to the date of death of the contract owner (unless the New Contract is continued under the surviving spouse continuation option); and (3) if the Credit Enhancements were added to the contract within 12 months prior to the date of annuitization or partial annuitization of the contract. The requested relief would also apply to any Future Contract funded by the Separate Account or Future Accounts, provided that such Future Contract is substantially similar in all material respects to the New Contract.
The application was filed on November 21, 2007, and amended on June 24, 2008.
An order granting the application will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Secretary of the Commission and serving Applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30
Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090. Applicants, c/o Michael P. Boyle, Senior Counsel, Minnesota Life Insurance Company, 400 Robert Street North, St. Paul, Minnesota 55101.
Ellen J. Sazzman, Senior Counsel, at (202) 551-6762, or Harry Eisenstein, Branch Chief, at (202) 551-6795, Office of Insurance Products, Division of Investment Management.
The following is a summary of the application. The complete application is available for a fee from the Commission's Public Reference Branch, 100 F Street, NE., Washington, DC 20549 ((202) 551-8090).
1. Minnesota Life is a Minnesota stock life insurance company organized under the laws of Minnesota. All of the shares of the voting stock of Minnesota Life are owned by a second tier intermediate stock holding company named “Securian Financial Group, Inc.,” which in turn is a wholly-owned indirect subsidiary of Minnesota Mutual Companies, Inc.
2. Minnesota Life is authorized to sell insurance and annuities in all states (except New York), and the District of Columbia. For purposes of the 1940 Act, Minnesota Life is the depositor and sponsor for the Separate Account. Minnesota Life also serves as depositor for several other separate accounts. Minnesota Life may establish one or more additional Future Accounts for which it will serve as depositor.
3. The Separate Account is a segregated investment account under Minnesota law. Under Minnesota law, the assets of the Separate Account attributable to the Contracts and any other variable annuity contracts through which interests in the Separate Account are issued are owned by Minnesota Life, but are held separately from all other assets of Minnesota Life, for the benefit of the owners of, and the persons entitled to payment under, Contracts issued through the Separate Account. Consequently, such assets are not chargeable with liabilities arising out of any other business that Minnesota Life may conduct. Income, gains and losses, realized or unrealized, from each sub-account of the Separate Account, are credited to or charged against that sub-account without regard to any other income, gains or losses of Minnesota Life. The Separate Account is a “separate account” as defined by Section 2(a)(37) of the 1940 Act, is registered with the Commission as a unit investment trust (File No. 811-4294), and interests in the Separate Account offered through the Contracts are registered under the Securities Act of 1933 on Form N-4, File No. 333-111067.
4. The Separate Account is divided into a number of sub-accounts. Each sub-account invests exclusively in shares representing an interest in a separate corresponding investment portfolio of one of several series-type, open-end management investment companies. The assets of the Separate Account support one or more varieties of variable annuity contracts, including the New Contract. Minnesota Life may issue Future Contracts through the Separate Account. Minnesota Life also may issue Contracts through Future Accounts.
5. SFS is a wholly-owned subsidiary of Securian Financial Group, Inc. SFS serves as the principal underwriter of Minnesota Life separate accounts registered as unit investment trusts under the 1940 Act, including the Separate Account, and is the distributor of variable life insurance policies and variable annuity contracts issued through such separate accounts, including the Contracts. SFS is registered as a broker-dealer under the Securities Exchange Act of 1934 and is a member of FINRA. SFS may act as principal underwriter for Future Accounts of Minnesota Life and as distributor for Future Contracts.
6. The New Contracts are deferred combination variable and fixed annuity contracts that Minnesota Life may issue to individuals on a “non-qualified” basis or in connection with certain types of retirement plans that receive favorable federal income tax treatment under the Internal Revenue Code of 1986, as amended (the “Code”). The New Contracts make available a number of sub-accounts of the Separate Account to which a contract owner may allocate net purchase payments and associated Credit Enhancement(s).
7. The New Contracts also offer fixed-interest allocation options under which Minnesota Life credits guaranteed rates of interest for various periods. These include several guaranteed term account options and the Minnesota Life general account. A market value adjustment may apply to the fixed-interest allocation options under the New Contracts in certain circumstances.
8. A contract owner's initial purchase payment must be at least $10,000 (unless a lower qualified plan limitation applies). Thereafter, a contract owner may choose the amount and frequency of purchase payments, except that the minimum subsequent purchase payment is $500 ($100 for automatic payment plans). A contract owner may make transfers of contract value among and between the sub-accounts and, subject to certain restrictions, among and between the sub-accounts and the fixed-interest allocation options at any time. Contract value is the sum of a contract owner's values in the general account, guarantee periods of the guaranteed term account and sub-accounts of the Separate Account on any valuation date before the annuity commencement date.
9. The New Contracts offer a contract owner a variety of annuity payment options. The contract owner may annuitize any time. A contract owner may choose to annuitize his/her entire contract or only a portion of the contract value. If a deferred sales charge (“DSC”) would otherwise apply to New Contract withdrawals at the time of annuitization, the DSC will be waived for amounts applied to provide annuity payments. In the event of a contract owner's (or the annuitant's, if any contract owner is not an individual) death prior to annuitization, the beneficiary may elect to receive the death benefit in the form of one of several annuity payment options instead of a lump sum.
10. The New Contracts have a DSC which is applicable on surrender and withdrawal of accumulation values as described more fully below. Credit Enhancements are not recaptured upon surrender or withdrawal.
11. If a contract owner withdraws contract value, Minnesota Life may deduct a DSC equal to a percentage of each purchase payment surrendered or withdrawn. The DSC is separately calculated and applied to each purchase payment at any time that the purchase payment (or part of the purchase payment) is surrendered or withdrawn. The amount of the DSC depends on how long a contract owner's purchase payment has been held under the New Contract. The DSC applicable to each purchase payment diminishes to zero over time as the purchase payment remains in the New Contract. The DSC does not apply in any circumstances under which Credit Enhancements will be recaptured.
12. The New Contracts offer a standard DSC schedule as follows:
The DSC does not apply to:
• The annual free withdrawal amount (as discussed below).
• Amounts withdrawn to pay the annual maintenance fee, any transfer charge or any periodic charges for optional riders.
• Any amount attributable to recaptured Credit Enhancements.
• Amounts payable as a death benefit upon the death of the contract owner or the annuitant, if applicable.
• Amounts applied to provide annuity payments under an annuity option.
• Amounts withdrawn because of an excess contribution to a tax-qualified contract (including, for example, IRAs and tax sheltered annuities).
• The difference between any required minimum distribution due (according to Internal Revenue Service rules) on the New Contract and any annual free withdrawal amount allowed.
• A surrender or withdrawal requested any time after the first contract anniversary and if a contract owner meets the requirements of a qualifying confinement in a hospital or medical care facility.
• A surrender or withdrawal requested any time after the first contract anniversary and in the event that a contract owner is diagnosed with a terminal illness as described in the New Contract.
• A surrender or single withdrawal amount any time after the first contract anniversary if the unemployment waiver applies.
• If a certain optional living benefit is elected, withdrawals in a contract year if less than or equal to the limit specified for the benefit.
13. A contract year is defined as a period of one year beginning with the contract issue date and continuing up to, but not including, the next contract anniversary, or beginning with a contract anniversary and continuing up to, but not including, the next contract anniversary.
14. The amount withdrawn plus any DSC is deducted from the contract value. The amount of the DSC is determined from the percentages shown in the table above. For purposes of determining the amount of DSC, withdrawal amounts will be allocated to contract gain up to the free withdrawal amount, and then to purchase payments on a first-in, first-out, basis. The amount of the DSC is determined by: (a) Calculating the number of years each purchase payment being withdrawn has been in the New Contract; (b) multiplying each purchase payment being withdrawn by the appropriate DSC percentage from the table; and (c) adding the DSC from all purchase payments calculated in (b). Unless otherwise instructed, the DSC will be deducted pro rata from all sub-accounts. The New Contract permits a contract owner to withdraw from his or her contract certain “free amounts” on an annual basis without imposition of the DSC. The annual free withdrawal amount shall be equal to 10% of purchase payments not previously withdrawn and received by Minnesota Life during the current contract year, plus the greater of: (i) Contract value less purchase payments not previously withdrawn as of the most recent contract anniversary; or (ii) 10% of the sum of purchase payments not previously withdrawn and still subject to the DSC, as of the most recent contract anniversary. The free withdrawal amount does not apply when a New Contract is surrendered.
15. Subject to state availability, a contract owner may elect to purchase optional living benefit riders. A contract owner may only elect a single living benefit on a New Contract. These include a minimum guaranteed income benefit rider, a guaranteed minimum withdrawal benefit rider, and two guaranteed living withdrawal benefit riders.
16. If a contract owner dies before the annuity start date, the New Contract provides for a death benefit payable to a beneficiary computed as of the date Minnesota Life receives written notice and due proof of death. The death benefit payable to the beneficiary depends on the death benefit option selected by the contract owner: The guaranteed minimum death benefit which is included as part of the base New Contract; or one of four optional death benefits.
17. Minnesota Life will credit the contract value allocated to the sub-accounts and the fixed-interest accounts with a Credit Enhancement when total cumulative net purchase payments reach certain aggregate levels. The term “cumulative net purchase payments” is equal to the total of all purchase payments applied to the contract less any amounts previously withdrawn from contract value. The amount of the Credit Enhancement to be added will be calculated as follows: (a) Cumulative net purchase payments; multiplied by (b) the applicable Credit Enhancement percentage from the table below; minus (c) any Credit Enhancements previously applied to contract value.
18. For example, an original purchase payment equal to $251,000 is made to the Contract; Minnesota Life applies a Credit Enhancement equal to 0.25% of purchase payments ($627.50) to the Contract. Subsequently, the contract owner requests a withdrawal from contract value of $35,000 including applicable deferred sales charge. Cumulative net purchase payments are now equal to $251,000 − $35,000 = $216,000. An additional purchase payment of $300,000 is later added to the Contract, making cumulative net purchase payments equal to $216,000 + $300,000 = $516,000. Applying the formula: $516,000 × 0.5% = $2,580 less $627.50 results in a Credit Enhancement added equal to $1,952.50.
19. The Credit Enhancement amount is treated as earnings for purposes of federal taxes under the Contract. Minnesota Life will allocate the Credit Enhancement for the applicable purchase payment among the sub-accounts and fixed-interest accounts the contract owner selects in accordance with a contract owner's current purchase payment allocation instructions. Minnesota Life applies the Credit Enhancement to a contract owner's contract value either by “purchasing” accumulation units of an appropriate sub-account or adding to the contract owner's fixed-interest allocation option values. Minnesota Life reserves the right to increase or decrease the amount of the Credit Enhancement or discontinue the Credit Enhancement in the future. In such case Minnesota
20. Minnesota Life intends to recapture or retain the Credit Enhancements only in the following circumstances. First, Minnesota Life recaptures or retains 100% of the Credit Enhancements in the event that the contract owner exercises his or her cancellation right during the “free look” period. Second, Minnesota Life recaptures all of the Credit Enhancements added to the Contract within 12 months prior to the date of death of the contract owner (unless the Contract is continued under the surviving spouse benefit continuation option); any Credit Enhancement added to the Contract more than 12 months prior to the date of death would not be recaptured. Third, Minnesota Life will recapture all of the Credit Enhancements added to the Contract within 12 months prior to the annuitization date of the Contract. Any Credit Enhancement added to the Contract more than 12 months prior to the date of annuitization would not be recaptured. If only a partial annuitization were elected, a pro rata portion of the Credit Enhancements added to the Contract within 12 months of the annuitization date would be recaptured. So for example, if half the contract value were annuitized, half of the Credit Enhancements added within 12 months of the date of the annuitization would be recaptured.
21. Investment gains attributable to the Credit Enhancement will not be recaptured. Since Minnesota Life does not recapture the investment gain/loss attributable to the Credit Enhancement, only the dollar amount of the Credit Enhancement added to the Contract is recaptured in the circumstances described in the application.
22. With regard to variable contract value, several consequences flow from the foregoing. First, increases in the value of accumulation units representing Credit Enhancements accrue to the contract owner immediately. The initial value of such units belongs to the contract owner except in the limited circumstances of recapture. Second, decreases in the value of accumulation units representing Credit Enhancements do not diminish the dollar amount of contract value subject to recapture. Therefore, additional accumulation units must become subject to recapture as their value decreases. Stated differently, the proportionate share of any contract owner's variable contract value (or the contract owner's interest in the Separate Account) that Minnesota Life needs to “recapture” to avoid anti-selection increases as variable contract value (or the contract owner's interest in the Separate Account) decreases. This has the potential to dilute somewhat the contract owner's interest in his/her Contract as compared to other contract owners who do not trigger the recapture provisions.
23. Finally, because it is not administratively feasible to track the Credit Enhancements in the Separate Account which may still be subject to recapture, Minnesota Life deducts the daily mortality and expense risk charge and the daily administrative charge from the entire net asset value of the Separate Account. As a result, the daily mortality and expense risk charge, and any optional benefit charges paid by any contract owner may be greater than that which he or she would pay without the Credit Enhancement. In other words, any asset based fees taken on a dollar amount that is subsequently recaptured cannot be refunded to contract owners.
24. Applicants request that the Commission, pursuant to Section 6(c) of the 1940 Act, grant the exemptions set forth below from Sections 2(a)(32) and 27(i)(2)(A) of the 1940 Act and Rule 22c-1 thereunder to permit Applicants to recapture Credit Enhancements previously applied to purchase payments under the New Contracts: (1) In the event a contract owner exercises his or her right to cancellation/“free look” under the New Contract; (2) if the Credit Enhancements were added to the Contract within 12 months prior to the date of death of the contract owner (unless the New Contract is continued under the surviving spouse continuation option); and (3) if the Credit Enhancements were added to the Contract within 12 months prior to the date of annuitization or partial annuitization of the Contract. The requested relief would also apply to any Future Contract funded by the Separate Account or Future Accounts provided such Future Contract is substantially similar in all material respects to the New Contract.
25. The relief sought in this Application is intended to permit Minnesota Life with respect to the New Contract to: (i) Deduct any Credit Enhancements from amounts returned after a contract owner exercises his or her right to cancel the contract during the free-look period; (ii) deduct from any death benefit the amount of any Credit Enhancements applied during the 12 months prior to the date of the contract owner's death; and (iii) deduct from any annuitization benefit the amount of any Credit Enhancements applied during the 12 months prior to the date of annuitization or partial annuitization.
1. Section 6(c) of the 1940 Act authorizes the Commission to exempt any person, security or transaction, or any class or classes of persons, securities or transactions from the provisions of the 1940 Act and the rules promulgated thereunder, if and to the extent that such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the 1940 Act.
2. Subsection (i) of Section 27 provides that Section 27 does not apply to any registered separate account supporting variable annuity contracts, or to the sponsoring insurance company and principal underwriter of such account, except as provided in paragraph (2) of subsection (i). Paragraph (2) provides that it shall be unlawful for a registered separate account or sponsoring insurance company to sell a variable annuity contract supported by the separate account unless the “* * * contract is a redeemable security; and * * * [t]he insurance company complies with Section 26(e) * * *”.
3. Section 2(a)(32) defines a “redeemable security” as any security, other than short-term paper, under the terms of which the holder, upon presentation to the issuer, is entitled to receive approximately his proportionate share of the issuer's current net assets, or the cash equivalent thereof.
4. Rule 22c-1 imposes requirements with respect to both the amount payable on redemption of a redeemable security and the time as of which such amount is calculated. In pertinent part, Rule 22c-1 prohibits a registered investment company issuing any redeemable security, a person designated in such issuer's prospectus as authorized to consummate transactions in any such security, and a principal underwriter of, or dealer in, such security from selling, redeeming or repurchasing any such security, except at a price based on the current net asset value of such security which is next computed after receipt of a tender of such security for redemption or of an order to purchase or sell such security.
5. Applicants submit that to the extent that the recapture of the Credit Enhancement arguably could be seen as a discount from the net asset value, or arguably could be viewed as resulting in the payment to a contract owner of less than the proportional share of the issuer's net assets, in violation of
6. Applicants submit that the proposed recapture of the Credit Enhancement would not violate Section 2(a)(32) or 27(i)(2)(A) of the 1940 Act or Rule 22c-1 thereunder. Minnesota Life would grant Credit Enhancements out of its general account assets. Applicants submit that a contract owner's interest in the Credit Enhancements does not vest until the expiration of the free look period and the expiration of the 12-month period following the application of a Credit Enhancement to the contract owner's Contract; until such time, Minnesota Life generally retains the right to and interest in each contract owner's contract value representing the dollar amount of any unvested Credit Enhancement amounts. Therefore, Applicants submit if Minnesota Life recaptures any Credit Enhancements or part of a Credit Enhancement in the circumstances described above, it would merely be retrieving its own assets. Applicants further submit that to the extent that Minnesota Life may grant and recapture Credit Enhancements in connection with variable contract value, it would not, at either time, deprive any contract owner of his or her then proportionate share of the Separate Account's assets.
7. Applicants further submit that the operation of the proposed Credit Enhancements would not violate Section 2(a)(32) or 27(i)(2)(A) of the 1940 Act because the recapture of Credit Enhancements would not, at any time, deprive a contract owner of his or her proportionate share of the current net assets of the Separate Account. Section 2(a)(32) defines a redeemable security as one “under the terms of which the holder, upon presentation to the issuer, is entitled to receive approximately his proportionate share of the issuer's current net asset value.” Applicants assert that taken together, these two sections of the 1940 Act do not require that the holder receive the exact proportionate share that his or her security represented at a prior time. Therefore, Applicants submit that the fact that the proposed Credit Enhancement provisions have a dynamic element that may cause the relative ownership positions of Minnesota Life and a contract owner to shift due to Separate Account performance would not cause the provisions to conflict with Sections 2(a)(32) or 27(i)(2)(A). Nonetheless, in order to avoid any uncertainty as to full compliance with the 1940 Act, Applicants seek exemptions from these two sections.
8. Minnesota Life's granting of Credit Enhancements would have the result of increasing a contract owner's contract value in a way that arguably could be viewed as the purchase of an interest in the Separate Account at a price below the current net asset value. Similarly, Minnesota Life's recapture of any Credit Enhancements arguably could be viewed as the redemption of such an interest at a price above the current net asset value. If such is the case, then the Credit Enhancements arguably could viewed as conflicting with Rule 22c-1. Applicants contend that these are not correct interpretations or applications of these statutory and regulatory provisions. Applicants also contend that the Credit Enhancements do not violate Rule 22c-1.
9. Rule 22c-1 was intended to eliminate or reduce, as far as was reasonably practicable: (1) The dilution of the value of outstanding redeemable securities of registered investment companies through their sale at a price below net asset value or their redemption at a price above net asset value; or (2) other unfair results, including speculative trading practices. Applicants submit that the industry and regulatory concerns prompting the adoption of Rule 22c-1 were primarily the result of backward pricing, the practice of basing the price of a mutual fund share on the net asset value per share determined as of the close of the market on the previous day. Backward pricing permitted certain investors to take advantage of increases or decreases in net asset value that were not yet reflected in the price, thereby diluting the values of outstanding shares.
10. Applicants submit that the Credit Enhancements do not give rise to either of the two concerns that Rule 22c-1 was designed to address. First, Applicants contend that the proposed Credit Enhancements pose no such threat of dilution. A contract owner's interest in his or her contract value or in the Separate Account would always be offered at a price based on the net asset value next calculated after receipt of the order. The granting of a Credit Enhancement does not reflect a reduction of that price. Instead, Minnesota Life would purchase with its general account assets, on behalf of the contract owner, an interest in the Separate Account equal to the Credit Enhancement. Because the Credit Enhancement will be paid out of the general account assets, not the Separate Account assets, Applicants submit that no dilution will occur as a result of the Credit Enhancement. Recaptures of Credit Enhancements result in a redemption of Minnesota Life's interest in a contract owner's contract value or in the Separate Account at a price determined based on the Separate Account's current net asset value and not at an inflated price. Moreover, the amount recaptured will never exceed the amount that Minnesota Life paid from its general account for the Credit Enhancement. Similarly, although a contract owner is entitled to retain any investment gains attributable to the Credit Enhancement, the amount of such gains would always be computed at a price determined based on net asset value.
11. Second, Applicants submit that speculative trading practices calculated to take advantage of backward pricing will not occur as a result of Minnesota Life's recapture of the Credit Enhancement. Variable annuities are designed for long-term investment, and by their nature, do not lend themselves to the kind of speculative short-term trading that Rule 22c-1 was designed to prevent. More importantly, the Credit Enhancement recapture simply does not
12. Applicants assert that the Credit Enhancement is generally beneficial to a contract owner. The recapture tempers this benefit somewhat, but unless the owner (1) exercises his or her right to cancel the contract during the “free look” period, or (2) Minnesota Life applies Credit Enhancements and a death benefit during the same 12-month period, or (3) Minnesota Life applies Credit Enhancements and a contract owner annuitizes during the same 12-month period, the contract owner retains the ability to avoid the Credit Enhancement recapture in the circumstances described in the application. While there would be a small downside in a declining market where the contract owner bears the downside risk of incurring losses attributable to the Credit Enhancements applied, it is the converse of the benefits a contract owner would receive on the Credit Enhancement amounts in a rising market because earnings on the Credit Enhancement amount vest with him or her immediately. Applicants submit that as any earnings on Credit Enhancements applied would not be subject to recapture and thus would be immediately available to a contract owner, over time this would increase the contract owner's share of contract value in the Separate Account more than it would have increased without the Credit Enhancements. Likewise any losses on Credit Enhancements would also not be subject to recapture and over time would decrease the contract owner's share of contract value in the Separate Account by more than it would have decreased had the Credit Enhancements never been applied. Applicants submit that the Credit Enhancement recapture does not diminish the overall value of the Credit Enhancement.
13. Applicants assert that the Credit Enhancement recapture provision is necessary for Minnesota Life to offer the Credit Enhancement and prevent anti-selection—the risk that a contract owner would make significant purchase payments into the Contract solely to receive a quick profit from the Credit Enhancements and then withdraw his or her money. Applicants submit it would be unfair to Minnesota Life to permit a contract owner to keep his or her Credit Enhancement upon his or her exercise of the Contract's “free look” provision. Because no DSC applies to the exercise of the “free look” provision, individuals could purchase the contract with no intention of keeping it, and the contract owner could obtain a quick profit in the amount of the Credit Enhancement at Minnesota Life's expense by exercising that right in just a short period of time. Applicants submit it would also be unfair to Minnesota Life to permit a contract owner to keep his or her Credit Enhancements paid shortly before death or annuitization. Rather than spreading purchase payments over a number of years, a contract owner could knowingly make very large payments shortly before death or annuitization to obtain a quick profit in the amount of the Credit Enhancement thereby leaving Minnesota Life less time to recover the cost of the Credit Enhancement, to its financial detriment. Applicants further submit because no additional DSC applies upon death of a contract owner (or annuitant), a death shortly after the award of Credit Enhancements would afford a contract owner or a beneficiary a similar profit at Minnesota Life's expense. Finally Applicants submit that because no additional DSC applies upon annuitization, if a contract owner annuitizes his or her contract shortly after the award of the Credit Enhancement, such event would afford a contract owner a similar profit at Minnesota Life's expense.
14. Applicants submit that in the event of such profits to a contract owner or beneficiary, Minnesota Life could not recover the cost of granting the Credit Enhancements. This is because Minnesota Life intends to recoup the costs of providing the Credit Enhancement through the charges under the Contract, particularly the daily mortality and expense risk charge and through efficiencies associated with administering contracts with higher aggregate purchase payments. Applicants assert that if the profits described above are permitted, a contract owner could take advantage of them, reducing the base from which the daily charges are deducted and greatly increasing the amount, and cost, of Credit Enhancements that Minnesota Life must provide. Therefore, the recapture provisions are a price of offering the Credit Enhancements. Applicants submit that Minnesota Life simply cannot offer the proposed Credit Enhancements without the ability to recapture those Credit Enhancements in the limited circumstances described in the application.
15. Applicants state that the Commission's authority under Section 6(c) of the 1940 Act to grant exemptions from various provisions of the 1940 Act and rules thereunder is broad enough to permit orders of exemption that cover classes of unidentified persons. Applicants request an order of the Commission that would exempt them, Minnesota Life's successors in interest, Future Accounts and Future Underwriters from the provisions of Sections 2(a)(32) and 27(i)(2)(A) of the 1940 Act and Rule 22c-1 thereunder with respect to the Contracts. Applicants submit that the exemption of these classes of persons is appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the 1940 Act because all of the potential members of the class could obtain the foregoing exemptions for themselves on the same basis as the Applicants, but only at a cost to each of them that is not justified by any public policy purpose. As discussed in the application, the requested exemptions would only extend to persons that in all material respects are the same as the Applicants. Applicants note that the Commission has previously granted exemptions to classes of similarly situated persons in various contexts and in a wide variety of circumstances, including class exemptions for recapturing bonus-type credits under variable annuity contracts.
16. Applicants represent that any Future Contracts will be substantially similar in all material respects to the New Contracts, but particularly with respect to the Credit Enhancements and recapture of Credit Enhancements and that each factual statement and representation about the Credit Enhancement feature will be equally true of any Future Contracts. Applicants also represent that each material representation made by them about the Separate Account and SFS will be equally true of Future Accounts and Future Underwriters, to the extent that such representations relate to the issues discussed in the Application. In particular, each Future Underwriter will be registered as a broker-dealer under the Securities Exchange Act of 1934 and be a member of FINRA.
17. Based upon the foregoing, Applicants submit that the recapture of the proposed Credit Enhancement involves none of the abuses to which provisions of the 1940 Act and rules thereunder are directed. The contract owner will always retain the investment experience attributable to the Credit Enhancement and will retain the principal amount in all cases except under the circumstances described herein. Further, Applicants assert that Minnesota Life should be able to recapture such Credit Enhancement to limit potential losses associated with such Credit Enhancements.
Applicants submit that the exemptions requested are necessary or
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
On June 9, 2008, The Options Clearing Corporation (“OCC”) submitted to the Securities and Exchange Commission (“Commission”), pursuant to Rule 9b-1 under the Securities Exchange Act of 1934 (“Act”),
The ODD currently contains general disclosures on the characteristics and risks of trading standardized options. Recently, the Chicago Board Options Exchange, Incorporated (“CBOE”) amended its rules to permit the listing and trading of certain binary index options.
Specifically, the proposed supplement to the ODD adds new disclosure regarding the characteristics of binary index options on broad-based indexes as well as the special risks of these binary index options. The proposed supplement to the ODD also adds new disclosure regarding the characteristics and special risks of range options. Finally, the proposed supplement makes disclosures regarding the characteristics and special risks of binary stock options and DSOs.
Rule 9b-1(b)(2)(i) under the Act
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On May 12, 2008, Chicago Board Options Exchange, Incorporated (“CBOE”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Commission has carefully reviewed the proposed rule change and 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 proposal will expand the scope of Sponsored User access, which has previously been approved by the Commission,
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 proposes to amend ISE Rule 803 relating to the exposure of public customer orders. The text of the proposed rule change is available on ISE's Web site at
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.
The purpose of this proposed rule change is to amend ISE Rule 803 relating to the exposure of public customer orders. Pursuant to Commission approval, before a Primary Market Maker (“PMM”) sends a public customer order through the intermarket linkage (“Linkage”) when ISE is not at the national best bid or offer (“NBBO”), the Exchange exposes these customer orders to all its market makers to give them an opportunity to match the NBBO.
Specifically, before the PMM sends a Linkage Order on behalf of a public customer, the public customer order is exposed at the NBBO price for a period established by the Exchange not to exceed one second. During this exposure period, Exchange market makers may enter responses up to the size of the order being exposed in the regular trading increment applicable to the option. If at the end of the exposure period, the order is executable at the then-current NBBO and the ISE is not at the then-current NBBO, the order is executed against responses that equal or better the then-current NBBO.
The Exchange notes that when an order is sent to another exchange through Linkage, the other exchange charges an execution fee. The cost of sending the order through Linkage can be substantial, particularly with respect to other options exchanges that have adopted a maker-taker fee schedule.
The Exchange believes the proposed rule change is consistent with the Act and the rules and regulations under the Act applicable to a national securities exchange and, in particular, the requirements of Section 6(b) of the Act.
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: (1) Does not significantly affect the protection of investors or the public interest; (2) does not impose any significant burden on competition; and (3) by its terms does not become operative for 30 days after the date of this filing, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
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 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 Exchange is proposing to reduce the order handling and exposure periods contained in Exchange Rules 716 (Block Trades), 717 (Limitations on Orders), 723 (Price Improvement Mechanism for Crossing Transactions), and 811 (Directed Orders) from three seconds to one second.
The text of the proposed rule change is available on the Exchange's Web site (
In its filing with the Commission, 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. ISE has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to reduce the order handling and exposure periods contained in Exchange Rules 716 (Block Trades), 717 (Limitations on Orders), 723 (Price Improvement Mechanism for Crossing Transactions), and 811 (Directed Orders) from three seconds to one second.
Rule 716 contains the requirements applicable to the execution of orders using the Block Order Mechanism, Facilitation Mechanism, and Solicited Order Mechanism. The Block Order Mechanism allows members to obtain liquidity for the execution of a block-size order, whereas the Facilitation and Solicited Order Mechanisms allow members to enter block-size cross transactions. Rule 723 contains the requirements applicable to the execution of orders using the Price Improvement Mechanism (“PIM”). The PIM allows members to enter cross transactions of any size. Orders entered into any of these mechanisms (“Mechanisms”) currently are exposed to all market participants for three seconds, giving participants an opportunity to enter additional trading interest before the orders are automatically executed. Under the proposal, the exposure period for all four Mechanisms would be reduced to one second.
Rule 717 requires members to expose agency orders to the marketplace before executing them as principal
Rule 811 contains the requirements applicable to the handling and execution of Directed Orders. A Directed Order is an order routed from an Electronic Access Member to an Exchange Market Maker (the “Directed Market Maker”) through the Exchange's system.
Additionally, there are three instances when a Directed Order is exposed to all market participants for three seconds after being released to the Exchange's limit order book: (i) Before a Directed Order is matched against the Directed Market Maker at the NBBO;
Finally, if a Directed Order is placed on the Exchange's limit order book, the Directed Market Maker is not permitted to enter a proprietary order to execute against the Directed Order during the three seconds following the release of the Directed Order. This limitation would be reduced to one second under the proposal.
In adopting the various three-second order handling and exposure periods, ISE recognized that three seconds would not be long enough to allow human interaction with the orders. Rather, market participants had become sufficiently automated that they could react to these orders electronically. In this context, ISE recognizes that it is in all market participants' best interest to minimize the exposure period to a time frame that continues to allow adequate time for market participants to electronically respond, as both the order being exposed and the participants responding to the order are subject to market risk during the exposure period. In this respect, ISE's experience with the three-second time period indicates one second would provide an adequate response time. Indeed, most members wait until the end of the last second of the three-second period before responding to exposed orders. Accordingly, the Exchange does not believe it is necessary or beneficial to the orders being exposed to continue to subject them to market risk for a full three seconds.
Recently, the Exchange distributed a survey to members that regularly participate in orders executed through the Mechanisms that would be affected by the proposal. To substantiate that its members could receive, process, and communicate a response back to the Exchange within one second, the survey asked members to identify how many milliseconds it took for (i) a broadcast from ISE to reach their systems; (ii) their systems to generate responses; and (iii) their responses to reach the ISE. The survey results indicate that the time it takes a message to travel between the Exchange and its members typically is not more than fifty milliseconds each way.
When approving the existing three-second order handling and exposure periods, the Commission concluded that three seconds was sufficient to afford electronic crowds sufficient time to compete for orders.
The Exchange believes reducing order handling and exposure periods as discussed above from three seconds to one second would benefit all market participants. Since members react to these orders electronically, and generally only at the tail end of the three-second period, reducing the time periods would continue to provide sufficient time to ensure effective interaction with orders. At the same time, reducing the time periods to one second would allow the Exchange to provide investors and other market participants with more timely executions, thereby reducing market risk.
The basis under the Act for this proposed rule change is the requirement under Section 6(b)(5) of the Act
The proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has not solicited, and does not intend to solicit, comments on
In Amendment No. 3, ISE noted that the Commission received a comment letter on another ISE rule proposal related to the price at which a transaction may be effected through the PIM (the “Price Proposal”), which asserted that the combined effect of the Price Proposal and this proposal to reduce the exposure period to one second would be increased internalization rates.
As the Exchange discusses in the Purpose section of this filing, and as further supported by the results of the survey discussed above, ISE members are able to respond to PIM orders in less than one second, and therefore the Exchange does not believe this proposal will discourage competition for PIM orders. Rather, ISE believes that this rule change, like the Price Proposal, could provide additional customer orders an opportunity for price improvement because it would reduce the market risk for members that are required to guarantee an execution at the NBBO or better.
Within 35 days of the date of publication of this notice in the
(A) By order approve such proposed rule change, or
(B) Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to 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 Exchange proposes to extend for three months the moratorium related to the qualification and registration of Registered Competitive Market Makers (“RCMMs”), pursuant to Exchange Rule 107A, and Competitive Traders (“CTs”), pursuant to Exchange Rule 110 (“Moratorium”). The text of the proposed rule change is available at
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, 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 extend for three months the current Moratorium related to the qualification and registration of RCMMs, pursuant to Exchange Rule 107A, and CTs, pursuant to Exchange Rule 110.
On September 22, 2005, the Exchange filed SR-NYSE-2005-63
During each phase of the Hybrid Market, new system functionality was included in the operation of Exchange systems, and new data was generated. As a result, the Exchange was unable to make an informed decision as to the viability of RCMMs and CTs in the Hybrid Market. The phased-in implementation of the Hybrid Market required the Exchange to extend the Moratorium an additional six times over the next twenty-four months.
The Exchange is now proposing to extend the Moratorium, as amended,
On June 12, 2008, the Exchange filed its proposal to create its new market model (“New Model”).
In light of these proposed changes, the Exchange seeks to continue its review of the data related to RCMMs' and CTs' current trading on the NYSE. Accordingly, the Exchange requests additional time to decide what roles, if any, RCMMs and CTs should perform in the proposed New Model.
The Exchange will issue an Information Memo announcing the extension of the Moratorium.
The basis under 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.
No written comments were solicited or received with respect to the proposed rule change.
Because the proposed rule change: (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 become operative for 30 days after the date of the filing, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest, the proposed rule change has become effective pursuant to section 19(b)(3)(A) of the Act
A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the Act
At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate the 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 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 Exchange proposes to extend to September 30, 2008, the moratorium on the administration of the Specialist Performance Evaluation Questionnaire (“SPEQ”) pursuant to Exchange Rule 103A and the use of the SPEQ pursuant to Exchange Rule 103B (“Moratorium”), which was implemented on June 8, 2007. In addition, the Exchange proposes to continue to suspend the use of SuperDot turnaround for orders received and the use of responses to administrative messages as objective measures in the assessment of specialist performance during the Moratorium. The Exchange further proposes that the SPEQ and Order Reports/Administrative Responses continue to be removed from the criteria used to commence a specialist performance improvement action during the Moratorium.
The text of the proposed rule changes is available on the Exchange's Web site (
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. NYSE has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to extend to September 30, 2008, the Moratorium on the administration of the SPEQ pursuant to Exchange Rule 103A and the use of the SPEQ pursuant to Exchange Rule 103B, which was implemented on June 8, 2007 and extended through June 31, 2008.
In addition, the Exchange proposes that the use of SuperDot turnaround for orders received and responses to administrative messages continue to be removed from the objective measures used in the assessment of specialist performance pursuant to Exchange Rule 103B or as criteria used to commence specialist performance improvement action pursuant to Exchange Rule 103A during the Moratorium.
Prior to June 2007, pursuant to Exchange Rule 103A, on a quarterly basis, the Exchange distributed a twenty-question survey known as the SPEQ to eligible Floor brokers
However, the Exchange believed that the SPEQ no longer adequately allowed a Floor broker to assess the electronic interaction between the specialist and the Floor broker. The Hybrid Market provided Floor brokers and specialists with electronic trading tools that have resulted in less personal and verbal contact between Floor brokers and specialists. Currently, the majority of transactions executed on the Exchange are done through electronic executions.
In addition, the dramatic increase in transparency with respect to the Display Book through, among other things, Exchange initiatives like NYSE OPENBOOK
The questions on the SPEQ did not take into account the operation of the electronic tools available in the Hybrid Market. The SPEQ did not provide Floor brokers with a means to evaluate specialist performance under the current market model. As a result of the more electronic interaction between Floor brokers and specialists, Floor brokers were unable to assess specialist performance using the SPEQ.
The questions posed to the Floor brokers on the SPEQ required Floor brokers to opine on the specialists' ability to offer single price executions and specialists' ability to provide notification to Floor brokers of market changes in particular stocks. In the current more electronic market, specialists are unable to offer single price executions and the relative speed of executions makes it virtually impossible for specialists to notify brokers of changes in a particular security.
Given the above, the SPEQ no longer served as a meaningful measure of specialist performance.
The Exchange further requests that during the extension of the Moratorium, allocations of newly listed securities on the Exchange continue to be based on the objective measures identified in Exchange Rule 103B,
As explained in the Original Request and previously requested extensions, SuperDot turnaround for orders received and response to administrative messages no longer provides meaningful objective standards to evaluate specialist performance in the Hybrid Market. Specifically, in the more electronic Hybrid Market, orders received by Exchange systems that are marketable upon entry are eligible to be immediately and automatically executed by Exchange systems. As such, SuperDot turnaround no longer provided a meaningful objective measure of a specialist's performance.
Furthermore, in the current more electronic market, the Exchange systems automatically respond to the majority of the administrative messages. Today, there are two administrative messages that require a manual response from specialists. These are messages that require the specialist to provide status information on market orders and stop orders. With regard to requests for the status of stop orders, the specialists are no longer capable of providing this information. In December 2006, following Commission approval,
Market orders are eligible to receive immediate and automatic execution on the Exchange. The immediate and automatic execution of market orders eliminates the need for the specialists to respond to the administrative request for the status of market orders. In practice, a customer that submits a market order will likely receive a report of execution before the administrative message requesting the status of the market order has been printed and read by the specialist.
This change has had a minimal impact on Exchange customers. In the past few years, the average number of administrative messages received on a daily basis has steadily declined. The Exchange believes that immediate and automatic execution of orders will virtually eliminate administrative messages that require a manual response from a specialist. As a result, a specialist's ability to respond to administrative messages no longer provides a meaningful measure of specialists' performance during the Moratorium.
Given the above, the Exchange seeks to continue suspension of the use of both measures as criteria used to assess specialists' performance during the extension of the Moratorium.
Similarly, during the extension of the Moratorium, the Exchange seeks to continue suspending the use of the SPEQ and Order Reports/Administrative Reports as criteria for the implementation of a performance improvement action pursuant to Exchange Rule 103A. Exchange Rule 103A(b) provides that:
The Market Performance Committee shall initiate a Performance Improvement Action
Prior to June 2007, the SPEQ and Order Reports/Administrative Reports were two criteria included in the standards specified in Exchange Rule 103A Supplementary Material. Given that SPEQ and Order Reports/Administrative Reports no longer provided significant objective measures of specialists' performance in the Hybrid Market, the Exchange sought to suspend the use of both measures as criteria for the implementation of a performance improvement action during the Moratorium. Through this filing, the Exchange seeks to continue this suspension for the duration of the Moratorium.
The Exchange intends to establish a quantifiable measure in order to determine a specialist unit's eligibility to participate in the new Allocation Process. The Exchange intends to formally submit a proposal to the Commission to amend Exchange rules that govern the allocation of securities to specialist units and other related rules by the end of June 2008.
The Exchange believes that the use of a single objective measure to determine specialist unit eligibility for allocation will create a more efficient process that is consistent with the Exchange's current more electronic trading environment.
The Exchange therefore requests to extend the Moratorium on the administration of the SPEQ pursuant to Exchange Rule 103A and the use of the SPEQ pursuant to Exchange Rule 103B until September 30, 2008. In addition, the Exchange proposes to continue to suspend the use of SuperDot turnaround for orders received and the use of responses to administrative messages as objective measures in the assessment of specialist performance during the Moratorium. The Exchange further proposes that the SPEQ and Order Reports/Administrative Responses continue to be removed from the criteria used to commence a specialist performance improvement action during the Moratorium.
The Exchange believes that the basis under the Act for this proposed rule change is the requirement under Section 6(b)(5)
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has neither solicited nor received written comments on the proposed rule change.
A proposed rule change filed under 19b-4(f)(6) normally may not become operative prior to 30 days after the date of filing.
The Commission believes that waiving the five-day prefiling requirement and the 30-day operative delay is consistent with the protection of investors and the public interest because it would allow the Exchange to extend the Moratorium without interruption. The Commission designates the proposal to become effective and operative upon filing.
At any time within 60 days of the filing of the 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 the 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 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”)
NYSE proposes to amend NYSE Rule 123D to exempt orders for any security that is trading on the Exchange on June 27, 2008, and is part of the Russell Index Reconstitution
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.
Through this filing, the Exchange proposes to amend NYSE Rule 123D to provide a limited exemption for orders in a Russell Stock that is trading on the Exchange on June 27, 2008, and is part of the Russell Index Reconstitution, from the provisions of the non-regulatory trading halt condition designated as “Sub-penny trading” pursuant to NYSE Rule 123D(3).
Pursuant to NYSE Rule 123D(3), whenever a security trading on the Exchange is reported on the consolidated tape during normal trading hours as having traded at a price of $1.05 or less, or if a security would open on the Exchange at a price of $1.05 or less, trading in the security on the Exchange shall be immediately halted due to a “Sub-penny trading” condition. Once halted for such reason, trading shall not resume on the Exchange until the security has traded on another automated trading center, as defined in Rule 600(b)(4) of Regulation NMS (“Reg NMS”),
The Exchange seeks, through this filing, a limited exemption from the provisions of NYSE Rule 123D(3) on June 27, 2008. The Exchange believes that this exemption is necessary to address the possibility that a particular Russell Stock might open or trade on the Exchange at a price of $1.05 or less, thereby invoking the “Sub-penny trading” condition halt. In that instance, trading in the Russell Stock would be halted on the Exchange for the rest of the trading day and unexecuted limit orders remaining on the Display Book would be cancelled. More importantly, there would be no closing transaction on the Exchange for the Russell Stock on the day a “Sub-penny trading” condition halt was in effect and thus, no ability to price such stock during the Russell Index Reconstitution.
Pursuant to this proposed limited exemption, the Exchange would not invoke the “Sub-penny trading” halt if the Russell Stock opened or traded on the Exchange at a price of $1.05 or less. Rather, the Exchange would permit the Russell Stock to continue to trade. If such stock were to trade at a price of $0.99 or less, a non-regulatory trading condition designated as “Equipment Changeover” would be implemented. When an “Equipment Changeover” condition trading halt is invoked, Exchange Systems will continue to accept all orders in the Russell Stock. Open orders in the Russell Stock on the NYSE Display Book system will not be cancelled nor will such orders be routed to NYSE Arca. Instead, all orders that have been entered will be aggregated for purposes of a closing transaction pursuant to all relevant NYSE rules governing the close. The Exchange believes that only one Russell Stock trading on the Exchange could potentially be eligible for a “Sub-penny trading” condition halt on June 27, 2008. Accordingly, the Exchange states that this limited exemption is applicable to only one such Russell Stock. If such security does not trade at a price of $1.05 or less, this limited exemption would prove unnecessary and would expire at the close of trading on June 27, 2008.
The Exchange believes further that this limited exception would ensure that on June 27, 2008, each Russell Stock would be subject to pricing on the NYSE close, removing the possibility that such stock might be adversely affected on the close, causing potential harm to the market and to investors.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange states that written comments on the proposed rule change were neither solicited nor received.
Because the foregoing proposed rule change: (1) Does not significantly affect the protection of investors or the public interest; (2) does not impose any significant burden on competition; and (3) by its terms does not become operative for 30 days after the date of this filing, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6) normally does not become operative for 30 days after the date of filing. However, Rule 19b-4(f)(6)(iii) permits the Commission to designate a shorter time if such action is consistent with the protection of investors and the public interest. The Exchange requests that the Commission waive the five business-day pre-filing requirement and the 30-day operative delay so that it may immediately implement the limited exemption to the provisions of NYSE Rule 123D to ensure that Russell Stocks would be subject to pricing on the NYSE close on June 27, 2008. The Exchange states that the proposed rule change does not significantly affect the protection of investors or the public interest and does not impose any significant burden on competition.
The Commission believes that waiving the 30-day operative delay and five business-day pre-filing requirement is consistent with the protection of investors and the public interest.
At any time within 60 days of the filing of the 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 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 Exchange proposes to amend NYSE Rule 104.10 to extend the duration of the pilot program applicable to Conditional Transactions as defined in Rule 104.10(6)(i) in all securities to September 30, 2008. The text of the proposed rule change is available at NYSE,
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 is proposing to amend NYSE Rule 104.10 to extend the duration of the pilot program applicable to Conditional Transactions as defined in Rule 104.10(6)(i) in all securities for an additional three months until September 30, 2008.
On October 26, 2007, the Commission approved the ability of NYSE specialists to effect Conditional Transactions pursuant to NYSE Rule 104.10(6) in all securities traded on the NYSE to operate as a pilot through March 31, 2008 (the “Conditional Transaction Pilot”).
Conditional Transactions are specialists' transactions that establish or increase a position and reach across the market to trade as the contra-side to the Exchange published bid or offer. Under the current Conditional Transaction Pilot, NYSE specialists are allowed to effect Conditional Transactions in all securities traded on the NYSE until June 30, 2008.
When a specialist effects a Conditional Transaction, he or she has obligations to re-enter the market on the opposite side from which the specialist effected his or her Conditional Transaction pursuant to the rule. Specifically, pursuant to NYSE Rule 104.10(6)(ii), “appropriate” re-entry means “re-entry on the opposite side of the market at or before the price participation point or the ‘PPP.’ ”
(I) A purchase that (1) Reaches across the market to trade with an Exchange published offer that is above the last differently priced trade on the Exchange and above the last differently priced published offer on the Exchange, (2) is 10,000 shares or more or has a market value of $200,000 or more, and (3) exceeds 50% of the published offer size.
(II) A sale that (1) Reaches across the market to trade with an Exchange published bid that is below the last differently priced trade on the Exchange and below the last differently priced published bid on the Exchange, (2) is 10,000 shares or more or has a market value of $200,000 or more, and (3) exceeds 50% of the published bid size.
Pursuant to current NYSE Rule 104.10(6)(iv), Conditional Transactions that involve:
(a) A specialist's purchase from the Exchange published offer that is priced above the last differently-priced trade on the Exchange or above the last differently-priced published offer on the Exchange; and
(b) A specialist's sale to the Exchange published bid that is priced below the last differently-priced trade on the Exchange or below the last differently-priced published bid on the Exchange are subject to the re-entry requirements for Non-Conditional Transactions pursuant to Rule 104.10(5)(i)(a)(II)(c).
NYSE Rule 104.10(5)(i)(a)(II)(c) provides:
Re-entry Obligation Following Non-Conditional Transactions—The specialist's obligation to maintain a fair and orderly market may require re-entry on the opposite side of the market trend after effecting one or more Non-Conditional Transactions. Such re-entry transactions should be commensurate with the size of the Non-Conditional Transactions and the immediate and anticipated needs of the market.
No specialist shall effect on the Exchange purchases or sales of any security in which such specialist is registered, for any account in which he, his member organization or any other member, allied member, or approved person, (unless an exemption with respect to such approved person is in effect pursuant to Rule 98) in such organization or officer or employee thereof is directly or indirectly interested, unless such dealings are reasonably necessary to permit such specialist to maintain a fair and orderly market, or to act as an odd-lot dealer in such security.
The Exchange continues to calculate the specialist's profit on round-trip Hit Bid and Take Offer (“HB/TO”) executions. This is accomplished by measuring the specialist's profit on HB/TO activity by taking the round-trip trading profits for all HB/TO trades where the specialist executes an offsetting trade within 30 seconds. In cases where the volume of the offsetting execution is less than the size of the HB/TO execution, the calculation will only include profits realized within the 30-second window.
The Exchange continues to calculate the quote-based specialist re-entry ratio. Each re-entry price level is categorized and reported separately. In addition, the Exchange continues to provide the Commission with data related to the average realized spread on specialist HB/TO executions. These calculations are done using the same formula as SEC Rule 605. Specifically, the average realized spread is a share-weighted average of realized spreads. For specialist buys, it is double the amount of difference between the execution price and the midpoint of the consolidated best bid and offer five minutes after the time of HB/TO execution. For specialist sells, it is double the amount of difference between the midpoint of the consolidated best bid and offer five minutes after the time of HB/TO execution and the execution price.
The Exchange will continue to provide all the aforementioned information to the Commission on or before the 15th of the calendar month directly following the data month. The Exchange will maintain average measures for each stock-day during a particular month in order to provide such information to the Commission upon request.
Furthermore, NYSE Regulation, Inc. (“NYSER”) believes that it has appropriate surveillance procedures in place to surveil for compliance with the negative obligations of specialists. NYSER monitors, using a pattern-and-practice and/or outlier approach, specialist activity that appears to cause or exacerbate excessive price movement in the market (since such transactions would appear to be in violation of a specialist's negative obligation). In this connection, NYSER continues to surveil for specialist compliance with the PPP re-entry requirements, and, based on its reviews of surveillance data to date, has not identified significant compliance issues. The Division of Market Surveillance of NYSER also monitors specialist trading to cushion such price movements.
The Exchange believes that an extension of the current Conditional Transaction Pilot program will continue to provide NYSE specialists with the flexibility to compete and to efficiently and systematically trade and quote in their securities as well as equip them to fluidly manage their risk.
In view of the above, the NYSE believes it is appropriate to extend the operation of the Conditional Transaction Pilot program for an additional three months until September 30, 2008.
The Exchange believes that the proposed rule change is consistent with the requirement under Section 6(b)(5)
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.
No written comments were solicited or received with respect to the proposed rule change.
The proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6) normally may not become operative prior to 30 days after the date of filing.
At any time within 60 days of the filing of the 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 Secretary, Securities and Exchange Commission, Station Place, 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 Exchange proposes to amend Rule 98 and related rules to redefine specialist operations at the NYSE. The text of the proposed rule change is available at NYSE's principal office, the Commission's Public Reference Room, and
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those 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 NYSE is proposing to amend Rule 98 to reduce the regulatory burdens imposed by the rule and to provide flexibility to member organizations as to how they can structure their specialist operations and manage their risks. In particular, because of changes to the marketplace, including changes to the specialist's role as a result of the increased use of electronic trading, the Hybrid Market®, and Regulation NMS, as well as technological advances in surveillance and internal controls, the NYSE believes that current Rule 98 imposes unnecessary restrictions on member organizations seeking to engage in specialist operations at the Exchange.
Accordingly, the NYSE proposes revising Rule 98 in its entirety to provide a framework for specialist operations that meet both the regulatory concerns of the current rule and the reality of today's marketplace. In addition to changes to Rule 98, the NYSE proposes making conforming changes to other NYSE rules that rely on Rule 98 exemptions for approved persons. As discussed in further detail below, the revisions to Rule 98 would include: (1) Redefining the persons to whom Rule 98 would apply; (2) allowing specialist operations to be integrated into better capitalized member organizations; (3) permitting a specialist unit to share non-trading related services with its parent member organization or approved persons; and (4) providing flexibility to member organizations and their approved persons in how to conduct risk management of specialist operations.
To achieve these changes, the NYSE proposes shifting the paradigm of Rule 98 from one that assumes that the approved persons of a specialist member organization are subject to certain NYSE rules unless an exemption is provided to one where NYSE Regulation, Inc. (“NYSE Regulation”) reviews whether a trading unit that proposes to engage in specialist operations is sufficiently walled off from either its approved persons or parent member organization. Under the new paradigm, rules governing specialist operations, such as Rule 104, will apply only to the unit approved to engage in specialist operations at the NYSE.
As the NYSE market model continues to evolve, the NYSE believes that the proposed amendments to Rule 98 will provide a platform from which to further modernize specialist operations.
The NYSE adopted Rule 98 in 1987 in response to consolidation in the securities industry, when NYSE specialist firms that had been independent member-owned entities increasingly became subsidiaries of larger, better capitalized broker-dealers. Because of the specialists' unique position within the markets, and the restrictions on dealers under section 11(a) of the Act,
The rule establishes a functional separation between the specialist organization and the rest of the broker-dealer. The purpose of that separation was to eliminate or control conflicts of interest between the specialist's actions as market maker in an issuer's securities and other interactions among the specialist's parent or sibling entities and the issuer.
In its current form, Rule 98 applies to specialist units and so-called “approved persons” of a specialist organization—that is, entities that are in a control relationship with a specialist organization, or share a common corporate parent with the specialist organization and are engaged in a kindred business.
So as not to unreasonably hamstring a broker-dealer organization overall, Rule 98(b) provides that an approved person may seek Exchange approval to be exempted from most of those restrictions. To obtain a Rule 98(b) exemption, the approved person must establish policies and procedures that are consistent with the Guidelines for Approved Persons Associated with a Specialist's Member Organization (“Rule 98 Guidelines”). These guidelines set out in detail how approved persons and associated specialist organizations should structure and conduct their respective businesses in order to ensure complete separation between the specialist organization and the rest of the member organization.
Among other things, the Rule 98 Guidelines provide that the specialist member organization be housed in a separate corporate entity and broker-dealer from its approved persons. Further, to ensure that information does not flow improperly from the specialist organization to approved persons and that approved persons do not have undue influence over particular trading decisions by the specialist, the guidelines establish “functional regulations” that enforce the required separateness. These include requirements that the organizations maintain separate books and records, separate financial accounting, and separate required capital, and that each organization have in place procedures to safeguard confidential information derived from business interactions with the issuer or contained in draft research reports prepared by the approved person.
The assumption that all entities affiliated with a specialist are subject to specialist rules unless they have obtained a Rule 98(b) exemption creates a substantial administrative burden on specialist organizations and their approved persons: Each approved person of a specialist organization must establish and continually update a separate exemption under Rule 98 if it wishes to engage in activity that would otherwise be restricted under applicable specialist rules. This burden creates a real and substantial barrier to entry for new broker-dealers who may want to establish specialist units.
In the face of significant structural changes to the NYSE and the equity markets, and in recognition of the vastly different competitive landscape compared to 1987, the Exchange believes that Rule 98 must be updated in order to provide both existing and prospective specialist firms with the necessary tools to remain competitive while at the same time meeting their obligations as specialists at the NYSE. The proposed changes to Rule 98 also address the Exchange's desire to ease the burdens of a new member organization seeking entry to supplement the six specialist firms currently trading on the Exchange, or the very real possibility of such a firm replacing one or more of the existing specialist firms if they withdraw from the market. Concerning the latter possibility, the NYSE notes that this is not just a theoretical concern: Within the past six months, two specialist firms have already withdrawn.
To address these very real concerns, the Exchange proposes to fundamentally amend Rule 98. The proposed rule is described in detail below, but at root, the amendment reverses the assumption that all affiliated entities of a specialist firm are automatically governed by the rules applicable to specialists, and shifts the focus of the rule onto the specialist unit rather than the approved person.
As part of this restructuring, the NYSE proposes to eliminate the prescriptive approach of the current rule and move towards a more principle-based approach. The NYSE believes that a principle-based rule closely overseen by NYSE Regulation can achieve the same goals as a rule that attempts to enumerate every possible situation that must be avoided. For that, the proposed rule still requires NYSE Regulation to review whether a specialist unit's policies and procedures are reasonably designed to protect confidential information. However, the rule provides sufficient flexibility so that as the type of information that needs to be protected and the manner in which such information can be protected evolves with changes to the trading environment, so too can the manner in which NYSE Regulation conducts its review.
The NYSE believes that the proposed changes to Rule 98 will minimize regulatory burdens and barriers to entry while at the same time provide the necessary level of regulatory scrutiny to ensure that confidential information continues to be protected. In addition, the proposed changes will reduce the regulatory burdens on existing specialist member organizations to enable them to continue such operations at lower cost.
Under the proposed rule, a member organization seeking to operate a specialist unit, either as its entire business or as one of its trading units, would need to apply for and be approved by NYSE Regulation before it can begin, or if applicable, continue operations as a specialist unit. As described in more detail below, NYSE Regulation will review whether a proposed specialist unit has: (1) Adopted written policies and procedures governing the conduct and supervision of the business handled by the specialist unit; (2) established a process for regular review of such written policies and procedures; and (3) implemented controls and surveillances reasonably designed to prevent and detect violations of those policies and procedures. Among other things, these policies and procedures must be reasonably designed to protect specialist confidential information and non-public order information, as defined below.
Once approved, the NYSE specialist rules, as defined below, including Rule 104, would generally only be applicable to the approved specialist unit and not to its approved persons or, if applicable, parent member organization. As discussed in more detail below, on a case-by-case basis, NYSE Regulation will assess whether an integrated proprietary aggregation unit that manages the risk for a specialist unit could be subject to the specialist rules if the integrated proprietary aggregation unit causes the specialist unit to violate its obligations.
The NYSE recognizes that despite the proposed rule changes, an existing specialist member organization may determine to either keep its current operational structure or wait before it implements changes to its operational structure, as permitted by the proposed amended rule. Because current Rule 98 would still be applicable to those specialist units that would not have yet sought the relief available under proposed Rule 98, the Exchange proposes keeping current Rule 98 in its rulebook as “Rule 98 (Former)” until such time as all specialist units are approved pursuant to proposed Rule 98(c). Any new entrant to become a specialist unit would be required to comply with proposed Rule 98; current Rule 98 procedures would not be available to new entrants to the specialist business. As proposed, current Rule 98(b) exemptive relief would be available only so long as the member organization and its approved persons have not materially changed their operational structure, internal controls, or compliance and audit procedures. In such case, the current Rule 98,
The Exchange recognizes that an existing specialist member organization that does not implement structural changes to its operations that would require it to apply for approval under the proposed rule may still need certain relief available under the proposed version of the Rule. Accordingly, the Exchange proposes that a member organization operating pursuant to Rule 98 (Former) may apply for relief pursuant to proposed Rule 98(e), which concerns sharing non-trading related services, without first obtaining approval under other provisions of proposed Rule 98. In such situation, the specialist member organization would need to apply for approval from NYSE Regulation to share non-trading related services, as specified in proposed Rule 98(e). If approved, except for the sharing of non-trading related services, such member organization and its approved persons would continue to be subject to Rule 98 (Former) as well as the “(Former)” versions of NYSE rules that reference exemptions from Rule 98 for approved persons, as discussed in more detail below.
Once approved pursuant to proposed Rule 98 to operate a specialist unit, share non-trading related services, or engage in risk management, any material changes in how a specialist unit operates its business would require the specialist unit to resubmit its revised written policies and procedures to NYSE Regulation for review. For example, if a specialist unit is approved to operate as a stand-alone aggregation unit and would like to change its business operations to include the specialist unit as part of a larger integrated proprietary aggregation unit, as permitted by proposed Rule 98(d), such change would require pre-approval.
To ensure clarity, the proposed amendments include a number of defined terms that are applicable throughout the rule. These definitions are designed to provide a level of scalability to the rule so that as the NYSE market model evolves, the definitions used throughout the rule will have common meaning. Among the proposed definitions are:
• “Specialist unit”—this definition is intended to apply to any trading unit that is seeking approval to operate as a specialist at the Exchange. As proposed, a specialist unit could be a stand-alone member organization, an aggregation unit within a member organization, or a trading unit (or “desk”) within a larger
• “Specialist's account”—this definition refers to any account through which a specialist unit trades at the Exchange. Sometimes referred to as a dealer account, this revised definition would encompass any of the variously-defined accounts that a specialist unit may use to trade at the Exchange.
• “Specialist rules”—this definition refers to those rules that govern specialist conduct or trading at the Exchange. Currently, the specialist rules include, among others, Rules 104, 105, and 113, but as the rules at the Exchange change, these rule designations may change. Accordingly, so that proposed Rule 98 evolves along with changes to other rules, this proposed definition does not identify specific rules.
• “Specialist confidential information”—this definition concerns the principal or proprietary trading activity of a specialist unit at the Exchange in the securities allocated to it pursuant to Rule 103B, including the unit's positions in those securities, decisions relating to trading or quoting in those securities, and any algorithm or computer system that is responsible for such trading activity and that interface with Exchange systems, such as the specialist application protocol interface (“specialist API”).
• “Non-public order”—this definition refers to any information relating to order flow at the Exchange, including verbal indications of interest made with an expectation of privacy, electronic order interest, e-quotes, reserve interest, or information about imbalances at the Exchange, that is not publicly-available on a real-time basis via an Exchange-provided datafeed, such as NYSE OpenBook®, or otherwise publicly-available. The definition also encompasses information regarding a reasonably imminent non-public transaction or series of transactions. For example, if in requesting information about the state of the Book, a Floor broker informs the specialist about an order that he or she has, such information would fall under the definition of “non-public order.” As defined, non-public orders include order information at the open, any re-openings, the close, when the security is trading in a slow mode (
• “Investment banking department” and “Research department”—these definitions refer to the same departments that are defined as such in NYSE Rule 472 and NASD Rule 2711.
• “Customer-facing department”—this definition is intended to encompass any department, division, market-making desk, aggregation unit, or trading desk that receives, routes, or executes orders for customer execution or clearing accounts, regardless of whether such unit also engages in principal or proprietary trading. A hallmark of this definition is that a customer has an expectation of confidentiality and best execution on its behalf, which could include a customer that is another broker-dealer. Examples of trading desks that would meet this definition include a Nasdaq market-making desk and most block-trading desks. However, this definition is not intended to include an aggregation unit that solely conducts proprietary trading or proprietary market making (sometimes referred to as electronic market making).
• “Aggregation unit”—this definition adopts the standard of Rule 200(f) of Regulation SHO.
• “Non-trading related services”—this definition refers to the type of support services that a specialist unit may share with its parent member organization or approved person. The core of the proposed definition is that the type of services are not related to making decisions about the day-to-day trading of the specialist unit or provide trading support to such activity, such as by a trading assistant or specialist clerk. Examples of non-trading related services include stock loan (so long as consistent with Regulation SHO), clearing and settlement, controllers (for financial accounting purposes), technology support, and personnel who develop applications and algorithmic models.
• “Integrated proprietary aggregation unit”—this definition is intended to encompass any aggregation unit that has a trading objective to engage in proprietary trading, including proprietary market-making activities. As defined, an integrated proprietary aggregation unit must not include any activities that would be performed by an investment banking, research, or customer-facing department. Subject to proposed Rule 98(d), a specialist unit could be part of a member organization's integrated proprietary aggregation unit. Alternatively, an approved person or member organization could maintain an integrated proprietary aggregation unit separate from the specialist unit. In such case, the definition of an integrated proprietary aggregation unit becomes relevant in connection with proposed Rule 98(f)(3) and the ability of an approved person to engage in risk management activities on behalf of the
• “Related products”—this definition refers to any derivative instrument that is related to a security allocated to a specialist unit. It can include options, warrants, hybrid securities, single-stock futures, security-based swap agreements, a forward contract, or any other contract that is exercisable into or whose price is based upon or derived from a security listed at the Exchange. The list referenced in the definition is not intended to be exhaustive and the definition is intended to cover any existing or future products that could be related to a security listed at the Exchange.
Pursuant to proposed Rule 98(c), a member organization must obtain prior written approval from NYSE Regulation before it can operate a specialist unit. For approval, a specialist unit must demonstrate that it has: (i) Adopted and implemented comprehensive written procedures and guidelines governing the conduct and supervision of business handled by the specialist unit; (ii) established a process for regular review of such written policies and procedures; and (iii) implemented controls and surveillances reasonably designed to prevent and detect violations of these procedures and guidelines.
As proposed, these policies and procedures must be reasonably designed to provide that the specialist unit will maintain the confidentiality of both specialist confidential information and non-public orders. The proposed rule enumerates certain bright-line divisions that the specialist unit must maintain, including information barriers between the specialist unit and investment banking, research, and customer-facing departments and approved persons. Such information barriers should guarantee confidentiality two ways: the specialist unit cannot access material non-public information about securities allocated to that unit from either its approved persons or non-specialist operations of a parent member organization and vice versa.
With respect to a specialist unit's internal controls and surveillances, NYSE Regulation will be reviewing such surveillance plans to determine whether they are reasonably designed to protect information as required under the proposed rule. Where feasible, NYSE Regulation will expect specialist units to use automated surveillances to check for breaches of the information barriers required by the proposed rule. As with the current rule, NYSE Regulation will also review whether a member organization has implemented internal audit procedures relating to compliance with the proposed Rule 98 policies and procedures.
In addition to the specific information barriers enumerated in the proposed rule, if a member organization proposes to operate a specialist unit as a stand-alone unit, the Exchange proposes importing the requirements of a Regulation SHO independent trading unit for specialist units. Accordingly, as required by Rule 200(f) of Regulation SHO,
As with the current rule, proposed Rule 98 would require the specialist unit to maintain net capital sufficient to meet the requirements of NYSE Rule 104.21. The NYSE believes that if a specialist unit is integrated within a larger member organization, the net capital requirement can be met by having the requisite capital amount allocated to the specialist unit by the member organization.
Despite the segregations required by the rule, the NYSE believes that senior managers who are not dedicated to the specialist unit and are associated with either an approved person or a member organization that runs a specialist unit should still be able to provide management oversight to the specialist unit. As proposed, the revised rule is not intended to be more restrictive than the current rule, which permits an approved person to provide general oversight over its associated specialist member organization. The proposed rule instead shifts from a detailed list of specific types of oversight that is permissible to a principle-based approach that focuses on protecting specialist confidential information and non-public order information. As with the current rule, as proposed, senior management oversight of a specialist unit should not conflict with or compromise in any way with the specialist unit's market-making obligations.
Proposed Rule 98(c)(2)(E) provides guidance on how a member organization or approved person should handle situations where a senior manager is called upon for risk management purposes and in connection with that role, gains access to specialist confidential information or non-public order information. The Exchange notes that non-public order information could become stale if the order is executed or cancelled without the specialist's knowledge. To ensure that there is no misuse of such information, whether material or not, the senior manager must not make (directly or indirectly) specialist confidential information or non-public order information available to the persons or systems responsible for making trading decisions in aggregation units, departments, divisions, or trading desks that are not part of the specialist unit, including the customer-facing departments. The senior manager also must not use such information to directly or indirectly influence the day-to-day trading decisions of the other aggregation units of the member organization or approved person with respect to the securities allocated to the specialist unit.
The NYSE believes that these restrictions on the use of specialist confidential information and non-public order information are similar to how broker-dealers currently handle situations where a senior manager has oversight over multiple aggregation units and in such capacity, becomes privy to confidential information of one aggregation unit. For such situations, broker-dealers have already developed procedures for protecting confidential information and the NYSE believes that such procedures should be reasonable for the oversight of a specialist unit as well.
The Exchange notes that although the proposed amendments to Rule 98 eliminate the exemption process under current Rule 98(b), the review that NYSE Regulation would conduct when approving a specialist unit would be as rigorous as the current review for obtaining an exemption, just simply a different focus of what is reviewed. As with the current Rule 98 exemption process, staff from both the Market Surveillance Division of NYSE Regulation as well as relevant staff from the Financial Industry Regulatory Authority, Inc. (“FINRA”), who are responsible for the routine examinations of specialist units, would be involved in reviewing a specialist unit's written policies and procedures and proposed automated surveillances and controls.
For existing specialist firms, the initial approval process associated with any changes to how they operate may require upfront work to ensure that the specialist unit's policies and procedures are reasonably designed to meet the requirements of the proposed rule. However, unlike the current rule, as proposed, specialist units would be relieved of the requirement to update any written statements to the Exchange for changes in approved persons or dually-affiliated employees. Once approved, NYSE Regulation and FINRA would examine whether a specialist unit's policies and procedures continue to meet the rule requirements and whether the implemented controls and automated surveillances are functioning as designed. As part of such examination review, NYSE Regulation and FINRA will conduct on-site reviews of a specialist unit to review for breaches of the controls or surveillances. And, as noted above, if the specialist unit proposes making any material changes to its operations, it would need to seek additional approval before it can change its operations.
One of the goals of proposed Rule 98 is to provide a member organization with greater flexibility in how it manages the risk of a specialist unit. As discussed below, in proposed Rule 98(f), the NYSE proposes providing member organizations with an array of options of how to conduct risk management. The NYSE believes that the flexibility afforded by these options will meet the varying business models of the member organizations currently operating or seeking to operate a specialist unit at the Exchange.
As discussed in more detail below, one proposed risk management model would be to permit a member organization to integrate a specialist unit within a larger aggregation unit that meets the requirements of an integrated proprietary aggregation unit. Proposed Rule 98(d) sets forth the minimum requirements for how to structure such an integrated unit. While such a unit would be considered a single aggregation unit for Regulation SHO purposes, as proposed, the member organization would need to establish information barriers within the integrated proprietary aggregation unit to restrict access to non-public order information to the specialist unit only. And depending on the risk management model proposed by a specialist unit, a member organization or approved person may need to further segregate the flow of information within a specialist unit.
As proposed, the specialist unit that would operate within the integrated proprietary aggregation unit would need to meet the requirements of proposed Rule 98(c)(2)(A), (C), (D), and (E) of the rule, which concern the information barriers associated with the specialist unit and non-specialist unit operations, net capital requirements, and senior management oversight. Because an integrated proprietary aggregation unit that includes a specialist unit would likely already be subject to Rule 200(f) of Regulation SHO that it qualify as an independent trading unit, the specialist unit operating within the integrated proprietary aggregation unit would not need to separately meet the Rule 200(f) requirement for an independent trading unit. Accordingly, as proposed, a specialist unit that operates within an integrated proprietary aggregation unit would not need to meet the requirements of proposed Rule 98(c)(2)(B), which requires a specialist unit to separately comply with all of the Regulation SHO independent trading unit requirements.
In addition to meeting certain requirements of proposed Rule 98(c), under proposed Rule 98(d)(2)(B), the specialist unit must restrict access to non-public order information or specialist confidential information from the rest of the integrated proprietary aggregation unit. Such information barriers must ensure that both individuals and systems that are not assigned to the specialist unit do not have access to non-public order information, or, unless otherwise provided for in proposed Rule 98(f), specialist confidential information.
The NYSE believes that as proposed, Rule 98(d)(2)(B) provides sufficient flexibility for how a member organization structures its operations to evolve as the NYSE market model changes. For example, the specialist API currently has access to limited non-public order information, but does not have access to information available in the NYSE Display Book. So long as the specialist API has access to that non-public order information, the Exchange believes that systems not dedicated to the specialist unit should not be integrated with the specialist API. Accordingly, the trading algorithms of the integrated proprietary aggregation unit that are not dedicated to the specialist unit would not have access to any non-public order information via the specialist API, or any other system.
Proposed Rule 98(d)(2)(B)(iii) addresses the situation of communications from the Floor of the Exchange to the rest of the integrated proprietary aggregation unit. Currently, specialist unit employees on the Floor of the Exchange have access to non-public order information, whether via access to information in the Display Book® or because of verbal representations of imminent orders. The NYSE believes that the best way to ensure that such information is not provided to individuals or systems not dedicated to the specialist unit is to restrict communications while the employee is still on the Floor of the Exchange.
Proposed Rule 98(d)(2)(B)(iv) considers the possibility that an individual who works on the Floor of the Exchange
As noted above, an integrated proprietary aggregation unit would need to qualify as an aggregation unit, which for Regulation SHO purposes, requires the unit to net its positions. While the proposed rule would no longer require separate books and records for a specialist unit, to ensure that NYSE Regulation can review the trading activity by the specialist unit at the Exchange without having to parse through commingled records, under proposed Rule 98(d)(2)(C), in addition to meeting Regulation SHO requirements, an integrated proprietary aggregation unit must maintain records of its specialist's accounts in a manner that is separate from the accounts of the integrated proprietary aggregation unit.
In addition to the above, the integrated proprietary aggregation unit must have written policies and procedures that address how it will ensure that the unit will not engage in any activities that could violate other Exchange rules or federal securities laws and regulations, including Regulation SHO. The policies and procedures must address, at a minimum, how the unit will ensure against front running, wash sales, and market manipulation.
In connection with wash sales, a potential concern for an integrated proprietary aggregation unit is the possibility that the specialist unit could be selling (buying) one of the securities registered to it and an individual or trading system of the integrated proprietary aggregation unit could at the same time be buying (selling) that same security at the Exchange. With the proper use of mnemonics associated with those orders, Exchange systems are capable of rejecting one side of those orders. Because the presumption would be in favor of the specialist unit trading, i.e., to meet its affirmative obligations at the Exchange, the NYSE proposes rejecting the order from the integrated proprietary aggregation unit.
The NYSE also proposes that to the extent an integrated proprietary aggregation unit directs its trading at the Exchange in any security that has been allocated to the specialist unit through the specialist unit, such trading would be subject to the specialist rules. In other words, while the specialist unit would be subject to certain market-making obligations while trading at the Exchange, the integrated proprietary aggregation unit's independent “upstairs” operations would be able to trade freely.
Finally, to ensure that NYSE Regulation can review the trading activities of the integrated proprietary aggregation unit, proposed Rule 98(d)(4) requires member organizations to maintain audit trail information for any trading by such unit, including trading at the Exchange and at other market centers. The NYSE proposes to amend NYSE Rule 132B to have the Order Tracking System (“OTS”) requirements apply to trading by a specialist unit, and if applicable, an integrated proprietary aggregation unit. Member organizations must maintain sufficient records to reconstruct in a time-sequenced manner its trading in securities allocated to the specialist unit and any trading by the integrated proprietary aggregation unit in those securities in other market centers or trading in related products.
As with the approval process under proposed Rule 98(c), to obtain approval to operate a specialist unit within an integrated proprietary aggregation unit, a member organization would need to submit its written policies and procedures to NYSE Regulation for review of whether such policies and procedures are reasonably designed to meet the rule requirements. Once approved under proposed Rule 98(d), NYSE Regulation and FINRA would continue to examine whether a specialist unit's policies and procedures continue to meet the rule requirements and whether the implemented controls and surveillances plans are functioning as designed.
One of the restrictions of current Rule 98 is the limit on a specialist member organization and its approved persons to share operational support personnel. In its current form, Rule 98(c) permits dual affiliation only if the specialist member organization and approved person provide the Exchange with a written statement of the duties of such person and why it is necessary for the individual to have a dual affiliation. Any changes to dual affiliations must be submitted to the Exchange for approval in advance of making such change.
The NYSE believes that current Rule 98(c) unnecessarily restricts the ability of a specialist member organization and its approved person to share non-trading related services,
As with the approval process to become a specialist unit, the approval process for a specialist unit to share non-trading related services with its parent member organization or approved person would require the specialist unit to: (1) Adopt written policies and procedures governing the sharing or non-trading related services; (2) establish a process for regular review of such written policies and procedures; and (3) implement controls and surveillances reasonably designed to prevent and detect violations of those policies and procedures. In accordance with the purpose of Rule 98, such policies and procedures must be reasonably designed to protect specialist confidential information and non-public order information.
The NYSE understands that personnel or systems that provide non-trading related services may have access to specialist confidential information or non-public order information. For example, clearance and settlement services would have knowledge of specialist positions in securities, and technological support personnel may have knowledge of how a specialist algorithm conducts its trading. However, access to such information should not be the basis for restricting the sharing of such personnel or systems. Rather, such personnel or systems can be shared so long as the specialist unit has controls reasonably designed to ensure that the individuals or systems who have access to specialist confidential information or non-public information neither provide nor make available that information to any
Before a specialist unit can share non-trading related services, NYSE Regulation will review whether the specialist unit has adopted policies and procedures and controls and surveillances reasonably designed to protect specialist confidential information and non-public order information. Once approved, a specialist unit would no longer need to provide NYSE Regulation with a written statement of why a certain individual has a dual affiliation and update such written statements if the individual involved changes. On an ongoing basis, NYSE Regulation and FINRA will examine whether the specialist unit's policies and procedures and controls comply with the requirements of the rule.
Specialist member organizations and their approved persons are currently limited in their ability to manage the specialist member organization's trading risks: Rule 98 currently restricts an approved person from being involved in any trading decisions of an associated specialist member organization; Rule 105 currently restricts the specialist member organization's ability to trade in options and single-stock futures related to the securities allocated to the specialist member organization. Together, these restrictions place specialist member organizations at a competitive disadvantage vis-à-vis other market-making or trading firms.
The NYSE believes that the changes to the marketplace that have occurred since 1987, when Rule 98 was adopted, call for an overhaul of how specialist units are permitted to manage their risk. For example, when Rule 98 was adopted, the NYSE enjoyed an approximately 85% market share in trading of NYSE-listed securities and specialists participated in approximately 12% of the transactions at the Exchange. Now, the NYSE's market share for listed securities hovers under 40%, and of that, specialist participation is in the range of two percent. These numbers are telling: Because of automatic executions at the Exchange, specialists no longer have a unique advantage over other market participants. To the contrary, specialists are now at a disadvantage to other market participants because they must meet their affirmative and negative obligations to the Exchange, yet cannot participate in the type of hedging activities that other market participants may and can do.
Accordingly, the Exchange proposes providing specialist units with the ability to manage their risks by broadening the ability to trade in related products and expanding the universe of who may be involved in managing the risk of the specialist unit. Because there is no single correct model for risk management, the NYSE proposes providing specialist units with options of how to manage their risk, which they can choose to use in combination or alone. Regardless of which model a specialist unit proposes to adopt for risk management, at all times, the specialist unit will be ultimately responsible for its quoting or trading decisions at the Exchange.
In order to provide a specialist unit with greater risk management tools, the NYSE proposes permitting specialist units to apply for an exemption from the Rule 105(b)-(d) restrictions on trading options and single-stock futures. In connection with this change, the NYSE proposes amending Rule 105 so that it applies only to a specialist unit, and not to any other departments or units of a member organization or approved person. If approved for an exemption from Rule 105, a specialist unit would be permitted to trade in related products, subject to proposed Rule 98(f)(1).
As proposed, to obtain an exemption from Rule 105, the specialist unit must: (i) Adopt and implement comprehensive written procedures and guidelines governing the conduct of trading in related products; (ii) establish a process for regular review of such written procedures and guidelines; and (iii) implement controls and surveillances reasonably designed to prevent and detect violations of these procedures and guidelines.
These policies and procedures must be reasonably designed to ensure that the individuals or systems responsible for trading related products do not have access to non-public order information, or, unless otherwise specifically provided for, specialist confidential information. In addition, individuals who work on the Floor of the Exchange would not be permitted to trade or direct trading in related products, nor would the specialist API be permitted to make any trading decisions in related products. Accordingly, any trading in related products by the specialist unit must be conducted by an off-Floor,
The NYSE believes that a specialist unit should have the flexibility to transfer its employees among different functions within the unit. Accordingly, the proposed rule does not expressly prohibit specialists from trading in related products; it only bars directly entering or executing trades in related products while on the Floor of the Exchange.
To ensure that the specialist unit upstairs desk that trades in related products can effectively hedge the specialist unit's positions, the NYSE proposes that the specialist unit upstairs desk have electronic access to the trades by the specialist unit at the Exchange in securities allocated to the specialist unit
Currently, senior managers of specialist member organizations can be privy to information about trading on the Floor of the Exchange as well as any hedging conducted by the specialist member organization, even though such hedging opportunities are limited. For example, currently, a specialist on the Floor can call his or her senior manager to discuss hedging strategies. Under the proposed exemption from Rule 105, the NYSE believes that specialist unit senior managers should be able to continue in that role and provide oversight of both Floor specialist operations and any specialist unit upstairs trading in related products. The NYSE believes that the oversight model that works for larger broker-dealers, whose senior managers have a role with respect to multiple aggregation units, should apply within a specialist unit as well.
Accordingly, the NYSE proposes Rule 98(f)(1)(vi) to address how a senior manager of a specialist unit should handle situations where he or she has access to non-public order information in connection with his or her role as a senior manager. As with proposed Rule 98(c)(2)(E), when trading in related products, the specialist unit must have policies and procedures reasonably designed to ensure that the specialist unit senior manager who has access to non-public order information does not provide such information to the specialist unit upstairs trading desk responsible for trading related products or use such non-public information to directly or indirectly influence trading by that upstairs desk.
Proposed Rule 98(f)(2) addresses how an integrated proprietary aggregation unit that has been approved pursuant to proposed Rule 98(d) to include a specialist unit could engage in risk management of the specialist unit's positions. At a minimum, an integrated proprietary aggregation unit must have policies and procedures that are reasonably designed to meet the protections enumerated in the rule, including how it trades in related products on behalf of a specialist unit and how it electronically accesses the specialist unit's trades at the Exchange in securities allocated to the specialist unit that have been printed to the Consolidated Tape.
In addition, proposed Rule 98(f)(2)(A)(i) would permit an integrated proprietary aggregation unit to send appetites of trading or quoting direction to the specialist unit. In practice, this would permit a non-specialist unit “upstairs” risk management desk that has real-time access both to the specialist unit's positions in securities allocated to it and to the integrated proprietary aggregation unit's positions in related products and other securities to provide electronic direction to the specialist unit of whether to trade or quote in a certain direction. The Exchange believes that permitting an integrated proprietary aggregation unit to send quoting messages that are based on real-time positions of the unit as a whole will enable a specialist unit to better meet any quoting requirements at the Exchange. In other words, the specialist unit will no longer need to operate in a vacuum when determining how or when to quote at the Exchange.
As proposed, the specialist unit would be ultimately responsible for whether to accept the electronic trading direction submitted by the integrated proprietary aggregation unit upstairs desk; a specialist unit must comply at all times with its market-marking obligations, including the specialist rules, notwithstanding any electronic trading directions received from that upstairs desk. Stated otherwise, the specialist unit would operate independently and be free to accept or reject the electronic trading directions sent by the integrated proprietary aggregation unit. However, to the extent an integrated proprietary aggregation unit causes a specialist unit to violate one or more of the specialist rules, the Exchange proposes that in such case, the integrated proprietary aggregation unit should also be held to those standards.
At this time, as noted above, because of access to non-public order information, the NYSE does not believe it would be feasible to permit communications, whether verbal or electronic, from the specialist or the specialist API to the individuals or systems responsible for trading in related products and other securities within the integrated proprietary aggregation unit, or, if applicable, to an upstairs desk within the specialist unit. However, as the NYSE market model evolves, the NYSE will continue to review how best to integrate a specialist unit within an integrated proprietary aggregation unit, including the possibility of fully integrating the trading systems that interact with the Exchange for the specialist unit and the trading systems that trade in related products and other securities. The NYSE believes that ultimately, a competitive trading model would permit full integration, including permitting two-way communications among trading desks.
As proposed, another option available to firms to manage the risk of the specialist unit is to permit a separate integrated proprietary aggregation unit that is housed in either an approved person or a member organization that runs a specialist unit to provide the same level of risk management as proposed for an integrated proprietary aggregation unit that includes a specialist unit. This option would provide flexibility for broker-dealers that want to keep the specialist unit as a separate member organization or aggregation unit, yet still have an approved person or separate aggregation unit provide risk management services for the specialist unit.
As with proposed Rule 98(f)(2), proposed Rule 98(f)(3) would require that the approved person not have access to either specialist confidential information and non-public order information, except as provided for in that section of the rule. Specifically, an integrated proprietary aggregation unit of an approved person could have access to the trades by a specialist unit at the Exchange in securities allocated to that unit, so long as such trades have been printed to the Consolidated Tape.
And as with proposed Rule 98(f)(2), an approved person could send electronic appetites of how the specialist unit should trade or quote in its allocated securities. As discussed above, a specialist unit would be free to reject or accept such electronic directions as it sees fit to meet its market-making obligations at the Exchange.
The Exchange notes that an approved person that provides risk management under this proposed section may not itself be an NYSE member organization. In such case, the individuals at the approved person responsible for making risk management decisions on behalf of the specialist unit should be dually employed by the specialist unit that is part of an NYSE member organization and the approved person so that they are subject to the jurisdiction of NYSE Regulation.
The NYSE proposes to keep certain provisions of current Rule 98, but adjust them to reflect the changes to the rest of the rule. In particular, current Rule 98(i) has been amended and is included in proposed Rule 98(g); current Rule 98(j) has been amended and is included in
Under proposed Rule 98(g), as with the current rule, if a specialist becomes aware of non-public material information from its approved person or parent member organization, such specialist may have to cease acting as a specialist in the security involved, which was formerly referred to as “giving up the Book.” The proposed rule does not change how such determinations would be made. However, the proposed rule updates the language of the rule and separates the rule into easier-to-read subsections.
Under proposed Rule 98(h), the NYSE proposes adding to the existing reporting obligations that a specialist unit must report any actual breaches or internal investigations of possible breaches of the information barriers required by the rule. The reporting obligation for internal investigations is intended to be similar in effect to the reporting obligation pursuant to NYSE Rules 351(e) and 342.21. In particular, under proposed Rule 98(h)(4), a specialist unit will be required to conduct an internal investigation into any trading activity that may be a result of a breach of the information barriers required by proposed Rules 98(c), (d), (e), and (f). On a quarterly basis, a specialist unit must report in writing to NYSE Regulation whether it has commenced such an internal investigation, the quarterly progress of any open investigations, what remedial measures, if any, were taken, and the completion of any internal investigation, including the methodology and results of such investigation, any internal disciplinary action taken, and any referral of the matter to the NYSE, another self-regulatory organization, or the Commission.
Finally, as with the current rule, proposed Rule 98(i) provides that any breach of the proposed Rule could result in disciplinary action, including the withdrawal of one or more securities allocated to the specialist unit or withdrawal of approval to operate a specialist unit. The Exchange notes that as with the current rule, any trading by any person while in possession of material, non-public information received as a result of any breach of internal controls required by proposed Rule 98 may violate Rule 10b-5 of the Act,
As noted above, because of the shift in paradigm away from approved persons, the NYSE proposes amending those NYSE rules that refer to approved persons and the need for an exemption from Rule 98.
NYSE Rule 98A requires approved persons to agree in writing not to cause a specialist or odd-lot dealer to violate rules applicable to the specialist or odd-lot dealer. The rule further requires that approved persons report to the Exchange any off-Floor orders for securities in which an associated specialist member organization specializes for any account in which the approved person has a direct or indirect interest.
Because of the proposed changes to Rule 98, and in particular, the recognition that an appropriately walled-off specialist unit ameliorates the need to scrutinize the trading by an approved person, the NYSE proposes eliminating those portions of Rule 98A that concern approved persons. However, the NYSE would keep the limitation on an issuer, or a partner or subsidiary thereof, from becoming an approved person of a specialist unit.
In their current form, NYSE Rules 99, 103B, 104, and 113 specifically apply to approved persons, unless such approved person has obtained an exemption under Rule 98. To ensure consistency among NYSE rules, and in particular, to ensure that the revised paradigm of proposed Rule 98 is consistently applied, the NYSE proposes to amend Rules 99, 103B, 104, and 113 to eliminate the references to approved persons.
In addition, the Exchange proposes to delete Rule 102, which concerns trading in options by odd-lot dealers. Because the Exchange no longer has separate odd-lot dealers and all specialists are also responsible for odd-lot trading in securities in which they are registered, there is no need for a separate rule governing trading in related products by an odd-lot dealer. Accordingly, because Rule 102 is duplicative of the standards set forth in proposed Rules 98 and 105, the Exchange proposes deleting that rule.
In addition to amending Rule 460 to ensure consistent application of proposed Rule 98 and making other non-substantive changes, the NYSE proposes eliminating Rule 460.20 that approved persons of specialist member organizations be held to any limits on beneficial ownership of any equity security in which an associated specialist unit is registered. Instead, as proposed, any limitations on beneficial ownership should apply only to the specialist unit that has been approved pursuant to proposed Rule 98, and not to any other aggregation unit or other department or division of the member organization.
With respect to the specialist unit's beneficial ownership of outstanding shares of securities allocated to such unit, the NYSE proposes to amend NYSE Rule 460.10 to require that a specialist unit report when its beneficial ownership of outstanding shares exceeds 5% and to update such report if the beneficial ownership either falls below 5% or exceeds 10%. The NYSE thus proposes to eliminate the requirement that a specialist unit seek NYSE Regulation approval before it may have more than 10% beneficial ownership of a listed security. The NYSE believes that because of the reduced market share of the NYSE and the limited impact of specialist trading on securities allocated to a specialist unit, the protections of the existing rule are no longer necessary. However, the NYSE proposes retaining the prohibition on a specialist unit having beneficial ownership of more than 25% of the outstanding shares in a security allocated to such unit. Because the changes to the marketplace are in effect now, the Exchange believes that the changes to Rule 460 should be implemented notwithstanding whether a specialist member organization continues to operate under Rule 98 (Former). Accordingly, the Exchange proposes having a single version of Rule 460 to reflect the proposed amendments.
The Exchange believes the proposed rule change is consistent with and
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.
No written comments were solicited or received with respect to the proposed rule change.
Within 35 days of the date of publication of this notice in the
(A) By order approve 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 Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-NYSE-2008-45. 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 Exchange proposes to amend its Rules 1012 (Series of Options Open for Trading) and 1101A (Terms of Option Contracts), in order to extend for a period of one year an Exchange pilot program (the “Pilot Program”) to permit the listing and trading of options series that may be opened for trading on any business day and expire at the close of business on the last business day of a calendar quarter (“Quarterly Options” or “Quarterly Options Series”). The Pilot Program currently continues through July 10, 2008.
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 purpose of the proposed rule change is to extend the Pilot Program for a period of one year so that the Exchange may continue to list and trade Quarterly Options within the parameters specified in its Rules 1012 and 1101A. In February 2007, the Commission approved the Pilot Program allowing the listing and trading of Quarterly Options on the Exchange, and thereafter extended the Pilot Program through July 10, 2008.
In the Commission Order approving the Pilot Program, the Commission indicated that if the Exchange seeks extension, expansion, or permanent approval of the Pilot Program, it must submit a Pilot Program Report (the “Report”) that must include, at a minimum: (1) Data and written analysis on the open interest and trading volume in the classes for which Quarterly Option Series were opened; (2) an assessment of the appropriateness of the options classes selected for the Phlx Pilot; (3) an assessment of the impact of the Pilot Program on the capacity of Phlx, Options Price Reporting Authority (“OPRA”), and on market data vendors (to the extent data from market data vendors is available); (4) any capacity problems or other problems that arose during the operation of the Pilot Program and how Phlx addressed such problems; (5) any complaints that the Phlx received during the operation of the Pilot Program and how the Phlx addressed them; and (6) any additional information that would assist in assessing the operation of the Pilot Program.
The Report reviews the Exchange's experience with the Pilot Program and clearly supports the Exchange's belief that extension of the Pilot Program is proper. Among other things, the Exchange believes that the Report shows the strength and efficacy of the Pilot Program on the Exchange as reflected by the strong volume of Quarterly Options traded on Phlx since the Pilot Program's inception in February 2007. The Exchange further believes that the Report establishes that the Pilot Program has not created, and in the future should not create, capacity problems for the Exchange or the OPRA system. Moreover, the Exchange represents that it has the necessary systems capacity to support new options series that will result from the introduction of Quarterly Options Series.
The Exchange believes that extending the Pilot Program would continue to provide investors with a flexible and valuable tool to manage risk exposure, minimize capital outlays, and be more responsive to the timing of events affecting the securities that underlie option contracts.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has designated the proposed rule change as one that: (1) Does not significantly affect the protection of investors or the public interest; (2) does not impose any significant burden on competition; and (3) does not become operative for 30 days from the date of filing, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest. Therefore, the foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
The Exchange has asked the Commission to waive the operative delay to permit the proposed rule change to become operative prior to the 30th day after filing. The Commission has determined that waiving the 30-day operative delay of the Exchange's proposal is consistent with the protection of investors and the public interest and will promote competition because such waiver will allow Phlx to continue the existing Pilot without interruption.
At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate
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 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”)
Phlx proposes to assess equity option charges, as opposed to index option charges, on: (1) Options on the full value of the Nasdaq 100 Index
In addition, the Exchange proposes to adopt a $0.10 per contract side license fee on “firm-related” comparison and transaction charges for the Nasdaq Index Products.
In addition, the Exchange proposes to amend its Summary of Equity Option and RUT and RMN Charges to reflect that a $0.10 license fee on the Nasdaq Index Products will be assessed in connection with the Exchange's current cap on Registered Options Traders (“ROT”) comparison charges and ROT and specialist transaction charges
This proposal is schedule to become effective for transactions settling on or after June 16, 2008.
The text of the proposed rule change is available at the Exchange's principal office, on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for the proposed rule change, and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item 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 purpose of this proposal is to assess equity option charges, including payment for order flow charges, on the Nasdaq Index Products that are competitive with charges assessed on these same products by other exchanges.
The purpose of assessing the Nasdaq Index Products a license fee of $0.10 per contract side after reaching the $60,000 cap and the 14,000 cap as described herein is to help defray licensing costs associated with the trading of these products, while still capping member organizations' fees enough to attract volume from other exchanges.
The Exchange believes that its proposal to amend its schedule of fees is consistent with Section 6(b) of the Act
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were either solicited or received.
Because the foregoing rule change is establishing or changing a due, fee, or other charge applicable only to a member, it has become effective 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 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.
Office of the Secretary (OST), Department of Transportation (DOT).
Notice of meeting of advisory committee.
This notice announces a meeting of the National Task Force to Develop Model Contingency Plans to Deal with Lengthy Airline On-Board Ground Delays.
The Task Force meeting is scheduled for July 24, 2008, from 8:30 a.m. to 5 p.m., Eastern Time.
The Task Force meeting will be held at the U.S. Department of Transportation (U.S. DOT), 1200 New Jersey Avenue, SE., Washington, DC, in the Oklahoma City Conference Room on the lobby level of the West Building.
Livaughn Chapman, Jr., or Kathleen Blank-Riether, Office of the General Counsel, U.S. Department of Transportation, 1200 New Jersey Ave., SE., W-96-429, Washington, DC 20590-0001; Phone: (202) 366-9342; Fax: (202) 366-7152; E-mail:
In accordance with the Federal Advisory Committee Act (FACA), 5 U.S.C. App.2, and the General Services Administration regulations covering management of Federal advisory committees, 41 CFR Part 102-3, this notice announces a meeting of the National Task Force to Develop Model Contingency Plans to Deal with Lengthy Airline On-Board Ground Delays. The Meeting will be held on July 24, 2008, between 8:30 a.m. and 5 p.m. at the U.S. Department of Transportation (U.S. DOT), 1200 New Jersey Avenue, SE., Washington, DC, in the Oklahoma City Conference Room on the lobby level of the West Building.
DOT's Office of Inspector General recommended, in its audit report, entitled “Actions Needed to Minimize Long, On-Board Flight Delays,” issued on September 25, 2007, that the Secretary of Transportation establish a national task force of airlines, airports, and the Federal Aviation Administration (FAA) to coordinate and develop contingency plans to deal with lengthy delays, such as working with carriers and airports to share facilities and make gates available in an emergency. To effectuate this recommendation, on January 3, 2008, the Department, consistent with the requirements of the FACA, established the National Task Force to Develop Model Contingency Plans to Deal with Lengthy Airline On-Board Ground Delays. The first meeting of the Task Force took place on February 26, 2008.
The agenda topics for the July 24, 2008, meeting will include the following: (1) An update by the Contingency Plan Working Group, the working group that is tasked with reviewing existing airline and airport contingency plans for extended tarmac delays for best practices and developing a model contingency plan, on the Working Group's progress; and (2) one or more presentations on recent tarmac delay events and efforts to avoid them.
Attendance is open to the public, and time will be provided for comments by members of the public. Since access to the U.S. DOT headquarters building is controlled for security purposes, any member of the general public who plans to attend this meeting must notify the Department contact noted above ten (10) calendar days prior to the meeting. Attendance will be necessarily limited by the size of the meeting room.
Members of the public may present written comments at any time and, at the discretion of the Chairman and time permitting, oral comments at the meeting. Any oral comments permitted must be limited to agenda items and will be limited to five (5) minutes per person. Members of the public who wish to present oral comments must notify the Department contact noted above via email that they wish to attend and present oral comments at least ten (10) calendar days prior to the meeting. For this July 24, 2008, meeting, no more than one hour will be set aside for oral comments. Although written material may be filed in the docket at any time, comments regarding upcoming meeting topics should be sent to the Task Force docket, (10) calendar days prior to the meeting. Members of the public may also contact the Department contact noted above to be placed on the Task Force mailing list.
Persons with a disability requiring special accommodations, such as an interpreter for the hearing impaired, should contact the Department contact noted above at least seven (7) calendar days prior to the meeting.
Notice of this meeting is provided in accordance with the FACA and the General Service Administration regulations covering management of Federal advisory committees.
Federal Highway Administration (FHWA), DOT.
Notice and request for comments.
The FHWA has forwarded the information collection request described in this notice to the Office of Management and Budget (OMB) to renew an information collection. We published a
Please submit comments by August 4, 2008.
You may send comments within 30 days to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW., Washington, DC 20503, Attention DOT Desk Officer. You are asked to comment on any aspect of this information collection, including: (1) Whether the proposed collection is necessary for the FHWA's performance; (2) the accuracy of the estimated burden; (3) ways for the FHWA to enhance the quality, usefulness, and clarity of the collected information; and (4) ways that the burden could be minimized, including the use of electronic technology, without reducing the quality of the collected information. All comments should include the Docket number FHWA-2008-0088.
Mr. Kreig Larson, 202-366-2056, Office of Project Development and Environmental Review, Office of Planning and Environment, Federal Highway Administration, Department of Transportation, 1200 New Jersey Avenue, SE., Washington, DC 20590. Office hours are from 8 a.m. to 4:30 p.m., Monday through Friday, except Federal holidays.
The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended; and 49 CFR 1.48.
Federal Highway Administration (FHWA), DOT.
Notice of Intent.
The FHWA, on behalf of the California Department of Transportation (Caltrans), is issuing this notice to advise the public that an Environmental Impact Statement (EIS) will be prepared for the proposed State Route 91 (SR-91) Corridor Improvement Project, in the Counties of Orange and Riverside, California.
Russell Williams, Office Chief, California Department of Transportation, Division of Environmental Planning, 464 West 4th Street, 11th Floor, San Bernardino, CA 92401; or call (909) 383-1554.
Effective July 1, 2007, the Federal Highway Administration (FHWA) assigned, and Caltrans assumed environmental responsibilities for this project pursuant to 23 U.S.C. 327. Caltrans will prepare an EIS on a proposal to increase capacity within the project segments of the SR-91 (between the State Route 241 and Pierce Street) and the Interstate 15 (between Cajalco Road and Hidden Valley Parkway), in the Counties of Orange and Riverside, California.
The proposed improvements is considered necessary to facilitate movement of people and goods between the Counties of Orange and Riverside, by improving travel conditions for work, recreation, school, commerce, as well as all other trip purposes. Alternatives under consideration include (1) Taking no action; (2) High Occupancy Vehicle (HOV) Lanes; (3) High Occupancy Toll (HOT) Lanes.
Letters describing the proposed action and soliciting comments will be sent to appropriate Federal, State and local agencies, and to private organizations and citizens who have previously expressed or are known to have interest in this proposal. In addition, interested Tribal governments will be involved as determined by the Native American Heritage Commission consultation. Public information meetings will be held to discuss the alternatives and the potential impacts of the proposed action. Public notice will be given of the time and place of the public meetings as well as the public hearings. The draft EIS will be available for public and agency review and comment prior to the first public meeting.
To ensure that the full range of issues related to this proposed action is addressed and that all significant concerns are identified, comments and suggestions are invited from all interested parties. Comments or questions concerning this proposed action and the EIS should be directed to
National Highway Traffic Safety Administration, DOT.
Notice.
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Comments must be submitted on or before August 4, 2008.
David Sparks, National Highway Traffic Safety Administration, Office of Odometer Fraud Investigation (NVS-230), 202-366-4761. 1200 New Jersey Avenue, SE., Room W55-318, Washington, DC 20590.
National Highway Traffic Safety Administration
NHTSA received comments from: South Dakota Department of Revenue & Regulation, Texas Department of Transportation Vehicle Titles and Registration, Virginia Department of Motor Vehicles, and Wisconsin Department of Transportation. Each commenter cites a need for the ability to disclose odometer information electronically in a paperless environment. Texas and Virginia specifically reference a petition filed with NHTSA by the Virginia Department of Motor Vehicles seeking approval of alternate odometer disclosure requirements, to wit, electronic odometer statements. NHTSA has preliminarily granted Virginia's proposed alternate disclosure requirements and is seeking public comments concerning Virginia's proposal via the
Additionally, Wisconsin suggests eliminating the ten-year exemption for odometer disclosure statements and conversely Virginia supports the ten-year exemption. NHTSA is reviewing the ten-year exemption and may seek comments in a future
This ICR notice concerns only the information collection requirements under current law, and does not relate to the issues raised by those commenting.
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.
Hyundai Motor Company (Hyundai), has determined that certain vehicles that it manufactured during the period beginning July 14, 2006 through November 23, 2007, did not fully comply with paragraph S9.5 of 49 CFR 571.225 (Federal Motor Vehicle Safety Standard (FMVSS) No. 225 Child Restraint Anchorage Systems). On November 28, 2007 Hyundai filed an appropriate report pursuant to 49 CFR Part 573, Defect and Noncompliance Responsibility and Reports.
Pursuant to 49 U.S.C. 30118(d) and 30120(h) and the rule implementing those provisions at 49 CFR Part 556, Hyundai has petitioned for an exemption from the notification and remedy requirements of 49 U.S.C. Chapter 301 on the basis that this noncompliance is inconsequential to motor vehicle safety. Notice of receipt of the petition was published, with a 30-day public comment period, on March 25, 2008 in the
For further information on this decision, contact Mr. Ed Chan, Office of Vehicle Safety Compliance, the National Highway Traffic Safety Administration (NHTSA), telephone (202) 493-0335, facsimile (202) 366-3081.
Affected are approximately 115,000 model years 2007 and 2008 Hyundai Elantra passenger cars produced beginning July 14, 2006 through November 23, 2007.
Paragraph S9.5 of 49 CFR 571.225 requires in pertinent part that:
S9.5 Marking and conspicuity of the lower anchorages. Each vehicle shall comply with S9.5(a) or (b).
(a) Above each bar installed pursuant to S4, the vehicle shall be permanently marked with a circle:
(1) That is not less than 13 mm in diameter;
(2) That is either solid or open, with or without words, symbols or pictograms, provided that if words, symbols or pictograms are used, their meaning is explained to the consumer in writing, such as in the vehicle's owners manual; and
(3) That is located such that its center is on each seat back between 50 and 100 mm above or on the seat cushion 100 (±) 25 mm forward of the intersection of the vertical transverse and horizontal longitudinal planes intersecting at the horizontal centerline of each lower anchorage, as illustrated in Figure 22. The center of the circle must be in the vertical longitudinal plane that passes through the center of the bar (±25 mm).
(4) The circle may be on a tag.
(b) The vehicle shall be configured such that the following is visible: Each of the bars installed pursuant to S4, or a permanently attached guide device for each bar. The bar or guide device must be visible without the compression of the seat cushion or seat back, when the bar or device is viewed, in a vertical longitudinal plane passing through the center of the bar or guide device, along a line making an upward 30 degree angle with a horizontal plane. Seat backs are in the nominal design riding position. The bars may be covered by a removable cap or cover, provided that the cap or cover is permanently marked with words, symbols or pictograms whose meaning is explained to the consumer in written form as part of the owner's manual.
Hyundai described the noncompliance as the failure to provide specific written explanation of the meaning of the pictogram that appears on the lower anchorage identification circles in the owner's manuals provided with the affected vehicles.
Hyundai explained its belief that paragraph S9.5 of FMVSS No. 225 requires that above each child restraint lower anchorage the vehicle shall be permanently marked with: A circle that is not less than 13 mm in diameter, that is either solid or open, with or without words, symbols or pictograms, provided that if words, symbols or pictograms are used, their meaning is explained to the consumer in writing, such as in the vehicle's owner's manual.
Hyundai also explained that the owner's manuals of the affected vehicles contain a section titled “Child seat lower anchorages” that provides illustrations indicating the locations of the child restraint lower anchorages and written descriptions of the locations of the child restraint lower anchorages. Hyundai expressed its belief that the vehicles are properly marked, as required by paragraph S9.5 of FMVSS No. 225, with solid circles to identify the locations of the lower anchorages. Hyundai also stated that those solid circles contain pictograms, which represent a child seated in a child restraint. However, the owner's manuals provided with the affected vehicles do not contain a specific written explanation of the meaning of the pictogram that appears on the identification circles.
Hyundai states that it believes the noncompliance is inconsequential to motor vehicle safety for the following reasons:
(1) When the requirements of paragraph S9.5 were first implemented over 7 years ago, there may have been the potential to misunderstand the newly adopted child restraint lower anchorage identification mark. Therefore, NHTSA decided that a circle must be used, to standardize the symbol used to identify the anchorages, because standardization would likely increase user recognition of the symbol. The standardized circle has now appeared in almost every U.S. vehicle for more than 7 years, allowing the public to gain familiarity with its purpose. In reference to the identification circles, FMVSS 225 No. S9.5(a)(2) states that they may be “with or without words, symbols or pictograms”. If the identification circle does not contain any pictogram, it does not require a written explanation.
(2) The simple pictogram representing a child seated in a child restraint enhances the identification provided by the circle. The missing written explanation of the meaning of the pictogram does not affect the ability of a person to locate the lower anchorages, aided by the visual indication of the identification circles and the illustrations and written explanations provided in the owner's manual, and does not affect the ability of the lower anchorages to properly secure a child restraint.
In addition, Hyundai stated that even though it will include a written explanation in future printings of the subject owner's manual, it strongly believes that the missing written explanation is an inconsequential noncompliance that poses no threat to the safety of its customers.
Hyundai also states that no customer complaints have been received related to the lack of a written explanation of the meaning of the pictogram or any problems that may have resulted from the lack of a written explanation of the meaning of the pictogram.
Hyundai requested that NHTSA consider its petition and grant an exemption from the recall requirements of the National Traffic and Motor Vehicle Safety Act on the basis that the noncompliance described above is inconsequential as it relates to motor vehicle safety.
NHTSA agrees with Hyundai that the noncompliance is inconsequential to motor vehicle safety.
The pictogram that Hyundai imprinted on the lower anchorage identification circles is designated by the ISO (the International Organization for Standardization), a worldwide federation of national standards bodies, as a “child seat”
Although a description of the pictogram in the owner's manual can improve a user's recognition of the purpose for the lower anchorages, we think the risk created by this particular noncompliance is negligible with no impact on child occupant safety.
In consideration of the foregoing, NHTSA has decided that Hyundai has met its burden of persuasion that the labeling noncompliances described are inconsequential to motor vehicle safety. Accordingly, Hyundai's petition is granted and the petitioner is exempted from the obligation of providing notification of, and a remedy for, the noncompliances under 49 U.S.C. 30118 and 30120.
49 U.S.C. 30118, 30120; delegations of authority at 49 CFR 1.50 and 501.8.
National Highway Traffic Safety Administration (NHTSA), DOT.
National EMS Advisory Council; Notice of Federal Advisory Committee Meeting.
NHTSA announces a meeting of the National Emergency Medical Services Advisory Council (NEMSAC) to be held in the Metropolitan Washington, DC area. This notice announces the date, time and location of the meeting, which will be open to the public. The purpose of NEMSAC is to provide a nationally recognized council of emergency medical services representatives and consumers to provide advice and recommendations regarding EMS to the U.S. DOT's National Highway Traffic Safety Administration (NHTSA).
The meeting will be held on July 17, 2008, from 9 a.m. to 5 p.m. and July 18, 2008, from 9 a.m. to Noon. A public comment period will take place on July 18, 2008, between 10:45 a.m. and 11:15 a.m.
The meeting will be held at the Marriott Crystal City at Reagan National Airport, 1999 Jefferson Davis Highway, Arlington, VA 22202. Persons wishing to make an oral presentation or who are unable to attend or speak at the meeting may submit written comments. Written comments and requests to make oral presentations at the meeting should reach Drew Dawson at the address listed below and must be received by July 10, 2008.
All submissions received must include the docket number, NHTSA-2008-0126 and may be submitted by any one of the following methods:
You may submit or retrieve comments online through the Document Management System (DMS) at
An electronic copy of this document may be downloaded from the
Please note that even after the comment closing date, we will continue to file relevant information in the docket as it becomes available.
E-mail:
Fax: (202) 366-7149.
Drew Dawson, Director, Office of Emergency Medical Services, National Highway Traffic Safety Administration, 1200 New Jersey Avenue, SE., NTI-140, Washington, DC 20590, Telephone number (202) 366-9966; E-mail
Notice of this meeting is given under the Federal Advisory Committee Act (FACA), Public Law 92-463, as amended (5 U.S.C. App. 1
The tentative agenda includes the following:
(1) Opening Remarks and Swearing in of members not in attendance at first meeting;
(2) Introduction of Members and all in attendance;
(3) Review and Approval of Minutes of last meeting;
(4) Discussion of process for prioritizing EMS Issues identified at first meeting;
(5) Voting on priority EMS Issues;
(6) Discussion of potential committees and committee charges.
(1) Welcome and Introductions;
(2) Unfinished Business from July 17th;
(3) Federal Interagency Committee on Emergency Medical Services Report;
(4) New Issues or Concerns;
(5) Public comment period;
(6) Next steps and future meetings.
This meeting will be open to the public. Individuals wishing to register must provide their name, affiliation, phone number, and e-mail address to Drew Dawson by e-mail at
Minutes of the NEMSAC Meeting will be available to the public online through the DOT Document Management System (DMS) at:
In rule document R8-7999 beginning on page 37096 in the issue of Monday, June 30, 2008, make the following correction:
On page 37192, in § 86.117-96(d)(2), the equation is being reprinted to read as follows: